Editorial | NEPA needs attention
It ought to have long been obvious that the regulatory oversight of Jamaica’s environment is in crisis and urgently in need of overhaul. Last week’s repudiation by the courts of a 2018 decision by the Natural Resources Conservation Authority (NRCA) to grant the National Housing Trust (NHT) permission for a seaside wastewater treatment plant at Industry Cove, Hanover, without an environmental impact assessment (EIA) merely reinforces the point.
But while the NRCA is the immediate focus of legal attention, the National Environment and Planning Agency (NEPA) should not be allowed to slink through the cracks. For as Justice Kirk Anderson reminded in his ruling, the NEPA is the agency that “has responsibility to carry out the technical and administrative mandate of the NRCA and TCPA (Town and Country Planning Authority)”, the two regulatory bodies that were sued by Arlene Peterkin, an Industry Cove resident.
Indeed, in recent years, as citizens have become increasingly emboldened to insist on their rights and on the protection of the environment, the NEPA has been found wanting. Its preference, it seems, is to make concessions to commerce, to the detriment of the environment.
Last week’s judgment involved the TCPA’s approval of the subdivision of lands for the construction of the 63 middle-income homes at Industry Cove and the permits granted by the NRCA for the sewage plant to support the development. Essentially, that was the NEPA.
The case turned on whether the NRCA was obligated to insist that the NHT, the government’s primary shelter agency, produce an EIA. The NRCA said no, relying on Section 10 of the NRCA Act, which, on the face of it, gives it discretionary powers in these matters.
However, lawyers for Ms Peterkin – who was concerned that effluent from the plant could damage the beach, which is widely used by fishermen and which the community has enjoyed for decades – argued that of greater relevance were sections of the law that gave the minister power to make regulations for the management of the act. One of these requires an EIA before the construction and operation of a wastewater plant that will involve the discharge of effluent. In addition to the NRCA’s clam of discretion, the NHT argued that its plant would not discharge effluent, except if its three absorption manholes were flooded in extreme weather events.
The court disagreed with the Trust’s characterisation of the facility. “... Since the NHT’s process contemplated discharge of effluent into the environment, there needed to have been compliance with regulation 5 (3) and an EIA submitted,” Justice Anderson wrote.
The judge quashed the licence awarded for the sewage plant and did the same for the subdivision permit. “As things now stand … an EIA will need to be conducted at the expense of the NHT, using an independent and competent party to carry out the same ... ,” he said. It was only if the EIA justified the proposed sewage system in its current design or some modified form could the facility “be properly allowed by the NRCA”, the judge said.
He added: “If the licence is properly granted, then, but only then, can the relevant environment permit for subdivision and construction of housing projects … albeit with retrospective effect, properly be granted.”
This newspaper hears, with respect, the judge’s view that while the NRCA’s action was illegal, it had not acted irrationally and appeared “to have acted in good faith at all times”.
HARDLY PAY HEED
Perhaps! Except that the NEPA, proxy NRCA and other agencies appear to hardly ever pay heed to the voices – until they become a crescendo – that speak in protection of the environment, especially if it perceives short-term gains. In 2018, the Jamaica Environment Trust joined Industry Cove residents in trying to get the NEPA to review the permits. There were complaints of an absence of transparency. The fact that this was the NHT’s first housing project in Hanover in a quarter of a century perhaps added to the pressure to get it done.
Industry Cove is not the only project where many feel the NEPA, in its own right, or as representative of other agencies, has been less than robust in protecting the environment or has tipped the scale in favour of big interests rather than communities. Not so long ago, it was rushing headlong for large-scale limestone mining in the ecologically sensitive Dry Harbour Mountains in Bengal, St Ann, and its seeming tolerance for advances towards the Cockpit Country. And there are several recent cases, halted by the courts, in which it showed poor judgement in construction-related permits for projects that disturbed restrictive covenants.
We recall, too, what Justice Natalie Hart-Hines said about the NEPA and the Kingston and St Andrew Municipal Corporation over their regulatory stewardship of a development on Roseberry Drive, Kingston 6.
She said: “The garden metaphor in Hamlet was used by Shakespeare to represent the decay of a country when it becomes lawless and corrupt because those who are tasked with the responsibility for pruning and managing it fail to carry out their responsibility. In this case, it seems that the Kingston and St Andrew Municipal Corporation (KSAMC) and the National Environment and Planning Agency (NEPA) have been dilatory in their mandate to enforce local planning laws and regulations and to promote sustainable development in respect of the building situated in the property, which is the subject matter of this application.”
We called then for a major weed cleaning. We repeat it now.