The Minister of Planning and Development has been given three months to review and reconsider this country’s water pollution regulations which charges the same fee for polluters, regardless of their size and level of pollution for which they are responsible.
Five British Law Lords of the Privy Council made the order yesterday as they ruled in favour of environmental activist group Fishermen and Friends of the Sea (FFOS) in its over decade long legal battle against the ministry.
In their 19-page judgment, the country’s final appellate court ruled that the local Court of Appeal was wrong to reverse the judgment of a High Court judge, who struck down the regulations in 2012.
They agreed with Justice Devindra Rampersad that the flat-rate of $10,000 under the Water Pollution (Fees) (Amendment) Regulations 2006 was irrational and inconsistent with T&T’s National Environmental Plan (NEP) and the internationally applied “polluter pay principle”.
Under the principle the costs of preventing and minimising pollution should be borne by those responsible for the pollution. It also requires that all charges levied against polluters should be used to fund the correction of environmental damage.
The judges rejected the ministry’s claim that the current system was chosen in 2001 because it was simple and easy to administer when compared to the other options and was suitable based on the state of the economic and institutional development of T&T at the time.
“It is not sufficient that the polluter will necessarily expend its own money in complying with the permit conditions, and so contribute to the “correction” of environmental damage. The fees are to be used to finance or contribute to correction activities by the authority itself,” said Lord Robert Carnwath , who wrote the judgment.
While the judges ruled that the flat fee was unlawful, they chose to make the order against the minister as opposed to striking down the regulations.
“Such an order could create great uncertainty as to the status of the permits issued since the rules were first applied in 2007, and any enforcement action taken in respect of them. It might even lead to claims for return of the fees already paid,” Carnwath said.
The judges said that they felt that the ministry should pay FFOS’s legal costs for bringing the lawsuit and for corresponding appeals, but told the parties to file submissions on the issue within three weeks.
FFOS was represented by Fyard Hosein, SC, Rishi Dass and Marina Narinesingh, while British Queen’s Counsel Thomas Roe represented the ministry.
FFOS RESPONDS
In a press release issued after the judgment was delivered in the United Kingdom (UK), Fishermen and Friends of the Sea (FFOS) described it as landmark victory for them.
“This judgment underscores the long hard road to justice which FFOS maintained with several judicial challenges over these past two decades. FFOS is encouraged by this victory and will maintain its course towards the sustainable development of T&T,” the release said.
The group also claimed that the ruling set a precedent which would affect similar rules applied recently for air pollution.
“This decision will have an immediate and wider impact in relation to other Government activities including the recently passed Air Pollution Rules (2014) which suffer from a similar illegality and which FFOS hereby formally call on our Honourable Minister of Planning and Development and the Attorney General to immediately and voluntarily review in accordance with this ruling of the Privy Council,” the group said.