2021-06-28T13:57:30Z
CAPRI (2018) Beyond PET bottles and plastic bags fixing jamaica's environmental regulatory framework, Jamaica.pdf
With the kind support of:
R1810
OCTOBER 2018
BEYOND PET BOTTLES
AND PLASTIC BAGS
FIXING JAMAICA’S ENVIRONMENTAL
REGULATORY FRAMEWORK
CONTENTS
EXECUTIVE SUMMARY .................................................................................................................................
1 INTRODUCTION .....................................................................................................................................
2 THE LEGAL AND INSTITUTIONAL FRAMEWORK: SYSTEM FAILURE ....................................................
2.1 NATURAL RESOURCES CONSERVATION AUTHORITY ACT 1991 ...............................................................
GOVERNANCE OF THE IMPLEMENTING BODY
BINDS THE CROWN
INEFFECTIVE PENALTIES DECIDED ON AND LEVIED IN A FLAWED SYSTEM
PERMIT AND LICENSING REGULATIONS (1996)
VOLUNTARY COMPLIANCE AND VALIDATION OF SUBMITTED DATA
DELEGATION
2.2 THE TOWN AND COUNTRY PLANNING ACT ..............................................................................................
2.3 LAND DEVELOPMENT AND UTILIZATION ACT ..........................................................................................
2.4 MERGER OF THE THREE MAIN AUTHORITIES AND THE CREATION OF THE NATIONAL ENVIRONMENT
& PLANNING AGENCY ...............................................................................................................................
2.5 THE PUBLIC INTEREST ............................................................................................................................
2.6 A NEW ENVIRONMENTAL REGULATORY AUTHORITY ...............................................................................
3 THE ENVIRONMENTAL PLANNING FRAMEWORK: INCHOATE AND FRAGMENTED ..............................
3.1 DEVELOPMENT ORDERS ..........................................................................................................................
3.2 CASE STUDY: NEGRIL’S DEVELOPMENT ORDER ......................................................................................
3.3 SANCTIONS UNDER THE TOWN AND COUNTRY PLANNING ACT ..............................................................
3.4 PUBLIC CONSULTATION ............................................................................................................................
3.5 THE PLANNING AND ENVIRONMENTAL POLICY FRAMEWORK ................................................................
3.6 NATIONAL PHYSICAL PLANS ....................................................................................................................
3.7 STATE OF THE ENVIRONMENT REPORTS .................................................................................................
4 THE COMPROMISED ENVIRONMENTAL IMPACT ASSESSMENT PROCESS ...........................................
4.1 THE INHERENT WEAKNESS OF ENVIRONMENTAL IMPACT ASSESSMENTS ............................................
4.2 INADEQUATE BASELINE DATA ..................................................................................................................
4.3 PUBLIC ACCESSIBILITY ...........................................................................................................................
4.4 LACK OF REGULATIONS ...........................................................................................................................
5 JAMAICA’S INABILITY TO DELIVER QUALITY MONITORING AND EFFECTIVE ENFORCEMENT .............
5.1 CASE STUDY: THE FALMOUTH CRUISE SHIP PIER ...................................................................................
5.2 RESOURCES AND CAPACITIES .................................................................................................................
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CONTENTS
6 CONCLUSION AND RECOMMENDATIONS ..............................................................................................
6.1 RECOMMENDATIONS ................................................................................................................................
PROMULGATE THE NEPA ACT AS AN URGENT PRIORITY
COMPLETE AND PROMULGATE THE ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS
COMPLETE AND PROMULGATE THE REGULATIONS FOR ALL TYPES OF PARKS AND PROTECTED
AREAS
PARKS AND PROTECTED AREAS OF VARIOUS TYPES CAN BE DECLARED UNDER THE NRCA ACT, BUT
WITH THE EXCEPTION OF MARINE AND NATIONAL PARKS, THERE ARE NO REGULATIONS IN PLACE
FOR OTHER TYPES OF PROTECTED AREA. THIS MEANS THAT THERE ARE NO RESTRICTIONS ON
WHAT TYPES OF DEVELOPMENT AN OCCUR IN THESE AREAS OR HOW THEY SHOULD BE MANAGED.
INCREASE FINES AND SANCTIONS
COMPLETE THE REMAINING DEVELOPMENT ORDERS AND CONDUCT OUTREACH ON THEIR
PROVISIONS
RATIONALIZE AND COMPLETE ENVIRONMENTAL POLICIES
FAST TRACK THE NATIONAL SPATIAL PLAN
SETTLE THE LOCATION OF THE ENVIRONMENTAL PORTFOLIO
ESTABLISH A PARLIAMENTARY COMMISSION ON THE ENVIRONMENT
INVESTIGATE THE FEASIBILITY OF AN ENVIRONMENTAL COURT FOR JAMAICA
LIST OF ACRONYMS .....................................................................................................................................
REFERENCES ..............................................................................................................................................
APPENDIX 1 ................................................................................................................................................
APPENDIX 2 ................................................................................................................................................
APPENDIX 3 ................................................................................................................................................
APPENDIX 4 ................................................................................................................................................
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Lead Author: Diana McCaulay
This study is made possible by the generous support of the American people through the United States Agency for
International Development (USAID). The contents are the responsibility of CAPRI, and do not necessarily reflect
the views of USAID or the United States Government.
LIST OF TABLES
TABLE 4: MOVEMENT OF THE ENVIRONMENTAL PORTFOLIO 1991-2018 ...................................................
TABLE 1: PARTIAL LIST OF STATE AGENCIES THAT EXERCISE ENVIRONMENTAL FUNCTIONS .................
TABLE 2: OTHER MAIN ENVIRONMENTAL STATUTES ADMINISTERED BY NRCA ........................................
TABLE 3: SAMPLE OF ENVIRONMENTAL STATUTES NOT ADMINISTERED BY NRCA ..................................
TABLE 5: CURRENT STATUS OF DEVELOPMENT ORDERS ...........................................................................
TABLE 6: PARTIAL LIST OF JAMAICA’S ENVIRONMENTAL PLANS AND POLICIES AND THEIR STATUS ......
TABLE 8: ENFORCEMENT WEAKNESSES IDENTIFIED BY JET IN 2009. UPDATED 2018. .............................
TABLE 9: ENVIRONMENTAL ENFORCEMENT BY NEPA UNDER ITS RESPECTIVE ACTS (2010-2013) ..........
TABLE 10. APPLICATIONS PROCESSED BY NEPA 2017-2018 FISCAL YEAR ................................................
TABLE 11. TECHNICAL SKILLS AVAILABLE AT NEPA SEPTEMBER 2018 ....................................................
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EXECUTIVE SUMMARY
Despite many public statements at the highest level assuring commitment to environmental protection
and sustainability, the Jamaican government has failed to operationalize these promises. Deforestation,
soil erosion, degradation of coastal ecosystems, over-fishing, poor air quality, poorly managed parks
and protected areas, pollution of harbours, rivers, streams and aquifers, unplanned and unregulated
settlements in areas most vulnerable to natural disasters, inadequate management of solid and liquid
waste, and poor development planning and control are key features of the state of Jamaica’s natural
environment. It has long been recognized that the weakness of the environmental regulatory and
institutional framework is the primary obstacle to good environmental stewardship.
The promulgation of the Natural Resources Conservation Authority Act in 1991 ostensibly sought
to address the extant fragmentation of multiple laws, policies and regulations, the majority of
them incomplete and not promulgated, but almost thirty years later, the consolidation of Jamaica’s
environmental regulatory framework remains unfinished business.
2 | BEYOND PET BOTTLES AND PLASTIC BAGS
Given the seriousness of the problem and Jamaica’s
vulnerability to the impacts of environmental degradation
on the economy and public health, this report seeks to obtain
a better understanding of why the environmental protection
framework is so weak, and how it can be strengthened. This
report reviews and assesses four aspects of Jamaica’s planning
and environmental legislative and enforcement framework,
with a view to identifying weaknesses and proposing
remedies:
» The Natural Resources Conservation Authority Act of
1991, relevant regulations and the permit and licensing
system
» The Town and Country Planning Act of 1958 and
Development Orders
» The environmental impact assessment process
» Monitoring and enforcement procedures
The early commitment to protection of the environment
via the Natural Resources Conservation Authority Act has
never been delivered. A culture of non-compliance with
environmental rules has evolved, a culture in which state
agencies and private sector actors are not constrained by laws
or regulations in their actions, regardless of the environmental
effects. This culture of impunity has been exacerbated by a
lack of enforcement of the Permit and Licensing System
that was put in place five years after the promulgation of
the NRCA Act, where environmental permits and licenses
were to be issued for a wide range of types of development.
There is an absence of effective enforcement measures,
including the application of sanctions. Monitoring of the
health of the natural environment remains extremely weak.
There are significant execution gaps, and many identified
solutions, policies, plans and programmes take far too long
to be implemented. What has existed for nearly 30 years is
a situation where overlapping and diffuse responsibilities
for the environment remain spread across many different
government agencies, leading to confusion, delays and
deflection of responsibilities.
What then remains is an environmental regulatory
framework comprised of a long list of worthwhile intentions,
codified in incomplete policies, and characterized by failure
to act over long time periods. Many recommendations have
simply not been carried out, many plans not implemented,
and many declarations not followed through. The main
weakness of Jamaica’s environmental framework is lack
of sufficient interest on the part of the government and its
agents to protect our natural environment in a substantive
way. While there are specific areas that call for attention, such
as the current ineffectiveness of low fines, and the need for
greater and more meaningful public engagement, the most
important change that is needed in Jamaica is a commitment
to execute and complete identified actions.
The report recommends:
» Promulgate the NEPA Act as an urgent priority
» Complete and promulgate the environmental impact
assessment regulations
» Complete and promulgate the regulations for all types of
parks and protected areas
» Increase fines and sanctions for breaches of the NRCA
Act and regulations
» Complete the remaining Development Orders and
conduct public outreach on their provisions
» Rationalize and complete draft environmental policies
» Fast-track the National Spatial Plan
» Settle the location of the environmental portfolio for at
least ten years
» Establish a Parliamentary Commission on the
Environment
» Investigate the Feasibility of an Environmental Court for
Jamaica
BEYOND PLASTIC BAGS AND PET BOTTLES | 3
1. INTRODUCTION
The state of Jamaica’s natural environment, and its management, have been documented by the Jamaican
government in a series of six reports between 1987 and 2013.1 The reports consistently describe
deforestation, soil erosion, degradation of coastal ecosystems, over-fishing, poor air quality, poorly
managed parks and protected areas, pollution of harbours, rivers, streams and aquifers, unplanned and
unregulated settlements in areas most vulnerable to natural disasters, inadequate management of solid
and liquid waste, and poor development planning and control.
The very first State of the Environment (SOE) Report, the Jamaica Country Environment Profile
(CEP) in 1987, identified the weakness of the environmental regulatory and institutional framework
as an obstacle to good environmental stewardship: “…a review of the institutional framework that
existed in the 1960s to early 1970s reveals a fragmented approach to environmental management,
with numerous agencies and committees sharing responsibility for the administration of various
environmental laws.”2 The CEP also identified the chronic shortage of technical staff as an obstacle.
The promulgation of the Natural Resources Conservation Authority Act in 1991 ostensibly sought to
address this fragmentation, but almost thirty years later, the consolidation of Jamaica’s environmental
regulatory framework remains unfinished business.3
1 State of the Environment (SOE) Reports have been done in 1995, 1997, 2001, 2010 and 2013. The State of the Environment
Reports will hereinafter be footnoted as “SOE” with the relevant year.
2 “Jamaica Country Environmental Profile,” Natural Resources Conservation Division, Ministry of Agriculture, 1987.
3 SOE (2010), p. 138.
4 | BEYOND PET BOTTLES AND PLASTIC BAGS
One of the goals of Jamaica’s National Development
Plan, Vision 2030, is that Jamaica has a healthy natural
environment.4 Vision 2030 outlines examples of Jamaica’s
environmental problems as follows:
» 94 per cent of Jamaica’s forests is disturbed and more
than 20 per cent of land within forest reserves has been
impacted by human activity;
» Almost all of our watersheds have been impacted
by human activity and experience some level of
degradation;
» All major river courses receive pollutants at some
point from industrial waste, sewage, silt, debris, and
agricultural run-off;
» 30 per cent of mangrove forests has been lost due to
activities such as infilling for construction of hotel and
housing developments;
» Land use pressures have resulted in environmental
degradation, including exacerbation of erosion
and flooding, degraded and diminishing wetlands,
compromised water resources, and deteriorating coral
reefs. Land use pressures are greatest in the coastal
and urban areas. Contributing factors are related to poor
agricultural and forestry practices, human encroachment
in forest reserves and protected areas, urbanization, and
population growth in vulnerable areas;
» Direct release of pollutants to the air occurs from
economic activities such as bauxite and alumina mining
and production.
Jamaica is ranked 78th out of 180 countries in the 2018
Environmental Performance Index, behind its Caribbean
neighbours of Trinidad and Tobago, St. Vincent and the
Grenadines, the Dominican Republic, Cuba, Dominica, and
Antigua and Barbuda.5
Given the seriousness of the problem and Jamaica’s
vulnerability to the impacts of environmental degradation
on the economy and public health, there is an urgent
and objective need for a better understanding of why the
environmental protection framework is so weak, and how it
can be strengthened.
