Photo: Port of Magical, Belize
BELIZE CITY, Mon. July 17, 2023
The Department of the Environment (DOE) and the National Environmental Appraisal Committee (NEAC) are the second set of targets being hauled to court by the Ashcroft Alliance as the Belize cruise ports saga drags on. First in line was former Minister of Economic Development Erwin Contreras who signed a now roundly condemned Definitive Agreement with Portico Enterprises Limited for its Port of Magical Belize (PoMB) project on October 1, 2020. The Ashcroft Alliance is now suing him for $10,000,000 in damages.
The latest application for leave to apply for judicial review was filed by Senior Counsel Godfrey Smith from Marine Parade Chambers on behalf of Waterloo Investment Holdings Ltd., Belize Cruise Development Ltd., and Belize Logistics Terminal Ltd. It is dated July 13, 2023. Portico is named as an interested party. As we previously reported, the three companies describe themselves as the intended developers of a cruise and cargo expansion project envisioned at the Port of Belize in Belize City.
The NEAC reviews all environmental impact assessments (EIAs) submitted by developers interested in investing in Belize and then recommends whether the Department of the Environment ought to grant environmental clearance or not.
The claimants explain that when Portico was granted environmental clearance and signed an Environmental Compliance Plan (ECP), they were in the process themselves of seeking regulatory approval for their (Waterloo) project, and had, by that time, invested in excess of US $10,000,000 to develop their project plan. The claimants also affirm that due to similarity and physical proximity of both proposed projects, “the Applicants undoubtedly stand to be directly and adversely affected by the decision to grant environmental clearance to Portico.” They therefore argue that, because of the potential detrimental impact the decision to grant environmental clearance could have for the viability and feasibility of their own project and their economic interests, the NEAC and the DOE had a responsibility to meaningfully consult them prior to Portico’s approval. They are asking the court to make a declaration in that regard. A related declaration sought is that, because neither they nor the public were consulted meaningfully, the decision of the NEAC to recommend approval of environmental clearance for PoMB was unlawful, null and void. In their narration of grounds for the application, the claimants state that the non-disclosure of the Portico Definitive Agreement rendered the public consultation that was held on the Portico project “fundamentally flawed, inadequate and insufficient to meet the standard of meaningful and fair participation and consultation. It also contravenes the principles of fairness, good governance, accountability, transparency and the rule of law.” They also indicate that, because the NEAC did not consider the Definitive Agreement in their deliberations, their respective decision was procedurally improper and illegal because the project’s “potential effect on the social and economic benefits to the Belizean people” could not have been properly assessed.
In total, the claimants seek 16 declarations and orders plus costs, and have submitted a two-page draft order outlining them. Five relate to the DOE while the remainder have to do with the NEAC. Primary among them is that the Court makes an order of certiorari to quash NEAC’s decision to recommend environmental clearance for Portico’s EIA, and another to quash the DOE’s award of environmental clearance to Portico, which they want to be declared unlawful, null and void. They also seek an order of certiorari to quash and nullify the ECP that was signed by the DOE and Portico in April 2023.
Another declaration requested by the trio of claimants is that NEAC approved of Portico’s EIA “in circumstances where material information was withheld and/or not provided.” They say this made the process procedurally flawed and it should therefore be declared null and void. They also want the Court to declare that NEAC abdicated its duty and acted ultra vires to the Environmental Protection Act (EPA) when it recommended that environmental clearance for PoMB be granted in phases to address “Portico’s EIA’s lack of adequate information on the project’s potential impact on manatee migratory patterns…”
Notable as well is that the claimants are asking the Court to declare NEAC’s recommendation for environmental clearance for the Portico project to have been ultra vires to the EPA because permission to use the seabed for the project was not obtained first. The applicants furthermore challenge the award of environmental clearance in phases stating, “only requiring that one-half of the previous phase be completed, with no requirement of completion within a specified timeframe, before moving forward to the next phase of their development and the so-called ‘phased approach’ is, in any event, ultra vires the EPA.”
Importantly, they want a court declaration that the DOE has failed to discharge its duties to monitor and enforce the Environmental Protection Act and to revoke Portico’s environmental clearance “in circumstances where there has been repeated non-compliance with mandatory terms and conditions of its ECP.”
Lastly, the claimants are requesting an order for mandamus directing the DOE to comply with their request for information under the Freedom of Information Act.