DOE amends EIA regulations in midst of Waterloo appeal

The content originally appeared on: News Americas Now

Black Immigrant Daily News

The content originally appeared on: Amandala Newspaper

Photo: Allan Herrera – lead local consultant for Waterloo

“This amendment is aimed at ensuring integrity and fairness in the appeals process to avoid any potential conflict of interest, whether actual or perceived,” a release from the Department of Environment states.

by Marco Lopez 

BELMOPAN, Thurs. Feb. 23, 2023 

Yesterday, a release from the Department of the Environment (DOE) which made the public aware of an amendment to the Environmental Impact Assessment Regulations—Statutory Instrument No. 23 of 2023—which is a legislative adjustment that the department claims will strengthen the integrity of the appeals process, raised a number of eyebrows. The retroactive amendment appears to have been drafted with one specific appeal process in mind: an appeal set into motion by Lord Michael Ashcroft’s Waterloo Investment Holdings Limited after the company was denied (for the second time) approval of its proposal for construction of a cruise terminal at the Port of Belize Ltd. by the Department of the Environment, which denial was following a recommendation by the 16-member National Environmental Appraisal Committee (NEAC).

The amendment is geared at addressing a perceived conflict of interest that could arise due to the likely presence of an individual on the 3-member appeals tribunal who is closely related to a consultant on Waterloo’s team—thus skewing the appeals process in Waterloo’s favor. That individual is Business Senator, Kevin Herrera, who would have otherwise served as the private sector representative on the tribunal and whose brother, Allan Herrera, is the lead local consultant for Nextera, the consultancy group that drafted the various Environmental and Social Impact Assessments for the Waterloo project. The amendment of section 27A of the principal regulations, however, is to include a provision for the selection of an alternate representative from the private sector “in the event of a conflict of interest as determined by the Minister.”

About the appeal process

According to an article in a December 2022 issue of the AMANDALA titled “Waterloo appeals DOE’s decision … again!”, Waterloo invoked section 27 of the Environmental Protection Act, which empowers a three-person tribunal to reverse the DOE’s decision, and either accept or reject the project. Under that section which governs the appeals process, the developers were able to submit an appeal directly to the Minister of Sustainable Development, Climate Change and Disaster Risk Management, Hon. Orlando Habet. Hon. Habet had told KREM NEWS that a tribunal would be established and would “hear and determine the appeal” and report their findings to him.

The article, referring to a March 2007 amendment, had made mention of the composition of the tribunal—something the recent Statutory Instrument 23 seems aimed at addressing. One member, who is to be a magistrate appointed by the Chief Magistrate or a judge nominated by the Chief Justice, will serve as chair of the tribunal. The other two persons to sit on the tribunal will be a person appointed by the Minister with academic training in an environmental field, and the Senator representing the Private Sector, in this case, Senator Kevin Herrera.

Section 27B (3) states that the “decision of the tribunal shall be by a majority.” Thus, two of the three persons voting in favor of the project at the tribunal level can override the decision of the 16-member NEAC. It is likely the huge influence that each of the three members could have on the ultimate decision that led Minister Habet to attempt to address any conflict of interest that could result from Herrera’s appointment, by means of a legislative amendment. A letter was thus sent to Herrera, informing him of the minister’s determination and his removal from the appeal tribunal. 

Senator Kevin Herrera, whom we spoke to this morning, said that he accepted the minister’s decision but did not see a conflict of interest in his sitting on the appeal tribunal. There is no indication that the business senator intended to taint the process, but as mentioned in the release, the amendment sought to “avoid any potential conflict of interest, whether actual or perceived.”  

Senator Herrera, for his part, noted that neither he nor his brother gets involved in each other’s work – adding that payment to Allan Herrera and Nextera for their work as Waterloo’s consultants did not hinge on the successful approval of the project by the DOE. In regard to the amendment, he said that he believes the minister should have consulted with the private sector on how an alternate would be selected. 

A new provision was also added to the regulation to bolster the independence of the tribunal. 

“The members of the Tribunal shall be independent and impartial and in the exercise of its function, the Tribunal shall not be subject to the direction or control of any other person or authority,” the added sub-provision states. 

Section three allows for the retroactivity of the provision, stating that the regulation “shall apply to any proceeding that has not yet been concluded as at the date of entry into the force of these regulations.” 

By all accounts, the only appeal currently ongoing is the one lodged by Waterloo in late December 2022. The NEAC denied the proposed project for a second time last December. The Waterloo group had requested an appeal, which was allowed by Minister Orlando Habet, head of the Sustainable Development Ministry. At the time, he had said that they must follow the regulations and allow the appeal; however, the regulations point out that the minister “may” allow the process, affording the minister some discretion in deciding whether or not the appeal should be heard.

In early January, he said, “We have to follow the regulation and the regulation calls for the formation of the tribunal – one person coming as a magistrate that is selected by the chief magistrate or a justice coming from the Supreme Court. The second person being the senator responsible for business and the third would be one person who is a professional in the environmental field, ecology as a person nominated or assigned by the Minister responsible for Sustainable Development.” 

The release states that the decision was made after consultation with other stakeholders and seeks to “strengthen the environmental clearance process to ensure that the public interest is taken into consideration in any decision that is made.” 

Proponents for Waterloo and its proposed Port of Belize Expansion Project, however, claim that this recent move by the government is unconstitutional and “grossly unfair to the appellant as the tribunal process.” 

We reached out to the CEO of the Ministry of Sustainable Development, Dr. Kenrick Williams, for comment on this matter since Minister Habet was unavailable, but have received no reply. 

Other concerns surrounding the process

We note that the Waterloo group, in its extended letter to Prime Minister John Briceño earlier this year, stated that if GoB refused to indicate a willingness to “amicably settle” the matter, they would proceed to arbitration under the UK-Belize BIT (Promotion and Investment) treaty no later than February 28, 2023. That is next Tuesday. 

Section 30 of that letter from Waterloo states, “We note in particular that there is no requirement in the UK-Belize BIT that domestic remedies be exhausted, and nor is there a fork-in-the-road provision requiring that a domestic appeal process once commenced be taken to its conclusion before a claim can be made under the BIT.” 

It might also be noted that the recent amendment addresses just one of many concerns surrounding the appeal process that is underway. Many question whether the tribunal’s decision will be aligned with the concerns of those who are technically trained in environmental fields and have opposed the project due to its possible impact on the country’s marine resources. Others fear that the decision of a three-member tribunal will not be representative of the views of the majority of stakeholders in the country and the larger public.

The December AMANDALA article had reported, “An online advocacy group named Belize Marine Life made a poignant observation in a post which stated, ‘To Clarify: 2 of the 3 members are all that are needed to change the outcome of a national decision to reject this project. This seems like an easy obstacle for Ashcroft to purchase a win. Who will be the three appointed tribunal members?’ They also question whether the tribunal deliberation will be held publicly or en camera, and suggested that a unanimous decision by the tribunal, rather than a majority decision, be required to overrule any previous decision that was made. ‘At the very least, this SI needs to be changed to require all 3 members to agree, a unanimous decision of 3 people to overturn the NEAC ruling of the 16-member panel (based on 2020 revision of EIA Regulations.)’, the post on Facebook noted. They also pointed out that the appeal process is not very well-defined, with no timeline to ensure the completion of deliberations by the tribunal …”

Many believe that this loggerhead between the Waterloo Group and GOB will likely end up in international arbitration.