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Saturday 20 January 2018
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Appeal Court overturns High Court ruling on water rules

THREE appellate judges have overturned a decision of the High Court which, in 2012, ordered the Environmental Management Authority (EMA) not to implement the Water Pollution (Fees) Amendment Regulations, 2006, until the Environment Ministry properly applied the internationally recognised “polluter pay principle” (PPP) in calculating, and fixing such fees.

In a 35-page ruling yesterday, Justices of Appeal Nolan Bereaux, Gregory Smith and Mark Mohammed held that Justice Devindra Rampersad wrongly exercised his discretion in the judicial review application of Fishermen and Friends of the Sea (FFOS) against the Environment Ministry and the EMA.

The FFOS had challenged a decision by the State institute to standardise the permit fee under the provisions of the Environmental Management Act.

The Water Pollution (Fees) Amendment Regulations, 2006, required polluters to pay a fixed annual permit fee of $10,000, regardless of their size.

Rampersad in his ruling in October 2012, found the Water Pollution (Fees) Amendment Regulations, 2006, to be illegal and beyond the legal authority of the Environmental Management Act and the National Environmental Policy.

In overturning Rampersad’s decision, Bereaux, who delivered the ruling, said since the judge misdirected himself on the issue, the appellate court was entitled to look at the matter afresh.

In its original application, the environmental lobby called on the judge to review Government’s implementation of the water pollution fees permit as a standard across-the-board fee, instead of abiding by the sliding scale of the polluter pay principle, which would charge more fees depending on the quantum of pollution discharged. According to FFOS, the fee structure was contrary to the internationally accepted environmental principle known as the “polluter pays principle” (or PPP).

The regulations were introduced in 2001, and fixed a standard fee of $10,000 for obtaining a permit by a polluter for the “legitimate” pollution of the water supply.

In 2006, certain recommendations were made after which the 2001 regulations were amended to include minor adjustments in two areas, but without adjusting the standardised permit fee.

Following Rampersad’s decision to quash the EMA’s authority to use the fixed, or flat fee and issue an order of mandamus compelling the EMA to properly use and apply the polluter pay principle, while stopping it from any continued implementation of this fee, the Minister of the Environment and the EMA appealed the decision.

In ruling in favour of the minister, Bereaux said in determining whether the flat fee was reasonable, the judge was :off the point” and exceeded his remit when he questioned the basis upon which the fee structure was arrived at.

According to the evidence of the EMA and the ministry, the fee structure was adopted with consideration of the state of the economic and institutional development of Trinidad and Tobago and in his judgment, Bereaux also noted that the decision to implement the flat fee structure was entirely within the discretion of the minister.

He stressed that the court should not substitute its view for that of the minister “neither should it hold an administrative decision to be irrational because it would not have come to that decision.”

According to Bereaux, the Water Pollution Management Programme (WPMP) contemplated that the PPP be reflected in permit fees granted to businesses which release pollutants into the environment.

The prescribed fee under the permit system was intended to make the WPMP self sufficient and sustainable by recovering operating costs. Bereaux noted that while the model chosen for water pollution control had its shortcomings, it was not for the court to question the most efficient of the six models the EMA considered before arriving at the model which used the flat fee.

He said all the court had to look at was whether the polluter pay principle was applied by the application of the flat fee structure provided for under Section 53 of the Act and the Water Pollution Rules, 2006 and the Water Pollution (Fees) Regulations 2006.

Senior Counsel Martin Daly, Ravi Rajcoomar and Antoinette Alleyne represented the minister of the Environment while Fyard Hosein,SC, Rishi Dass and Marina Narinesingh represented the FFOS.

Senior Counsel Seenath Jairam and Gerald Ramdeen appeared for the EMA.

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