Derek Achong

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.