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Fishermen and Friends of The Sea v. The Environmental Management Authority Respondent Et Al
On 6 June 2003, the Environmental Management Authority issued a Certificate of Environmental clearance relative to the establishment of an expansion of liquefied gas producing and operation facilities at Point Fortin. A public interest body brought proceedings on behalf of areas adjacent to the facility that feared that their health had been or was likely to be seriously affected by the expansion. The claimant contended that the decision to issue the certificate was unlawful on the grounds of illegality, procedural impropriety, unreasonableness and/or irrationality. In its view, the authority had failed its statutory duty to consider all relevant matters before taking the decision and had created in favour of the residents a legitimate expectation that their concerns would be considered and addressed prior to issuing a certificate and that such certificate would not be granted until so considered and addressed. Furthermore, the authority had erred in law by not holding a public consultation in accordance with the legal requirements for further discussions in light of the written comments it received on the Environmental Impact Assessment.
I am not persuaded that the EMA failed to consider all relevant matters, or that it failed to consider them properly. These reports and comments dealt with all aspects of the matters raised by FFOS and the residents, as well as other parties. Not all of the input received by the EMA was uncritical of the EIA. Indeed, reservations, some in stronger terms than others, were expressed by e.g. DNV and the Ministry of Energy. In these instances (of reservation and criticism) further input was sought and considered.
I agree with the submissions on behalf of the EMA and ALNG. There is no evidence that the EMA surrendered its duty to any of the independent third parties commissioned to review the EIA. The evidence shows a process of assessment and determination, and that the EMA considered the advice but acted independently. It gave greater weight to some of the recommendations than others and even disregarded some of the advice provided entirely. One example is the issue of the establishment of the buffer zone. The EMA declined to follow some of the advice given on this issue and decided that it was best for this plan to be developed by ALNG. None of that, however, demonstrates any surrender of its powers, duties or functions. It is clear, therefore, that the EMA did not in any way surrender or abdicate its duties to any third party.
The EMA has a broad discretion in determining whether and when to hold public hearings. There is no express provision requiring follow up public hearings before granting the CEC. That is left up to its discretion, and will depend on the circumstances of the case and the severity of the concerns. Follow-up procedures may be considered necessary to fulfil the intention of the section, which is to incorporate the affected community in the decision-making process by way of having this concerns and opinions. Community involvement is one manifestation of the holistic approach adopted by the Act. Environmental degradation has a human face as well; it is not limited to merely land, water and air. Communities frequently face the most severe impacts but are often the least involved in making environmental decisions that affect their well-being.
Section 28 attempts to remedy this by allowing affected communities more meaningful participation in decisions that affect them. It also provides communities with valuable information about the potential health and environmental effects of the project. It affords persons who may be affected the opportunity to voice their concerns, views, comments and recommendations and, correspondingly, places the EMA under a duty to consider what they say. These persons are, in essence, given a fair hearing.
In essence, it aims to achieve environmental justice, which is "the fair treatment and meaningful involvement of all people regardless of race, colour, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies."
I do not accept that the discretion was exercised unreasonably or in a capricious manner. The public was given ample opportunity to put forward its views, suggestions and recommendations. There was no compulsion on the EMA to hold a further meeting after that of 22nd November 2002. It had further communication with FFOS, at or during which the concerns of both FFOS and the residents were clearly articulated. The matters they raised were considered; they were not ignored. The EMA did not consider that a further public meeting for the purpose of discussion was needed, whatever may or may not have been said by Mr. Parsanlal at the meeting of 22nd November.
The rules of natural justice do not necessarily require that there be a formal, oral, hearing in public. It is sufficient if those affected, or likely to be affected, are put into a position that allows their views and opinions to be heard, to be ventilated fully, and that those views and opinions be considered properly in the decision making process. There is no requirement for ongoing public debate.
The EMA was fully aware of the serious complaints and concerns raised by the residents and the public and exercised its discretion in the manner which it considered most appropriate in the circumstances.
There was therefore no illegality, procedural impropriety, or irrationality in not holding a second public meeting for the purpose of further discussion.
It must be remembered that the EMA considered that the consultation process had been accomplished in three stages. First, the ALNG public meeting; second, it established the Administrative Record and comments on the EIA were invited from the public; third, the EMA held its public meeting of 22nd November 2002. There was also correspondence received from FFOS, as well as Dr. Naraynsingh-Chang's report. In those circumstances it cannot realistically be said that FFOS and the residents were not afforded the opportunity to put forward their views. Further, the evidence is that those views were in fact considered.
I do not consider the CEC to be vague or uncertain or meaningless. The conditions inserted reflect the process of consultation, gathering of information and advice from parties considered by the EMA best placed to provide all of this, as well as consideration of the information, advice and views received. The conditions set out in the CEC are wide-ranging and address all of the concerns raised by FFOS and the residents.
Section 36 requires the EMA to consider all relevant matters, including the comments and representations made during the public comment period. The evidence is that this was done and, also, that relevant matters were raised outside this period were also considered.
There is nothing to satisfy me that there was any relevant information to be obtained but which the EMA did not receive, much less ask for. None at least, which would vitiate its decision or the process by which it was made.
I have therefore come to the conclusion that the cumulative impact was considered. A "hard look" was taken, based on the information then available. That information was sufficient in all the circumstances. There was no good reason to defer the decision to a future date. The decision to issue the CEC was not irrational because of a failure to consider the cumulative impact, or to do so properly.
The Court concluded that neither the decision nor the decision-making process were illegal, irrational or procedurally improper and dismissed the motion. No denial of natural justice was found, as the claimant and the residents were all afforded the opportunity, on more than one occasion and in more than one way, to put forward their views, comments and recommendations. They had this opportunity in the full knowledge of what was set out in the EIA. The evidence was that the authority gave proper consideration to their comments in an unbiased, untainted or unaffected way.