Environmental Challengers pretend Report doesn’t exist | Daily News

Environmental Challengers pretend Report doesn’t exist

It could be stated that this particular application for a writ resulted in Court going through issues involving matters of ‘subjectivity’ in making decisions. Court is asked in this instance to make judgement not necessarily in terms of laying down the law but more by way of exercising discretion. Even though writs are ‘discretionary remedies’ it does not mean that the discretion is to be applied ‘subjectively’, so as to stymie State policy that has been based on various reports and recommendations.

This writ application (Public Interest Law Foundation v. Central Environmental Authority and Another - SLR - 330, Vol 3 of 2001 [2001] LKCA 74; (2001) 3 Sri LR 330 (February 16, 2001)) was essentially one that weighed the environmental concerns regarding the Southern Highway project against the usefulness of the enterprise.

The Appeal Court judgement record gives the basis for the application that concerns, essentially, matters of public interest litigation so-called:

“The Petitioner is styled the Public Interest Law Foundation, and one of the primary objects, inter alia, of the Petitioner is said to be the preservation, protection and promotion of public interest through the law. The Petitioner has filed this application seeking a writ of certiorari quashing the decision of the Central Environment Authority (1st Respondent) marked P12 approving the project depicted as the “Combined trace” in figure 3 -1 at page 2 of Chapter 3 of the EIA report of March 1999, the project being the construction of an access controlled “Southern Expressway” linking Colombo to Matara. It is worth noting that the idea of such a venture was first raised for discussion as far back as the end of 1980s to meet the pressing need for better roads and ease the congestion on the existing ones.”

The Counsel for the petitioner had submitted to the Court of Appeal that the alternatives to the Southern Highway Project had not been considered. However, the Appeal Court judgement states this position was incorrect, as a Moratuwa University report had been subject to appraisal by the Environmental Authority.

This report states that among the alternatives considered by the University panel are “no project — meaning abandoning the project altogether,” and “improving the railway as an alternative.”

In the context of the cost outlay for the Southern Highway and the resulting debt etc., it is perhaps pertinent to mention particularly when reviewing the case in the backdrop of this year’s economic meltdown, that the purview of the Bench concerning the writ application was limited to considering the environmental impact of the Southern Highway. The economic downside or otherwise was not a material consideration in this writ application, as the application was limited to reviewing the environmental concerns.

The judgement record states:

“(i) The no project alternative could be rejected as it does not produce any beneficial impacts and produces several highly adverse impacts.

(ii) The improvement of the railway appears to be the alternative with the least amount of negative aspects. However, it does not produce sufficient social benefits to justify recommending as a reasonable alternative for achieving the objectives of the proposed project.

(iii) Improvement of A2 Highway would produce some social benefits, but this is the alternative that has the highest number of major environmental impacts. It would require relocation of a large number of people, destruction of houses and places of religions importance, as well as higher risks of accidents and accidental damage of life and property due to accidental spills of hazardous materials etc.”

Court was of the opinion that the issue of considering the environmental impact was a non-justiciable matter “as judges were not experts on the subject (of environmental assessments).

The Judges were of the view that the Moratuwa University had submitted a report on the environmental concerns of the project, but yet the Counsel had not invited Court to consider the validity of this report in any way.

The Judges also opined that the Moratuwa University panel were experts on the subject of ‘environmental impacts’ and that basically it was not proper for the Bench to impose its own views on a matter that they did not have any expertise over.

The Judgement notes:

“The experts that prepared the report after an in-depth study thought and were of the opinion that the “Southern Expressway” as proposed or recommended by the experts was the best option out of several, and, I cannot quash such a decision by means of certiorari unless it is characterised by an illegality or was a decision reached in breach of rules of natural justice etc. The fact that the decision of Central Environment Authority adopting the recommendation of the experts of the Moratuwa University that ‘Southern Expressway’ i.e. the combined trace in the map, represented the most feasible of all options was not, sought to be quashed on any such ground, calls for remark.

In other words there was an expert-report by the Moratuwa University panel on the environmental aspects of the project, but the applicants for the writ of certiorari curiously did not seek to impugn the report in any manner, and it didn’t make any sense to claim that ‘alternatives have not been considered’ when the report had indeed considered the alternatives, unchallenged even by the Petitioner. There was no submission whatsoever as to why the Moratuwa University’s rejection of those alternatives was unlawful.

Court seems to have taken the classical view that writs being a form of judicial review, the merits of the decision of a public Authority are not taken into account at all, whereas whether the decision-making process adheres to law is a germane consideration. In other words that’s all that the Court is concerned with in judicial review, in the matter of considering writs for judgement.

The judgement makes it clear that at no point is the Petitioner suggesting that there was bad faith on the part of the Moratuwa University experts in submitting their report. Nor is it being suggested that the Central Environmental Authority abused its powers in accepting that report without disputing its content.

The judgement goes onto state:

“In Dowty Boulton Paul Ltd. v. Wolverhampton Corporation ((No. 2) [1976] Ch. 13.) - the dispute concerned a land which was used as an aerodrome. Under legislation the local authority could re-appropriate the land if it was no longer required for the purpose for which it had been acquired. The Council wished to put the land to housing use and its exercise of the statutory re-appropriation power was challenged on the basis that the land was still required for use as an aerodrome. The Court held that the Council's exercise of power in good faith could not be challenged, partially, because legislation envisaged choice between competing requirements and the Court was not as well placed as the local authority was, to make such a choice”.

In the case under review too, the Court is not in a position to choose between ‘competing schemes’ because as the judgement stated, a consideration of facts as opposed to law, that would be an integral part to such an exercise, would be outside the purview of the procedure of judicial review.

It is interesting that the fact that there was discretion exercised by the authority was cited to refuse a discretionary remedy, writs being a discretionary remedy in simple terms. It was stated in the judgement that the Central Environmental Authority was supposed to exercise discretion in its decision making process, with making a free choice between courses of action being part of that discretionary power that the Authority enjoyed. As long as there was no abuse of power, using discretion that came along with administrative power was not a violation of law, was the Court’s basic reasoning.

The judgement states:

“Decision making is an important aspect of the work entrusted to the Central Environment Authority. Any person endowed with decision making powers will appreciate that discretion is an aid to the exercise of these powers. The Central Environment Authority, too, is left free to make a choice among possible courses of action. Discretion allows for the shaping of the authority's power to the particular circumstances of the case. I cannot bring myself to hold that the discretion had been abused in any way, by the Central Environment Authority in accepting the recommendation embodied in EIA report submitted by the experts - the recommendation being that the express way (urban motor - way) project depicted in figure 3 - 1, referred to above, is the best of all options.”

The application was refused and costs of Rs. 50,000 were awarded to the 1st respondent.


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