People United Respecting the Environment (PURE) and Rights Action Group (RAG) v The Environmental Management Authority (EMA) and Alutrint Ltd. CV 2007-02263
Case brief by: Nicole Mohammed, Environmental lawyer from Trinidad & Tobago
The Claimants applied for judicial review of the decision of the Environmental Management Authority to grant a certificate of environmental clearance (CEC) for the construction of an Aluminium Smelter plant at Union Village, La Brea. Two other claims were filed simultaneously to challenge the application by Smelter Karavan and Harris Maxime and ors. All three applications were heard together. The main grounds of the applications could be summarised as follows: 1. Breach of the precautionary principle embodied in the National Environmental Policy 2. Flawed public consultation 3. Omissions in the EIA rendering the decision illegal or irrational/ Deferral of omitted matters to be dealt with via conditions imposed in the Certificate of Environmental Clearance 4. Failure to consider the cumulative impacts associated with the project.
Breach of precautionary principle: Justice Dean- Amorer in her judgment summarised the relevant case law on the issues raised by the applicant. Notably she declined to follow the approach to irrationality set out in the Jamaican Conservation judgement stating that ‘ In this jurisdiction, it would appear the narrow Wednesbury has not yet received the mortal blow… The test of irrationality continues to be that the decision is reviewable on the ground that it is ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.’ Amorer J considered the relevant case law on the precautionary principle and cited three hurdles which had to be crossed before the principle could be applied: 1. There must be a threat of serious and irreversible damage to the environment which is adequately supported by scientific evidence 2. There must be a lack of full scientific certainty 3. Where these two elements exist the burden of proving that no threat exists is carried by the applicant/developer. This is a burden to be discharged not before the reviewing court but before the decision-maker. Where the developer fails to discharge that burden the decision maker need not necessarily refuse permission. It must assume the threat is a reality and fake it into account together with other factors such as social and economic factors The learned judge concluded that the first two hurdles had been crossed in this case and stated that the decision could be overturned in light of the precautionary principle if the applicants could establish either or both of two situations: 1. If the applicants prove that the EMA failed to apply the precautionary principle 2. The applicants could prove that in light of the requirement to apply the precautionary principle, the decision was so outrageous in defiance of logic that no reasonable authority could have arrived at it. The judge however held that neither of these situations was present on the facts. The applicants had failed to produce any evidence that the EMA had omitted to apply the precautionary principle. Further, she held that the ‘decision was within the band of decisions that could be made by a reasonable decision-maker …who took into account all the factors which were required to be considered , without giving overriding weight to the need for precaution [Telestra Corporation Ltd. v Hornsby Shire Council NSWLEC 133)” Improper Public consultation: Under the EM Act 2000, the EMA is required to finalise a terms of reference (ToR) for the development of the EIA the developer submits in supports of its application. One of the points raised in this case was that the ToR provided for 2 public consultations to be held in the course of the preparation of the EIA: - the first consultation had to be held at the beginning of the preparation of the EIA - the second was required to be held near the end of its preparation. The developer, in breach of the terms of the ToR held two consultations at the end of the EIA process, less than one week apart. The learned judge held that the combined effect of the failure to hold a meeting at the beginning of the EIA process and the close proximity of the two meetings held at the end of that process, operated to frustrate the provisions of the ToR. Having regard to the caution which should be exercised in applying the doctrine of substantial compliance when considering public consultation, she further held that even if there had been substantial compliance with the ToR, it was procedurally irregular for the EMA to have issued the CEC in circumstances where the public consultation was flawed in this way. The judge rejected other arguments relating to the consultation process including those raised in respect of the brevity of the process and the failure of the EM to supervise consultations held by the developer. Deferral of matters for consideration after the grant of the EIA The Certificate of Environmental Clearance contained a number of conditions which provided for the consideration of issues such as decommissioning of the plant, development of emergency plans, medical monitoring plans, spent potlining management plan etc..
The judge held that the EM Act specifically provided for the inclusions of conditions in a CEC. The deferral of these matters was therefore not illegal or ultra vires the powers of the EMA. The judge also held that their deferral did not contravene the right to be consulted in respect of those matters as she took the view that CEC conditions were not subject to the kind of public scrutiny as issues arising before the grant of the CEC. The judge also considered whether the omission of these matters in the EIA rendered the EIA defective and not in compliance with the provisions of the EM Act. Citing the Bacongo case, she expressed the view that the EIA was an information gathering tool and in considering the adequacy of an EIA the Court would not employ a standard of perfection. She noted that taking each of the conditions in turn, she would have to consider firstly whether : (a) the condition sought information which ought properly to have been included in the EIA (b) the decision of the Authority to accept the EIA without such information was irrational or had the effect of frustrating the purpose which an EIA is intended to serve The judge concluded that all of the conditions failed to meet the above criteria save one. The CEC provided for the development of a Spent potlining management plan. Spent pot lining is one of the most hazardous materials generated from the aluminium smelting process. The means of disposal of this material was never resolved in the EIA or the technical documents which supplemented it. The judge expressed the view that it was ‘outrageous’ of the decision maker to leave such a significant issue unresolved before the CEC was granted.
Failure to consider Cumulative Impacts: The EMA received a report on the cumulative impacts of the project just days before it granted the CEC. The judge held that there was no evidence to suggest that the EMA took the ‘hard look’ at cumulative impacts it was required to take before the grant of the CEC. She considered it highly improbable that the EMA could have had the report peer reviewed and drafted the 27 page long CEC within the five day period which elapsed between the submission of the report and the grant of the CEC.