Fishermen and Friends of the Sea v. The Minister of Planning, Housing and the Environment [2017] UKPC 37 (Nov. 27, 2017)

Fishermen and Friends of the Sea v. The Minister of Planning, Housing and the Environment [2017] UKPC 37 (November 27, 2017)
Judicial Committee of the Privy Council

In 2006, the Minister of Planning, Housing and the Environment (Minister) issued fee regulations that required all polluters, regardless of facility size, pollution load, or sensitivity of the receiving environment, pay the same flat fee for water pollution permits.  The overarching legislation authorizing the Ministry to adopt pollution control regulations  incorporates the polluter pays principle and specifically clarified that “[t]he cost of pollution prevention or of minimising environmental damage due to pollution will be borne by those responsible for pollution.”  Para. 18 (quoting Trinidad and Tobago’s National Environmental Policy). 

Friends of Fishermen and the Sea (FFOS) objected to the fee structure on the ground that it breached the polluter pays principle and violated other policies.  Para. 30.  The flat fee system, according to FFOS, would leave environmental damage uncompensated.  The Authority defended its choice of fee structure, claiming the model was user-friendly and easy to administer in light of the country’s state of economic and institutional development.  Para. 34.

A lower court agreed with FFOS and ordered the Authority not to implement or enforce the permit fee system unless it “adequately and properly considered and applied the polluter pays principle in calculating and/or determining and/or fixing the annual permit fees.”  Para. 35.  On appeal, the decision was reversed by the Court of Appeals.  Leave was granted to appeal to the Privy Council. 

The Privy Council allowed the appeal on two grounds.  It first determined that the sections of the National Environmental Policy outlining key aspects of the polluter pays principle, including that money collected will be used to correct environmental damage, must be given effect.  The Board explained, “it is not sufficient that the polluter will necessarily expend its own money in complying with the permit conditions, and so contribute to the ‘correction’ of environmental damage. The fees are to be used to finance or contribute to correction activities by the Authority itself.”  Para. 41.

Secondly, the Privy Council reviewed the legality of the process used to adopt the fee structure.  The Board noted that the Minister failed to provide independent consideration of the proposed regulations before they were adopted, having inappropriately delegated the task to the Environmental Management Authority.  Para. 48.

The Privy Council declared the fee regulations unlawful and issued an order of mandamus directing the Minister to reconsider the regulations on a proper basis and make amendments accordingly (within three months).  Paras. 52, 53.