Opinion
- Editorial- Commentary
Anthony Wilson:
Is three more dangerous than one?
BG View
Tuesday's judgment by Justice Mira Dean-Armorer in the Alutrint case turned on the judge's view that in granting a Certificate of Environmental Clearance to the developer of the 125,000 tonne aluminium smelter in La Brea, the Environmental Management Authority failed to have regard for the cumulative impact of the three constituent parts of the smelter project. Those three parts are the smelter itself, the port and the electricity generation plant. The learned judge persuaded herself that with respect to the obligations of the EMA to consider cumulative effects of an industrial development, that she should be guided by the judgment of Justice Stollmeyer in the FFOS v Atlantic LNG case.
Although Stollmeyer's judgment is not listed among the cases she relied upon on the last page of the 156-page judgment, the learned judge distilled three principles from that judgment, including that “the Court is required to assess whether the EMA took a hard look at all relevant circumstances” and that the EMA's “hard look must be supported by substantial evidence.” In January 2007, the EMA requested that Alutrint substantiate an earlier statement that there will be “no significant incremental effects” of the port and the aluminium smelter on the environment. On March 28, 2007, Alutrint responded that it had addressed.
• the definition of similar emissions;
• the level and proximity of similar emissions;
• geographical proximity and meteorological characteristics;
• an assessment of possibility of significant cumulative impact.
Alutrint concluded that “there will be no significant incremental environmental impact by the port and conveyor facility that will affect the cumulative impact assessment findings from the Alutrint CEC application.”
This report, the judge notes, addressed only the impact between the complex and the port. The judge concluded that “there was no evidence, transparent or otherwise to prove the hard look on the part of the EMA of the cumulative impact of the three parts of the project.” She then states that, for no apparent reason the March 28 report was shrouded in secrecy and that “it seems it is no answer to say that the Authority had no time to place it in the public domain” clearly discounting the EMA's explanation. And she concludes: “The Authority had on two former occasions sent the developer back. It seems that in respect of a factor as important as cumulative impact which could have far-reaching effects on human health and safety, the Authority could have on one last occasion exercised meticulous care of which it had taken throughout the preceding two years.”
It was based on this failure by the EMA to take a hard look at the cumulative impact assessment of the three related projects—the power plant, the aluminium complex and the port facility—that the judge deemed the EMA's decision to grant the CEC “procedurally irregular, irrational and made without regard to a relevant consideration.” Now, there are many good things about this judgment. The application for judicial review was made in June 2007 and the matter was heard in August and September last year. It took about nine months for Mrs Dean-Armorer to deliver the judgment so she clearly took her time and researched the key issues. The judgment seems to be thorough and thoughtful. Much of it is wise. But, on the face of it, it seems to me that on the pivotal issue, the learned judge may have erred.
On pages seven to 10 of the judgment, she outlines the 19 issues in the case put forward by the claimants: Issue 16 asks whether it was illegal, irrational or unreasonable for the EMA to accept the three separate applications for a single inter-connected project and whether this contravened Rule 10 of the CEC rules “which requires that EIAs (Environmental Impact Assessments) examine cumulative effects of a proposed development.” On page 77, the learned judge outlines the CEC rules, including Rule 10 which deals with the standards for the preparation of the EIAs. In doing an EIA, the EMA “may, where appropriate include the following information...” And the information which the association MAY, WHERE APPROPRIATE INCLUDE is an identification and assessment of the main effects that the activity is likely to have on the components of the environment, including: human being; fauna, flora, soil; water-surface and ground; air; the coast and sea; weather and climate; the landscape; the interaction between any of the foregoing; material assets and cultural heritage.
First, the fact that the words “may, where appropriate include” surely gives the EMA the discretion not to include. Secondly, from what the judge herself quoted, it seems to me that Rule 10 does not speak to issues of cumulative effects of a proposed development. And I don't think that it can be argued that a requirement to address the “interaction between any of the foregoing” is the same thing as addressing the cumulative impact of three separate and distinct developments. Thirdly, the judge makes the point that “the court does not have to be an academy of science” to come to some conclusions “where errors on the part of the defendant can have far-reaching consequences for the health and safety of the national population.”
But likewise one does not have to be an academy of science to question whether it is possible for there to be a negative cumulative impact of a port, a power plant and an aluminium complex. I don't see the logic. Is it being argued here that a port has “far-reaching effects on human health and safety” or that a power plant has “far-reaching effects on human health and safety?” Or is the argument that it is the combination of the three that could have the detrimental impact on human health and safety? What is peculiar about these three buildings, or the output therefrom, which makes putting them together potentially harmful? If those who are against the smelter argue that it will have a negative impact on the health of the surrounding community, are they arguing that when the port and the power plant are added to the smelter that the danger increases?
What about if the port or the power plant were to be taken out of the picture? Would the potential danger decrease? The judgment, it seems to me, makes the assumption that T&T is the first country in the world in which a smelter is located near to a power plant and a port—and that somehow the combination of these three “could have far-reaching effects on human health and safety.”
Anthony Wilson is the editor of Business Guardian (BG). Petroleumworld does not necessarily share these views.
This commentary was originally published by Trinidad Business Guardian, Thursday, June 18th 2009
. Petroleumworld reprint this article in the interest of ou
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