Regulation of Pollution

• Author: Winston Anderson
• Pages: 233-255

Page 233

11. Regulation of Pollution

Modern Caribbean regulation of pollu-

tion is undertaken by legislation and

regulations, which, generally speak-

ing, proscribe certain polluting activities on pain

of criminal punishment. Although these rules owe

their origin and orientation to British legal heritage,

they are being inuenced increasingly by legislation

from elsewhere and, more critically, by obligations

established in international conventions to which

the Caribbean state has become party. A feature

of primary legislative enactments is the tendency

to remain relatively general in their prescriptions.

ere are few scientic criteria that measure and

discriminate between polluting outputs on the basis

of ambient qualities of the environment. Further

action is invariably to be taken by an ocia l, often

in the passage of regulations or the development of

rules. Modern legislation tends to undertake regu-

lation within a fairly robust framework that syn-

thesizes not just the legislative initiatives but also

the institutional, administrative, and enforcement

capabilities as well.

Adoption of framework legislation has been

complemented and implemented by more spe-

cic regimes. In addition to the genera l regulation

noted earlier, the umbrella legislation may itself

contain substantive regulation of specic subareas.

is legislation is highly visible in Trinidad and

Tobago, where the 2000 Environmental Manage-

ment Act is primarily concerned with outlining

the development of regimes for air and noise pol-

lution; water pollution; and pollution from hazard-

ous substances, wastes, and spills. Furthermore, the

regulating entity may pa rticipate in making rules,

orders, or regulations, in turn enhancing regula-

tion under the parent statute.

Independent legislation may be enacted to

regulate pollution from specic sources. Such leg-

islation is either administered by the lead environ-

mental agency or tied to the framework legislation.

In this way s ynergies and complementarities may

be developed with legislation of an earlier vintage.

Legislating for specic pollution problems opens

up the possibility for developing truly idiosyncratic

rules for specic problems. Framework legislation

also gives specic powers to the minister to make

regulations for specic regimes.

It should also be borne in m ind that regulation

of Caribbean pollution must contend with the com-

mon law, including the law of statutory nuisance.1

e common law retains its relevance mainly in

circumstances where the regulatory agency fails to

act, or fa ils to act properly or eectively. Equally

important, the common law may well ll in the

gap where the regulatory regime grants exemptions

or exceptions and where compliance with the pre-

scribed sta ndards nonetheless results in unreason-

able interference, although the latter point is far

from being uncontroversial.2

Legislative Framework for Pollution

Control

Framework legislation controls pollution by imple-

menting environmental principles on integration,

precaution, pollution prevention, a nd “polluter

pays”. Adoption of these principles involves pro-

viding a clear denition of pollution; enabling the

1. For a more complete discussion on this subject, see chapter 8,

above, and chapter 12, below. A useful judicial precedent is

presented by the case of Greenidge v. Barb. Light & Power Co.,

27 W.I.R. 22 (1975) (Barb.).

2. Winston Anderson, Environmental Law Enforcement: e Role of

the Judiciary, in I N  E

C  E C P

363 (2002).

Page 234 Principles of Caribbean Environmental Law

integration of legislative, institutional, and enforce-

ment competences; proscribing and regulating pol-

lution incidences; and providing the platform for

further regulatory developments.

Def‌inition of Pollution

Regulation of pollution under the framework envi-

ronmental legislation begins with a statutory de-

nition of what amounts to pollution. Each piece of

legislation, particularly those enacted in or after

1992, contains a fairly extensive denition that

includes the basic elements of the introduction

of subst ances into the environment that result in

adverse eects. e fundamental distinction with

the denition of pollution as provided for in earlier

statutes, such as the environmental health legisla-

tion, is that the concept is dened in terms much

broader than those used to describe human hea lth;

here, pollution is a lso concerned with degradation

of a wide range of environmental interests.

Early Framework Legislation

e early framework legislation dealt with pollu-

tion in a limited way. ere is no denition of the

broad concept of pollution in the 1991 Natural

Resources Conservation Authority Act of Jamaica.

However, in §2 “sewage euent” includes any

euent from sewage disposal or sewage works,

and “trade euent” includes any liquid, other than

domestic sewage (either with or without particles of

matter in suspension in it), that is discharged from

premises used for carrying on trade or industry.

For t he purposes of this denition, any premises

wholly or mainly used (whether for prot or not)

for agricultural purposes or for scientic research

or experiment shall be deemed to be premises used

for carrying on a trade.

Framework Legislation From 1992

Framework legislation enacted from 1992 onward

dealt with the pollution problem in a much more

fulsome way. e Environmental Protection Act

of Belize denes “environmental pollution” and

devotes par t III (consisting of §§6 through 11) to

the prevention and control of it. e Environmental

Protection Act of Guyana adopts the Belize model,

but part V regulates the discharge of pollution in a

much more comprehensive manner. Although the

2000 Environmental Management Act of Trini-

dad and Tobago contains only one provision on

the integrated regulation of pollution, several other

detailed provisions outline the development of

regimes in the specic areas of air, noise, and water

pollution. ere are a lso provisions on regimes for

pollution, hazardous substances, and wa stes.

Under the 1987 National Conservation and

Environment Protection Act, as a mended by the

1996 National Conservation and Environment

Protection (Amendment) Act of St. Christopher

(Kitts) and Nevis, pollution is regulated primar-

ily in relation to the limited legislative concern to

protect natural and cultural heritage. Section 2 of

the 1987 National Conservation and Environment

Protection Act denes pollution as

any direct or indirect a lteration of the physi-

cal, thermal, chemical, biologica l or radioactive

properties of any part of t he envi ronment by the

discharge, emission or the deposit of waste s so as

to a ect any bene cial use adversely or to cause

a condition which is haz ardous to public hea lth,

safety or wel fare, or to a nimals, birds, wildlife,

marine life or to plants of e very desc ription.

e Environmental Protection Act of Beli ze

deals with the regulation of pollution in a far more

comprehensive way tha n any of its predecessors.

Environmental pollution is dened as “the presence

in the environment of any environmental pollutant

that endangers human health, the integrity of t he

environment, or d isrupts the ecological balance.”

e term “environmental pollutant” is further par-

ticularized to mean “any solid, liquid or gaseous

substance present in such concentration as may be,

or tend to be injurious to human health or the envi-

ronment; it includes objectionable odours, noise,

vibrations, radioactivity, temperature change, or

physical, chemical or biological change to any ele-

ment of the environment.”

Under the 2000 Environmenta l Management

Act of Trinidad and Tobago, pollution is dened

as “the creation or e xistence of any dev iation

from nat ural conditions within the environment,

which based on technical, scientic or medical

evidence is determined to cause or to be likely to

cause harm to human he alth or the environment

resulting from (a) the presence or release of a ny

substanc e; or (b) any other type of distu rbance,

whether by noise, energy, rad iation, temperature

variation, vibration, or objectionable odors.” e

notion of “release” includes any disposing, spill-

ing, emitting, leaking, or other incidence of dis-