Legal Insights

Although there are various pieces of legislation which may impose environmental obligations the Environmental Management Act, Chap. 35:05 (“the Act”) is the major piece of legislation in Trinidad and Tobago relating to the regulation, conservation and enhancement of the environment. The two main bodies established under the Act are the Environmental Management Authority (“the Authority”) and the Environmental Commission (“the Commission”). The Minister vested with responsibility for the environment (“the Minister”) also plays a vital role.

The Authority is established as a body corporate and its primary role, among others, is to develop and implement policies, standards and programmes for the management and use of the environment in accordance with the objects and purposes of the Act. The Authority also acts as a regulator and is given various general powers, which include among other things, to acquire information, to require the payment of charges and fees as may be prescribed, to appoint inspectors who have powers of entry and inspection of premises and vehicles (which is very widely defined), to take samples and the power to undertake emergency response activity in certain environmental emergencies and to implement schemes and programmes regulating activities that affect the environment.

The Commission on the other hand is established as a tribunal to exercise jurisdiction relating to complaints under the Act. The Commission is a superior court of record with power to enforce its orders and judgments and to punish contempt. The primary jurisdiction is to hear appeals on decisions taken by the Authority; applications for enforcement; assessments of compensation; complaints brought in private party actions. The decisions of the Commission are final on questions of fact but an appeal will lie to the Court of Appeal on any question of law.

The Minister responsible for the environment also has an important role and may (after an elaborate rule making process involving public comment with a public hearing if there is sufficient public interest) develop certain rules which must be laid in Parliament subject to negative resolution. The Minister also has the powers to make regulations prescribing charges and fees payable to the Authority and as to the manner of implementing policies and programmes. In addition, the Minister also has the power, subject to the negative resolution of Parliament, to prohibit the carrying out of activities without such person first obtaining a certificate from the Authority.

Several pieces of subsidiary legislation have now been passed into law under the aegis of the Act. The Certificate of Environmental Clearance (Designated Activities) Order (“the Order”) is perhaps the most well-known. This Order designates multiple categories of activity across various industries which require a Certificate of Environmental Clearance (“CEC”) from the Authority before they can be properly undertaken. The Certificate of Environmental Clearance Rules governs the application for and grant of CECs by the Authority, which are typically granted subject to conditions. The application process often involves considerable public consultation and the applicant may also be required to carry out an Environmental Impact Assessment to the satisfaction of the Authority. Obtaining a CEC does not negate the need to obtain other applicable regulatory approvals.

Other examples of subsidiary legislation enacted pursuant to the Act include the (i) Noise Pollution Rules; (ii) Environmentally Sensitive Species Rules; (iii) Environmentally Sensitive Areas Rules; (iv) Water Pollution Rules; and (v) Air Pollution Rules. Each of these rules imposes various regulatory requirements on the area of the environment which they concern. Draft Waste Management Rules and Draft Hazardous Waste Rules have also been prepared but they have not yet been passed into law.

The main enforcement provisions of the Act allow the Authority to impose an “environmental requirement” upon a party to comply with its lawful directions. The Authority may enforce these requirements by service of a notice of violation requiring a person to modify an activity or make representations to the Authority. The person will have the opportunity to resolve queries in which case the notice may be withdrawn or a consent agreement entered into.

If neither of these happen then the Authority may issue an administrative order which may include, among other things (i) cease and desist directives; (ii) directives for remediation of environmental damage; (iii) directives for the carrying out of investigations, monitoring or record keeping; (iv) administrative civil assessments for compensation; and (v) directives for compliance under a specific provision of the Act. An administrative order is subject to appeal to the Commission. The Authority may also file any consent agreement or final administrative order and an application for enforcement with the Commission. It has been held that a claim for malicious prosecution in relation to enforcement proceedings brought by the Authority under the Act is actionable in law. As a result, the Authority can be ordered by the High Court to compensate a party for the malicious institution of proceedings pursuant to the Act.

The Authority also has a jurisdiction to seek restraining orders, orders for closure of a facility and/or the prohibition of certain operations and any other remedy available to it at law. Private parties may under certain conditions also institute civil proceedings before the Commission in their own right and there are various specific offences which carry fines and/or imprisonment.

One of key concerns since the establishment of the Authority is its ability to ensure compliance with the provisions of the Act and the various regulations enacted thereunder. The Authority has maintained a consistent presence in these areas through the issuing of notices of violations in matters such as the commencement of work without approval, unauthorised clearing of lands, and other breaches of the relevant CECs. In one instance, the Authority issued fines amounting to $20 million against a State company for various breaches of its CEC.

While the Commission remains active to date and has adjudicated on matters within its jurisdiction, it has not produced a wealth of jurisprudence thus far. This can be attributed to the willingness of violators to settle their matters with the Authority through the consent agreement mechanism of the Act and the limited public awareness on the ability of a private party to initiate proceedings before the Commission.

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