This report reviews and assesses four aspects of Jamaica’s
planning and environmental legislative and enforcement
framework, with a view to identifying weaknesses and
proposing remedies:
» The Natural Resources Conservation Authority Act of
1991, relevant regulations and the permit and licensing
system
» The Town and Country Planning Act of 1958 and
Development Orders
» The environmental impact assessment process
» Monitoring and enforcement procedures
The report conducts detailed reviews of the main
environment and planning statutes and orders, the State of
the Environment (SOE) Reports between 1997 and 2013, and
a number of other relevant reports such as Auditor General’s
performance audits, green papers (policies), and reports
issued by environmental NGOs. Interviews with key actors
and stakeholders were conducted to gather additional data
and insights not contained in the reports.
4 “Vision 2030 Jamaica, National Development Plan,” 2009. Planning Institute of Jamaica. (www.vision2030.gov.jm/National-Development-Plan)
5 Yale Center for Environmental Law & Policy, “2018 Environmental Performance Index.” (https://epi.envirocenter.yale.edu/downloads/
epi2018policymakerssummaryv01.pdf). The Environmental Performance Index ranks country performance on high priority environmental issues.
BEYOND PET BOTTLES AND PLASTIC BAGS | 5
2. THE LEGAL AND
INSTITUTIONAL FRAMEWORK:
SYSTEM FAILURE
The protection and use of Jamaica’s natural environment is governed by a number of laws administered
by various state agencies across different ministries. Some policy direction is set by the environmental
minister with regard to specific environment-related matters, with the idea that these policies and
the respective legal mandates are carried out by the relevant technical agencies and/or ministry staff.
However there are other environment-related matters that are administered by other government
agencies and ministries, pertaining to other laws and regulations, and these often overlap with the
direct functions of the environmental ministries and agencies. For example, mining and quarrying is
governed by the Mining Act of 1947 and the Quarries Control Act of 1984, which is regulated by the
Mines and Geology Division, currently under the portfolio of the Ministry of Transport and Mining.
This complex regulatory framework has not delivered an effective environmental management regime
for Jamaica, as deterioration of natural resources continues to be evident.
6 | BEYOND PET BOTTLES AND PLASTIC BAGS
2.1 NATURAL RESOURCES CONSERVATION
AUTHORITY ACT 1991
The first and most significant of the environment-specific
laws is the Natural Resources Conservation Authority Act
(NRCAA) of 1991, which established the Natural Resources
Conservation Authority (NRCA), to “take such steps as
are necessary for the effective management of the physical
environment of Jamaica so as to ensure the conservation,
protection, and proper use of its natural resources.”6 The
NRCAA is Jamaica’s main environmental statute and it
regulates specific categories of enterprise, construction
and development which have been declared in the Order
and take place anywhere in Jamaica.7 An order under the
NRCAA 1996 Permit and Licensing regulations conferred
prescribed area status on the entire island, giving the NRCA
jurisdiction over any activity conducted anywhere in Jamaica
which could result in damage to the natural environment or
public health.8 There is also provision for Ministerial Orders
for protection of the environment under Section 32 of the
NRCA Act.
The NRCAA and its corresponding regulations (emission
standards and regulations, wastewater and sludge, permit
and licensing regulations, marine parks, national parks, and
movement of hazardous waste) give the broadest powers
relating to environmental protection to any single body in
Jamaica.9 These powers are highly discretionary and include
the authority to:
» Issue permits and licenses to guide specific categories of
development that are likely to pose harm to the natural
environment or public health and therefore require an
environmental permit;10
» Regulate air emissions and discharges of liquid
effluent;11
» Require an environmental impact assessment (EIA)
for any development that is having or likely to have an
adverse impact on the environment;12
» Carry out enforcement action (warning notices,
enforcement notices, breach notices, cessation notices,
suspension or withdrawal of permits, verbal warnings,
legal action) against any undertaking which “poses
a serious threat to the natural resources or to public
health” anywhere in Jamaica;13
» Carry out and recover costs of a cleanup or restoration of
environmental damage;14
» Make orders, declare, and manage national parks and
protected areas;15
» Establish regulations, codes of practice, standards and
guidelines regarding any sort of development;16
» Promote public awareness “of the ecological systems of
Jamaica” and their importance;17 and,
» Advise the relevant minister on matters of general policy
relating to the environment.18
6 The Natural Resources Conservation Authority Act 1991, s. 4(1)(a). The URLs for all the laws and regulations mentioned in this report are in Appendices 3
& 4.
7 The Natural Resources Conservation Authority Act 1991, s. 9(1).
8 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) Order, 1996; The Natural Resources
(Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015.
9 “Regulations,” National Environment and Planning Agency, last updated December 31, 2014. (http://nepa.gov.jm/new/legal_matters/legal_framework/
regulations.php)
10 The Natural Resources Conservation Authority Act 1991, s. 9(1). Development here can mean virtually any physical structure or alteration to the natural
environment, including roads, airports, ports, hotels, farms, housing developments, and fish farms.
11 Regulations exist pertaining to types of factories, but not—so far—for ships, and not for cars.
12 The Natural Resources Conservation Authority Act 1991, s. 10(1)(b).
13 The Natural Resources Conservation Authority Act 1991, s. 11, 13, 15, 17, 18.
14 The Natural Resources Conservation Authority Act 1991, s. 19(1)
15 The Natural Resources Conservation Authority Act 1991, s. 4(1)(c), 5(1).
16 The Natural Resources Conservation Authority Act 1991, s. 4(2)(d).
17 The Natural Resources Conservation Authority Act 1991, s. 4(1)(b).
18 The Natural Resources Conservation Authority Act 1991, s. 4(1)(d).
BEYOND PET BOTTLES AND PLASTIC BAGS | 7
GOVERNANCE OF THE IMPLEMENTING BODY
TThe NRCA, generally referred to as “the Authority,” or the
NRCA Board, consists of between seven and ten members
appointed by the relevant minister for a renewable term, not
to exceed three years for each term.19 The “relevant minister”
is determined by which ministry the environmental portfolio
is assigned to.
Since its inception, the environmental portfolio (as it is
embodied by the NRCA) has fallen under 13 different
government ministries and been led by 11 different
ministers, including two Prime Ministers.20 Placing the
environmental portfolio within other ministries, often with
explicit development mandates such as tourism or housing,
can lead to conflicts of interest. Inevitably, the environmental
mandate loses.
Since the change in administration in 2016, portfolio
responsibility for the environment falls under the Ministry of
Economic Growth and Job Creation at the Office of the Prime
Minister. The de jure environmental minister is therefore the
Prime Minister. The Prime Minister has, however, delegated
the environmental portfolio to Minister without Portfolio in
the Office of the Prime Minister, the Hon. Daryl Vaz, who is
thus the de facto environmental minister.
19 The Natural Resources Conservation Authority Act 1991, First Schedule 1, 3(1).
20 Under the Westminster-Whitehall system of government, the model of Jamaica’s democratic system, the cabinet is comprised of members of Parliament of
the ruling party, and from the ruling party’s senators. With each change of administration there is often a shuffling of the tasks and responsibilities that come
under various cabinet portfolios.
Table 4: Movement of the Environmental Portfolio 1991-2018
DATES MINISTRY
MINISTER WITH PORTFOLIO RESPONSIBILITY
FOR THE ENVIRONMENT
1991 Ministry of Development, Planning and Production Hon. P.J. Patterson
1992 Ministry of Tourism and the Environment Hon. John Junor
1993 Ministry of Public Service and the Environment Hon. Easton Douglas
1995 Ministry of Environment and Housing Hon. Easton Douglas
2000/1
Office of the Deputy Prime Minister and the Ministry of
Land and Environment
Hon. Seymour Mullings
2001/2 Ministry of Land and Environment Hon. Horace Dalley
2002/6 Ministry of Land and Environment Hon. Dean Peart
2006/7 Ministry of Local Government and Environment Hon. Dean Peart
2007/8 Ministry of Health and Environment Hon. Rudyard Spencer
2008/11 Office of the Prime Minister
Most Hon. Bruce Golding
Hon. Daryl Vaz (Minister without portfolio)
? (short period) Ministry of Water and Housing Hon. Horace Chang
2011 Ministry of Water, Environment and Housing Hon. Horace Chang
2011
Ministry of Water, Environment, Housing and Local
Government
Hon. Horace Chang
2012/16 Ministry of Water, Land, Environment and Climate Change Hon. Robert Pickersgill
2016 Ministry of Economic Growth and Job Creation
Most. Hon. Andrew Holness
Hon. Daryl Vaz (Minister without portfolio)
Source: NEPA Key: Orange – Government formed by the Peoples National Party; Green – Government formed by the Jamaica Labour Party
8 | BEYOND PET BOTTLES AND PLASTIC BAGS
Board appointees are political appointments. When the
administration changes, the directors of all state boards
typically resign to be replaced by others more aligned with the
new administration, a process which can cause considerable
delay as well as find certain well-connected people sitting on
multiple boards. As such, directors’ main qualification tends
to be an affiliation to the ruling party; they are not necessarily
equipped with the required technical knowledge to assess
the recommendations of the agency’s technical staff, nor
do many of them have any experience with environmental
matters. While the argument may be made that it is the role
of the salaried technocrats within the agency to carry out its
mandate, there is an informed view that the boards should be
populated by people concerned with conservation, and with
experience and insight in ecological matters, sustainability,
and climate resilience. While the technical agency provides the
political directorate with lists of competent persons with those
attributes and qualifications, these seem to be of limited value,
as the practice has been that those who are appointed generally
do not meet that criteria.21 While there is often a selection of
a highly visible and/or well-known environmental advocate,
it is generally just one or two people with insufficient clout to
have any meaningful influence on the board’s decisions. The
appointment of sufficient numbers of people with a known or
stated interest in the environment seldom occurs. This issue of
lack of specific expertise related to the organization’s mandate
was recognized by the administration in 2016 as a problem
across all state boards and a proposed reform was promulgated
in 2018.
The NRCA Board carries out its work by various modalities,
including communicating government policy directions,
monthly and ad hoc board meetings, monthly subcommittee
meetings, review of technical reports and directing specific
interventions for protection/preservation of the environment.22
The number and type of sub-committees vary, but generally
include a Technical Review Committee, a Beaches and Coastal
Resources Management Committee, a Biodiversity and Game
Birds Committee, a Legal and Enforcement Committee, and
an Air Quality Management Committee.23 Each committee is
guided by its own Terms of Reference. The Technical Review
Committee, for example, reviews all applications for permits
and licenses, and recommends approval or rejection to the
NRCA Board, along with suitable permit/license conditions.
The Act explicitly gives the minister broad discretionary
powers, and the regulations allow for ministerial discretion to
“give directions of a general character” regarding policy and
the performance of the NRCA’s functions.24 An “aggrieved
person” has the right to appeal against any decision of the
NRCA in relation to a permit or license, and the Minister has
wide powers to vary or uphold decisions and does not have
to give reasons.25 An aggrieved person is defined as anyone
who has been refused a permit or license, or who objects to the
terms and conditions of the permit/license.26 The Minister’s
decision is final.27 The implications of the Act’s openness in this
regard are manifest. Regardless of the intentions of the NRCA
salaried staff or even the appointed board, the minister’s
intentions, however ill-advised, will prevail. The Minister can
ignore the recommendations of his technical staff, legally, and
there is no explicit right of appeal contained in the NRCA Act
for the public to object to the granting of permits/licenses, or to
challenge their conditions. The public can, however, subject a
minister’s final decision to judicial review by the courts. A 2010
Green Paper on a proposed new environmental regulatory
authority included a specific provision to protect the proposed
entity from interference from the political directorate.28 (The
new authority never materialized.)
There are other aspects of the Act which allow for highly
discretionary decisions, and where the Act is open to
interpretation. Chief among these is the word “may”. The
Act uses the word “may” to cover most of the Authority’s
functions. For example, Section 2, 1 (a) reads: “The Authority
may develop, implement and monitor plans and programmes
relating to the management of the environment and the
conservation and protection of natural resources.” Section 6
(a,b): “The Authority may grant a permit subject to such terms
and conditions as it thinks fit; or refuse to grant a permit.”
The unwieldiness of the regulatory framework further lends
to the Act’s inefficacy. Section 9 of the NRCA Act requires the
Authority to consult “any agency or department of Government
exercising functions in connection with the environment.”
This is extremely broad, and the law prescribes no time frame
for response. The website of the National Environment and
Planning Agency (NEPA) lists 100 statutes and regulations
relating to the environment.29 Applications for large projects
may have to be reviewed by over 20 state agencies, spanning
several ministries.
21 Franklyn McDonald, former Executive Director of NRCA and CEO of the National Environment and Planning Agency (NEPA) 1992-2004, phone
conversations with author, August 22, 2018.
22 Peter Knight, CEO of NEPA, e-mail to author, October 4, 2018.
23 NEPA executives, personal interviews with author, September 3, 2018.
24 The Natural Resources Conservation Authority Act 1991, s. 7.
25 The Natural Resources Conservation Authority Act 1991, s. 35(1) and (2).
26 The Natural Resources Conservation Authority Act 1991, s. 35(3).
27 The Natural Resources Conservation Authority Act 1991, s. 35(2).
28 Whether this was inserted in the proposal because of specific concerns about ministerial overreach in environmental matters, or was simply a reflection of
broader concerns about the abuse of ministerial power, is not clear.
29 “Environmental and Planning Laws of Jamaica,” National Environment and Planning Agency, last updated July 9, 2018. (http://nepa.gov.jm/new/legal
matters/laws/). NEPA, which is discussed in much greater detail further on, was created in 2001 as a state executive agency to carry out the technical
(functional) and administrative mandate of the three statutory bodies: the Natural Resources & Conservation Authority (NRCA), the Town & Country
Planning Authority (TCPA), and the Land Development & Utilisation Commission (LDUC).
