Environmental Impact Assessments

• Author: Winston Anderson
• Pages: 207-232

Page 207

10. Environmental Impact Assessments

The environmental impact assessment (EI A)

constitutes the most litigious and, arguably,

the most important area of Caribbean envi-

ronmental law. EIA cases have been heard by high

courts in the region. Several have gone to the Court

of Appeal. And at lea st two have been litigated all

the way up to the Privy Council.

e courts have been asked to decide such issues

as the eect of international conventions on the

requirement for EIAs1; which government agency

is entitled to request an EIA2; whether an EIA is

required for a proposed tourist development,3 the

construction of a landll,4 the exploration for natu-

ral gas,5 or a multilevel car pa rk6; the eect of de-

ciencies in the conduct of assessments7; dierences

in professional opinion in EIA ndings8; and the

consequences resulting from failure by the regu-

lator to disclose relevant information and engage

fully in the process of public consultation.9 e

perennial question of the right of nongovernmental

1. See Talisman (Trinidad) Petroleum Ltd. v. Envtl. Mgmt. Auth.,

No. EA3 of 2002 (Envtl. Comm’n) (Trin. & Tobago); and

Nat’l Trust for the Cayman Is. et al. v. Planning App. Trib. et

al., C.I.L.R. 521 [2001].

2. See Spencer v. Canzone Del Mare Ltd. et al., and Attorney

General, Unreported Judgement of the High Court of Antigua

and Barbuda, No.7 of 1993, dated March 12, 1993 (Ant. &

Barb.). See also Winston Anderson, Locus Standi in Commonwealth

Environmental Law: Caribbean Perspectives, 4 C L. R.

379, 383 -387 (1994).

3. See Spencer v. Canzone Del Mare Ltd (Ant. & Barb.), supra,

note 2.

4. Scot. Dist. Ass’n Inc. v. Att’y-Gen. & Others, 53 W.I.R. 66

(C.A. 1996) (B’dos).

5. See Talisman (Trinidad) Petroleum Ltd., supra note 1; Nat’l Trust

for the Cayman Is. et al. supra note 1.

6. Benjamin v. Att’y Gen. & Dev. Control Auth., High Court No.

54 of 2007, (H.C.) (2007) (Ant. & Barb.).

7. Belize Alliance of Conservation Non-Govtl. Org. v. Dep. of the

Env’t, 64 W.I.R. 68 (2004) (Belize).

8. Delapenha Funeral Home Ltd. v. Minister of Local Gov’t &

Env’t, JM (2008) S.C.72 (S.C.) (2008) (Jam.).

9. N. Jam. Conservation Ass’n et al. v. Natural Res. Conservation

Auth. & Nat’l Envtl. & Planning Agency, JM (2006) S.C. 49

(S.C.) (2006) (2006) (Jam.).

entities to invoke statutory requirements for assess-

ments has also been investigated.10

e Privy Council decision in Belize Alliance of

Conservation Non-Governmental Organisations v.

e Department of the Environment and Another

(No 2)11 is of specic importance here, as it helps to

contextualize Caribbean regimes within the global

matrix of EIA regulation. Information on the con-

duct of environmental impact procedures in Belize

is contained in the Environmental Protection Act

and the Environmental Impact Assessment Regu-

lations of 1995 made under powers in the act.

Together, the act and regulations provide that any-

one underta king a project that may “signicantly

aect” the environment must cause an EIA to be

carried out and submitted to the Department of

the Environment (DOE) for evaluation.

Inviting the possibility of comparative jurispru-

dence, Lord Homan stated,

e Belize leg islation has much in common with

legislation i n a number of other countries which

require some sort of environmental study before

signicant projects may proceed. It resembles,

for example, t he regimes established f or Member

States of the European Union by Council Direc-

tive 85/337/EEC (as amended), for Canada by the

Canadian Environmenta l As sessment Ac t 1992

and by simi lar legis lation in the States of Aus-

tralia. But, as their lordsh ips will have occasion

to notice when they come to examine the Belize

statute in more detail, there are also signicant

dierences. W hat each system attempts in it s

own way to secure is that a decision to authorize

a project likely to have signicant envi ronmental

eects is preceded by public disclosure of as much

relevant information about such eects as can

10. Benjamin v. Att’y Gen. & Dev. Control Auth., (H.C. 54, 2007)

(Antigua and Barbuda).

