Business

A new ERA for Jamaica's environment?

Legal Notes

With Krishna Desai

Wednesday, October 03, 2012    

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SIGNIFICANT changes are being proposed for the regulation and management of Jamaica's environment which will affect businesses and business interests.

Businesses, and other stakeholders, will have a chance to give their input in a series of public consultations being held by the government in October to discuss Green Paper No. 2/2010 "The establishment of an Environmental Regulatory Authority (ERA)".

A green paper is the precursor to official government policy and it gives everyone an opportunity to make comment and to air concerns before a proposal becomes a white paper.

This current green paper recognises that "some significant problems in the current arrangements for planning and environmental regulation in Jamaica are impeding investment and development, whilst also failing to give the environment adequate protection". While those are strong words for the Government to utter in any self-assessment, there is no doubt that it is a true reflection of the current regulatory regime.

Business interests, such as land developers and industrial manufacturers, have for many years been vocal that the current regulatory arrangements result in unduly long processing times for development approvals even where the applications are for relatively simply developments which are environmentally benign. Other complaints relate to the myriad overlapping and unclear roles of different regulatory agencies and the apparent lack of coordination and communication between different arms of the Government.

In order to address these, and other, problems three key steps are recommended in the green paper;

(1) To establish an Environmental Regulatory Authority (ERA),

(2) To develop a National Spatial Plan, and

(3) To give the existing National Environment and Planning Agency (NEPA) the lead role in helping to solve environmental problems.

The business community will be keen to note that the ERA will have primary responsibility for environmental policing in terms of monitoring for compliance with permits, licences, and other approvals and for the enforcement of environmental and planning laws. While in the main, this role will be no different from that which is currently the legal mandate of NEPA; the proposal is that the new ERA will be a specialised, skilled agency, focused primarily on the most serious offenders.

As the green paper proposes that the enforcement role would be reassigned from NEPA to the ERA, NEPA would be tasked with having a greater focus on developing a new National Spatial Plan and with having a significantly strengthened role in assisting private and public sector organisations to actually solve their environmental problems.

The National Spatial Plan as outlined in the green paper would let business interests know up front how any speculative development applications would be treated with as the Plan calls for setting up of clear guidelines at both the national and local levels. In the Plan, this would include the identification of areas in which particular types of land use would be encouraged and others prohibited; to the extent that there would be no-build zones identified in relation to areas known to be vulnerable to natural disasters or areas of significant environmental sensitivity. This is said to have the advantage of simplifying and streamlining the planning approval process as it would screen those applications which do not offend from those applications which need close scrutiny.

NEPAs proposed proactive focus on helping businesses to solve their environmental problems would see NEPA ensuring that businesses are made aware of the applicable regulations that affect their industry; help businesses understand problems and identify solutions especially as it relates to new concepts that may help businesses to be more competitive; keep business abreast of pending changes in regulations and standards; and to disseminate best practices and other relevant information to the business community.

While the proposals contained in this green paper are timely, they require close scrutiny by all sectors, including the business sector, so that any changes that are finally adopted as the policy of the Government are practical, that due consideration is given to existing resource constraints, and that there is recognition of the problems encountered in the restructuring of the regulatory regime in the past.

Krishna Desai is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Litigation Department. Desai may be contacted via krishna.desai@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

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