BEYOND PET BOTTLES AND PLASTIC BAGS | 9
Table 1: Partial list of state agencies that exercise environmental functions
1
Environmental Health Unit (EHU) (e.g. all
sewage treatment facilities)
13
Office of Disaster Preparedness and Emergency
Management (ODPEM) (e.g. developments
which increase vulnerability to natural disasters
or occur in flood or earthquake zones)
2
National Water Commission (NWC) (e.g. new
housing developments requiring water supply
14
Parish Councils, now called Municipal
Corporations (on a case by case basis)
3
National Environment and Planning Agency
(NEPA) (e.g. all developments which could affect
the environment or public health
15
National Land Agency (NLA) (e.g. developments
occurring on Crown lands)
4
Jamaica Public Service Company Ltd. (JPSCo)
(e.g. new housing developments requiring
electricity supply)
16
National Irrigation Commission (NIC) (e.g.
farming projects requiring water for irrigation)
5 National Works Agency (NWA) (e.g. roads) 17
Rural Agriculture Development Authority
(RADA) (e.g. developments occurring in areas
designated for agriculture)
6
Jamaica Fire Brigade (JFB) (e.g. multi storey
buildings, or any development where access to
fight fires is an issue)
18
Civil Aviation Authority (CAA) (e.g. multi storey
developments whose height or location might
impede air traffic)
7
Jamaica Bauxite Institute (JBI) (e.g. bauxite
mining or processing, bauxite roads)
19
Urban Development Corporation (UDC) (e.g.
projects taking place on land owned by the UDC)
8
Mines and Geology Division (MGD) (e.g.
all mining or quarrying projects, including
prospecting)
20
Island Traffic Authority (ITA) (e.g. regulations to
control vehicular emissions)
9
Water Resources Authority (WRA) (e.g.
developments which want to abstract water for
farming or domestic use)
21
National Solid Waste Management Authority
(NSWMA) (e.g. projects which generate solid
waste, or in areas where solid waste collectionis
inadequate)
10
Forestry Department (e.g. developments taking
place in forest reserves)
22
Ministry of Economic Growth and Job Creation
(MEGJC)30 (e.g. projects which may conflict with
official policy)
11
Fisheries Division (e.g. activities taking place
in marine parks, requiring quotas for protected
species)
23
Customs Department (e.g. importation of goods
which could affect the environment or public
health)
12
Jamaica National Heritage Trust (JNHT) (e.g.
developments which could affect heritage
resources)
24
Ministry of Agriculture (MOA), Plant and
Animal Quarantine Division (e.g. importation
of live animals which could introduce diseases or
become invasive if allowed to escape)
30 Compiled from SOE (2010) and “Establishment of an Environmental Regulatory Authority,” Green Paper No 2/2010, Public Sector Modernisation Division,
Office of the Cabinet (Jamaica), November 16, 2010. (http://japarliament.gov.jm/attachments/440_Green%20Paper%20No.%202%20-%202010%20pt1.pdf)
Hereinafter referred to as Green Paper No 2/2010.
In addition to the sheer number of agencies that may
“exercise functions in connection with the environment”,
many of them perform overlapping functions. For example,
with regard to air quality, there are four state agencies:
NEPA, via air quality standards under the NRCA Permit and
Licensing regulations; the Ministry of Health via the Public
Health Nuisance Regulations; the Jamaica Fire Brigade via
Country Fires Act; and the Jamaica Bauxite Institute (JBI),
via delegation of environmental monitoring of the bauxite
industry. There are five agencies whose work pertains
to water: NEPA, regarding raw water quality; the Water
Resources Authority, regarding underground and surface
water resources; the National Water Commission, regarding
treated water; the Forestry Department, regarding forests
and watersheds; and the Ministry of Health regarding treated
water quality.31
10 | BEYOND PET BOTTLES AND PLASTIC BAGS
31 SOE (2010), SOE (2013).
Beach Control Act 1956, most
recent amendment 1991
Endangered Species
(Protection, Conservation and
Regulation of Trade) Act 2000
Wildlife Protection Act 1945,
most recent amendment 2016
Town and Country Planning
Act 1958
Watersheds Protection Act
1963, most recent amendment
1991
Table 2: Other main environmental statutes administered by NRCA
Table 3: Sample of environmental statutes NOT administered by NRCA
1 Forestry Act 1996 9 Fisheries Industry Act 1976
2
National Solid Waste Management Authority Act
2001
10 Clean Air Act 1974
3 Public Health (Nuisance Regulations) 1995 11 Country Fires Act 1942
4 Building Act 2017 12 Pesticides Act 1987
5 Housing Act 1969 13 Water Resources Act 1995
6 Urban Development Control Act 1968 14 Quarries Control Act 1984
7 Exclusive Economic Zone Act 1991 15 Mining Act 1947
8 Maritime Areas Act 1996
BEYOND PET BOTTLES AND PLASTIC BAGS | 11
BINDS THE CROWN
While the NRCA is obliged by the Act to consult a plethora
of state agencies, Section 39 of the Natural Resources
Conservation Authority Act empowers the NRCA to take
enforcement action against state agencies which are either
in breach of permits/licenses, or have not applied for or
been granted a permit or license before carrying out a
development. When a statute explicitly requires adherence
by the state, this is referred to as “binding the Crown”. In
practice, however, effective and meaningful sanctions against
state agencies is rare.32 For example, in September 2018,
seven of eight of Jamaica’s “approved” waste disposal sites are
operating without the permits required by law.33
Poorly managed waste disposal sites can have significant
environmental impacts on air, water and public health.
Properly designed and managed sanitary landfills are lined
to prevent contamination of ground water, collect all gases
and leachate (water contaminated by flowing through or over
the waste) for treatment, are covered daily to prevent fires,
and separate different types of waste for processing. Access
to a sanitary landfill is strictly controlled and workers wear
protective gear. All Jamaica’s waste disposal sites are accessible
to the public due to lack of fencing and inadequate security
and in some cases, people live on the dumpsites. Jamaica has
no sanitary landfills.
The sewage treatment plants operated by the National Water
Commission are another example of state agencies failing to
adhere to the law, without sanction. An internal NEPA report
from 2004-2005 found that there was “very low frequency”
of monitoring visits by NEPA, and compliance with effluent
standards was “an alarming situation”, with only 40% of
sewage treatment plants meeting standards for Biological
Oxygen Demand (BOD).34 The report described the waste
treatment sector as in a “woeful state”, with specific mention
of improper plant design, old technology, overloading, poor
maintenance, and improper operations.35
Some five years later, there was a 26% compliance rate for
the National Water Commission’s sewage treatment plans, a
37% rate for plants operated by the GOJ, and none of nine
hospitals with sewage treatment plants met standards.36 The
situation continues to be grim: in 2013 only 4% of the Water
Commission’s sewage treatment plants were in compliance,
and only 33% of GOJ-operated plants met standards. There
were fewer hospital sewage plants, from nine to five, and
one was by then meeting standards. Even the hotel-operated
STPs met standards only 54% of the time.37
This surfeit of GOJ agencies that exercise functions
regarding the environment affects both those who apply for
permits and licenses and the general public. The Natural
Resources Conservation Authority Act’s requirement for
consultation can cause considerable delay in processing
development applications. Further, the responsibility for
regulating environmental issues resides in numerous state
agencies under multiple laws, resulting in a lack of clarity
for developers, the public, and, it would appear, the agencies
themselves, which readily deflect responsibility, sometimes
incorrectly. For example, citizens affected by the burning
of trash or the clearing of land by fire (open burning) are
often told by NEPA to call the Ministry of Health, but the
Ministry of Health then advises that they are only responsible
for indoor air quality and suggests a call to the Jamaica Fire
Brigade.
32 NEPA regards enforcement action, regardless of outcome, as a sanction. For example, although the dumps have been operating illegally NEPA has neither
closed them nor taken them to court. Nevertheless they regard the enforcement notice they sent as a sanction.
33 National Environmental Planning Agency (NEPA) senior director, personal communication with author, September 3, 2018. The Riverton Dump (waste
disposal site) was granted an environmental permit in 2005, which was suspended, although the dump continued to operate. The permit expired in 2010
without adherence to any of its conditions, and was not reissued until 2018. The Riverton waste disposal site now has been issued with two environmental
permits, governing general disposal and hazardous waste disposal.
34 Biological Oxygen Demand (BOD) is the amount of dissolved oxygen needed by aerobic biological organisms to break down organic material present in a
given water sample. It is a common measure of water quality.
35 Dillard Knight, “State of the Sewage Treatment and Disposal Sector in Jamaica: Towards meeting the requirements of local sewage effluent regulations and
the LBS protocol,” 2004.
36 SOE (2010).
37 SOE (2013), p. 210.
12 | BEYOND PET BOTTLES AND PLASTIC BAGS
NEPA’s Wastewater Treatment Plant audit report (2017-2018)
of the National Water Commission plants showed 46.3%
of NWC plants produced effluent of poor quality (meeting
less than two of the required parameters), 41.4% produced
effluent deemed satisfactory by NEPA (meeting three to
four of the required parameters), and 12.2% produced
effluent of good quality (meeting five to six of the required
parameters). None of the NWC’s plants audited met all of the
required standards. One of the plants producing poor quality
effluent was the Soapberry Wastewater Treatment Plant in St.
Catherine, the main sewage plant for Kingston and environs.
NEPA’s audit report went on to list the following concerns
regarding the NWC plants:
1. While the aesthetics of some plants especially
those with current licensees could be considered
satisfactory, most were in a deplorable state.
2. Many of the facilities were considered operational;
however some had non-functional mechanical
component(s) or the overall plant was not working
efficiently.
3. 95% of the plants lacked flow meters or a flow
measuring mechanism.
4. Some plants had inadequate supply of chlorine for
the disinfection of the effluent.
5. In some instances the wastewater treatment plants
were used as a walkway for nearby residents as well as
housing for squatters.
6. Livestock were observed to be tied or loitering at
some facilities.
7. The majority of the facilities are not licenced under
the current Wastewater and Sludge Regulations.
8. Insufficient effluent data submitted to the Agency for
some plants.38
Inadequate treatment of sewage threatens public health, due
to the discharge of bacteria-laden effluent into water bodies,
drainage channels, or on land, where it is eventually washed
to the sea in heavy rain. The nutrients in sewage also harm
coral reefs, causing algae to grow over the reefs, killing them.
This failure in the area of sewage treatment, and the absence
of any punitive action taken against those operating plants
that consistently do not meet basic standards set out in law,
is emblematic of the overall picture of impunity enjoyed
by state agencies who perpetuate environmental breaches.
Throughout the system there is little political will to apply
sanctions to state agencies. Various enforcement measures
(enforcement notices, stop orders and others) are used, but
prosecutions are rare. In any event, the fines are so low that
they do not deter breaches, so that even in those cases where
a fine is levied it is generally painless. State agencies in breach
of environmental laws may claim there is insufficient budget
to carry out statutory functions, but it is not clear whether
this is an adequate defence in law. Cases argued before United
Kingdom (UK) courts have reached different conclusions
on this point, depending on whether the applicable statute
imposed a duty or a power on the government agency.39 This
principle has not been tested in Jamaican courts, although
there was a case brought by the Jamaica Environment Trust
and Harbour View residents in 2010 challenging the National
Water Commission’s failure to effectively operate the Harbour
View Sewage Treatment Plant, which ended with a consent
order whereby the National Water Commission agreed to fix
the plant.40
There is a moral hazard contained in this dynamic. Even in
the event that the NRCA exercises its powers in this regard,
and a violation does become a matter for the court, this is a
no-win situation: if prosecution against state agencies results
in a fine, it would have to be paid by taxpayers. There are also
hurdles to enforcement action against entities that manage
essential facilities and services such as sewage treatment
plants and waste disposal sites, because they cannot simply
be shut down, however poorly managed, given the massive
inconvenience to the entire society, and the likely greater
environmental degradation that would result. Indeed,
malfunctioning sewage plants cannot be closed, they can only
be decommissioned after an alternative method of sewage
treatment has been found, which would also take resources,
the lack of which would have brought about the compliance
failures in the first instance.
The visible breaches of environmental standards by state
agencies and the general understanding that they can “get
away” with low standards, weak compliance, and causing
damage to the natural environment establishes a perverse
norm that is then followed by private citizens and businesses.
The state’s example, together with the extant complexity
and lack of clarity on which agency has responsibility for
what aspect of the environment, makes for a regulatory
environment that is observed mostly in the breach.
38 “Wastewater Treatment Plant Audit Report, April 2017 – March 2018”, NEPA, 2018.
39 R. v East Sussex CC Ex.p. Tandy [1998] AC 714; R. v Gloucestershire CC Ex.p. Barry [1997] AC 584.
40 Jamaica Environment Trust et al v National Water Commission and Others, (unreported), Supreme Court, Jamaica, Claim no. HCV 00114 of 2010, judgment
delivered 6 July 2010. (www.caribbeanenvirolaw.org/sites/default/files/JET_v_NWC_andOthers_FinalOrder_FiledJuly6_2010.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 13
INEFFECTIVE PENALTIES DECIDED ON AND LEVIED IN A FLAWED SYSTEM
Governments use disincentive policies such as fines or
penalties to punish those who do not comply with laws and
rules. However, the penalties under the NRCA Act are so low
that they are virtually meaningless, and hardly disincentivize
anyone to comply with the law.
In Jamaica in 2018, the fines of J$20,000.00 for failing to
comply with notices or orders, and J$50,000 for an offending
activity, are likely a fraction of the gain that the rule-breaker
is making in their offence. Where offences are continuing,
the fine is J$3,000.00 per day for each day on which the
offence continues after conviction.41 It is likely that better
suits a developer to break the rule and pay the fine than to
curtail his (or her) activity.
