Smelter plant in limbo

Debra Wanser and Shaliza Hassanali.
Published: 13 Jun 2009
http://guardian.co.tt/news/general/2009/06/13/smelter-plant-limbo

While the Government is moving full speed ahead and spending millions in infrastructure to construct an aluminium complex in La Brea, residents are holding out hope that the High Court will rule in their favour to stop construction of the smelter plant.

Justice Mira Dean-Armorer is expected to give judgment on Tuesday in the Alutrint case, which was filed by Harris Maxine, Annette Alexander, T&T Civil Rights Association, Smelta Karavan and People United Respecting Environment (PURE), challenging the decision of the Environmental Management Authority (EMA) to grant a certificate of environmental clearance (CEC) on April 12, 2007, to the National Energy Corporation (NEC) to establish the smelter plant. Judicial review was filed against the EMA to declare null and void the CEC grant for establishment of the smelter complex at Union Estate, La Brea, which was to be owned and operated by Alutrint, Ltd.

The Attorney General had applied to be joined as a defendant, and the court granted leave to him to be a party to the matter. Alutrint also applied to become a party in the matter. The claimants contend that the EMA unlawfully and unreasonably deferred relevant matters and, thereby, deprived the public from an opportunity to be apprised of and comment on the proposed smelter plant, and that the EMA conducted public consultations in an unlawful and unfair manner.

They argued that the EMA decided to grant the CEC to establish the plant on the basis of information that was inadequate and flawed. The CEC was granted subject to several conditions that included a spent pot liner, a management plan, and an ambient air quality monitoring plan to be submitted. Also, buffer zone management plans and several other plans were to be submitted. In total, 18 sets of monitoring plans were required.

“Since all plans were subject to management clearance, the EMA clearly did not consider these before granting the CEC,” said Tabaquite MP Ramesh Lawrence Maharaj, who is representing the interest of T&T Civil Rights Association. He added:

“They are all relevant matters to determine whether the project would have significant effects on the environment. “For the EMA to consider whether it was safe, they had to consider all these plans, but it was granted without considering all relevant matters. “The NEC and those involved in the building of the plant went and put the cart before the horse. They went ahead, presuming the High Court, the Court of Appeal and the Privy Council will uphold the CEC, although they know this matter was being challenged. “But if the Court of Appeal and the Privy Council stop the smelter plant, I think millions of dollars of taxpayers’ dollars will be wasted.

“Even before the matter was filed in the court, work was being done on the site, and money was being spent. “All the infrastructure the Government is going to put down will cost billions, and it can be a white elephant if the EMA granted an illegal CEC. “That investment could be a waste of money. Taxpayers’ money going down the drain shows bad planning.

“If the judge ruled in the EMA’s favour, then the applicants could apply for an injunction. Pending hearing and determination of the matter in the Court of Appeal will set back the project, anyway.
“If the judge declares the CEC null and void, then the smelter plant can’t be built, unless the Court of Appeal or the Privy Council sets aside the order of the judge and approve the CEC. “If the Court of Appeal refuses to grant the injunction, the applicants can apply to the Privy Council to get a hearing.” According to legal sources, the process can go against them in the Privy Council. Statistics show that during the last three years, about three-quarters of the judgments by the Court of Appeal were reversed by the Privy Council.

Public caution

Yesterday, Prof Wayne Kublalsingh, an anti-smelter activist, said he wanted to caution the public that the judgment would not be based on whether the smelter was good or bad. “This judgment will not look at the economic, health, feasibility, or the negative ecological impacts. It will look at whether the process that was used by the EMA to grant a CEC to Alutrint for the smelter was legal or illegal.”

Kublalsingh said the people of La Brea were misinformed about the health impacts. “They didn’t know that there would be testing for cancer. They were informed of the economics of the project, and therefore the consultation process was not properly done.” The consultation, he said, was there to paint a good picture of the project. “It did not give a realistic picture.” Kublalsingh feels that the consultation ought to be done again.

