Privy Council ‘sits’ at Radisson

A meeting room at the Radisson Hotel in Port of Spain was converted on Thursday into a courtroom for a Privy Council hearing of a lawsuit involving this country’s Water Pollution (Fees) Amendment Regulations.

Attorneys representing the environmental lobby Fishermen and Friends of the Sea (FFOS) sought the permission of the London-based Privy Council to have its attorneys make their submissions in Trinidad instead of travelling to London for the hearing.

Permission was granted and FFOS secretary, businessman Gary Aboud, rented a meeting room at the Radisson Hotel, where a video-conference link was made with the London court.

The hearing began at about 7.30 am on Thursday and the FFOS was represented by Senior Counsel Fyard Hosein and attorneys Rishi Dass and Marina Narinesingh.

Both the Environmental Management Authority (EMA) and the State retained British lawyers, so their attorneys attended court at the courtroom at the Supreme Court of the United Kingdom in London, England.

After reserving judgement in the case, deputy president of the UK’s Supreme Court Lord Jonathan Mance thanked the FFOS and their attorneys for using the technology.

“I hope that this experiment that we just completed continues and did not prove too difficult,” Mance said, describing the hearing as a “fruitful development” for the Privy Council.

Before the judges, was the appeal of the FFOS against a decision by the local appellate court, to reverse a judge’s decision that ordered the ministry to properly apply the internationally-recognised “polluter pays principle” (PPP) in calculating and fixing such fees before implementing the Water Pollution (Fees) Rules.

The FFOS had challenged a decision by the State to standardise the permit fee under the provisions of the Environmental Management Act. The Water Pollution (Fees) Amendment Regulations, 2006, required polluters to pay a fixed annual permit fee of $10,000, regardless of their size.

Justice Devindra Rampersad, in his ruling in October 2012, found the Water Pollution (Fees) Amendment Regulations, 2006, illegal and beyond the legal authority of the Environmental Management Act and the National Environmental Policy.

The environmental lobby called on the judge to review Government’s implementation of the water-pollution fees permits as a standard across-the-board fee, instead of abiding by the sliding scale of the polluter-pay principle, which would charge more fees depending on the quantum of pollution discharged. According to FFOS, the fee structure was contrary to the internationally-accepted environmental principle (PPP).

The regulations were introduced in 2001 and fixed a standard fee of $10,000 for obtaining a permit by a polluter for the “legitimate” pollution of the water supply. In 2006, certain recommendations were made and the 2001 regulations were amended to include minor adjustments in two areas but without adjusting the standardised permit fee.

After Rampersad’s decision to quash the EMA’s authority to use the fixed or flat fee and issue an order of mandamus compelling the EMA to properly use and apply the PPP, while stopping it from any continued implementation of that fee. The Government and the EMA appealed the decision.

The State and the EMA were successful in the Court of Appeal and their attorney at the Privy Council, British Queen’s Counsel Thomas Roe, said the local appellate court was correct in its assessment.

“It might not be a perfect scheme but it is not an unlawful one,” Roe said.

Roe claimed it was chosen in 2001 because it was simple and easy to administer when compared to other options and was suitable according to the state of the economic and institutional development of T&T at the time.