Appeal Court overturns water pollution ruling

A decision by a High Court judge to strike down water pollution regulations, which charge the same fee for polluters regardless of their size and level of pollution for which they are responsible, has been reversed by the Court of Appeal. 

In a 35-page judgment, delivered at the Hall of Justice yesterday, three appellate Judges agreed that Justice Devindra Rampersad was wrong to declare the flat-rate scheme irrational as he made considerations that was outside the lawsuit initiated by environmental group, Fishermen and Friends of the Sea. 

Appellate judge Nolan Bereaux, who penned the judgment which is likely to have implications on how the Environmental Management Agency (EMA) regulates other types of pollution, said Rampersad made an error as he was only allowed to determine if the scheme under Water Pollution (Fees) (Amendment) Regulations 2006 was in line with T&T’s National Environmental Plan 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. 

In contrast to Bereaux’s opinion, Rampersad instead had analysed the decision-making process used by the EMA and the Environment Ministry to decide on using the flat rate fee of $10,000 from six other potential schemes under the principle, including charging polluters based on the amount of pollution they caused.

In his judgment, handed down in 2012, Rampersad had ruled in favour of the group and its leader Gary Aboud and had ordered both state agencies to reconsider the scheme. 

But the Appeal Court stated that the flat rate scheme chosen by the agencies, based on the fact that it was simple and easy to administer when compared to the other options, was consistent with the principle as it met all the requirements set.  

“The flat fee structure may apply the principle but the decision to adopt it over the five other models, or for any other reason, may be irrational. 

“This is different from a decision which is irrational because it adopts a model which does not apply the principle at all. The latter is the group’s pleaded case,” Bereaux said, as he stated that Rampersad was only permitted to consider the case raised by the group and not other external factors despite how relevant they might be.

Appellate judges Gregory Smith and Mark Mohammed also heard the appeal.

After the judgment was delivered, lawyers from the ministry, whose appeal was allowed, attempted to convince the court that the group pay its legal costs of the lawsuit. 

The application was opposed by the group’s lawyer, Rishi Dass, who noted that the usual policy on legal costs should not be applied as the lawsuit was a public-interest case. 

“This was not brought for personal gain. It was to ensure the regulatory regime that affects all of us runs properly,” Dass said. 

His views were accepted by the judges who indicated each party should bear their own costs. 

The ministry was represented by Martin Daly, SC, and Ravi Rajcoomar, while Seenath Jairam, SC, and Gerald Ramdeen appeared for the EMA. Senior Counsel Fyard Hosein also represented the group.