In Northern Jamaica Conservation Association et al. v. Natural Resources Conservation Authority (NRCA) and National Environment & Planning Agency (NEPA), Claim No. HCV 3022 of 2005 (May 16, 2006) (Judgment No. 1), the Jamaican Supreme Court considered whether the public was adequately consulted during the environmental permitting process for a large-scale resort development to be built in an ecologically sensitive area on Jamaica’s northern coastline. Northern Jamaica Conservation Association, at paras. 6-7. NRCA issued a permit to a developer (HOJAPI) for construction of a resort hotel in July 2005. Id. at para. 54. Shortly thereafter, two environmental organizations, Northern Jamaica Conservation Association (NJCA) and Jamaica Environment Trust (JET), brought suit against NRCA and NEPA challenging the decision to grant HOJAPI the environmental permit as irrational and unreasonable. Id. at para. 7. Among other claims, the organizations argued the consultation process was inadequate and failed to meet their legitimate expectations that public participation would be conducted in accordance with NRCA’s recognized guidelines. Id.
The case focused on the public and interagency comment process concerning an environmental impact assessment (EIA) submitted by HOJAPI at NRCA’s request. Id. at para. 42. Upon receiving the EIA, the agencies made it available on NEPA’s website and invited the public to submit comments. Id. at paras. 40-43. Although NRCA and NEPA were not statutorily required to conduct public consultation, their published guidance indicated they would solicit public comments on projects of this nature. Id. at para. 79.
The Jamaican Supreme Court noted that the public comment process facilitated by NRCA “appears to be an example of a public body engaging in consultation.” Id. at para. 44. However, the Court was troubled by the omission of key information regarding the ecology of the project site in question. Justice Sykes explained:
It is common ground that a marine ecology report that should have formed part of the EIA was not submitted [by the project developer] at the time the EIA was sent to the NRCA. The marine ecology report was also missing at the time of the public meeting. In fact, the public, other than perhaps the applicants, still do not know of the marine ecology report. The report has not been exhibited. It is said that this was an oversight. No one knows what effect it might have had on the public discussion. No one knows if a different decision would have been made had it been made public or how it would have affected the public’s understanding of the project. Id.
Ultimately, the Court found the public participation process to be defective, declaring that once a decision maker embarks on public consultation, it must meet certain minimum standards even if consultation is undertaken voluntarily. Id. at paras. 38, 82. NRCA and NEPA failed to meet legal standards for consultation because they withheld an important ecological report and two addenda to the EIA from the public. Id. at para. 120. The Court explained that the failure to provide complete information to the public increased the possibility of inaccurate and erroneous conclusions about the environmental impacts of a proposed development project. Id. The Court went on to declare, “. . . if there is going to be effective public discussion then all the information that ought to be disclosed must be disclosed. This is a legitimate expectation of the applicants. They were entitled to believe that the respondents would (a) tell them that the EIA was incomplete at the time it was circulated and (b) disclose the missing parts when it came to hand.” Id. at para. 81.
The Court also took issue with NRCA’s flawed consultation with the Water Resources Authority (WRA), an agency that lodged significant concerns about the proposed project’s impacts to water quality and marine waters. NRCA’s failure to disclose the marine ecology report to WRA undermined consultation between the agencies, according to the Court, because WRA did not have a “full picture” of the potential impacts of the proposed resort. Id. at para. 60. NRCA offered no compelling reason why it did not disclose the report to WRA. The Court concluded: “The behaviour of the NRCA and NEPA in this matter means that they deprived themselves of the benefit of consultation with the WRA on the marine ecology report” and acted ultra vires. Id. at para. 78.
Turning to the poor quality of the EIA, the Supreme Court highlighted several informational shortcomings and errors, stating: “There are more than enough deficiencies highlighted that ought to have raised serious doubts about the quality of the empirical work of the EIA.” Id. at para. 99. The Court observed, “NRCA and NEPA failed to give adequate weight to the obvious empirical failings of the EIA thereby depriving themselves of the opportunity to put in place adequate controls in light of the circumstances that actually existed in the ecologically sensitive area.” Id. at para. 120. The Court explained:
[w]ithout a proper evidential basis it would be difficult to see on what basis an effective monitoring programme could be developed since one would need to know the true ecological state of Pear Tree Bottom at the time the monitoring programme is implemented. Without this it is difficult to see how it could be determined whether the ecology of the area was improving, deteriorating or static. Id.
Justice Sykes quashed the decision granting the permit for the reasons outlined above and ordered NRCA to reconsider its decision to grant the permit. Id. at para. 120. The Court also granted declaratory relief finding NRCA and NEPA breached a legitimate expectation of the applicants. Id. at paras.120-21. “The consultation process was flawed because an important part of the EIA was not placed in the public domain and the public was not told about this omission. The public were led to believe that the EIA was all that there was when this was not the case and this was known the NRCA and NEPA. The public were therefore deprived of participating in a consultation process that was based on full and complete information.” Id. at para. 121.
**NOTE** The hotel developer eventually intervened and a later court decision revoked the order to quash due to hardship faced by the developer but left in place the declaratory orders finding that the public consultation in this case was inadequate. Northern Jamaica Conservation Association et al. v. Natural Resources Conservation Authority (NRCA) and National Environment & Planning Agency (NEPA), Claim No. HCV 3022 of 2005 (June 23, 2006) (Judgment No. 2) at para. 65 (available at: http://www.jamentrust.org/wp-content/uploads/2016/03/Pear_Tree_Botton_Ju...). This subsequent order was based on a lack of proper service and evidence that the construction of the resort was already 85% complete. Id. at para. 62. However, it maintained the declaratory relief concerning the adequacy of public consultation and the “breach of the legitimate expectation of the applicants that when they were invited to participate in the consultation, either as members of the public or in their own right, the information provided would be full, fair and accurate. . . .” Id. at para. 65.a.2.f.
Note the following corrections that should be made:
* Wendy Bell is a typo - should be Wendy Lee.
* John de Carteret is a member of NJCA, not JET.