Monday, January 22, 2018

Appeal Court overturns judge's ruling

THE Court of Appeal yesterday reversed the decision of a High Court judge who ordered the Environmental Management Authority (EMA) to not implement the Water Pollution (Fees) (Amendment) Regulations, 2006, until the regulations are properly considered by the Ministry of Planning, Housing and the Environment.

Justice Davindra Rampersad had ruled in favour of Fishermen and Friends of the Sea (FFOS), a non-governmental organisation that promotes the protection of the environment, which brought a claim for judicial review, contending that the ministry failed to consider the Polluter Pay Principle and therefore acted contrary to the National Environmental Policy (NEP).

The Water Pollution (Fees) (Amendment) Regulations, 2006, required polluters to pay a fixed annual permit fee of $10,000 and allowed them a permit, regardless of their size and the amount of water pollutant to be released into the environment. The $10,000 fee was to go towards remedying the contamination caused by the release of the pollutants.

However, in his affidavit, head of FFOS Gary Aboud said, the cost of administering the management of water pollution in accordance with the Polluter Pay Principle cannot be fixed but should vary according to a number of factors including: the complexity of the permit required to be prepared; the amount and composition of water pollutants being released; the number of discharge points and the type of activity.

Aboud said the purpose of the permit was to allow a person to unlawfully release a pollutant into the environment above maximum permissible levels. He said where a person releases a pollutant above the maximum permissible levels, that person must pay for the environmental cost of releasing such pollutant.

At the High Court, Justice Rampersad ruled in favour of Aboud and the FFOS after concluding that the use of a flat fee structure was illegal, but made no finding that it was a breach of the Polluter Pay Principle. In delivering yesterday's ruling, Appellate Justice Nolan Bereaux, who, along with Justices Gregory Smith and Mark Mohammed presided over the appeal filed by the State, said the matter revolved simply around whether the flat fee structure was an application of the Polluter Pay Principle and if it was, the case for FFOS had to fail.

“The court finds that the Water Pollution (Fees) (Amendment) Regulations 2006 are an application of the PPP (Polluter Pay Principle) and consequently are intra vires the NEP (National Environmental Policy), the (Environmental Management) Act the WPMP (Water Pollution Management Programme) and international law. Also, it also does not breach the respondent's legitimate expectation.

“The trial judge made several errors, the first of which was to question the soundness of the EMA's research, from which the flat fee structure was chosen, when there was no such challenge by the respondent. The consequence was that he directed his mind to the wrong question and failed to address, at all, whether the use of a flat fee structure was an application of the PPP,” said Justice Bereaux.

Representing the ministry were attorneys Martin Daly SC, Ravi Rajcoomar and Antoinette Alleyne, while, Fyard Hosein SC and Rishi Dass appeared for FFOS.

Senior Counsel Seenath Jairam and Gerald Ramdeen represented the EMA.