All clear given for bpTT $2.6B pipeline

THE Court of Appeal by a 2-1 majority, yesterday dismissed the appeal brought by environmental watchdogs, Fishermen and Friends of the Sea (FFOS), against the construction of a US $420 million (TT $2.6 billion) pipeline in South Trinidad. Acting Chief Justice Lionel Jones and Justice Rolston Nelson ruled that the Environmental Management Authority (EMA) breached no rules in awarding the Certificate of Environmental Clearance to bpTT to carry out the Kapok and Bombax Pipeline project. Justice Anthony Lucky, in a dissenting judgment, ruled that the EMA did not follow proper procedures and allowed the appeal, ordering costs for senior and junior counsel. The effect of the judgment allows bpTT to continue constructing the pipeline. Ramesh Lawrence Maharaj SC and Dr Rajendra  Ramlogan appeared for FFOS; Martin Daly SC and Maxine Williams represented the EMA, while Russell Martineau SC and Deborah Peake appeared for bpTT as an interested party. Following yesterday’s judgment, Maharaj said he intends appealing the decision to the Judicial Committee of the Privy Council in London. He said he will seek conditional leave within days and ask for the appeal to be heard before the end of the year.

Dr Dave Mc Intosh, Chief Executive Officer of the EMA, said he was greatful and pleased with the decision of the court. In his 24-page judgment, Justice Nelson agreed with the decision of High Court Judge Nolan Bereaux, who on August 30, 2002, dismissed FFOS’s application for judicial review. Justice Nelson found that FFOS sought judicial review outside the three-month period. He said if the time for applying for leave was extended, the application for leave may be defeated if undue delay would cause substantial hardship, or prejudice to third parties, or detriment to good administration. Justice Nelson said the EMA properly and lawfully put in place procedures for dealing with applications in progress. He pointed out that the trial judge took into account that bpTT had entered into sub-contracts with 25 contractors. He took into account that bpTT, a third party, had consulted with the EMA and the Ministry of Energy at all material times during the project. Justice Bereaux revealed that the Bombax pipeline was 70 percent complete and the Kapok Project 42 percent complete. The judge weighed in the balance that US $213 million had already been spent, and any delay in completion of the project would result in significant losses running into million of dollars per month. Counsel for bpTT indicated that of July 2003, the project was complete and that testing was underway.

Justice Nelson said if the EMA has to re-open the matter, five other companies in the oil and gas sector would be affected. In his 15-page dissenting judgment, Justice Lucky found that the grant of the Certificate of Environmental Clearance was invalid and the matter ought to be investigated. He said the crucial question was whether the EMA followed the procedure set out in the EMA Act before granting the certificate. “It seems to me that the judge did not address this issue because he had pre-empted the determination of those issues by refusing to grant an extension of time,” Justice Lucky added. On the issue of the trial judge not granting an extension of time for FFOS to file the application, Justice Lucky said he did not think that Justice Bereaux had all the evidence before him to make a proper assessment at the leave stage.