The system via which fines are imposed is itself a flawed
process. Fines are imposed after successful prosecution in
a Resident Magistrate’s Court, and court cases take many
years to bring to conclusion. An example of such a case is R v
Nordie Smith: The defendant was charged with undertaking
a development of a prescribed description (construction and
operation of a sewage treatment facility) without a permit,
contrary to s.9(2) of the Natural Resources Conservation
Authority Act. The first court date was 23 January 2013. The
defendant was to apply for the required permit by 24 July
2013, and the court then instructed NEPA to meet with the
defendant to guide him through the application process. The
first mention date was 22 January 2014, and the trial began
on 20 October 2014. After eight adjournments, the defendant
was “admonished and discharged” on 20 September 2018 as
being, by then, “fully compliant”.
In the case of failure to pay the fine the punishment is
imprisonment for a term not exceeding two years, a
considerably more weighty sanction but no one in Jamaica
has ever been incarcerated for an environmental crime as
fines are usually paid.
NEPA’s website lists only five cases currently before the
courts, with no indication as to start dates.42 A 2017-2018
unpublished list was made available by NEPA,43 showing 19
legal cases before the Parish Courts under four Acts – the
Natural Resources Conservation Authority Act, the Town
and Country Planning Act, the Beach Control Act, and the
Wildlife Protection Act. Except for the cases under the Beach
Control Act and one under the Wildlife Protection Act, all
fines imposed by the court under the Natural Resources
Conservation Authority Act were less than J$50,000.00. The
Auditor General’s (AG) 2016 performance review of NEPA
identified 452 cases referred to NEPA’s legal branch between
April 2012 to March 2015, but only 11 cases before the
courts.44
In the absence of effective deterrents (fines are too low), and
where court cases take many years to be heard, NEPA has
not employed other techniques to ensure compliance with
environmental laws or statutes. NEPA does not use “name
and shame” techniques effectively, with the result that even
successful court cases do not serve as a deterrent to others as
few know about them.45
41 Fines are higher under some of the other acts administered by NEPA, notably the Wildlife Protection Act (WPA), the Endangered Species (Protection,
Conservation and Regulation of Trade) Act and the Beach Control Act (BCA).
42 “Matters which have been heard/are to be heard before the Parish Courts, 2017-2018,” NEPA, undated. (http://nepa.gov.jm/new/legal_matters/legal_
framework/docs/court_cases.pdf)
43 Ibid.
44 Auditor General (2016).
45 “Name and shame” techniques may be used by regulatory agencies (or civil society groups) to publish the names of environmental offenders, usually private
sector companies, to encourage compliance.
14 | BEYOND PET BOTTLES AND PLASTIC BAGS
PERMIT AND LICENSING REGULATIONS (1996)
Section 9 of the NRCA Act forms the basis of the NRCA
(Permits and Licences) Regulations (1996) which came
into force in January 1997. The Permits and Licenses (P&L)
regulations require proponents of activities falling into so
called “prescribed categories” to apply for a permit or license
and pay the required fee. The P&L regulations provide for
the Authority to evaluate the potential environmental
impacts of these types of activity before they are underway.
The NRCA may refuse to issue a permit, order changes to
the plans to reduce environmental damage, modify or vary
permits/licenses, and revoke permits/licenses.46 The list of
prescribed categories in 2018 includes power generation
facilities, pipelines, port and harbour development, housing
projects of 10 houses or more, hotel complexes of more than
12 rooms, new highways, mining projects, solid, liquid and
hazardous waste treatment facilities, and many others.47
The Permit and Licensing Regulations were amended in
2004 and 2015. Prior to the 2015 amendment, an industry
which was already in operation before 1996 was not required
to apply for an environmental permit, even if the industry
fell into a prescribed category as outlined in the Permit and
Licensing Regulations. As of the 2015 amendment, however,
all industries/activities are now required to apply, even those
which have been in operation long before environmental
laws were passed.48 In practice, industries agree a compliance
plan with NEPA, which is supposed to bring their operation
into compliance with standards and regulations over a period
of years.
The consequences of breaches to environmental permits/
licenses, however, are insignificant. Typically, various
warnings, notices, and orders are issued by NEPA, developers
may be required to attend meetings, compliance plans
may be established, and projects might be shut down for
short periods, but permits are rarely withdrawn. Broadly,
environmental harm seems to be accepted as collateral
damage if “development objectives” are to be achieved. The
most infrequently applied type of enforcement action is
Suspension of Permit – only one was suspended between
2012 and 2015. By comparison, 163 enforcement notices
were issued over the same time period, 59 cessation orders,
70 stop notices, 50 notices of intention to suspend license or
permit, and 52 summons served.49
Permits and licenses may be approved and issued but not
collected, with the result that the proponent does not know
what the conditions of the permit or license are, which is an
obvious impediment to compliance. NEPA provided a list of
over 270 uncollected permits going back as far as 2008. Most
uncollected permits, however, were from 2015 to the present
date. In some cases, projects have not gone ahead, and some
beaches’ licenses are renewals, presumably with the identical
conditions as the expiring license. NEPA advised that this is
less of a problem than it used to be, due to permit fees having
to be paid at the application stage.50
The sanctions for failure to apply for the required permits/
licenses or for breaches to permits/licenses are weak. In
2016, draft instructions for increases in fines for both the
NRCAA and the Wildlife Protection Act were said to be in
preparation.51 Drafting instructions were completed in 2017,
and are said, in 2018, to be “far advanced.”52
46 The Natural Resources Conservation Authority Act 1991, s. 9 and 11.
47 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) Order, 1996; The Natural Resources
(Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015.
48 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015, s. 2.
49 Auditor General (2016), p.18.
50 NEPA executives, ibid.
51 NEPA executives, ibid.
52 NEPA executives, ibid.
BEYOND PET BOTTLES AND PLASTIC BAGS | 15
VOLUNTARY COMPLIANCE AND VALIDATION OF SUBMITTED DATA
DELEGATION
The NRCA and NEPA have relied on voluntary compliance
throughout their history. Section 17 of the NRCA Act allows
for voluntary submission of data on emissions and effluent
to NEPA from business or state entities, but this is done
much less frequently following the 2015 amendment to the
Permit & Licensing regulations which require all prescribed
activities to apply for an environmental permit. Whether
under Section 17 or pursuant to an environmental permit,
the results reported may not be validated by NEPA, in part
due to the inability to conduct a wide range of air and water
quality tests, and inadequate laboratory facilities.53 NEPA
does not have all the required equipment and technical
expertise to spot check reported results.
Voluntary compliance is much more likely to occur where
there is a real possibility of unwelcome consequences to lack
of compliance, which is absent in Jamaica. Even in countries
with a strong regulatory framework, like the United States
of America (USA), an assessment of the success of the US
Environmental Protection Agency’s (EPA) flagship voluntary
compliance programmes found that they did not produce
much environmental benefit. “The EPA was never able to
demonstrate that regulated facilities that participated in
the Performance Track (voluntary compliance) had better
outcomes than facilities that did not participate.”54
The Natural Resources Conservation Authority may delegate
any of its functions under the Act, except the power to make
regulations.55 This power has been exercised to delegate
responsibility for environmental monitoring of the bauxite
industry to the Jamaica Bauxite Institute (JBI), a clear conflict
of interest, and to some non-governmental organizations
(NGOs) for the management of protected areas and national
parks, including marine parks.
The delegation of responsibility for parks and protected areas
has been only partially successful, as some NGOs have been
unable to raise sufficient funds to supplement the subvention
received from the Government of Jamaica (GOJ), or meet
due diligence requirements. The management of national
parks in Jamaica presents a mixed picture with some parks/
protected areas under very little visible management, such
as the Palisadoes/Port Royal Protected Area and the Negril
Environmental Protection Area, both currently managed by
NEPA, while others benefit from NGO efforts, such as the
Blue and John Crow Mountain National Park, managed by
the Jamaica Conservation and Development Trust, and the
Portland Bight Protected Area, managed by the Caribbean
Coastal Area Management Foundation.
All parks and protected areas in Jamaica are underfunded.56
National parks and marine parks have regulations under
the NRCA Act, but protected areas do not, which presents
a hurdle to enforcement. Some important areas remain
unprotected, such as the Cockpit Country; though a new
protected area was announced by the Prime Minister in
November 2017, the boundary has not yet been finalized.57
While delegation can bring new skills and funding to
environmental management, delegation agreements may
present conflicts of interest, and there is no guarantee
delegates will deliver adequate results. Oversight is still
needed by the NRCA/NEPA to ensure the terms and
conditions of delegation agreements are met. In some cases,
delegates have failed to deliver adequate results and have had
their delegation agreements terminated, such as the Negril
Coral Reef Preservation Society and the Negril Environment
Protection Trust, which together managed the Negril
Environmental Protection Area and the Negril Marine Park
up until March 2016.
53 “Review of the Legal and Policy Framework for Air and Water Quality in the Island of Jamaica,” Jamaica Environment Trust, August 2017, p. 8-9.
54 “Cary Coglianese and Jennifer Nash, “Motivating Without Mandates: The Role of Voluntary Programs in Environmental Governance Faculty Scholarship,
Paper 1647,” June 3, 2016. (http://scholarship.law.upenn.edu/faculty_scholarship/1647)
55 The Natural Resources Conservation Authority Act 1991, s.6.
56 Susan Otuokon, Executive Director, Jamaica Conservation and Development Trust, telephone interview with author, August 17, 2018.
57 Petre Williams-Raynor, “Earth Today | Cockpit Country Ground Truth Ongoing,” Gleaner, July 19, 2018. (http://jamaica-gleaner.com/article/news/20180719/
earth-today-cockpit-country-ground-truth-ongoing)
16 | BEYOND PET BOTTLES AND PLASTIC BAGS
58 The Town and Country Planning Act, 1958, s. 3 and First Schedule
59 The Town and Country Planning Act, 1958, s. 17-21 and 27.
60 The motivations for this effort are unclear but ought to be explored.
61 The Land Development and Utilization Act, 1966, s. 5, 8-9.
62 -
63 -
2.2 THE TOWN AND COUNTRY PLANNING ACT
2.3 LAND DEVELOPMENT AND UTILIZATION ACT
Jamaica’s main planning statute is the Town and Country
Planning Act of 1958 (with amendments 1991, 1993 and
1999). As with the Natural Resources Conservation Authority
Act, the law requires the minister to appoint a Town and
Country Planning Authority (TCPA) of not less than six
members, as well as an Advisory Planning Committee of
not less than three members.58 The TCP Act also outlines
compensation regimes in the event that development is
restricted or prohibited on privately owned land.59
The TCP Act’s main regulatory instruments are the
Development Orders through which the TCPA seeks
to control the development of land. Currently, there
is a concerted effort underway to update or produce
Development Orders for most of Jamaica,60 but for decades,
the TCPA and the Parish Councils were working with long
outdated Development Orders, or with areas of the island not
under any planning control at all. A Development Order for
Portmore, for example, after five decades of dense housing
development in a low-lying wetland area, only began to be
prepared in 2016 and up to 2018 was still in process. (The
TCPA and Development Orders are discussed in more detail
in the next section.)
The Land Development and Utilization Act (LDUA) was
passed in 1966 (amended in 1997) and constituted the
Land Development and Utilization Commission (LDUC),
consisting of nine members, appointed by the minister. The
main object of the Act is to ensure that land parcels over
ten acres that are designated as agricultural land are being
farmed, and that privately owned agricultural land is not
unused. The Act gives the Commission powers to declare
land idle, and if the owner or leaseholder fails to respond to
notices, the power to require vacant possession, though this
appears to be rarely applied.61
2.4 MERGER OF THE THREE MAIN AUTHORITIES
AND THE CREATION OF THE NATIONAL
ENVIRONMENT & PLANNING AGENCY
In 2001, the Natural Resources Conservation Authority,
the Town and Country Planning Authority, and the Land
Development and Utilization Commission were merged
to create the National Environment and Planning Agency
(NEPA). There was to be a phased approach to the merger,
including the repeal of the NRCAA and the promulgation of
a new NEPA Act, but this was never completed. As a result,
NEPA has continued to operate under multiple laws that
predate the organization. There is no legislation to give legal
authority to the agency, and it continues to depend on the
NRCA to make legally-binding decisions based on the NRCA
Act, and associated regulations and additional legislation that
have either not been finalized or operationalized.62
Following the change in administration in September 2007,
when the Jamaica Labour Party (JLP) took office, almost
the same individuals were appointed to both the Natural
Resources Conservation Authority and the Town and
Country Planning Authority boards, and board meetings
dealt with matters under both laws. The rationale was to
improve coordination between the environmental protection
and planning agencies. This has since continued though in
the most recent round of appointments, after the change
in administration in 2016, not all members appointed to
the first board term, 2016-8, were common to both boards.
Nevertheless, NEPA advised that, up to 2018, the NRCA and
the TCPA boards “meet as one body.”63
BEYOND PET BOTTLES AND PLASTIC BAGS | 17
The NRCA Board remains a statutory body, which through
its chairman, reports directly to the minister with portfolio
responsibility for the environment. NEPA is an executive
agency, which under the law (Executive Agencies Act) has
an advisory board, which should be comprised of persons
from the public and private sectors, and the function of
the advisory board is to advise the chief executive officer.
The full executive authority and total accountability for the
management of the agency are reposed in the position of the
chief executive officer, who reports directly to the responsible
minister. The advisory board has no legal power over the
agency’s actions or policy decisions. There is no articulated or
codified relationship between the NRCA board chair and the
NEPA CEO. Because the Natural Resources Conservation
Authority Act was never repealed, however, the Authority
continues to grant permits and instruct on enforcement,
while NEPA administers the decisions of the Authority along
with other functions, including public education. In effect
NEPA is the NRCA’s de facto agent. The Town and Country
Planning Authority also has its own Board, as does the Land
Development and Utilization Commission, although in the
latter case, meetings seem to be infrequent. They operate
along the same lines as the NRCA with regard to reporting
to the ministers, and implementation and enforcement, with
NEPA as their agent. This is an inherently unwieldy structure.
