PUBLIC INTEREST LAW FOUNDATIONv.
CENTRAL ENVIRONMENTAL AUTHORITY AND ANOTHER
COURT OF APPEAL
U. DE Z. GUNAWARDENA. J.
NOVEMBER 15, 2000
Public Interest Litigation – Construction oj an Urban Motor way -Southern Express Way – Quash decision approving Project – CentralEnvironmental Authority – Judicial review?.
The Petitioner sought a Writ of Certiorari to quash the decision of theCentral Environmental Authority (C.E.A) approving the construction ofthe Southern Expressway," on the basis that (i) there was a failure to analyseor consider reasonable and environmentally friendly alternatives, (ii) theEnvironmental Impact Assessment Report (E1A) does not provide properintelligible and adequate reasons for the rejection of alternatives to theProject.
By a grant of certiorari the Court does not and cannot impose its owndecisions, it simply quashes the original decision.
The Court is ill equipped to form an opinion on environmental matters- they being best left to people who have specialised knowledge andskills in such affairs. Courts may decline to exercise review becauseit is felt that the matter is not justiciable.
Judicial review is concerned not with the decision but with the decisionmaking process.
Per Gunawardena, J.
“It is worth observing that the review procedure is not well suited tothe determination of disputed facts. . ."
Court is not in a position to choose between competing schemes.
Decision making is an important aspect of the work entrusted to theCEA. Any person endowed with decision making powers will appreciatethat discretion is an aid to the exercise of these powers. The C.E.A.too is left free to make a choice among possible courses of action.
Public Interest Law Fbundation v. Ceylon Environmental
Authority and another (U. De Z. Gunawardana. J.)
AN APPLICATION In the nature of a Writ of Certiorari.
Cases referred to :
Chief Constable of North Wales Police v. Evans at 11982) 1WLR1155 at 1173.
Dowty Boulton Paul Ltd. v. Wolverhampton Corporation (No. 2)[ 19761 Ch. 13.
Lalanath de Silva with Ms. U. Senevlratne for Petitioner.
K.Srlpavan D. S. G. with Ms. Bimba Tllakaratne S. S. C., for 1“‘Respondent.
C. Seneviratne P. C.. with Ms. U. S. K. Wickramaslnghe for 2ndRespondent.
Cur. adv. vult.
February 16, 2001.
U. DE Z. GUNAWARDANA. J.The Petitioner is styled the Public Interest Law Foundation,and one of the primary objects, inter alia, of the Petitioner issaid to be the preservation, protection and promotion of publicinterest through the law. The Petitioner has filed this applicationseeking a writ of certiorari quashing the decision of the CentralEnvironment Authority (1st Respondent) marked PI 2 approvingthe project depicted as the "Combined trace" in figure 3 -1 atpage 2 of Chapter 3 of the EIA report of March 1999, the projectbeing the construction of an access controlled "SouthernExpressway" linking Colombo to Matara. It is worth noting thatthe idea of a such a venture was first raised for discussion asfar back as the end of 1980's to meet the pressing need forbetter roads and ease the congestion on the existing ones. Atthe hearing of the application on 20. 11. 2000 the learnedCounsel for the Petitioner impressed upon the Court that onlytwo basic issues or points arise for consideration by the Courtwhich issues or points, the learned Counsel, to use his ownwords, outlined as follows:
"(i) The failure to analyse or consider reasonable and
environmentally friendly alternative to the proposed project;
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120011 3 Sri L.R.
(11) E. I. A. does not provide proper intelligible and adequatereasons for the rejection of alternatives to this project."
To deal with the above two points in order: (i) it is not whollycorrect to say that other possibilities or alternatives in place ofthe proposed project had not been considered, for under Chapter8 of the Environmental Impact Assessment Report alternativeshad been assessed or evaluated. The alternatives considered inreport (which had been prepared by the University of Moratuwaat the request of the Road Development Authority) are:
Original R. D. A. trace
Improvement of A2 highway
Improvement of railway
No project – i.e. the project is altogether abandoned.
(ii) There is no merit in the second point abovementioned. inthat the EIA report, in fact, gives reasons for rejecting thealternatives to the "Southern Expressway". 1 can do no betterthat quote from the report:
"(i) The no project alternative could be rejected as it does notproduce any beneficial impacts and produces several highlyadverse impacts.
The improvement of railway appears to be the alternativewith the least amount of negative aspects. However, it doesnot produce sufficient social benefits to justifyrecommending as a reasonable alternative for achieving theobjectives of the proposed project.
Improvement of A2 Highway would produce some socialbenefits, but this is the alternative that has the highest numberof major environmental impacts. It would require relocationof a large number of people, destruction of houses and placesof religions importance, as well as higher risks of accidentsand accidental damage of life and property due to accidentalspills of hazardous materials etc. The main reason for theseimpacts is the ribbon development that exists right alongthis road, due to highway being of uncontrolled access for
Public Interest Law fbundatlon u. Ceylon Environmental
Authority and another (U. De Z. Gunawardana, J.)
all vehicles at almost all points. Therefore, this alternative
too cannot be recommended as a satisfactory option."
