'Heavy burden' for environmental groups

Smelter appeal
Julien Neaves
Saturday, September 26th 2009

CHIEF JUSTICE Ivor Archie told lawyers representing environmental groups yesterday they face a "heavy burden" to support a High Court ruling which struck down a Certificate of Environmental Clearance (CEC) for the controversial Alutrint plant.

He made the comment during day three of a civil appeal filed by the Environmental Management Authority (EMA) and Alutrint, challenging a ruling which had halted the multi-million dollar project in La Brea.

Archie said the environmental groups had a "heavy burden" to show that the EMA's actions were "outrageous" and "irrational", as High Court Judge Mira Dean-Armorer had ruled. He was speaking to Dr Rajendra Ramlogan, attorney for People United Respecting the Environment (PURE) at the Appeal Court during Ramlogan's submission. Archie pointed out that the arguments of the EMA and Alutrint were that the requirements of the Terms of Reference (ToR) were entirely a matter for the discretion of the EMA, and was not "irrational" for the Authority to determine how much consultation was required. Ramlogan argued that Parliament did imbue the statutory scheme with consultations and the fundamental question was if the consultations held by the EMA met the requirement. He added that "outrageous" and "irrational" behaviour was a separate issue. Archie, who is presiding over the case with Justices Wendell Kangaloo and Allan Mendonca, questioned whether there was a distinction between a "requirement" written into the statute and a "requirement" which the EMA exercised in its "undoubtedly wide discretion". Ramlogan noted that the final ToR required the Authority to immediately have public consultation in this particular case and the "Pre-base line study findings" consultation that was held was not the same. Earlier in the day, lead attorney for Alutrint Timothy Straker, QC, continuing his submission, claimed Dean-Armorer did not correctly record the documents supplied and they could be "confusing". He also said she had minimised the extensive research that had been provided. On the matter of the disposal of spent pot liners, he noted that full consideration was given to it, there were properly envisaged requirements and there was more consultation than actually required. Following Straker was Russell Martineau, SC, for the Attorney General, who claimed that some of Dean-Armorer's findings were not supported by reasons or analysis of circumstances regarding consultations, but seemed to be "plucked from the sky". He said the judge appeared to equate breach of ToR with breach of the provisions of the legislation, which is not supported by any authority. He added that even if the statute and regulations were breached, the effect must be looked at to see if the CEC should be quashed and her finding "can't stand scrutiny in face of what the law is". Martineau argued that though the judge may have disagreed with the action of the EMA regarding the spent pot liners, the claim of "outrageous" behaviour was unwarranted. Justice Archie stressed that the issue was not whether there was evidence or not, but whether it was given a "hard look" by the EMA. Martineau said it was a matter of degree, and Dean-Armorer "has to be cautious dealing with matters of science" as the experts would be more knowledgeable to determine if a "hard look" was given to the evidence. He stressed that the court cannot rewrite the Environmental Management Act "and put on the EMA obligations (that are) not there". The case was adjourned to October 7, 8 and 9. Source: http://www.trinidadexpress.com/index.pl/article_news?id=161536807