Amandala article, July 25, 2007:
C.J. denies Vaca Dam injunction, but grants judicial review
Posted: 24/07/2007 - 11:37 AM
Author: Adele Ramos
Without the traditional legal garb, Candy Gonzalez, vice president of the Belize Environmental Law and Policy Office (BELPO), appeared before Chief Justice Dr. Abdulai Conteh on Friday, arguing for an injunction to stay the construction of the $105 million Vaca dam until certain aspects of the Environmental Compliance Plan (ECP) for its forerunner, the Chalillo, have been complied with.
Gonzalez has specifically raised two issues she said are of major public concern: (1) the lack of an emergency preparedness plan in the event of a flash flood on the Macal River, the river on which the dams are built, or in the event of dam breakage, and (2) the absence of mercury testing downstream of the dams, and particularly of methyl mercury in fish.
BELPO has listed the Chief Environmental Officer as defendant. Acting Chief Environmental Officer, Martin Allegria, was present for Friday’s proceedings.
Three crown counsels from the Attorney General’s Ministry – Deshawn Arzu, Andrew McSweaney and Pricilla Banner - appeared on behalf of the Chief Environmental Officer and the interested parties: the Director of Health Services, the National Emergency Response Organization (NEMO) and the National Meteorology Service (NMS) – all Government agencies.
Apart from requesting the injunction, BELPO has asked the court for a compliance order (or writ mandamus), ordering the Department of the Environment to enforce the country’s environmental laws that mandate the Belize Electric Company Limited (BECOL) to adhere to the environmental compliance plan and put in place a dam break emergency plan. This would be determined through subsequent judicial review proceedings before the Supreme Court.
In court Gonzalez said that the ECP for Chalillo, signed on April 5, 2002, required the emergency plans, as well as adequate publicity to inform the community of what they need to do in the case of a dam break or threatening flood on the river. But according to her, there is no indication that this requirement has yet been met, and with the hurricane season upon us, it is even more important because many people from other parts of the country seek refuge in the area during hurricane threats.
Gonzalez told the court that this amounts to an egregious violation of the law because the ECP is binding on the Department of the Environment (DOE) and BECOL: BECOL has the obligation to fulfill and the Government has the obligation to monitor and ensure that there is compliance. She added that the people of the area have a legitimate expectation that the Government, NEMO and the DOE will look out for their interest.
Vaca is referred to as the final stage in a three-dam project on the Macal River and should not be allowed to proceed until the current health and safety concerns have been addressed, Gonzalez further stated.
Counsel Pricilla Banner was the main presenter for the Government’s case. She told the court that the Department of the Environment has been proactive in seeking to ensure that the issues are addressed, but since the DOE relies on other Government agencies, such as the Fisheries Department and NEMO, to accomplish some of the ECP’s requirements, the hold-ups have really been out of their hands. She told the court the court that there is voluminous correspondence to prove this point.
She went on to say that because of the problems the DOE has experienced in getting the Chalillo ECP effected, the requirements under the VACA ECP are different and intended to ensure that where these other Government agencies do not (or cannot) do their part, then the DOE may contract independent parties to get the job done. This, she said, was done to ensure that the compliance issues experienced with Chalillo are avoided with Vaca.
There were a lot of teething pains, but that does not mean there was no compliance with the Chalillo ECP as alleged, Banner stated, adding that BELPO was seeking to hold Vaca hostage because of issues with Chalillo.
The counsel also told the court that granting permission for the injunction would impose undue hardships on contractors for Vaca.
After listening to the parties, the Chief Justice indicated that while he would not grant BELPO’s request for an injunction, he would grant them leave to file for judicial review.
The court is now awaiting that application before it can set a date to proceed.
Attorney Michael Young is representing BECOL. BECOL director Lynn Young sat in on Friday’s session
Press Release, July 11, 2007:
Issued by Candy and George Gonzalez on behalf of WeBAD (We Belizeans Against the Dam) and BELPO (the Belize Institute for Environmental Law and Policy).
CITIZENS GROUP SEEKING JUSTICE
11 July 2007
On July 9, the Belize Institute for Environmental Law and Policy
(BELPO), acting on behalf of citizens living downstream of the
Chalillo and Mollejon Dams filed an action in the Supreme Court
seeking to get the Court to order the Department of the Environment to
do their job! The hearing on the Application has been set for July
18, 2007.
BECOL is already blasting in preparation for the construction of the
Vaca Hydroelectric Dam, which will be downstream of the other two
dams, on the Macal River. The group wants to see the Environmental
Compliance Plan (ECP) concerning the Chalillo Dam complied with before
any further work proceeds. Failing to do so seriously puts at risk the
lives, property, health and safety of the people and communities
downstream.
BECOL was to put in place a Dam Break Emergency Preparedness Plan
(EPP), a public awareness program on the plan, and a public awareness
program on the water quality and safety issues related to mercury
levels in the fish of the Macal River as part of their obligations
spelled out in the ECP signed April 5, 2002.
The Dam Break Emergency Preparedness Plan was to be completed and in
place before the Chalillo Dam started operation (in November, 2005).
BECOL was also required to monitor the water and the level of mercury
in the fish and to make the public aware of their findings.
Obviously, they have failed to do that, as well.