“At least this is my opinion... Whether that is the judge’s opinion, we would have to wait and see.”
Kublalsingh said if the judgment went in favour of the people, it would certainly be historic, since it would redefine the meaning of consultation. He said any smelter built in T&T would be “a symbol of corruption and malfeasance.” Eight anti-smelter groups wrote Alutrint’s UTT chairman Ken Julien and Minister of Energy and Energy Industries Conrad Enill, on June 5, asking for a detailed account of the cost of Alutrint, past, current and proposed.

“Having studied many of the costs of the proposed Alutrint smelter, we find that this entity has, and would, incur a number of grave risks to the population of Trinidad and Tobago,” stated Kublalsingh, representative of the groups. Stating that the people were the ultimate stakeholders in Alutrint, the group requested a meeting with the three men to discuss the economic viability of Alutrint, as well as the cost benefit analysis of the Alutrint project.

What the EMA Act says

Section 36 of the EMA Act expressly states that the EMA must consider all relevant matters before it grants a CEC and that, before a CEC is granted, it must consider the representation and views of the public/citizens. The contention was that under the act, the people had a right to participate in the decision of the EMA.

“They could not effectively participate, if these plans were not submitted before granting of the CEC, because this statutory right to participate by citizens was for them to be informed of the environmental matters which would be in the conditions set out. “But they would have no right to comment on these plans as it is,” Maharaj added. There were several other grounds on which the matter was filed, including the contention that the EMA acted illegally, procedurally, improperly and irrationally,” he added.

The legal team

Justice Dean-Armorer had heard the case over a period of several days, and the matter was completed last December. Fyard Hosein, SC, is representing Smelta Karavan, while T&T Civil Rights Association is being represented by Ramesh Lawrence Maharaj, SC, Darrell Allahar, and Vijaya Maharaj. PURE is being represented by Dr Rajendra Ramlogan. Douglas Mendes, SC, and Ian Benjamin appeared for the EMA, with Deborah Peake, SC, and Kerwyn Garcia for Alutrint, while Russell Martineau, SC, Michael Quamina and Stuart Young are appearing for the Attorney General.

The figures

Last June, chief executive officer of Alutrint Philip Julien said the investment figure for the proposed Alutrint aluminium smelter plant was between US$600 and $700 million and financing for the project was coming from China, under a government-to-government loan arrangement. It was previously reported that at US$700 million in investment, Alutrint would be looking for project financing of US$498 million, and that Government was expected to invest US$125 million. However, Minister in the Ministry of Finance Mariano Browne had said that international financial institutions, crippled by the global financial turmoil and who syndicated loans to T&T to finance mega-projects, might very well be unable to honour their loan arrangement with T&T. The complex has employed under 200 Chinese at the site and few locals.

Project facts

In April, 2005, the Government of T&T approved in principle development of a downstream aluminium industry, through establishment of an integrated complex in La Brea. Designed to produce aluminium rods, wires and cables, this project would be one of the first moves to take Trinidad and Tobago further downstream in natural gas utilisation. The project’s equity ownership is 60 per cent Government (held through the NEC), and 40 per cent Sural—a Venezuelan-based company that specialises in the manufacture of aluminium products. A local joint venture company, Alutrint Ltd has been formed to manage the project development and ownership of this complex.
In total, the complex will provide at least 800 direct jobs, with a projected minimum 2:1 ratio of indirect job creation (which amounts to 1,600 additional jobs) in support services and entrepreneurial activities, Government said.

The complex, to be built on approximately 100 hectares of land, will produce 125,000 metric tonnes per annum of molten aluminium, by the electrolysis of alumina.

Enill responds

Minister of Energy and Energy Industries Conrad Enill, asked yesterday to respond to the June 5 letter from anti-smelter groups, said, “As far as I am concerned, those matters were already dealt with at the pre-consultation stage. We have already said what we have to say on this project.” Enill said when issues of matters relative to health came up, a one-day consultation chaired by people from various universities was held. He said the economic viability of Alutrint was not something that could be discussed in a manner in which the anti-smelter activists were seeking to have it.

“We are of the view that the project makes sense in the context of Government’s programme, going forward.” Enill said the total cost of Alutrint would be available whenever the plant was completed.
“As of now, we can’t build a plant unless we have financing for it. The financing for the plant would be based on the economic return and ability to repay the loan,” he added.