Belize Institute for Environmental Law v Chief Environmental Officer et Al

• Jurisdiction: Belize
• Judge: Conteh, C.J.
• Judgment Date: 30 June 2008
• Court: Supreme Court (Belize)
• Docket Number: 302 of 2007
• Date: 30 June 2008

Supreme Court

Conteh, C.J.

302 of 2007

Belize Institute for Environmental Law

and

Chief Environmental Officer et al

Appearances:

Ms. Candy Gonzalez for claimant.

Ms. Pricilla Banner, together with Mrs. Andrea McSweaney McKoy, for the defendants and the 1st 2nd and 3rd Interested Parties.

Mr. Michael Young S.C. for the 4th Interested Party.

Administrative Law - Application for enforcement of an Environmental Compliance Plan — Whether 1st defendant failed to carry out his duty to ensure an Emergency Preparedness Plan was put in place.

INTRODUCTION

Conteh, C.J.

1 This case concerns the interpretation, application and enforcement of an Environmental Compliance Plan (ECP) concluded between the Department of the Environment (the DOE) as represented by the Chief Environmental Officer and the developer of the project. The DOE and its Chief Environmental Officer are the first defendants in this case. The Belize Electricity Company Ltd. (BECOL), is the developer of the project in question and the fourth interested party in these proceedings. The second defendant, the Attorney General of Belize, is joined in a representative capacity. There are as well three other interested parties, namely, the Director of Health Services (Ministry of Health); National Emergency Management Organisation (NEMO), in the Ministry responsible for National Emergency Management.

The claimant is the Belize Institute for Environmental Law and Policy (BELPO) and it says it is acting on behalf of the people and communities downstream of the said project. BELPO was incorporated on 18th December 1995 as a not-for-profit organisation under The Companies Act. It seeks to protect the environment in its totality, including air, water, soil, flora and fauna and human environment, through the law. It says in its written submissions in these proceedings that it has, among other things, initiated and or engaged in and contributed to activities related to the awareness of the environment, health and safety implications resulting from the construction of hydro dams on the Macal River. BELPO is also a member of Belize Alliance of Conservation NGOs (BACONGO) and represented the latter on the National Environmental Appraisal Committee (NEAC) as one of two NGOs on that body, until its recent exclusion therefrom. This latter body has, as part of its remit, the scrutiny and approval of Environmental Impact Assessment (EIA) submitted by developers in respect of projects that would significantly affect the environment.

THE PROJECT

2 The Macal River itself begins in the north-western part of the Maya Mountains in the west of Belize where it joins the Raspaculo River and flows through narrow valleys to join the Mopan River. The two rivers form the Belize River just north of the twin towns of San Ignacio and Santa Elena in the Cayo District. The people who live on lands surrounding the Macal River depend largely on the river for drinking water, fishing, recreation and employment.

This river, the Macal, presently supports two hydro-electric dams: The first is the Mollejon Dam, which was constructed in 1995. However, this dam is what is called in the industry a run-of-the river dam. That is to say, instead of a reservoir, it depends on the kinetic energy of a natural free-flowing water to produce electricity. The Macal River, however, like most rivers in Belize, is not at full flow during the dry season. This, not unnaturally, presented problems for the generation of electricity. In order to overcome this handicap, the second dam on the Macal River was conceived and born. Its formal appellation is the Macal River Upstream Storage Facility (MRUSF). It is however known as the Chalillo Dam and is located upstream of the Mollejon Dam on the Macal River.

3 The Chalillo Dam blocks the Macal River with a 150 foot high wall to create a reservoir which impounds waters from the Macal and Raspaculo Rivers. The reservoir itself floods over 2,500 acres in the Chiquibul Forest Reserve and National Park in the Cayo District. The water impounded by the Chalillo Dam is released to help generate electricity at the Mollejon Hydro Station which has an installed capacity of 25.2 KW, and it also powers a new F.3 MW plant at Chalillo itself.

