UT: You say the EM Act of 1995 was umbrella-type legislation and that more than 100 pieces of legislation dealing with environmental issues exist.
Only briefly, in the era of the NAR, was there a separate Ministry of the Environment headed by Lincoln Myers. An entire decade of the 21st century has passed and 2013 may be the first time that we see a separate Ministry of the Environment. While having a stand-alone Ministry may reflect a greater political will to deal with environmental issues, the results are still to be qualitatively assessed.
RR: There are many practitioners engaged in environmental law cases, especially on behalf of the State. However, in terms of persons with specialized environmental legal knowledge, the field is still relatively small. Perhaps when we see the body of environmental law increase and enforcement strengthened, young attorneys may be more inclined to develop an environmental law practice.
RR: My observation is that practitioners without formal environmental law training utilize general legal principles as the basis of case preparation and shy away from really exploring specific environmental legal principles. The challenge to practitioners is to master and use principles such as sustainable development, the precautionary principle, polluter pays principle, the right to a healthy environment, to name a few, in the pursuit of environmental law matters. These concepts are somewhat interdisciplinary in nature and require some work to achieve a level of mastery so as to facilitate their integration in the corpus of our judicial learning. Happily, we are already seeing the slow percolation of these environmental principles into judicial proceedings.
RR: The major environmental issue, in my opinion, was lack of recognition of environmental democracy. Increasingly, it is recognized that environmental democracy is critical to sustainable development. Environmental democracy, in a nutshell, involves public participation in the environmental decision making process. In the first environmental case filed in Trinidad & Tobago, Fishermen and Friends of the Sea challenged a decision by the EMA to grant a Certificate of Environmental Clearance to bpTT. The Privy Council made it very clear that, if public consultation was compromised, it would have been prepared to intervene - so important is public consultation or stakeholder participation! This matter reached the Privy Council but we lost on a technical challenge of being late in filing our action. In our successful Alutrint Smelter judicial challenge, Justice Mira Dean-Armourer made it clear that “it would have been procedurally irregular for the EMA to issue the CEC on the basis of flawed public consultation”. So, public consultation is quite important to environmental democracy.
RR: In this case, the first question might be whether there were proper stakeholder consultations. Judging from Recommendation 2.6 of the Highway Review Report, the answer must be “no”. “2.6 Finally, effective stakeholder participation is essential in the decision making process. The relevant agencies must ensure that proper consultation is carried out following effective communication of information to all stakeholders. What has transpired with this project may not have occurred if an appropriate process for incorporating stakeholder involvement was applied”.
In the aftermath of a controversial election date announcement, the EMA chose to approve what is perhaps the largest and most divisive infrastructural project in the history of Trinidad and Tobago. Why the haste? The implication of this decision is that the clock started running on the judicial review of this CEC on April 20, 2010 and action would have had to be taken within three months of that date or face the tremendous judicial hurdle of delay. It is hardly surprising that, in the run up to the election and its immediate aftermath, the public eyes would have rested squarely on the political affairs of the nation and not on a CEC. I believe this approach to granting this CEC, especially in the absence of certain information deemed relevant by the Highway Review Committee during one of the most controversial political periods in our history, may have contributed to the failure of NGOs or stakeholders to launch a judicial review challenge within the statutory three-month period. The timing of the grant of the CEC may have been entirely coincidental and the action of the EMA may be devoid of any mala fide but unfortunately we are a society that has learnt not to trust coincidences.
Dr. Rajendra Ramlogan is Professor of Commercial and Environmental Law in the Department of Management Studies. He has published numerous articles and authored several books including Sustainable Development: Towards a Judicial Interpretation; Judicial Review in the Commonwealth Caribbean; and The Developing World and the Environment: Making the Case for Effective Protection of the Global Environment.