Since it is the responsibility of the Department of Environment to
monitor and make sure the ECP is complied with, their refusal to do so
is unlawful.
Although it is BELPO bringing the case, without an attorney, it is
done so not as an organizational act but in the public interest on
behalf of the people and communities who are directly and indirectly
effected by the failure to enforce the ECP.
The ECP, according to the EIA Regulations, is a "legally binding
document developed by the Department of Environment . . . consisting
of a set of legally binding environmental conditions, guidelines,
policies and restrictions which the developer or his representative
agrees to in writing to abide by as conditions for project approval".
Since the Department Health, the National Emergency Management
Organization (NEMO) and the National Meteorological Service had roles
to play in the enforcement of the ECP, they are listed as "Interested
Parties" in the case.
People living downstream have heard rumors about cracks in the dam;
we have seen strange discolorization of the water and been subjected
to foul odors coming from the river. We have asked the Department of
Environment, the health department and other agencies for answers to
our concerns about the health and safety issues related to the water
and the eating of the fish. We have not gotten any answers. In fact,
we have been ignored.
We previous got promises and assurances that tests on the water and
fish would be done, that people would be informed and that a Dam Break
Emergency Preparedness Plan would be put in place. But this has not
happened.
During the recent National Emergency Awareness Week, observed from
May 27 to June 2, 2007, coordinated by the National Emergency
Management Organization (NEMO), many of us asked about planning for a
dam break emergency, especially since this area (San Ignacio/Santa
Elena) often doubles in size during a hurricane alert.
As to water and fish safety, the government has been misleading and
BECOL has shown no concern for the people. In August 2006, the Office
of Health Services released a study on the mercury levels in the fish
of the Macal River that was done almost a year BEFORE the Challilo dam
went online. We need tests on the amount of methyl-mercury (which is
more toxic) that is in the fish NOW. Methyl-mercury is what is
predominant in the fish in tropical dams.
The damming of the river at Chalillo would definitely increase the
levels of methyl-mercury found in the fish, but we have not gotten any
information about any studies done since the January, 2005 samples
were taken.
There have been no meetings to inform people about the safety of
eating fish from the Macal River since the Chalillo Dam began
operation; there has been no information on the different kinds of
mercury content in the fish or the harm that they can cause to the
population since the Chalillo Dam went online. There has been no move
by the Department of Environment to allay fears of the people living
downstream who are concerned about the safety of the dam, even though
citizens have continually raised such concerns. And, in fact, we are
already into the 2007 Hurricane Season and there is no Dam Break
Emergency Plan in place.
For these reasons, we believe we had no choice but to seek help from
the Court. Because we have no funds or funding, we are doing this
without an attorney and relying on the statements of the Court that
they would like to see the legal system more "user friendly" and,
thereby, more accessible to average citizens to seek justice from the
Court and the law, even when they cannot afford an attorney.
George and Candy Gonzalez along with many Cayo Colleagues
Channel 5 Belize, July 9, 2007:
Cayo residents sue to stop Vaca dam construction
After years of bitter controversy, the Chalillo Dam was finally built on the upper Macal River and, as far as we know, in conjunction with the Mollejon facility has been quietly and efficiently providing Belize with lower cost power for over a year and a half. But not everyone is thrilled with the hydro system and today a citizens group filed suit in the Supreme Court to halt construction on the third dam downstream at Vaca. Claiming she represents the interests of all those Cayo residents living downstream of Chalillo, Candy Gonzalez says all she wants is for BECOL and the Department of Environment to obey the law.
Candy Gonzalez, V.P., Bz. Inst. Of Environmental Law
“It’s called in legal terms a Writ of Mandamus and what we are doing is asking the court to tell the Department of Environment to please enforce the law. And the laws that we want enforced is that they make sure that an environmental compliance plan that was signed by BECOL and the Department of Environment be enforced.”
Stewart Krohn
“What part of this environmental compliance plan is not being dealt with properly?”
Candy Gonzalez
“Well, a lot of it is being dealt with but the main things that we are stressing are the issues of emergency preparedness plan that is not in place and we are at the beginning of the hurricane season and issues of the health and safety of both the water and the level of mercury in the fish in the fish of the Macal River.
Stewart Krohn
“So what specifically are you asking the court to do for you today?”
Candy Gonzalez
“We are asking the court to direct BECOL or actually to direct the Department of Environment to have BECOL enforce the law. And the thing that we are using as a leverage is that Vaca dam is now bring built which will create even a bigger problem because there will be three dams that could possibly break and send water down to the communities downstream and so we want Vaca dam to be stopped, halted, an injunction until the environmental compliance plan for Chalillo is complied with.”
George Gonzalez, Cayo Resident
“NEMO was in Cayo doing a thing on the hurricane preparedness plan and part of the plan is to evacuate people from Belize City to Cayo which they say the population is going to double, more than double. Without having a plan for the Chalillo itself it doesn’t make any sense to bring more people to a place.”
Judy Duplooy, Resort Owner
“If there were to be a dam break we would have no way of knowing the dam was breaking, that the water was coming down and we don’t know where we would tell anybody to go or what kind of warning we would give them so it seems to me that a simple warning system from BECOL would be a big help.”
Gonzalez and her Cayo colleagues are taking the legal action without being represented by an attorney, although it should be noted that Gonzalez herself is a lawyer licensed to practice in the United States.
