The Chalillo dam has been no stranger to legal controversy, but in the latest case against the hydro system, the Chief Justice has found that its developers did not meet certain environmental health and safety obligations after its construction, and that the Department of the Environment did not meet all of its responsibilities in enforcing the Environmental Compliance Plan (ECP).

The case was brought to court last July by a Cayo citizens' group, the Belize Institute of Environmental Law and Policy (BELPO).  The organization sought to have the CJ force the Department of the Environment to ensure that BECOL (Belize Electric Co.  Ltd.) was fulfilling the requirements of its Environmental Compliance Plan.

According to BELPO's vice president, Candy Gonzalez, who said she has practiced law in the US, but is not a member of the Belize Bar Association, despite specific and legal conditions set out in the ECP, there were no emergency preparedness plans in place in the event of a dam break, mercury levels in fish being consumed by the residents downstream were not being tested, water quality was not being properly monitored and there was a distinct lack of communication between the company and the public likely to be affected by any negative impacts of the dam.

Concerns about dams and their impacts on the river and residents peaked in 1995 with the completion of the Mollejon hydro-electric facility on the Macal River.  But Mollejon was a run-of-the-river dam, meaning it worked well once the water was flowing freely.

In the dry season when water levels dropped, however, so did efficiency.  Developers then proposed a second project, which would store water using a 150-foot wall so electricity could be generated year round at Mollejon.  The fact that the water covered some 2,500 acres of land in the Chiquibul Forest Reserve raised significant environmental concerns and spawned court cases that went as far as the Privy Council, but in the end, Chalillo commissioned in late 2005.

But the bitter legal battles left a residual distaste, so when BECOL proposed a third dam further downstream at Vaca, BELPO took offence, claiming that because the DOE had either failed or refused to monitor compliance at Chalillo, how could they supervise another project?

When the group put the case before the CJ last summer, the group applied for an injunction to stop Vaca's construction, but that request was denied.  During the hearings last year BECOL rebutted Gonzalez's claims, maintaining that it did post an emergency preparedness plan on the Internet and had organized public sessions to address citizens' concerns about the dam.

As for water quality and mercury test results, BECOL's position is that it was the public health authorities' decision not to publish the findings.

This morning when Chief Justice Conteh handed down his ruling, however, he found that the Environmental Compliance Plan signed between BECOL and the Department of the Environment for Chalillo, did place certain duties on the DOE and lawfully bound the department to verify that its conditions were implemented.  Those conditions included that the public be informed, and as Conteh pointed out in court, it was unfair for the company to conclude that everyone “was a traveler on the information superhighway,” and moreover, the ECP had specifically stipulated that radio advertisements were to be used in the public education campaign.

As for the information sessions, the CJ again took issue with the fact that no such forum was held in San Ignacio, even though again, that was a definite requirement of the ECP.

Within that context, the judge went on to order that emergency plans be printed and placed in public buildings in Cristo Rey, San Ignacio and Santa Elena for easy access; early warning systems are to be tested routinely for effectiveness, especially in the hurricane season; mercury and water quality levels are to be reported to the public periodically; and BECOL is to establish efficient communication channels with residents, specifically through the Public Participation Committee.

In delivering his ruling, the Chief Justice declared, “Chalillo is operational, but it is never too late to give out information.” This morning, Gonzalez expressed relief at the outcome of the case and contended that the entire matter could have been avoided if only BECOL had answered their letters of concern.  Those letters and other correspondence had pointed to the river's appearance, its smell, rashes that appeared on the skin after bathing and fear that the fish being eaten by residents were unsafe.

As for BECOL's attorney, Michael Young, he believes that while his clients were found delinquent in specific instances, the company has not been deemed irresponsible and in fact, has even gone beyond the call of duty in other aspects of the ECP at their own financial costs.

But most significantly, Young says, the outcome of this case sends an important message to all developers, especially since BECOL's ECP was the very first to be issued to a developer following an Environmental Impact Assessment.

“This is to show that you need to virtually put the ECP on a table and ensure …that each one of the requirements is ticked off so that you know you are in compliance.  If you have difficulty, you need to write to the Department of Environment, because there are times that what the ECP requires might be practically even impossible to accomplish, so you need to have that paper trail.” The Chief Justice also ordered today that BECOL and DOE jointly pay $15,000 in costs of court to Gonzalez and her group.  Conteh maintained that even though this was the first ECP, and therefore unchartered territory for BECOL, the litigation could have been avoided if the company had made timely responses to the requests for information.

The DOE was represented in the proceedings by Crown Counsel, Priscilla Banner.  (Author's NOTE: “Construction on the Vaca Dam by Chinese contractors, Sino-Hydro, is underway, and expected to be completed late 2009.)

Author: Janelle Chanona (freelance)
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