(See Figure 1.)
Figure 1. Organizational chart environmental governance and decision-making
CEO NEPA/Gov’t
Town Planner
MINISTER
(ENVIRONMENT PORTFOLIO)
Director General
Senior Directors
Ministry
Permanent
Secretary
Chief Technical
Director
Ministry Staff
TCPA ChairmanNRCA Chairman LDUC Chairman
TCPA BoardNRCA Board
NRCA Board
Committees
LDUC BoardSenior Directors NEPA
NEPA/TCPA Staff
18 | BEYOND PET BOTTLES AND PLASTIC BAGS
The decision to merge the Natural Resources Conservation
Authority, the Town and Country Planning Authority, and
the Land Development and Utilization Commission was
taken nearly two decades ago, yet there is still a question as to
whether the merger should proceed, or to revert to pre-merger
status.64 Both avenues have advantages and disadvantages,
but it is more likely that the merger will proceed. The biggest
drawback to this path is the extant need for new legislation,
which has very long lead times.
64 -
Figure 2: Members of statutory boards related to the environment, and NEPA Advisory Board 2016-2018
NATURAL
RESOURCES
CONSERVATION
AUTHORITY
(NRCA)
1. Hon. Danville Walker,
OJ – Chairman
2. Christopher Whyms-
Stone - Deputy
Chairman
3. Dr. Susan Otuokon
4. Gregory Mair
5. Robert Taylor
6. Denise Forrest
7. Dr. Geoffrey Williams
8. Stephen Edwards
9. Sean Azan
10. Mr. Peter Knight
TOWN AND
COUNTRY
PLANNING
AUTHORITY
(TCPA)
1. Hon. Danville Walker,
OJ - Chairman
2. Christopher Whyms-
Stone - Deputy
Chairman
3. Dr. Susan Otuokon
4. Gregory Mair
5. Robert Taylor
6. Andrew Issa
7. Robert Woodstock
8. Elizabeth Stair
9. Peter Knight - Ex Officio
Member
LAND
DEVELOPMENT
& UTILISATION
COMMITTEE
(LDUC) BOARD
1. Mr. Don Mullings -
Chairman
2. Mr. Peter Knight
3. Mrs. Elizabeth Stair
4. Mr. Ewan Simpson
5. Mr. Keith Blake
6. Managing Director,
Water Resources
Authority
7. Representative of the
Permanent Secretary,
Ministry responsible for
Agriculture Commission
8. Representative, Jamaica
Agricultural Society
NEPA ADVISORY
BOARD
1. Mr. Ewart Scott -–
Chairman
2. Ms. Leonie Barnaby, OD
- Deputy Chairman
3. Mr. Robert Taylor
4. Ms. Eleanor Jones
5. Professor Homero Silva
6. Dr. Ken James
Source: NEPA (http://nepa.gov.jm/new/legal_matters/authorities/board_of_directors.php)
BEYOND PET BOTTLES AND PLASTIC BAGS | 19
2.5 THE PUBLIC INTEREST
And where, in all of this, is the voice of the people? In some
countries, (Guyana,65 Trinidad and Tobago,66 for example)
the main environmental legislation recognizes the legitimate
interest of the public in protecting natural resources, and
grants third party rights to file legal action. The Natural
Resources Conservation Authority Act does not give third
party rights to members of the public. While the Act allows
an “aggrieved party” (defined as someone whose permit has
been denied or someone objecting to the conditions of the
permit) to appeal to the Minister in relation to a permit or
license, the right of appeal contained in law for members of
the public is vague.67
In 2011, the Jamaica Environment Trust filed an appeal
against an environmental permit granted to RIU Hotel at
Mahoe Bay in St James, on behalf of the Whitehouse Fishing
Cooperative; their submission was heard, albeit after a long
delay, during which time the hotel continued construction.68
In 2013, JET was heard by the Appeals Tribunal of the NRCA
regarding an appeal filed by the Ministry of Agriculture and
Fisheries (MOAF) against enforcement action taken by the
NRCA concerning destruction of trees in the riparian zone
of the Cabarita River and other rivers in Westmoreland.69 The
tribunal upheld the NRCA’s decision, and the Ministry was
ordered to replant the trees that were already cut down.
Jamaican citizens do have a broad right to challenge the
actions of the state through judicial review.70 Jamaican
environmental NGOs have twice filed judicial review
cases alleging flaws in the public consultation process,
and asserted standing; both were accepted by the Supreme
Court.71 However, establishing one’s legal standing in order
to challenge environmental infractions or appeal a NRCA
or NEPA decision, is an expensive and lengthy process. The
Jamaica Environmental Trust’s ability to pursue legal action
was only possible because the organization received external
funding to pursue the matter; those types of resources are
generally not available to environmental NGOs, much less
to individuals. The scope for the public to have a say in
the governance of their natural environment is extremely
proscribed.
There are other barriers to access to justice. Judicial review
requires filing the application in court within three months of
the state’s decision or “promptly”.72 There is no requirement
for timely notification of NRCA decisions and generally,
only permittees are notified directly. NRCA Board decisions
are posted on NEPA’s website, but not in a timely manner.
The judge has discretion to require the claimant to give an
undertaking for damages if an injunction is applied for. If
the claimant loses their case, they have to pay the economic
losses suffered by the defendant. This restricts the willingness
of the public to apply for injunctive relief, with the result that
construction (and the risk to the environment and public
health) continues while the case is being heard.
65 The Environmental Protection Act (Guyana) 1996, s. 28.
66 The Environmental Management Act (Trinidad and Tobago) 2000, s. 69.
67 The Natural Resources Conservation Authority Act, 1991, s. 35.
68 Appeal of Environmental Permit No 2006-08017-EP00094 granted to RIU Jamaicotel, Jamaica Environment Trust on behalf of the Whitehouse Fishing
Cooperative.
69 Submissions of the Jamaica Environment Trust Hearing of the Appeal filed by the Ministry of Agriculture and Fisheries against the Natural Resources
Conservation Authority: Enforcement Notice served for clearing of Riparian Zone along Cabarita River and other rivers.
70 Rule 56.2 (1) of The Civil Procedure Rules of Jamaica 2002 allows any person, group or body to apply for judicial review which has sufficient interest in the
subject matter of the application. This includes:
(a) any person who has been adversely affected by the decision which is the subject of the application;
(b) any body or group acting at the request of a person or persons who would be entitled to apply under paragraph (a);
(c) any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;
(d) any statutory body where the subject matters falls within its statutory remit;
(e) any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application;
(f) any other person or body who has a right to be heard under the terms of any relevant enactment or the Constitution.
71 The Jamaica Environment Trust v The Natural Resources Conservation Authority et al, Supreme Court of Jamaica unreported judgment delivered October
13, 2011. Claim No. HCV 5874 of 2010; and The Northern Jamaica Conservation Association et al v The Natural Resources Conservation Authority et al.,
Supreme Court of Jamaica, unreported judgment delivered May, 16 2006. Claim no. HCV 3022 of 2005.
72 Rule 56.6 Civil Procedure Rules of Jamaica 2002.
20 | BEYOND PET BOTTLES AND PLASTIC BAGS
2.6 A NEW ENVIRONMENTAL REGULATORY
AUTHORITY
In 2011, the GOJ released a concept paper that outlined a
new entity to strengthen Jamaica’s environmental regulatory
framework.73 The main recommendations were:
» To establish an environmental regulatory authority
which would assume full responsibility for environmental
monitoring and enforcement;
» To develop a National Spatial Plan (NSP), to be done by
NEPA; and
» To give NEPA the lead role in environmental education,
outreach, advisory assistance and problem solving.
During stakeholder consultations in 2011, there was
pushback from the Jamaica Environmental Advocacy
Network (JEAN), a network of over 40 environmental and
civil society non-government organizations. Their main
concerns were the scant details on the legal reform necessary,
the paucity of information about the interface between the
many government agencies, incomplete problem analysis,
and lack of comparative investigation with other developing
countries. JEAN recommended a return to the pre-merger
status but supported the recommendation for an independent
commission on environmental issues.
As of 2018 this environmental regulatory authority has not
been brought to life. While the State of the Environment
Report 2013, stated: “Work towards the promulgation of
an Environment and Planning Act, and the creation of
the Environmental Regulatory Authority, were the two
main areas of focus,”74 the most recent utterances of NEPA
executives suggest that the new environmental regulatory
authority will not go ahead.75
In sum, Jamaica possesses a cumbersome and unwieldy
administrative framework that retards the effective
management and protection of the island’s natural
environment. The extant system facilitates ministerial
overreach and corruption, evinces little accountability, and
makes moral hazard in environmental matters inevitable.
The legal framework does not provide for the public to have
a say in the enforcement of environmental laws, and fails
to disincentivize actions that cause environmental damage,
thereby promoting the impunity with which developers
and others continuously break the law, with disastrous
environmental consequences. The proposal to replace this
disjointed environmental framework was badly flawed, and
for better or for worse, was never brought into effect. Thus
while the country has been spared the birth and enactment
of yet another defective institution through which the
environment would continue to be mismanaged, there are no
other efforts by the GOJ to act on identified solutions in a
meaningful time frame. The apparent lack of priority given
to the environmental portfolio by the political directorate
causes leadership instability, policy uncertainty/delay, and
fails to engender a long-term commitment to environmental
protection at the highest level of national leadership.
73 Green Paper 2/2010.
74 SOE (2013).
75 NEPA executives, ibid.
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3. THE ENVIRONMENTAL
PLANNING FRAMEWORK:
INCHOATE AND FRAGMENTED
The planning process for cities, towns and rural areas in any country seeks to set out a rational
framework for development, in order to deliver a predictable regulatory environment and prevent
the impacts of disorderly, illegal and hodge-podge construction. An effective planning framework
will consider transportation needs, availability of other types of critical infrastructure, such as sewage
treatment and water supply, current and future land use patterns, and vulnerability to natural disasters.
A good planning regime will “bring an offending activity under planning control, remedy or mitigate
its undesirable effects, and punish and deter the wrongdoer.” Jamaica’s planning system, despite its
early origins, has so far not managed to develop effective enforcement, which remains “complex,
technical, challenging, and weak.”76
76 Carole Excell, “The Enforcement of Planning Laws in Jamaica,” NEPA Judicial Symposia, 2003. (http://nepa.gov.jm/
symposia_03/Papers/TownandCountryplanningEnforcement3.pdf)
22 | BEYOND PET BOTTLES AND PLASTIC BAGS
A development order is a legal document whose purpose
is to guide development in the area to which it applies.
Development orders are created for cities, towns, parishes
and other specifically designated areas, by the Town and
Country Planning Authority (TCPA), and serve to guide the
relevant authorities—the Parish Municipal Authorities (what
were formerly called Parish Councils)—to regulate land
developments within the area defined as the Development
Order Area. The TCPA also issues interim development
orders, after consultation with local planning authorities, in
respect of any land which is not the subject of a confirmed
development order. An interim order is made where an area
needs to be brought urgently under planning control and no
confirmed development order exists.
Development orders (whether provisional or confirmed)
are the Town and Country Planning Authority’s principal
regulatory instrument.77 They contain guidelines on a range
of issues, including:
» Development control (densities, setbacks, heights of
buildings, parking, drainage)
» Sanitary conditions and conveniences
» Advertisements on public roads
» Roads and public services (road reservations, types of
roads, access by fire services, utilities, sewage treatment)
» Protecting and expanding amenities (views, open spaces,
parks, access to coast)
» Protecting natural resources (trees, coastal assets such
as beaches)
» Guiding local planning authorities (formerly parish
councils, now called municipal corporations)
» Receiving referrals from local planning authorities on
developments which are not in conformance with the
Development Order
» Providing information to the public on land development
policies in a specific region
When a development order is prepared, it is printed and
gazetted as a Provisional Development Order, and is made
available to the public for comments in a specified time
period, but only “interested persons” can legally object.78
Although it is regarded as material, the provisional
development order is not the legal land use document for the
area. After the expiration of the period for comments and/
or objections, a confirmation notice is prepared to include
any modifications. The confirmation notice, along with the
comments/objections, is then submitted to the minister for a
decision, and thereafter the confirmation notice is published
in the Gazette.79
The first development orders in Jamaica were done in the
1950s and 1960s. They governed land use and development
of Jamaica’s coastline up to one mile inland from the
highwater mark. A few other areas and some towns also had
Development orders, but much of the rest of the island was
left without a development control instrument until a recent
initiative, which began in 2015, and which is currently (in
2018) underway.80
3.1 DEVELOPMENT ORDERS
77 Pauline McHardy,“Gap Analysis of Relevant Policies,” NEPA Judicial Symposia, 2003. (http://nepa.gov.jm/symposia_03/others/policygapanalysis.pdf)
78 An “interested person” means: (a) any local authority concerned; (b) any person in whom is vested any freehold estate in any land within the locality to which
the provisional development order relates; (c) any person in whom is vested any term of years in any land in such locality, the unexpired portion of which on
the day on which such objection is made is not less than three years, or who holds an option to renew such lease for a period of not less than three years; (d)
any person who is entitled under the Water Resources Act to exercise any right in relation to the use of any public water in a public stream within the locality
and whose interest therein will be affected by the application of the order.
