Judge stops smelter plant
PORT SPAIN
Trinidad Guardian
Petroleumworldtt.com
06 17 09
There was celebration at the Hall of Justice, Port-of-Spain, yesterday as Justice Mira Dean-Armorer ruled against the Environmental Management Agency (EMA), effectively halting work on the multi-million dollar aluminium smelter plant at La Brea.
In a 156-page judgment, Dean Armorer granted an order of certiorari, quashing the decision of the EMA to issue a certificate of environmental clearance on April 2, 2007, to Alutrint, the developer. “It is my view that the decision of the defendant, EMA, was procedurally irregular, irrational, and made without regard to the relevant consideration, that is to say, the consideration of the cumulative impact of the three related projects—the power plant, the aluminium complex, and the port facility.”
Dean-Armorer remitted the matter to the EMA for consideration, meaning that the EMA must go over the entire process for the construction of the smelter plant. As an alternative, the EMA can appeal to the Court of Appeal. After the decision of the EMA to issue the certificate, three public-interest groups, People United Respecting the Environment (PURE), Rights Action Group (RAG) and the Smelter Karavan—sought judicial review of that decision.
The judge heard oral submissions for weeks before reserving her decision. Yesterday, the Bar table was packed with attorneys, while the anti-smelter activists occupied sitting and standing room in court. Even a child slept on the lap of his mother, while others decided to sit on the floor. When Dean-Armorer concluded her judgment, Dr Wayne Kublalsingh led the chorus of clapping inside the courtroom. Not even Ramesh Lawrence Maharaj, SC, the lead counsel for the claimants, could have stopped the celebrations.
Dean-Armorer was reminded by the parties that her function was not appellate and she should not be concerned at the merits of the decision of the EMA, but was urged to focus on the decision-making process, and to strike down the decision, once the claimants established the presence of one of the grounds listed. “Accordingly, it does not fall on this court to decide whether there should be a smelter in T&T. The court is concerned only with examining the decision of the EMA to grant Environmental Clearance and considering whether the decision is flawed, according to any grounds specified in the Judicial Review Act.”
Dean-Amorer said there were three hurdles to cross to determine if she should invoke the act: n there must be a threat of serious and irreversible damage to the environment and the threats must be adequately sustained by scientific evidence; n there must be a lack of full scientific certainty; and
n where these two elements are present, the burden of proving that no threat exists is carried by the applicant/developer (Alutrint).
The judge found that two of these elements were present in this case. She said there was no doubt that there was considerable scientific evidence before the court of threats of both serious and irreversible damage to both the environment and human health. The judge said that experts of the highest calibre swore to lengthy affidavits as testimony of the threat. Such evidence, the judge added, would most certainly have come to the attention of the EMA, as decision-maker through the public hearings and during the written comment period.
Dean-Armorer said the fact of conflicting scientific opinions as to the effect of the project in itself implied uncertainty. She said: “Uncertainty also surrounds the accuracy of the air dispersion predictions. Dr (Peter) Vine, who testified on behalf of the claimant, PURE, stated that ‘the predictions of airborne emission' concentrations are so uncertain that there is a strong likelihood that actual concentrations would be found to be unmanageably deleterious to human health.”
At the end of the judgment, Dean-Armorer ordered no costs. But Maharaj and Fyard Hosein, SC, who represented the claimants, asked for their costs. In the end, the judge fixed July 24 for the hearing of submissions on the issue of costs. Deborah Peake, SC, who appeared for the EMA, sought a stay of the judge's order in the event of an appeal. According to the judge, “I know there is going to be an appeal, and very soon too.”
Story by Francis Joseph from Trinidad Guardian
Trinidad Guardian
June 17 2009
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