NEPA itself is not clear
Environmentalist bats for environmental regulator independence
There are calls for the National Environment and Planning Agency to become an independent executive agency to give it more leeway in protecting the environment. karl mclarty

AT least one environmentalist is pushing for the National Environment and Planning Agency (NEPA) to become an independent executive agency, which it is believed will help the entity to make better decisions in protecting the environment.

The call comes with heightened concerns over environmental regulation, especially in the face of the now annual fish kill in the Rio Cobre in St Catherine due to the release of toxic chemicals by alumina refinery Windalco in the river.

"I think it should be an independent executive agency," Diana McCaulay, the now retired founder and former chief executive officer of the Jamaica Environment Trust (JET), said in response to Jamaica Observer queries with her on the matter.

Efforts to get a comment from the chief executive officer of NEPA Peter Knight on the matter failed with calls going to voicemail.

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"I think NEPA itself is not clear on its mandate — which is to protect the natural environment and public health. Its mandate is not job creation or the facilitation of development," she continued. "But you will often see that when the choice comes down to an economic project versus any natural resource, NEPA will make a choice for the project. They will frame it as 'working with the developer to protect the environment', but everyone concerned knows that the permit conditions will mostly not be enforced and the damage that is done will never be undone," McCaulay added.

Currently, NEPA is an agency under the Ministry of Economic Growth and Job Creation and is not independent as its United States counterpart, the Environmental Protection Agency (EPA).

The EPA, which was created in 1970, is a regulator charged with administering the federal environmental laws in the United States. The agency conducts environmental assessment, research, and education. It also enforces fines, sanctions, and other measures when there are breaches. The agency also works with industries and all levels of government in a wide variety of voluntary pollution prevention programmes and energy conservation efforts. More than half of EPA's employees are engineers, scientists, and environmental protection specialists; other employees include legal, public affairs, financial, and information technologists.

Environmentalists are batting for NEPA to better protect the environment..

However, McCaulay continued: "The environmental regulatory framework has long been inadequate in several respects. The main statute, the Natural Resources Conservation Authority (NRCA) Act, is highly discretionary and often that discretion is exercised in favour of development and not the environment or public health. The fines are too low. We do not have regulations for the conduct of Environmental Impact Assessments (EIAs) which are the GOJ's main management tool, although these have been promised for almost 10 years. Ministerial discretion under the law, which is a feature of many of our laws, means that a non-technical minister can overturn the decision of his ministry technocrats."

But could the current framework be better utilised since it's hardly likely that the Government will make the agency independent any time soon?

"Certainly," said McCaulay. "One easy step would be to proactively publish environmental permits and licenses on the NEPA website, so the public could see what is required of a developer or project manager. Currently, if you want information from NEPA, you have to do an access to information request, which will take a minimum of 30 days to be fulfilled. We have a recent example of the catastrophic discharge of effluent into the Rio Cobre by Windalco and we have been told that a notice of intention to suspend their permits and licenses has been issued to them, but that there is a period allowed for an appeal to be filed. I've been trying to find out what that period is without success. Over the 30 years of my experience, getting information out of NEPA has been uneven — harder at some points than others. To this day, I can say that sometimes I can get the information I am asking for quickly, and other times there's just a blank wall — unanswered letters or e-mails, unreturned phone calls, unfulfilled promises. This should not happen in an organisation that is supposed to serve the public interest. Another example of a more effective way to use the current framework is what has recently occurred with the Rio Cobre kill — the notice of intention to suspend the company's permit to operate. Since the fines under the NRCA Act are so low, this is a significant deterrent but it is hardly ever used. Performance bonds are another good tool — we're beginning to use those, as with the Windalco case, but mostly they are not high enough."

MCCAULAY....I think NEPA itself is not clear on its mandate.

A Caribbean Policy Research Institute (CAPRI) report from 2018 entitled 'Beyond Pet Bottles and Plastic Bags: Fixing Jamaica's Environmental Regulatory Framework', however, outlined a few recommendations to 'fixing' NEPA to better protect the environment, though it didn't recommend independence for the agency.

In fact, CAPRI recommended that NEPA's location should be a bipartisan issue with suggestions that it could be located in one of the ministries of health, local government or the Office of the Prime Minister. The research was retweeted by CAPRI late last week in light of the varying discussions taking place about the role of NEPA in protecting the environment after the recent fish kill in the Rio Cobre.

While the paper didn't call for NEPA's independence, it pushed for the promulgation of the NEPA Act as an urgent priority, outlining clearly that the steps that need to be taken to carry through on this commitment are contained in a 2005 document, "Progress report on legislation addressing an integrated approach to environment and planning in Jamaica." These include the repeal of the Natural Resources Conservation Authority Act, the Town and Country Planning Act, the Land Development and Utilization Commission Act, the Beach Control Act, the Watersheds Protection Act and the Wildlife Protection Act, as well as amendments to the Local Improvements Act and the Housing Act.

Matthew Samuda currently has ministerial oversight of the National Environment and Planning Agency. Samuda is the minister without portfolio in the Ministry of Economic Growth and Job Creation.karl mclarty

CAPRI in that report also argued for additional clauses to include third-party rights for the general public, specification of the skills required on the new regulatory authority, and explicitly stated parameters regarding ministerial discretionary powers, with a view to minimising them only to matters of emergency and national security.

"Given the long-standing and evident failure to adhere to development orders, sanctions for breaches to the development orders should be included in the new NEPA Act. Discretion for State agencies and/or ministers to vary development order provisions should be reduced, and development orders should be updated on a specified schedule, including a review of compliance with the previous development order. The environmental focus should be made explicit by calling the new act the National Environmental Protection Act."

CAPRI also called for the completion and promulgation of the environmental impact assessment (EIA) regulations "to establish, at a minimum, mandatory strategic environmental assessments and environmental impact assessments for certain types of development and/or developments in certain areas, certification of EIA consultants, and provisions to guard against conflicts of interest and public consultation procedures."

Some of the fish that were killed by the release of pollutants in the Rio Cobre recently..

Other areas of interest in the paper are proposals for increased fines for breaches of the National Resources Conservation Authority (NRCA) Act and its regulations (or whatever legislation replaces it). They need to be implemented on the basis of a modern assessment as to what sanctions and fines comprise effective disincentives.

It also calls for the rationalisation of environmental policies, and a fast tracking of the national spatial plan, so that "developers and investment agencies should be able to review the National Spatial Plan to see the framework for development in any part of the island. If an area is identified as important for watershed protection, for example, there would be no need to proceed with an application which would require removal of forests. This would also insulate the Government of Jamaica against potential lawsuits if land has already been purchased for certain purposes which were clearly prohibited in the national spatial plan," CAPRI argued.

For McCaulay, "There are different ways the regulatory framework could be organised, but unless the underlying commitment to protection of the environment and public health is there, those assets and values will always be sacrificed to short term development objectives. The current Administration has taken some positive steps in the direction of environmental protection, but I do not believe there is widespread understanding or consensus at leadership levels what sustainable development really means. Recently I saw the statement by the Hon Audley Shaw promoting 'sustainable mining' — there is no such thing. Mining is an extractive activity — when the ore id depleted, it is finished. It cannot be 'sustainable'," she concluded.

NEPA is an executive agency of the Government.karl mclarty
BY DASHAN HENDRICKS Business content manager hendricksd@jamaicaobserver.com

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