Waterloo appeals DOE’s decision … again!

The content originally appeared on: News Americas Now

Black Immigrant Daily News

The content originally appeared on: Amandala Newspaper

Photo: Orlando Habet, Minister of Sustainable Development

BELIZE CITY, Thurs. Dec. 29, 2022

An appeal process is underway that could lead to the overturning of the decision of the Department of Environment to reject Waterloo Investments Holdings Limited’s (WIHL) proposal to construct a cruise terminal at the Port of Belize Ltd. The proposal was initially denied approval last year by the National Environmental Appraisal Committee (NEAC) based on what was described as the developers’ failure to answer key questions (related to environmental concerns) that had been posed by the NEAC. In late November of this year, a second ESIA (Environmental and Social Impact Assessment) submitted by the company, which purportedly addressed the grave environmental concerns, was again rejected by the NEAC—a decision that was followed by the Department of Environment’s (DOE) confirmation in the first week of December of the validity of the NEAC’s reasons for denying Waterloo’s much-sought project green light.

That decision by the DOE to accept the NEAC’s recommendation came at the end of a consultation and review process which was preceded by questions among members of the public about how many times an entity such as Waterloo could attempt again to get approval for a project deemed to be an environmental risk. The second decision by the DOE thus seemed to be final. But it was not. Waterloo has triggered an appeal of its decision and the formation of a tribunal to preside over that appeal. (After the DOE had made its decision, it was announced that Waterloo could submit an appeal within 21 days.) Three persons who are selected by officials at the highest levels of the public and private sector (the judiciary, the government and the business community) will now make a decision that could subvert a years-long process of public consultation and scientific review. And it is a process that, unlike the process which ended in a denial of Waterloo’s project, will take place largely outside of the public eye by a trio that will include only one person with technical/scientific understanding of the risks the project could pose, and that will require only two of those three to agree in order for a final ruling to be made. In other words, just two persons can say yes, and thus overrule the decision of countless others who said no. If that is indeed the case, all public consultations and science-based assessments by various committees could be disregarded—overruled by the decision of a tribunal of three.

Notably, this is the second time that the company has started an appeal process–with the first being last year when the Cruise Port Terminal and Cargo Expansion project proposed by the Waterloo was first denied. At that time, the appeal process (allowed for by section 27 of the Environmental Protection Act, Chapter 328) was aborted after the company was allowed to submit a new ESIA on the project.

Significant pushback from the environmental community, which highlighted the extensive damage that could be caused to the Belize Barrier Reef and the country’s marine areas by the dumping of millions of cubic meters of dredged material nearshore; the signing of 20,000 signatures by Belizeans who opposed the project; and references to the inadequacies of the developers’ proposed method of containing dredge spoils, as well as unanswered questions about how the mechanisms to be used would hold up if a hurricane hit the country, were just some of the factors that led to the ultimate rejection of Waterloo’s proposal by the National Environmental Appraisal Committee(NEAC), which made its decision on the basis of a scientific review of the technical information submitted by the company. The DOE ultimately accepted this decision by the NEAC and rejected the project.

But now, Waterloo has 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 are able to submit an appeal directly to the Minister of Sustainable Development, Climate Change and Disaster Risk Management, Hon. Orlando Habet. Hon. Habet confirmed to KREM NEWS that an appeal was submitted by the company and that a tribunal will be established and will “hear and determine the appeal” and report their findings to him.

According to the March 2007 amendment, a Magistrate appointed by the Chief Magistrate or Judge nominated by the Chief Justice will be appointed 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. (Notably, the Belize Chamber of Commerce and Industry, had stated, following the NEAC decision, that its representative, despite not being present to receive a full briefing on the technical aspects of the project and the environmental risks of the project, would nonetheless have voted to support the Waterloo project).

The tribunal is empowered under the related legislation to make rules and regulations to govern the procedure for hearing the appeals. Section 27B (3) states that the “decision of the tribunal shall be by a majority.”

As previously noted, 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 must be noted that the Sustainable Development Minister will not be a member of the tribunal, and any final decision will not rest with him, as was the case in a previous version of this legislation.

At this point, in a process that has veered so abruptly away from the previous procedures that involved public consultation and scientific review, the tribunal alone has the power to confirm, vary, amend or alter the decision made by the DOE. According to subsection 5 of the legislation, they have the power to reverse the previous decision by the DOE for “any decision which is just and equitable and which is in the interest of the protection and management of the environment.” It is not known how extensive the evidence/data (if any) presented by the tribunal to justify any claims that a “just and equitable” decision was made in the “interest of the protection… of the environment” will be and how that reasoning will align with all data and scientific arguments presented by the DOE to explain why it could not approve the project of Waterloo.

After outlining its decision in writing, the tribunal may refer the matter back to the DOE for the preparation of an environmental compliance plan or to fulfill any other requirement.

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. It could be argued that those specifics are handled by the appointed tribunal’s chairperson and members.

“The DOE appears to legally be able to shelve this tribunal for decades if they chose to end this litigation-based strategy by Ashcroft to try and force Belize to swallow his dredge spoils and his project,” the group’s post suggested—meaning that the current administration could possibly put a pause on this derailment of the NEAC and DOE’s decision, if it so chooses.

All members of the tribunal must be present at the hearings of the appeal in order to establish a quorum.