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Monday, June 12, 2006 

Environmental protection?
Monday, June 12th 2006

Regulatory agencies in developing countries like Guyana play an extraordinarily important role in balancing the needs of various sectors. Unfortunately, quite often their role can be subverted particularly if those in charge fail to assert themselves.

The Environmental Protection Agency (EPA) has historically faced several types of pressure. Perhaps the most irresistible relates to the investment-starved environment that has faced the country for some time.
The EPA has in several major instances been forced to turn a blind eye to construction that has not complied with the tenets of the EPA Act perhaps because the investors balked at the additional costs that impact assessments entailed and the possibility of appeals of the decisions to grant permits.
This pressure can also be perversely wielded against investors who may not find favour with the political directorate - meaning that they face the full barrage of environmental conditions and fastidious checking by the authorities. Another type of pressure relates simply to whoever has the ear of influential politicians and how this relationship could result in a lack of action.

The EPA Act has fairly onerous stipulations which could significantly add to investment costs. It is one of the reasons why it took so long to be proceeded with. The Hoyte administration which had drafted the bill did not act on it for the very reason that investors had complained about some of its stringent provisions. It was eventually proceeded with by the PPP/Civic government as it was deemed to be important and perhaps because multilateral agencies believed it was essential to preserve the fairly pristine forests in particular.

It is worrying that the EPA does not appear to be taking some of its basic roles seriously. There were two fairly recent examples that call into question where the EPA stands on blatant transgressions of the Act it administers.

The first had to do with the dumping of fuel into the Pomeroon River by persons aboard the vessel Tina - II. In November last year, as Guyana Energy Agency (GEA) officers approached the vessel in the Pomeroon River, a large amount of diesel believed to have been smuggled from Venezuela was decanted into the river.
This had been a period of heightened checks by the GEA hence the nervousness of those aboard the vessel. It was believed that officers of the Guyana Revenue Authority (GRA) colluded with those aboard the Tina - II to avoid detection as they were on the vessel at the time.
To this day no charge has been laid in this matter. Like many other cases, what should have translated into smuggling and corruption charges against those involved vaporized into thin air.
Worse, what should have been a clear cut levying of penalties and bringing of charges against the operator of the vessel was not done even though there are clearly defined provisions in the EPA Act for it.
Moreover, the fuel dumping fouled 20 miles of the river disrupting the lives of riverain residents and it was the GEA which had to mount a costly clean-up of the area.

This is what the Act says in the pertinent area. Discussing the functions of the agency, Clause Four lays out the principles of environmental management namely (a) "the "polluter pays" principle: the polluter should bear the cost of measures to reduce pollution decided upon by public authorities, to ensure that the environment is in an acceptable state, and should compensate citizens for the harm they suffer from pollution".

Clause 19 discusses the discharge of contaminants into the environment. Contravention of this clause is punishable by a fine of not more than $500,000 and imprisonment of six months.
A stiffer penalty could also be applicable. Clause 19 (3) says the polluter must restore the natural environment by rescuing and restoring all plant and animal life; cleaning up, removing or neutralizing the contaminant; restoring the air, land and water to their condition prior to the discharge; be liable for the cost of an independent study into the cost of an independent investigation into the discharge; deposit with the agency a sum equal to the projected costs of restoration and investigation; be liable to compensate any person who suffers loss or damage as a result of the discharge.

Inexplicably none of these weapons of protection were wielded against the polluter.


The second example is even more startling. The six-storey Buddy's Hotel that is going up at Providence next to the World Cup stadium has proceeded in utter disregard of the most fundamental underpinning of the EPA Act: the conduct of an Environmental Impact Assessment (EIA).
The EPA's Executive Director Doorga Persaud told Stabroek News when asked about this project "We saw the building going up and we called them in (to) advise them of the process".

Up to that point Buddy's had not submitted the necessary documentation for the start of the approval process but had simply gone ahead with construction. When asked whether a cease order would be issued against the construction, the EPA simply said that since construction had already begun their efforts would now be concentrated on the environmental fallout from the operation of the hotel. Only in Guyana.

It was all the more perplexing as there had been two erroneous notices issued by the EPA on the matter. The first said that an EIA would not be required when it was clear to all and sundry that one would be necessary.
The second notice a few days later corrected this but also said misleadingly that the hotel owner had tendered an application for environmental authorization to "undertake the construction and operation of the Buddy's International Hotel and Mall…" This could have been so except for the not so minor fact that construction was already five storeys high. A summary of the project was also not available when Stabroek News enquired even though the notice said it was.
It was a replay of the disregard that had earlier been shown by Didco for the EPA during the construction of one of the phases for its huge investment.

This is what the EPA Act says about construction proceeding without an EIA and the necessary permits. Clause 15 (1) says that every person who fails to carry out an EIA or starts a project without obtaining an environmental permit shall be guilty of an offence and liable to penalties under the Fifth Schedule.
These penalties are a fine of not less than $70,000 nor more than $300,000 and imprisonment for three months. For a body corporate, the relevant officer would be liable to double this penalty.

Moreover, where any project is being undertaken without the relevant permit the EPA "shall immediately serve an order in writing to the person responsible directing him to immediately stop the project".

It is clear that this project is being allowed to go ahead in this manner because we are hurtling pell-mell towards the world cup and accommodation is still an unsettled issue. However, if this and every other law is applied as selectively and capriciously as this one, then at the very level of the government, law and order is being violated by those who have been entrusted with the mandate of implementing laws.
By now the government might have apprehended that many of the Guyanese bitterly opposed to its administration oppose it on a number of grounds, one being that all persons do not appear to be equal before the law.

These are two clear cases of the most egregious violation of the EPA Act and the government and the EPA should respond and act.

They should also take note of what is transpiring in Jamaica at the moment. Environmental groups: the Northern Jamaica Conservation Association and Jamaica Environment Trust successfully challenged the granting of a permit to Spanish investors for the construction of a hotel on the grounds that the required process was not followed.

The judge in the case ruled that the consultation process leading to the presentation of the EIA was flawed. Furthermore, a crucial component of the EIA was not made available to the public.
The ruling has generated enormous frisson in Jamaica and places the issue of balancing environmental concerns with development squarely on the agenda. The government here should take a lesson from this.

© Stabroek News

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