79 The Town and Country Planning Act 1958, s. 5-7.
80 O. Rodger Hutchinson, “Development Orders for all Parishes Should be in Place by 2017,” Jamaica Information Service, November 12, 2015. (https://jis.gov.
jm/development-orders-for-all-parishes-should-be-in-place-by-2017). As at October 2018, the parishes/areas without recent provisional development orders
were St James and Portmore.
BEYOND PET BOTTLES AND PLASTIC BAGS | 23
81 “Development Order Areas,” National Environmental Planning Agency, last revised February 6, 2004. (http://nepa.gov.jm/symposia_03/Laws/Maps/Map_
of_Development_Orders_FullScreen.htm)
Table 5: Current Status of Development Orders
PARISH FIRST PROMULGATED PROVISIONAL CONFIRMED
Kingston 1966
Kingston & St Andrew & Pedro Cays 2017 2017 No
Tinson Pen Harbour Front 1963 1963 unknown
St Thomas (coast) 1965
St Thomas Parish 2018 No
Portland (coast) 1963
Portland Parish 2013 2013 2015
St Mary (coast) 1963
St Mary Parish 2017 2017 No
St Ann Parish 1999 1999 2000
Trelawny Parish 1982 2013 2015
St James Parish 1982
Manchester/Mandeville Parish 1976 2013 No
Hanover (coast) 1957 1957 1962
Hanover Area 2018 No
Westmoreland Area 2018 No
Negril/Green Island Area 1959, 1984 2013 2015
South St Elizabeth 1966, 1976
St Elizabeth Parish 2018 2018 No
Clarendon Parish 1982 2017 No
Spanish Town 1964
St Catherine (coast) 1965
St Catherine Area 2017 2017 No
Bog Walk/Linstead/Ewarton Area 1965
Source: NEPA81
24 | BEYOND PET BOTTLES AND PLASTIC BAGS
Development orders for areas throughout Jamaica have
not been updated for decades, allowing development to
take place in a planning vacuum. In some cases, developers
argue that what has been permitted previously justifies new
developments along the same lines, even if this violates the
development order, and regulators have found this persuasive.
Development orders seek to regulate and control the use
of land in conformance with pre-established guidelines
and long-term planning objectives, but they have not been
complied with or enforced since their inception. While there
are sanctions under the Town and Country Planning Act for
carrying out developments without planning permission,
there are no sanctions for granted permissions that do not
confirm with the provisions of a development order.
Where no development order exists for an area or parish, or
for any other reason, the minister with portfolio responsibility
for the environment can “call in” an area. In these cases, all
development applications must be submitted to the Town
and Country Planning Authority directly, and can no longer
be handled by local planning authorities alone.82 Planning
permission can only be granted if the application is in
conformance with the Natural Resources Conservation Act.83
The 1984 Negril/Green Island Development Order is an
instructive case study in assessing the history of compliance,
or rather, non-compliance of these requirements. The
Negril/Green Island Area actually had one of the earliest
development orders in Jamaica in 1959. It was only confirmed
in 1984, however, after being updated in 1981, well after
resort development was underway, beginning in the 1970s.
(A more recent update was confirmed in 2015.) The 1984
Development Order describes the importance of Negril’s
natural resources and sets out a range of measures to protect
them.
3.2 CASE STUDY: NEGRIL’S DEVELOPMENT ORDER
Sample list of the provisions of the 1984 Negril/Green Island DO and the current status
PROVISION STATUS
No development will be permitted on land adjacent to the line of
high-water mark which would preclude public access to and along the
foreshore.
Access is now limited and declining. Access ways between private property
development have not been consistently required
The coast and coastal waters are to be protected against pollution by
control of adjoining development and of such development inland.
Negril’s most recent sewage treatment plant was built in the 1990s,
and many properties on the hills overlooking the West End are still
not connected. Due to development outpacing early sewage treatment
capacity, Negril’s coral reefs are severely degraded by nutrient pollution
from poorly treated sewage and agricultural runoff.
Pipe from one of the hotels going straight into the sea – this is Long Bay Beach where people swim
Drain dumping what appears to be laundry water directly into the sea
82 The Town and Country Planning Act 1958, s. 12(1A)
83 The Town and Country Planning Act 1958, s. 11(1A)
BEYOND PET BOTTLES AND PLASTIC BAGS | 25
The 2015 Negril/Green Island Area Development Order
repeats many of these requirements, but they continue to not
be heeded, whether because they are ignored or not known
about is unclear. Indeed the motivation and rationale for
updating the development orders is thrown into question by
their continued irrelevance to what actually obtains.
Sample list of the provisions of the 1984 Negril/Green Island DO and the current status
PROVISION STATUS
No modification of natural features of the foreshore and or floor of the
sea without the permission of the NRCA
Permission has been given to build groynes, wave attenuation devices,
remove seagrass beds and “nourish” beaches. Modifications have also
been done without the required permits/licences, but all have since been
“regularized”.
Photo showing unrepaired and failed groyne
Tree Preservation Orders should be enacted There are no Tree Preservation Orders enacted in Negril.
A national park should be declared to cover the majority of the DO area Negril Environmental Protection Area, Negril Marine Park and
Orange Bay Special Fishery Conservation Area have been declared, but
management and enforcement are weak.
The natural vegetation covering the beach sand dunes at the sea edge
must be protected from removal and trampling by regulating access to
the beach.
Very little natural vegetation or dunes remain in Negril.
The already impaired swamp forest should not be further destroyed. Incursions into the Negril Morass continue for farming, parking and land
clearance
Strict observance should be made of present regulations regarding
capture of fish and lobsters
Lobsters are readily available for sale on Long Bay beach during the
closed/off season.
The use of beach seines (a type of fishing net) should be discontinued Still in use, even in the Special Fishery Conservation Area
No building shall be closer than 150 feet from the highwater mark Due to beach erosion in some parts of Long Bay beach, the highwater
mark has moved inland. At least three hotels have been built with less
setback for some of its buildings than stipulated by the DO; two with
permission, and one which is the subject of legal action.
One of many examples of buildings too close to the shoreline
Buildings higher than two storeys will not be permitted within the DO,
except on very special consideration by the authorities
The height restriction has been varied repeatedly, to three stories in
1996/7, and then to five stories in 2016.
It is desired that buildings should not be obtrusive, and the architectural
expression be low-keyed
Hotels have become larger, higher and more and more obtrusive over
Negril’s history
In order to preserve the amenity of views to the sea on the cliffs,
buildings shall be as unobtrusive as possible, one storeyed and small
scaled
Very few views to the sea remain from the cliffs
26 | BEYOND PET BOTTLES AND PLASTIC BAGS
The Town and Country Planning Act provides for the service
of a stop notice in circumstances where a development
is proceeding without permission from the planning
authorities or the Town and Country Planning Authority, or
if the permission granted has not been adhered to. Failure to
comply with a stop notice attracts a fine of between J$25,000
and J$1 million, on conviction in a Resident Magistrate’s
Court. Failure to pay the fine can result in imprisonment
not exceeding six months.84 The Act provides for service of
an enforcement notice, which can require the demolition of
buildings, and restoration of land to its condition before the
development took place.85
These provisions are seldom enforced. In the late 1980s
construction commenced on a six-story building at the
corner of Trinidad Terrace and St Lucia Avenue in New
Kingston. The KSAC put a stop order for breaching its permit
by building six floors instead of the approved four, and for
defying other zoning rules, and ordered the top three floors
demolished. This was never done; it sat incomplete and idle
for decades. The mortgaged building later fell into the hands
of its bankers who claimed a default on loan payments, and
was among assets taken over during the 1990s financial
sector crisis and the subsequent government bailout. The
still incomplete building was sold in 2014 through the
government’s debt collection partner; the building was
refurbished and renamed the Dawgen Towers. When this
rare occurrence does actually happen, it is an extremely
protracted and lengthy process. For example, a building in
Kingston that was demolished in 2011 because it had been
erected without the authorisation of the KSAC, and was
deemed too close to the roadway, only occurred after a 15-
year court battle.87
The Act also allows for an application for retention of use
for buildings existing before permission has been granted.88
Whereas this may have been intended to facilitate buildings
existing before the completion of the applicable development
order, it is applied to buildings constructed without the
required planning permission, and which are already being
used. While NEPA acknowledges that this happens,89 the
exact extent to which it occurs is debatable. The decision
whether to allow the retention of use, according to NEPA,
is based on whether planning permission would have been
granted at the outset.90 In any case, it is clear that there will
likely be no serious penalty for beginning developments
without permission.
The fines pertaining to the Town and Country Planning
Act, as with the Natural Resources Conservation Authority
Act, are too low to serve as an effective deterrent, (though
they are higher than the NRCAA,) and the retention of use
clause provides a loophole for developments which have
been started without permission to continue, or which
have been completed without permission to remain. NEPA
acknowledges that few illegally constructed buildings have
been demolished.91 There was only one case before the courts
under the Town and Country Planning Act in 2017/8.92
This creates another opening for the regularization of
developments to proceed without permission.
3.3 SANCTIONS UNDER THE TOWN AND COUNTRY
PLANNING ACT
84 The Town and Country Planning Act 1958, s. 22A.
85 The Town and Country Planning Act 1958, s. 23-25. Avia Collinder, “Dawgen Buys Old Auburn Court Building - Renames It St Lucia Towers,” Gleaner, July
13, 2014. (http://jamaica-gleaner.com/gleaner/20140713/business/business1.html)
87 “Demolished - KSAC Destroys Structure At Auburn Court After 15-Year Legal Battle,” Gleaner, June 20, 2011. (http://jamaica-gleaner.com/gleaner/20110620/
lead/lead1.html)
88 The Town and Country Planning Act 1958, s. 15.
89 NEPA executives, ibid.
90 Ibid.
91 Ibid.
92 “Matters which have been heard/are to be heard before the Parish Courts,” NEPA, 2017/8.
BEYOND PET BOTTLES AND PLASTIC BAGS | 27
The Town and Country Planning Act requires consultation
with local planning authorities in the preparation of
provisional development orders, followed by publication
via Gazette and in local newspapers.93 “Interested parties”
(defined as local planning authorities, landowners,
leaseholders and anyone holding water rights) may submit
objections.94 Beyond publishing a notice in the newspapers,
there is no requirement for the general public to be consulted
about the contents of the development order, either before or
after it has been produced.
Development orders are dense, lengthy documents which are
not easily accessible to a layperson. The new development
orders are available online on NEPA’s website;95 the public
can also obtain hard copies from NEPA or at local Municipal
Corporations at a cost of J$3,000.00. While these efforts
to make the documents more accessible is a positive step,
the public is generally unaware of development order
requirements, and there is very little public outreach or
awareness building.
Policies to guide aspects of planning and environmental stewardship are developed by the many ministries and state agencies
involved in this area. They can take decades to complete.
3.4 PUBLIC CONSULTATION
3.5 THE PLANNING AND ENVIRONMENTAL POLICY
FRAMEWORK
93 The Town and Country Planning Act 1958, s. 5
94 The Town and Country Planning Act 1958, s. 6
95 “Environment and Planning Laws of Jamaica,” NEPA, last modified July 9, 2018. (http://nepa.gov.jm/new/legal_matters/laws/)
Table 6: Partial List of Jamaica’s Environmental Plans and Policies and their status
POLICY IN DRAFT MINISTRY/AGENCY STATUS
National Forestry Management and
Conservation Plan
1990, 2001-2010; 2010-14; 2017
Agriculture Ministry, Industry
and Commerce Ministry
2017 update
National Policy for the Conservation of
Seagrasses
1996 NRCA In draft
Coral Reef Protection and Preservation
Policy
1997 NRCA In draft
Mangrove and Coastal Wetlands Policy 1997 NRCA In draft
Protected Animals in Captivity 1997 NRCA In draft
National Mariculture Policy 1998 NRCA In draft
National Water Sector Policy and
Implementation Plan
1999, 2004
Water Ministry; Environment
Ministry
White Paper; submitted to
Cabinet 2018
National Environmental Education
Action Plan for Sustainable
Development
1998-2010 NRCA Expired
Jamaica Coral Reef Action Plan; now
called Action Plan for Corals and Reefs
1999 NRCA In draft
Jamaica National Environmental
Action Plan
1999-2002 NRCA In draft
2006-2009 NEPA Expired In draft
National Ocean and Coastal Zone
Management Policy
2000 Foreign Affairs Ministry In draft
28 | BEYOND PET BOTTLES AND PLASTIC BAGS
Table 6: Partial List of Jamaica’s Environmental Plans and Policies and their status
POLICY IN DRAFT MINISTRY/AGENCY STATUS
Beach Policy for Jamaica, now Beach
Access and Management Policy
2000 Environment Ministry With Cabinet 2018
Watershed Management Policy 2003 NEPA In draft, being revised
Jamaica’s Protected Areas System
Master Plan (PASMP)
2006; 2013-2017 Environment Ministry Recently expired
Dolphin Conservation Policy 2006 Environment Ministry White Paper. In draft.
Jamaica’s National Environmental
Action Plan
2006-2009 NRCA Expired
Biosafety Policy 2007 Environment Ministry; NEPA In draft
National Energy from Waste Policy 2010 Energy Ministry In draft
Cays Management Policy 2013 Foreign Affairs Ministry In draft
Climate Change Policy Framework for
Jamaica
2013 Environment Ministry Finalized
Policy and Guidelines for Overwater
Rooms
2016 Environment Ministry Finalized. Now being revised
National Policy for the Environmentally
Sound Management of Hazardous
Wastes
Not known Environment Ministry; NEPA
Green Paper; approved by
Cabinet July 2017, to be tabled
in Parliament August 2018
National Policy on Environmental
Management Systems
Not known Environment Ministry
Green Paper; approved by
Cabinet March 2018, tabled in
Parliament July 2018
Emissions Policy Framework Not known Environment Ministry; NEPA In draft
Source: Cabinet Office (Jamaica)96
96 “Government of Jamaica Policy Development Programme as at 31 March 2018,” Cabinet Office. (https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-
Policy-Development-Programme-Update-at-March-2018-web-version.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 29
96 “Government of Jamaica Policy Development Programme as at 31 March 2018,” Cabinet Office. (https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-
Policy-Development-Programme-Update-at-March-2018-web-version.pdf)
97 “Planning Guideline for Overwater Structures, 1/2016,” Ministry of Economic Growth and Job Creation (Jamaica).
