May 2013

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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.

RR: More than 100 pieces of legislation impacting on the environment did indeed exist prior to the passage of the Environmental Management Act. The main problems associated with these pieces of legislation were lack of awareness as to their existence and usefulness; low penalties associated with infractions; the general malaise that many governmental entities had towards the environment prior to the 1990s; and perhaps the lack of a political will to put environmental law and enforcement on the front burner.

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.

UT: You are now a professor of environmental law but you have been a practitioner for some time. Is environmental law practice a well-populated field in the region?

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.

UT: What do you think are the major challenges for practitioners?

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.

UT: What are the salient environmental concerns re the resurfacing issues surrounding the $7billion highway project?

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.

Environmental democracy includes proper consultation of stakeholders in the environmental decision making process; presence of relevant information to all stakeholders to effectively participate in the environmental decision making process; early opportunity for stakeholders to be consulted; and the timely opportunity to judicially challenge environmental decisions. These are just some aspects of environmental democracy and can be tested with respect to the Highway Project.

UT: Can you elaborate?

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”.

The second question would be whether the public had access to all relevant information. This highway runs through a significant wetland area and there are fears of flooding. Of critical importance would have been a hydrology report. To quote from the Highway Report: “While other inadequacies are present in the EIA, this review has focused on those considered most critical to decision making where this Highway is concerned. Hydrology Study The omission of a hydrology study as part of the EIA is one of its most significant deficiencies. The discharge and flow of water within the wetland, both surface and groundwater is the most important factor that defines that type of terrestrial environment. It is essential in determining soil conditions and therefore the type of vegetation that can be supported, which in turn determines habitat conditions and ultimately the type of fauna…” How can there be proper stakeholder consultations when a critical document that would advance effective public consultations is missing or has not been prepared or provided for public comment?

The third aspect of environmental democracy I find troubling is the timing of the granting of the CEC for the disputed highway segment. According to a press release, then Prime Minister Patrick Manning advised the President on April 09, 2010 that a general election was to be held on May 24, 2010. The country was thrown into election fever two years before the end of term of the then PNM government. Yet the EMA, according to the Highway Review Report, stated “CEC 1372/2006, which was granted on April 20, 2010, and which directly or indirectly influence the approach to hydrology issues in the design, construction and operation of the highway section between Debe and Mon Desir…”

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.

It is my opinion that the granting of the CEC for the Highway Project based on the Highway Review Report impacted negatively on the development of environmental democracy. I must add that I am concerned with the governance of the EMA that was largely responsible for the approval of this project and indeed approved same prior to the election of the People's Partnership. Responsibility for proper consultations is squarely within the ambit of the EMA. The responsibility for having all relevant information is that of the EMA and the responsibility for granting the CEC is solely that of the EMA. If there is one criticism I must make of the Highway Review Report, it is that it failed to probe deeply what went wrong with the governance process of the state agencies vested with statutory responsibility for the highway project. It is not often that I find myself agreeing with the EMA but if the comments of its CEO Dr. Joth Singh, as reported on March 13, 2013 in an article by Gail Alexander entitled “EMA knocks Armstrong team: Highway report flawed, deficient”, are correct, then the Highway Review Committee missed the opportunity to properly assess the role of the EMA in the Highway conflict and perhaps correct any misapprehensions of their conduct. To quote, “But Singh said EMA wasn’t asked by the review team to meet or discuss anything with them. If talks were held, he said, some of the items Armstrong’s team flagged would have been easily resolved via explanation. “There were deficiencies in their report and it was incomplete...The fact we weren’t consulted makes it incomplete so that was a huge flaw in their procedure,” Singh said, adding the team was negligent.

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.