4 There is as well, a third projected dam on the Macal River, the Vaca Hydro Electric Facility. BELPO, the claimant in these proceedings, had sought to bring work on this project to a halt by an injunction from this Court on the grounds that the defendant and the fourth interested party had not fully executed or complied with the provisions of the Environmental Compliance Plan (ECP) for the Chalillo Dam which was concluded on 5th April 2002. But the application for the injunction was refused on the principal ground that the present proceedings were concerned with the ECP for the Chalillo Dam and not with either the EIA or ECP for the Vaca Dam, which was, in the court's view, a separate undertaking distinct from the Chalillo Dam. I gave a written ruling refusing the injunction in respect of the Vaca Dam but granted permission to the claimant to seek judicial review by way of Mandamus and Declarations to have the first defendant, the Chief Executive Officer of the Department of Environment, carry out the provisions of the Environmental Compliance Plan (ECP) for the Chalillo Dam which was executed between it and BECOL on 5th April 2002. This was an elaborate plan which ensured that the Chalillo Dam will be constructed with due regard to the environmental considerations in consonance with sustainable development. Chalillo has been completed and has been operational since November 2005.

A brief background, I think, will be in place in order to get a proper feel of the matrix of the present proceedings.

5 On 9th November 2001, the NEAC recommended approval of the EIA for the Chalillo Dam contingent on a satisfactory Environmental Compliance Plan (ECP). NEAC was involved in developing the terms and conditions of the ECP for the Chalillo Dam. It was formally concluded on 5th April 2002 between the first defendant and the fourth interested party. (This ECP is at the heart of this case. More on it later).

6 However, soon after the conclusion of the ECP, which, in effect, gave the green light for the construction of the Chalillo Dam, BACONGO launched a judicial challenge against the EIA of the Chalillo Dam project. A battle royal ensued between the proponents of the dam, principally the developer, BECOL, the fourth interested party and the first defendant on the one hand and the protagonists of the dam on the other. The principal theater for this battle was the Courts of Belize. This went up to the Judicial Committee in London where by a bare majority (3–2) the Board upheld the judgments of both the trial court and the Court of Appeal in Belize in favour of the EIA.

7 Approval of the EIA for the Chalillo Dam was formally communicated by the first defendant acting through the Chief Environmental Officer (Mr. Ismael Fabro) to the fourth interested party BELCO, on 5th April 2002. The letter informing the decision stated among other things that: “Environmental Clearance has been granted to BELCO for the project”, and that:

“ This environmental clearance is granted subsequent to the signing of the environmental compliance plan (ECP) prepared by the department of the environment (DOE) on april 5, 2002” and it continued:

“ Kindly be informed that belize electricity company limited is required to comply with all the terms and conditions incorporated in the environmental compliance plan. Disregard of any of the terms and conditions stipulated in the compliance plan will result in the revocation of environmental clearance and/or legal action being taken against belize electricity company limited.

No changes or alteration to what has been agreed to in the ECP will be permitted without the written permission of the department of the environment.” (Emphasis added).

8 In a sense, these proceedings are BACONGO's fight redux with the Department of the Environment and BECOL except that these proceedings engage and concern the ECP signed between them and not the EIA. Also, though BACONGO is not formally a party to these proceedings, it is however one of the constituent members of BELPO, the claimant in the present proceedings. The claimant's standing in these proceedings has properly, not been challenged. In my view, this cannot be questioned or doubted from the brief description of the claimant in the introduction to this judgment. The claimant I find, pursuant to Order 56.2(1) and (2)(c) and (e) of the Supreme Court Civil Procedure Rules, 2005, has adequate and sufficient standing to pursue these proceedings: see in particular R v. Inspectorate of Pollution ex parte Greenpeace Ltd. (No. 2) [1994] 4 All E.R. 329; and R v. Secretary of State for Foreign and Commonwealth Affairs ex parte Word Development Movement [1995] 1 W.L.R. 386 (the Pergau Dam case).

9 The claimant has, in these proceedings, taken issue with four aspects of the ECP concluded between the defendant and BECOL, in respect of the construction of the Chalillo Dam. In particular the claimant argues that the defendant has through inaction or neglect, failed to monitor and ensue compliance with the terms of the ECP by BECOL, the fourth interested party.

10 The gravamen of the claimant's case is that the defendant, the Chief Environmental Officer of the Department of the Environment, has failed and or refused to carry out the directives of the ECP for the Chalillo Dam and to have BECOL, the fourth interested party comply with the obligations specified in the ECP.

11 The areas of the ECP the claimant has taken issue with relate to i) Emergency Preparedness Plan in case of a dam break; ii) The Monitoring of mercury levels in fish in the Macal River; iii) Testing the water quality in the Macal River and iv) Public information and...