Editorial | Mr Maddan had to go

Even if the National Environment and Planning Agency (NEPA) could mount the most credible defence of the deal – controversial non-disclosure clause notwithstanding – to end its prosecution of the Trade Winds juice company, the agency’s chairman, Weldon Maddan, had no other honourable, moral or decent option, but to resign.

And that is not because NEPA may have breached the Government’s rule (assuming it was formally implemented), flagged in February, limiting the use of non-disclosure agreements (NDA) by state agencies when they conclude legal matters.

Mr Maddan did something far more egregious. Mr Maddan implicitly lied to the Jamaican people about his knowledge of the NDA, when, in fact, he was at the heart of it. Either that or he suffered a serious, but hopefully temporary, bout of amnesia.

The day before his resignation was announced, and in the face of questions of why NEPA ended the criminal prosecution of Trade Winds Citrus Limited, Mr Maddan told this newspaper that he had “no recollection” of the issue coming before his board.

“I have no reason to be concerned, other than the fact that it is something that is in the public,” he said. “The board will be apprised, and the executive will take some action.”

However those words may be parsed, sliced, dissected or otherwise analysed, they contain blatant untruths.

For, as it turned out, it was Mr Maddan who, on behalf of NEPA, signed the agreement with Peter McConnell and Anthony Desnoes, directors of Trade Winds.

Further, based on a chronology of events, made public by NEPA, the recommendation by the agency’s legal and enforcement, public relations and marketing committee (LEPRMC) was endorsed by the authority – the board – at a July meeting, “as heard by Zoom meeting recording”.

Even if Mr Maddan was absent from that meeting, he ought to have had access to its minutes.

And he signed the agreement.

FORFEIT TRUST

In the event, not only did Mr Maddan forfeit the trust Jamaicans vested in him as the chief steward of the country’s environment, but some might as well accuse him of attempting to throw the NEPA staff under the bus, given his implied ignorance of the deal in remarks to The Gleaner.

Then there is, separately, the issue of whether NEPA acted appropriately in this matter.

NEPA is the administrative and enforcement arm for a number of bodies that are responsible for various aspects of the island’s environment. These include the Natural Resources Conservation Authority (NRCA).

In December 2023, heavy fuel oil from a boiler at a plant owned by Trade Winds leaked into the nearby Rio Cobre river in the parish of St Catherine. NEPA received a fiat from the director of public prosecutions (DPP) to itself criminally prosecute Trade Winds in the St Catherine Parish Court for the offence.

In the meantime, Trade Winds had engaged in decontamination efforts and NEPA, according to its report, concluded that the clean-up effort was effective.

In July, the NEPA committee recommended that the matter be mediated and the legal prosecution dropped, “depending on the outcome of the mediation”. They were satisfied, the LEPRMC said, with what Trade Winds had done.

In September, the parties asked the presiding judge, Yvette Wentworth-Miller, to send the matter for mediation. She declined, but advised the parties that they could do that themselves.

Last week in court, NEPA told the judge that it was ending the case via a nolle prosequi. When the judge asked for a copy of the agreement she was told it was confidential, given that it contained an NDA.

Public outrage caused it to be published and Mr Maddan to resign.

FORECLOSED

Under the settlement Trade Winds does not admit liability. NEPA, however, is foreclosed now, or in the future, from any “proceedings, claims and demands”, which the agency might have had against the company, “its insurers, agents, assigns, affiliates, licensees or sub-licensees arising directly or indirectly”, from the case.

Either side is responsible for its own legal costs, which in the case of NEPA/NRCA means taxpayers.

Trade Winds’ obligation, other than the cost of the clean-up, is to “take all reasonable steps to maintain and expand its usage of best environmental practices across its operations” and to “effectively collaborate with NEPA and community groups in environmental monitoring and developing sustainable solutions for areas of the Rio Cobre river adjacent to its properties”.

Maybe those issues are covered by annexes to the settlement, but the agreement does not define, or set out with specificity, the things that Trade Winds has undertaken to do. Neither does it establish a process for monitoring what is to be done.

In the circumstances, there are still questions of whether this was a good deal for the environment and environmental enforcement. At this point, except for Mr Maddan’s departure, the answer looks iffy.