The controversial legal conclusion notwithstanding, this matter remains unresolved in the eyes of environmentalists and governance advocates
Originally published on Global Voices
Feature image via Canva Pro.
This article was first published on Global Voices’ contributor Emma Lewis’ blog; an edited version appears below with permission.
We are not satisfied: that is the message from a large group of civil society organisations and individuals in an Open Letter to Jamaica's Director of Public Prosecutions (DPP) regarding the extraordinary behaviour of the National Environment and Planning Agency (NEPA), the government agency responsible for enforcing justice with regard to environmental crimes.
NEPA’s announcement in court on November 27, 2024, that it was withdrawing criminal charges against Trade Winds Citrus Limited for a December 2023 oil spill in the Rio Cobre that affected the water supply of neighbouring communities, was greeted with surprise and condemnation from many corners of society. The media started talking about a “secret deal” between NEPA and the company; the details of the mediation agreement were not even revealed to the judge in court because of a non-disclosure clause.
Subsequently, NEPA Chairman Weldon Madden was asked to resign, while Matthew Samuda, the minister with responsibility for the environment, issued a statement that “the Government of Jamaica is not satisfied that the issue was handled at the Board leadership level with the required standards of transparency and openness.” Under considerable pressure, details of the Mediation Settlement Agreement were finally published on NEPA’s website, where a Chronology of Events from the oil spill can also be found.
Jamaica's rivers — including the Rio Cobre — have often been under siege from industrial pollution. In 2021, The Rio Cobre suffered a spill of caustic effluent from the nearby bauxite plant – and this incident was not the first time. The West Indies Alumina Company (Windalco), which runs the plant, was a repeat offender that “received multiple breach notices” and were, at the time, “defendants in a legal case filed by NEPA over a 2019 discharge into the river which resulted in a massive fish kill and several persons falling ill.” Windalco later tried to restock the river with fish, but the transparency of that process was also called into question.
In this most recent case, there are a number of issues arising that warrant further investigation. NEPA’s comment, relayed by Minister Samuda, that it determined withdrawing the case was justified based on “the limited material impact of the incident and the comprehensive cleanup undertaken” has given some environmentalists pause. Whether the damage caused by the oil spill was extensive or not, and regardless of how many fish were killed or not, the issue goes beyond that. Trade Winds Citrus Limited committed an environmental crime, which NEPA was prosecuting with the go-ahead from the DPP since the crime does not amount to a few dead fish; rather, it has an impact on nearby communities and the ecosystem in general, which many feel were hardly taken into consideration.
Will this be NEPA’s modus operandi going forward? And if it is “business as usual,” then what does that consist of? The Open Letter, signed by 39 groups and individuals, including the Jamaica Environment Trust, Friends of Rio Cobre, Freedom Imaginaries, Jamaicans for Justice, Stand Up For Jamaica, Jamaica Accountability Meter Portal, and Jamaica Climate Change Youth Council, outlined these and other concerns to the DPP.
“Under the fiat granted by your office,” it said, “the National Environment and Planning Agency (NEPA), the administrative arm of the National Environment and Planning Agency (NRCA), is tasked with prosecuting environmental crimes. NEPA’s decision, however, to pursue mediation in this case raises serious questions about its commitment to environmental justice. We now urgently request a comprehensive investigation by your office into NRCA/NEPA’s actions. This is critical to restoring public confidence in environmental law enforcement and ensuring that agencies with prosecutorial powers act at all times in the public’s interest.”
Some of the issues identified included the fact that mediation was pursued in this case. “[I]ntended for compromise between private parties,” it said, the approach was “unsuitable for holding environmental offenders accountable, especially where there is significant public impact and public interest. It undermines deterrence and signals leniency toward environmental crimes.” The letter also criticised NEPA's narrow focus, which “prioritised the fish kill while disregarding the broader impacts of the oil spill on the river ecology, river users and the surrounding communities.”
Furthermore, NEPA dropped the case “based on vague assurances from TWCL, including commitments to best practices and collaboration, which lack clear enforcement mechanisms.” The signatories took this as a demonstration of “a lack of interest in prosecuting environmental crimes and a lack of intent to hold environmental offenders accountable within the criminal justice system,” especially when coupled with the fact that the agreement prevents “legal action by either party” and prohibits NEPA from assisting communities who may want to bring action against TWCL. This clause, it maintained, “stifles the communities’ and the public’s rights to seek justice, undermining and betraying public trust in environmental governance and the administration of justice.”
The group statement also alleges a lack of transparency or meaningful consultation with the affected communities, an exclusion that “denies stakeholders of their right to participate in the resolution of a matter directly impacting their lives and environment. The inclusion of a confidentiality clause in the mediation agreement, intended to shield its terms from public and judicial scrutiny, is unacceptable given the public nature and significant interest in this offence.”
The controversial legal conclusion notwithstanding, this matter remains unresolved in the eyes of environmentalists and governance advocates: “The public deserves full transparency and public accountability regarding NEPA’s decision-making processes and assurance that environmental laws will be enforced openly, vigorously and with due regard for environmental law standards, principles and best practices.
“Environmental crimes demand robust legal action — not alternative resolutions that fail to deliver justice or protection of natural resources. We urge your office to revisit this case, investigate NEPA’s actions, and undertake a long overdue broader review of NEPA’s prosecutorial effectiveness to strengthen environmental governance.”