11. Belize Alliance of Conservation Non-Govtl. Org., 64 W.I.R. 68.

Page 208 Principles of Caribbean Environmental Law

reasonably be obtained and the opportunity for

public discussion of the issues w hich are raised.

What the se systems also h ave in common is that

they disting uish between the procedure to be fol-

lowed in arriving at the decision and t he merits

of the deci sion itself. e former is laid down by

statute and i s binding upon the decision-binding

authority. e latter is entirely within the compe-

tence of that authority.

A number of issues thus arise for discussion that

could draw on the jurisprudence of other jurisdic-

tions. Some of these issues include the denition

of the EIA, the sources of law supporting a request

that an assessment be carried out, the details of the

regime governing the EIA process, and the nature

and consequences of breaching EIA requirements.

Def‌ining Environmental Impact

Assessment

e United Nations Environment Program me

(UNEP) denes the EI A as “an examination,

analysis and assessment of planned activities with

a view of ensuring environmentally sound and sus-

tainable development.”12 Greater elaboration is pro-

vided by William Sheate,13 who describes an EIA as

a public process by which the likely signicant

eects of a proposal on the environment are iden-

tied, assessed and then take n into account by

the consenti ng authority in the decision-making

process. It provides t he opportunity to take envi-

ronmental considerations into acc ount at the ear-

liest opportunity be fore decisions are made about

whether to proceed with a proposed development

or act ion. e environmental impac t assessment

enables proposals to be modied in the lig ht of

potential impact s identied in order to elimi nate

or else mitigate them.

ese denitions are consistent with the inter-

national requirements for establishing environ-

mental impact assessments for development,14 and

they emphasize certain features of the assessment

process. Principle 17 of the 1992 Rio Declaration

on Environment a nd Development requires that

12. See UNEP Governing Council Decision: Goals and Principles

of Environmental Impact Assessment, UNEP GC/DEC/14/25,

17 E.P.L. 36 (1987), June 17, 1987.

13. W S, E I A: L

 P—M  I II 25 (1996).

14. See Christine Toppin-Allahar, A Comparative Analysis of Envi-

ronmental Impact Assessment Law and Planning Practice in the

Commonwealth Caribbean, 11 C L. R. 1, 1-2 (2001).

See generally S, supra note 13.

the EI A as a national instrument “be undertaken

for proposed activities that are likely to have a

signicant adverse eect on t he environment and

are subject to a decision of a competent national

authority.” e Programme of Action for the Sus-

tainable Development of Small Island Developing

States, adopted at the follow-up United Nations

Global Conference on Small Island Developing

States held in Barbados in 1994, identied the need

for national action to

develop appropriate national and local environ-

mental regulations which reect the needs and

incorporate the principles of su stainability, create

appropriate environ mental standards a nd proce-

dures, a nd ensure their integration into n ational

planning instruments and deve lopment projects

at an early stage in the design process, including

specic legi slation for appropriate environmental

impact assessment for both public and private

sector development.15

A number of features of the assessment proce-

dure may be identied. First, the EIA process is

inherently procedural; it establishes a systematic

course of action for incorporating environmental

considerations into development decisionmaking.

e EIA assesse s how a project will aect the envi-

ronment and provides alternatives for reducing any

harmful eects. e EIA may be either a simple

statement or an elaborate a nd technical a nalysis of

environmental considerations. Its precise nature

and content varies depending on the project’s com-

plexity and the pa rticular legal requirements, but

an essential consideration is that the a ssessment

should provide a sound scientic basis for manag-

ing environmental elements.

Second, the EIA process is informational in

two senses. In one sense, it is intended to facili-

tate the collection of information about potential

environmental impacts so that decisionma king is

informed. In the other sense, the process may elicit

information on alternatives that achieve the same

developmental objectives but are less damaging to

the environment. Information also provides the

basis for deciding on any mitigation measures that

may be appropriate. In this way, the process is dia-

lectic; t he information it provides feeds back into

the development decisionmaking and thus inu-

15. See Global Conference on the Sustainable Development of Small

Island Developing States, Bridgetown, Barbados, Apr. 25-May

6, 1994, Programme of Action for the Sustainable Development of

Small Island Developing States, annex II, ch. X, art. 49 (A) (vi),

A/Conf.167/9.