98 “The Risks of Overwater Rooms for Jamaica,” Jamaica Environment Trust, Brief, 2017. (www.jamentrust.org/wp-content/uploads/2017/05/Overwater-
rooms-JET-brief-updated-May-2017.pdf)
99 NEPA executives, ibid.
100 McHardy (2003), ibid.
As was seen with the many laws, statutes and regulations
relating to the environment in Jamaica, which are cumbersome
and opaque, policies relating to the environment are equally
dysfunctional. The list in Table 6 is by no means exhaustive,
but there are dozens (or more) of policies across scores of
state agencies and many government ministries. This in
part reflects the movement of the environment portfolio
to different ministries over the years, which comes with
the inherent risk that when it is moved, priorities may be
different in the new ministry, causing the policy to languish,
and new policies developed. Another factor is that policies
are frequently developed with donor funds to the draft
stage, but there is then no funding to complete them. As
Table 6 shows, some policies have been in draft since 1996.
Sometimes policies become other policies, for example: the
mangrove and seagrass policies were never finalized and are
now being subsumed under the National Ocean and Coastal
Zone Management Policy, which has been in draft since 2000.
Similarly, the Beach Policy has been in draft since 2000; in
2018 it was called the Beach Access and Management Policy.
Policies which include Action Plans are usually for a stated
time period, and may be evaluated at some point, but this is
not generally shared with the public.
Policy prescriptions have been ignored. For example, the
Policy and Guidelines for Overwater Rooms developed in
2016 required overwater rooms to (a) have an environmental
permit; (b) an environmental impact assessment; (c) not
be located where seagrass beds covered more than 30%
of the seafloor; and (d) not be located in special fishery
conservation areas.97 The overwater rooms which began
construction at Sandals Whitehouse in Westmoreland in
2017 breached all those conditions, but were allowed by the
NRCA Board to proceed.98 The Guidelines are now under
review by the NRCA’s Beaches and Coastal Management
Resources Subcommittee, with the stated intention to make
them more robust.99
A national physical plan is a written statement that summarizes
strategic policies and directions for spatial planning, land
use, physical development, and environmental conservation.
National Physical Plans were prepared for Jamaica (1970-
1990) and (1978-1998) but were never implemented.100
The proposed Environmental Regulatory Authority Green
Paper (referred to earlier) identified the need for a national
spatial plan to “…establish clear priorities, identify areas
in which particular types of land use would be encouraged
and others prohibited (e.g. no build zones), and guide the
development of transport routes, residential accommodation
and industrial development, and conservation of the built
and natural environment.” A process to develop a national
spatial plan, which was conceptualized in 2009, was launched
in 2018, with funding from the Inter-American Development
Bank. (A spatial plan has the same general characteristics
as a physical plan.) Seven technical papers, funded by the
Caribbean Development Bank, were commissioned and
scheduled to be completed by June 2019.
Without an implemented and/or enforced physical plan,
a vacuum has been created which has allowed illegal
developments to proliferate throughout the island. In 2010,
the author of the proposal for a new environmental regulatory
authority wrote:
3.6 NATIONAL PHYSICAL PLANS
30 | BEYOND PET BOTTLES AND PLASTIC BAGS
101 Green Paper 2/2010. The author was Professor Anthony Clayton, University of the West Indies lecturer in the Institute of Sustainable Development, Mona
campus.
102 “Amnesty for Building Plans,” St. Catherine Municipal Corporation, not dated. (https://stcatherinemc.gov.jm/news/08-2018/amnesty-building-plans)
103 SOE (1997).
Little appears to have changed. The lack of commitment to
planning laws was made manifest in August 2018, when the
St. Catherine authorities issued an amnesty for completed
developments, and those underway, without the required
building plans to be “regularized.”102
SOEs were done in 1995, 1997, 2001, 2010 and 2013. The 2010
and 2013 Reports are online; a new State of the Environment
Report was in preparation as of September 2018. Two
editions of the Jamaica National Environmental Action Plan
were produced: in 1998 and 2000; none has been done since.
The reports, when they are produced, are not consistent with
regard to frequency or indicators, and issues raised in one
report are often not updated in the next. There is greater
emphasis on process indicators compared to outcome
indicators. Most SOEs to date have been funded by donors;
There was little or no planning taking place at local level, nor was any local-level planning
authorized under the Town and Country Planning Act, so the primary functions of
planners at the local level was simply processing applications. There were significant
numbers of illegal developments, where people had proceeded with construction without
submitting an application. Estimates of the level of this activity varied from relatively
insignificant to about half of all development applications, so the true extent of the problem
was hard to gauge, but it was clear that a significant portion of society did not believe in
the planning system, had no commitment to its purpose, or appreciation of its benefits.101
The objective of the State of the Environment (SOE) Report is to provide readily available
information on an annual basis about Jamaica’s environment and natural resource
use. Together with the Jamaica National Environmental Action Plan (JANEAP), the
SOE provides a basis for the public [sic] participation in development planning and
environmental protection… . [T]he State of the Environment Report records changes and
identifies trend [sic] of indicators measuring the impact of all human activities and natural
events on our natural resources.103
According to the 1997 State of the Environment Report:
3.7 STATE OF THE ENVIRONMENT REPORTS
BEYOND PET BOTTLES AND PLASTIC BAGS | 31
if funding is not available, they are either long-delayed or not
produced at all. Despite the objectives outlined above, public
outreach on the contents of the SOEs is weak. In effect, the
SOEs have never realized their potential, nor have they been
much heeded.
In sum, Jamaica’s environmental planning policy situation
is in a dire state. Planning laws and regulatory instruments
tend to be outdated, and even when they are updated they are
ignored or unheeded. Penalties are too low to act as effective
disincentives to breaches, and enforcement has been weak.
Many environmental policies languish in draft for decades,
and others are simply overlooked. Throughout the gamut of
laws, regulations, policies and reports there is insufficient
public education and engagement. The intention of closer
collaboration between environmental regulation and the
planning function has never been realized.
32 | BEYOND PET BOTTLES AND PLASTIC BAGS
4. THE COMPROMISED
ENVIRONMENTAL IMPACT
ASSESSMENT PROCESS
An environmental impact assessment (EIA) gathers scientific information about the potential impact
of a project on natural resources to help decision makers determine whether the project should go
ahead, and if so, how damage to natural resources can or should be mitigated. The EIA process may
include the requirement for a public meeting to present the findings of the EIA to the public and allow
for their input or objections.
There is no mandatory requirement for an environmental impact assessment under Jamaican law,
and they are seldom done. The Natural Resources Conservation Authority Act gives the NRCA the
discretion to require an EIA for any “enterprise, construction or development” which has or could
have an adverse impact on the environment.104 Of the 3,655 permits and licenses granted by the NRCA
between 2010 and 2013, only seven were the subject of completed EIAs.105
NEPA makes a determination whether or not an EIA is necessary by reviewing the proponent’s
application form. In general, EIAs may be required where there is a risk to natural resources or public
health or whether the development falls within a “prescribed category” under the Permit and Licensing
Regulations. NEPA makes provision for a shorter type of assessment, called a Technical Report, if it
deems that a full environmental impact assessment is not necessary.
104 The Natural Resources Conservation Authority Act 1991, s. 10.
105 SOE (2013), p. 302.
BEYOND PET BOTTLES AND PLASTIC BAGS | 33
There is no provision for developments and activities that are
not in a prescribed category but for which there are obvious
environmental implications, and thus no environmental
impact assessment is conducted. In practice, some actors
who are pursuing non-prescribed activities have done
EIAs voluntarily. For example, Tullow Oil, an oil and gas
exploration company, commenced prospecting for oil in
Jamaican waters in 2014-5; their own company policy
required an environmental assessment, though this was not
required by any Jamaican law or regulation. (Drilling for oil
is a prescribed category, but prospecting was not at the time
Tullow Oil began. Prospecting has since been added to the
list of prescribed categories.)
Further, there is no mandated requirement for a strategic
environmental assessment (SEA). This is a method of
assessing and mitigating environmental risks in national
policies, plans and programmes, and/or the cumulative
impacts of development on a particular region (a stretch of
coastline, for instance), national park or city/town. A SEA
is comprised of comprehensive or long-term considerations
of the environmental impact of a development should it go
beyond an individual development or project. Whereas one
or two developments or projects may have low environmental
impacts on their own, a number of projects in the same
region or of the same type may have significant cumulative
impacts. For example, a single hotel on a stretch of coastline
may have little impact on natural resources, but as more
and more are built, the impact becomes significant. Central
sewage treatment becomes necessary, but may be built after
hotel development is well underway, or may be undersized as
more and more hotels are added. Greater requirements for
housing for workers also result in environmental impacts.
This has happened in all of Jamaica’s major resort towns –
Montego Bay, Ocho Rios and Negril.
Strategic environmental assessments ought to be conducted
to inform the policy framework that should guide project
decisions, such as for transportation, energy, or the impacts
of climate change, and their terms of reference should be
the subject of public consultation. Environmental impact
assessments, on the other hand, relate to specific projects
and are often required too late in the process when land has
already been acquired, investors identified, and the decision
to go ahead already taken. A Strategic Environmental
Assessment policy was developed by NEPA in 2003, but
remains in draft.
Relatively few strategic environmental assessments have been
required or conducted in Jamaica. Examples of completed
strategic environmental assessments are:
» Port Royal Heritage Tourism Project, Kingston and St
Andrew
» Highway 2000, St Catherine/Clarendon/Manchester
» Rose Hall Developments Ltd., St James
» Amaterra Resort Development, Trelawny
No strategic environmental assessment was done for the
North South Highway Link, which crossed the entire island,
including the floodplains of five major rivers, traversed steep,
forested slopes, and encountered significant geological risks.
Before the highway was completed, soil erosion caused by
reportedly inappropriate excavation practices during its
construction caused significant volumes of silt, solid waste
and debris to wash into the Old Fort Bay, a coastal resort
community that lies below the highway; the estimated
restoration cost from one major rainfall and the ensuing
damage was US$6 million.106
106 Christopher Serju, “‘We Prefer Not To Sue’ - Property Owners Hope To Settle Old Fort Bay Issue With CHEC Out Of Court,” Gleaner, August 13, 2016.
(http://jamaica-gleaner.com/article/lead-stories/20160813/we-prefer-not-sue-property-owners-hope-settle-old-fort-bay-issue-chec)
34 | BEYOND PET BOTTLES AND PLASTIC BAGS
Even where NEPA requires an environmental impact
assessment, however, the process is flawed. The normal steps
are:
» Develop a terms of reference for the EIA, which may be
the subject of public input,
» Gather background information with regard to relevant
legislation,
» Collect background scientific data, for example rainfall,
topography, and baseline data on environmental
parameters,
» Assess the main environmental impacts (which are often
scored in various ways as to their long- or short-term
impacts and the significance of those impacts),
» Recommend mitigation measures
» Consult local communities directly affected, and
» Hold a public meeting in accordance with NEPA’s
published guidelines, though this step is discretionary.107
Despite this ostensibly clear-cut and logical process, there
are a number of systemic weaknesses which undermine the
intention of an environmental impact assessment, sometimes
to the point of rendering the EIA process meaningless.
Environmental impact assessment consultants are contracted
and paid by developers; this presents a clear conflict of
interest. An EIA consultant who frequently recommends that
projects not proceed will very likely soon be out of business.
Recommendations from the Jamaican NGO community that
developers pay for EIAs into an escrow account managed by
NEPA, which would then appoint the EIA consultant, have
never been acted upon.
Anyone can call themselves an EIA consultant, as they are
not held to any standard, nor is there a scheme for their
certification, though this has been discussed since 2012,
and forms part of the draft EIA regulations. The quality of
some EIAs has been called into question by members of
the public during the public consultation process. This has
sometimes led to NEPA requiring an addendum from the
EIA consultant, but the process for making sure the public
knows this has been done is insufficient. Typically, the
addendum will simply be posted on NEPA’s website, without
any accompanying public outreach.
Indeed specific EIAs and the associated public consultation
process have been deemed flawed by the Supreme Court in
two separate legal cases.108 In 2005 the Northern Jamaica
Conservation Association, the Jamaica Environment Trust,
and some residents of the area filed a legal challenge to
the environmental impact assessment conducted for the
construction of a hotel at Pear Tree Bottom in St Ann. The
developer planned to build a 1,918 room hotel in an area that
is particularly ecologically sensitive and rich in biodiversity.
In the Pear Tree Bottom matter, the court stated in its first
ruling that:
4.1 THE INHERENT WEAKNESS OF
ENVIRONMENTAL IMPACT ASSESSMENTS
107 “Guidelines for Conducting Environmental Impact Assessments,” National Environmental Planning Agency, last revised October 2007. (http://nepa.gov.jm/
new/services_products/guidelines/docs/EIA-Guidelines-and-Public-presentation-2007.pdf)
108 Supreme Court Claim HCV 3022 of 2005 Northern Jamaica Conservation Association et al v Natural Resources Conservation Authority et al, Pear Tree
Bottom; Supreme Court HCV 5674 of 2010 Jamaica Environment Trust v Natural Resources Conservation Authority et al.
