IN A landmark case for Jamaica's environmental movement, high court judge Justice Bryan Sykes has ruled in favour of Northern Jamaica Conservation Association (NJCA), Jamaica Environment Trust (JET) and four individuals in the Judicial Review case concerning the granting of an environmental permit for part of the planned 1,918-room Bahia Principe hotel in Runaway Bay.
On Tuesday, May 16, Justice Sykes quashed the environmental permit granted to Hoteles Jamaica Piñero Limited (HOJAPI) for Phase One of the hotel and ordered that the National Environment and Planning Agency (NEPA) reconsider the application for the project.
He ruled that NEPA and the Natural Resources Conservation Authority (NRCA) had not complied with the legal requirements of the decision-making process and had therefore acted unfairly in granting the environmental permit.
NO MARINE ECOLOGY REPORT
In delivering his judgement, Justice Sykes found that NEPA had failed to consider all of the relevant environmental information, including a critical marine ecology report that was missing from the environmental impact assessment (EIA). He said that given the undisputed high ecological value of the resources of Pear Tree Bottom, the absence of the marine ecology report was of "tremendous significance" to the decision-making process which the court was being asked to examine.
The judge agreed with the applicants that the public consultation process had been flawed and that NEPA and the NRCA had failed to respond to the legitimate concerns and expectations of stakeholders. He found that NRCA had acted unfairly, stating that "unfairness is an abuse of power."
"The difficulty for me," he said, "was that it was known to both NEPA and NRCA that the EIA was incomplete. How can you consult without giving the public full, complete and accurate information?"
Justice Sykes pointed out another serious flaw in the consultation process: The fact that NEPA and the NRCA had ignored the recommendations of the Water Resources Authority (WRA), another government agency with which they were required to consult, before issuing the permit on July 26, 2005.
UNSATISFACTORY
The WRA had communicated to the NRCA that they found the proposed sewerage disposal method, deep well injection, completely unsatisfactory and that the EIA failed to specify an acceptable method for sewage treatment for the hotel. The WRA also recommended increasing the setback requirements for the hotel in light of the recent Asian tsunami experience. The judge said he could find no reason the advice of the WRA had not been considered.
The judge was extremely critical of the EIA, describing it as "really poor." He pointed out serious deficiencies in the empirical work which NEPA itself had recognised, especially where environmental data were required to be assessed over time, such as water quality. He found that there had been insufficient field assessment of the flora and fauna, reliance on old, outdated information and on anonymous and unverifiable sources, and no evidence that the EIA had actually assessed the coral reefs or the potential impact of the development on them.
In the opinion of the judge, the defective EIA had important implications for the monitoring programme: "How can you monitor what you don't know is there?" he asked.