The relief sought by the Petitioner on this application isquashing the decision of the Central Environmental Authority(1st Respondent) approving the project, which contemplates theconstruction of an urban motor – way known as "SouthernExpressway". Certiorari is mainly applied to the decisions ofpublic bodies acting under statutory authority, as the CentralEnvironment Authority (Is* Respondent) is. .and has the effectof quashing ultra vires decisions of the administrative bodyconcerned. By a grant of certiorari the Court does not, andcannot impose its own decisions; it simply quashes the originaldecision. The Court is ill equipped, in any event, to form anopinion on environmental matters – they being best left to peoplewho have specialised knowledge and skills in such spheres.Even if a matter may seem to be preeminently one of public law,the Courts may decline to exercise review because it is feltthat the matter is not justiciable, i.e. not suitable to judicialdetermination. The reason for non – justiciability is that Judgesare not expert enough deal with the matter.
But, as stated above, the learned Counsel for the Petitioner,in fact, did not invite the Court to consider the validity or theacceptability of the reasons given by the experts, if 1 may callthem so, of the Moratuwa University. If I were to consider thevalidity of reasons or the feasibility of the project, 1 would besubstituting my own views for those of the experts or of thedecision maker which, in this instance, is the Central EnvironmentAuthority. Needless to say, under the judicial review procedure,it is not open to me to substitute my own views for that of theCentral Environment Authority which had thought it fit to acceptthe recommendation of the experts who prepared the reportafter an evaluation of all relevant considerations, andrecommended "Southern Expressway” which is depicted as the"combined trace" in figure 3 – 1 at page 2 of Chapter 3 of the ELAreport – as the best of all options or schemes. The experts whoprepared the report after an in-depth study thought or were ofthe opinion that the "Southern Expressway" as proposed orrecommended by the experts was the best option out of several,and, I cannot quash such a decision by means of certiorari unless
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120011 3 Sri L.R.
it is characterised by an illegality or was a decision reached inbreach if rules of natural justice etc. The fact that the decisionof Central Environment Authority adopting the recommendationof the experts of the Moratuwa University that "SouthernExpressway" i.e. the combined trace in the map. representedthe most feasible of all options was not. sought to be quashedon any such ground, calls for remark. As remarked, at the veryoutset of this order, the aforesaid decision of the CentralEnvironment Authority was sought to be challenged only onthe two grounds viz. that alternative options were not consideredand that no reasons were adduced for the rejection of otheroptions.
There is a distinction between appeal and review. If oneappeals against a decision, one is claiming that the decision iswrong and that appellate authority or court should change thedecision. The Court of Appeal, if it is persuaded by the merits ofthe case (appeal), may allow the appeal and thereby substituteits view for that of that of the Court or tribunal of first instance.Under judicial review procedure, the Court of Appeal is notconcerned with the merits of the case, that is, whether thedecision was right or wrong, but whether the decision is lawfulor not. In the words of Lord Brightman: "Judicial review isconcerned, not with the decision but with the decision makingprocess" (Chief Constable of North Wales Police v. Evans'1’)It is worth observing that the review procedure is not well suitedto determination of disputed facts – factual issues arising in thiscase being imprecise and disputed.
Inasmuch as different views can be held, in regard to thequestion as to which one of the options or alternatives is thebest – application for review ought to fail on that ground, aswell, such options partaking of the character of factual issues.In Dowty Boulton Paul Ltd. v. Wolverhampton Corporation121- the dispute concerned a land which was used as an aerodrome.Under legislation the local authority could re-appropriate theland if it was no longer required for the purpose for which ithad been acquired. The Council wished to put the land tohousing use and its exercise of the statutory re- appropriation
Public Law Foundation v. Ceylon Environmental Authority
(U. De Z. Gunawardana, J.)
power was challenged on the basis that the land was stillrequired for use as an aerodrome. The Court held that theCouncil's exercise of power in good faith could not be challenged,partially, because legislation envisaged choice betweencompeting requirements and the Court was not as well placedas the local authority was, to make such a choice.
In the case in hand too, the Court is not in a position tochoose between competing schemes because such an attempton the part of the Court to make such a choice would involveconsideration of facts and also because such an exercise on thepart of the Court would fall outside the proper scope of judicialreview procedure.
Decision making is an important aspect of the workentrusted to the Central Environment Authority. Any personendowed with decision making powers will appreciate thatdiscretion is an aid to the exercise of these powers. The CentralEnvironment Authority, too, is left free to make a choice amongpossible courses of action. Discretion allows for the shaping ofthe authority's power to the particular circumstances of the case.I cannot bring myself to hold that the discretion had been abusedin any way, by the Central Environment Authority in acceptingthe recommendation embodied in EIA report submitted by theexperts – the recommendation being that the express way (urbanmotor – way) project depicted in figure 3 – 1. referred to above,is the best of all options. It is to be observed that Petitioner hadfailed to suggest an alternative route or scheme to take the placeof the "Southern Expressway” suggested or recommended bythe experts in their report marked P7; nor has the Petitioneralleged lack of good faith on the part of the lsl Respondent.
For the aforesaid reasons the application is refused. ThePetitioner is ordered to pay Rs. 50000/- (Fifty Thousand Rupees)as costs to the 1st Respondent.
PUBLIC INTEREST LAW FOUNDATIONS v. CENTRAL ENVIRONMENTAL AUTHORITY AND ANO