BEYOND PET BOTTLES AND PLASTIC BAGS | 35
A second judgment in the Pear Tree Bottom matter stated:
The NRCA and NEPA failed to give adequate weight to the obvious empirical failings of
the EIA, thereby depriving themselves of the opportunity to put in place adequate controls
in light of the circumstances that actually existed in the ecologically sensitive area. Unless
there was reasonably accurate empirical data in the EIA, in light of the fact that neither
NEPA nor the NRCA nor anyone else undertook such studies to submit to NEPA or the
NRCA, there was no evidence upon which the NRCA and NEPA could act in determining
the proper terms to include in the permit. Without a proper evidential basis it would
be difficult to see on what basis an effective monitoring programme could be developed,
since one would need to know the true ecological state of Pear Tree Bottom at the time the
monitoring programme is implemented.109
I understand Environmental Solutions Ltd. (the consultant that conducted the EIA) to
be saying that given all the time “forced” on them by the NRCA’s approval and reviews
procedures, they produced an acceptable EIA in accordance with the terms of reference.
What this means is that if there is any problem with the EIA, the source of it is the
shortcomings in the existing procedures and not with the consultants. While past studies
ought to be taken into account there has to be some limit on how far back one can go
without raising serious questions about the reliability of the information, even if the EIA
complies with the terms of reference. In so far as it was stated or implied in my previous
judgment that the consultants deliberately produced a questionable EIA, I say that is not
the case, in light of Dr. Wade’s explanation. However, this is only an explanation for the
EIA produced and is not sufficient to disturb my conclusion that the Water Resources
Authority ought not to have acted on the EIA as it was.110
109 The Northern Jamaica Conservation Association et al v The Natural Resources Conservation Authority and the National Environment and Planning Agency
(Claim no. HCV 3022 OF 2005) (May 16, 2006) (Judgment No. 1), p. 52. (http://supremecourt.gov.jm/content/northern-jamaica-conservation-association-
et-al-v-natural-resources-conservation-authority)
110 The Northern Jamaican Conservation Association and the Jamaican Environment Trust and ors v The National Environmental Planning Agency (NEPA)
No. 2 (Claim no. HCV 3022 of 2005) (June 23, 2006) (Judgment No. 2), p. 23 para. 64. (www.jamentrust.org/wp-content/uploads/2016/03/Pear_Tree_
Botton_Judgment_No_2.pdf.)
36 | BEYOND PET BOTTLES AND PLASTIC BAGS
The Court concluded that the order should be granted
quashing NEPA/NRCA’s decision to issue the permit. It also
emphasized that consultation of citizens by public bodies
and authorities was a well-established feature of modern
governance, including the requirement that the public body
take the input of the public into account, and that even if
there is no statutory requirement for consultation, it had to
be done in accordance with a certain standard.111 The Court
ruled that the public had been deprived of participating in a
consultation process with complete information, specifically
a marine ecology report, and instructed the Authority to
reconsider its decision to grant a permit to the developer. The
developer then applied to be heard by the Court, as the hotel
was well underway. The Court found that stopping the hotel
would present undue hardship to the investors, strengthened
the declarations made in the first hearing, and allowed the
hotel to be completed.
In the second case, in 2011, the Jamaica Environment Trust
(JET) sought judicial review of the NRCA’s decision to grant
a beach license for the construction of sea defence works in
the Palisadoes/Port Royal Protected Area, and the associated
public consultation process. JET contended that the clearing
of the beach was a prescribed category and therefore needed
an environmental permit (as well as a beach license), and
that the public consultation process was flawed, given that
the public meeting had occurred after work on the site had
started. The Court ruled that the proper licenses had been
issued, but that the public consultation process had not met
legal standards.112
These two cases are not outliers. JET has conducted over
50 reviews of Jamaican EIAs, with assistance from the
Environmental Law Alliance Worldwide (ELAW),113 and
completed a summary of the main weaknesses observed in
multiple EIAs conducted by different EIA consultants over a
period of six years. These weaknesses were:
» Insufficient analysis of alternatives and cumulative
impacts
» Inadequate baseline data and poor study methods
» Failure to comply with NEPA’s Terms of Reference
» Inadequate assessment of public health impacts
» Insufficient care taken in parks/protected areas or
proposed protected areas
» Downplaying of environmental impacts, particularly
dredging, sewage treatment and discharge, coastal
works, run off from roads and parking lots and solid
waste handling
» Failures in the public process
» Failure to assess associated activities, such as mining
and quarrying at other sites
» Failure to provide a comprehensive monitoring plan
» Piecemeal approach to permit review and approval,
leaving critical aspects to a later date, such as sewage
treatment facilities
111 “It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out
properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular
proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product
of consultation must be conscientiously taken into account when the ultimate decision is taken.” R v Brent London Borough Council, Ex p Gunning (1985)
84 LGR 168.
112 Jamaica Environment Trust v Natural Resources Conservation Authority et al (Claim no. HCV 5674 of 2010) (October 13, 2011). (www.jamentrust.org/
wp-content/uploads/2016/03/Final_Judgement_Palisadoes_Judicial_Review.pdf)
113 ELAW is a public interest, non-profit, environmental organization that helps communities protect the environment and public health through law. (www.
elaw.org)
The terms of reference for environmental impact assessments
invariably require baseline data on a number of parameters,
which are not easily available, if at all. This means that a
proponent, in theory, must stand the cost of collecting these
data over time. Marine water quality data, for example,
should be collected at different depths for at least a year to
account for different climatic conditions. This has been
regarded as producing too much delay, so NEPA has allowed
abbreviated data collection, which, when needed to assess
impacts during post-permit monitoring, is almost useless
because the baseline data was not robust. As another example,
NEPA has allowed daytime “windscreen surveys” to assess
biological diversity, which omits all nocturnal animals and is
likely to exclude all migratory birds. This practice supported
the reasoning by Justice Sykes in the Pear Tree Bottom case
discussed previously.
4.2 INADEQUATE BASELINE DATA
BEYOND PET BOTTLES AND PLASTIC BAGS | 37
The extent to which the public is excluded from the
environmental assessment impact is particularly concerning.
While EIAs are made available online and at various libraries
or state agencies in the vicinity of the applicable projects,
due to their length and technical nature, they are simply
not accessible to the general public. They have become
increasingly lengthy and complex over the past 15 years.
A very early EIA conducted on the first phase of the Pear
Tree Bottom tourism development in 1993 was just over 100
pages, including photographs and appendices. A 2017 EIA
conducted on the Southern Coastal Highway Improvement
Project ran to 393 pages, also including plates, tables and
appendices.114 The public consultation guidelines require a
non-technical summary to be given at public meetings, but
this frequently is only slightly more understandable for the
general population.
The United Nations Environment Programme’s (now
UN Environment) Principle of Environmental Impact
Assessment provides a good roadmap for the basic principles
of an effective EIA system. Principle 2 provides that “the
criteria and procedures for determining whether an activity is
likely to significantly affect the environment and is therefore
subject to an EIA, should be defined clearly by legislation,
regulation, or other means, so that subject activities can be
quickly and surely identified, and EIA can be applied as the
activity is being planned.”
There are no regulations under the NRCA Act for the
conducting of EIAs, but NEPA does provide written
guidelines, last updated in 2007.115 Based on its own
exhaustive investigations of the EIA process in Jamaica,
the Jamaica Environment Trust submitted a detailed set of
recommendations for EIA regulations to the environmental
ministry in 2011.116 Proposed regulations were completed
by NEPA in 2015 and reviewed by the Jamaica Institute of
Environmental Professionals (JIEP), which also submitted
comments. The regulations remain in draft.117
The environmental impact assessment, the most significant
tool for environmental preservation, as it is utilized in
Jamaica—without standards or regulations—is an ineffective
means through which development can be approved,
guided and monitored. Neither are strategic environmental
assessments adequately conducted or utilized for
environmental protection and planning.
4.3 PUBLIC ACCESSIBILITY
4.4 LACK OF REGULATIONS
114 “Environmental Impact Assessment Draft Final Report Southern Coastal Highway Improvement Project Part B (ii) Works – Harbour View to Yallahs
Bridge,” Ministry of Economic Growth and Job Creation (Jamaica), October, 2017. (http://nepa.gov.jm/new/services_products/applications/eias/docs/misc/
southern_coastal_highway/EIA_SCHIPSeg1_HarbourViewYallahs_Draft%20Final_NEPA_Rev2.pdf)
115 “Guidelines,” ibid.
116 Jamaica Environment Trust, “Submission on Proposed EIA Regulations for Jamaica,” December, 2011.
117 NEPA executives, ibid.
38 | BEYOND PET BOTTLES AND PLASTIC BAGS
5. JAMAICA’S INABILITY TO
DELIVER QUALITY MONITORING
AND EFFECTIVE ENFORCEMENT
Monitoring and enforcement of Jamaica’s environmental laws, policies and regulations is weak at both
the national and local levels.118 (See Table 8.) As one example, in 2018 there were only two cases before
the courts of breaches of the Beach Control Act, where the defendants pleaded guilty, but “following
pleas in mitigation the charge was withdrawn.”119
118 SOE (2013), p.302.
119 R v Orville Webb; R v Rashidi Williams.
BEYOND PET BOTTLES AND PLASTIC BAGS | 39
Table 8: Enforcement Weaknesses Identified by JET in 2009. Updated 2018.
Projects which start without a permit and are “regularized” No data available
Insufficient monitoring of permits, delays in collecting
permits
The AG’s 2016 report found insufficient monitoring of the
Special Monitoring List (SML). 270 permits were uncollected
in 2018, a few going back to 2008
Ineffective enforcement action, generally not including
sanctions
In 2018, NEPA reported 19 cases before the courts: six for
breaches of the NRCA Act, five for breaches of the WPA, one
for breaches of the TCPA Act, and seven for breaches under
the BCA.
Failure to seek court sanctions against state agencies in
breach of environmental laws
The 2017/8 list contains no cases against state agencies
Failure to respond effectively to public concerns and conform
consistently to the requirements of the Access to Information
(ATI) Act
The Auditor General’s 2016 Performance Report reports
1,217 complaints to NEPA by the public, of which 90% were
investigated. No details are provided on how these were
resolved.
Failure to finalize or enforce a range of policy documents and
development orders
There are now new development orders for several parishes.
Many policies remain in draft.
Failure to implement an effective EIA process The EIA regulations are still in draft
Source: Jamaica Environment Trust
Source: State of the Environment Report 2013, Table 75
Table 9: Environmental Enforcement by NEPA under its respective Acts (2010-2013)
TYPE OF ENFORCEMENT ACTION AMOUNT
Enforcement Notices 105
Cessation Orders 35
Stop Notices 42
Notice of Intention to Suspend 30
Notice of Intention to Revoke 1
Warning Notice (air quality regulations) 0
Onsite Breach Notices 1,188
Warning Letters 213
Summons served 48
Bird shooting prosecutions 20
TOTAL 1,682
40 | BEYOND PET BOTTLES AND PLASTIC BAGS
The Auditor General of Jamaica (AG) conducted two
Performance Audits of NEPA, in 2010 and 2016.120 Serious
monitoring and enforcement deficiencies were identified
in 2010, and the 2016 audit sought to assess progress in
addressing those deficiencies. While there had been
improvements in the numbers of technical staff able to conduct
monitoring visits, and greater numbers of enforcement
actions including legal cases, there were egregious failures.
For example, of the permits/licences on NEPA’s own Special
Monitoring List (which prioritizes those developments
presenting serious threats to the environment,) a number
of them had expired, nearly half did not meet the standard
for monitoring, many were not consistently monitored, and
NEPA could not verify the status of nine sewage/wastewater
treatment facilities, “to determine whether they were
operational and discharged sewage and trade effluent.”121
Regarding permits not on the Special Monitoring List, the AG
found that, “NEPA did not conduct the required monitoring
on a timely basis to ensure that approved activities were being
carried out in accordance with the terms and conditions
of the permits/licenses.”122 The AG sampled 108 permits/
licenses and found gaps of up to five years between the time
the license was issued and the conduct of the first monitoring
visit, many permits were not monitored in accordance with
NEPA procedures, and many were not monitored at all.
The environmental permit itself is problematic. A typical
NRCA environmental permit relies heavily on other
documents or plans, for example: outlining monitoring and
mitigation activities, drainage plans, habitat conservation
and revegetation activities, and waste management. The
enforcement officer may or may not have these plans to hand.
The post-permit monitoring reports generally cover the
receipt (or otherwise) of required plans, but include few or
even none of the details contained therein. The enforcement
officer will record that a required plan, for example a drainage
plan, has or has not been received, but if it has been received,
the enforcement officer may not have it on site, or may not
report on any of the requirements contained in the drainage
plan.
5.1 CASE STUDY: THE FALMOUTH CRUISE SHIP PIER
The Falmouth Cruise Ship Terminal was constructed
in Trelawny (Jamaica’s north coast) in 2009-2011 to
accommodate the mega cruise ships that were too big for
the island’s existing cruise ship facilities. The project entailed
extensive dredging and reclamation works, including the
creation of the cruise ship terminal itself, and the dredging of
an access channel and two berthing pockets through a coral
reef. The environmental impact assessment was contracted
to Mott MacDonald, a UK engineering consulting firm, who
then subcontracted to Technological and Environmental
Management Network (TEMN), a Jamaican environmental
management agency. The EIA stated that, “the dredging
activities will contribute to physical, chemical and biological
changes to the harbour’s ecology, with possible direct and
indirect impacts on the nearby fringing coral reef, seagrass
beds and bioluminescence in Oyster Bay.”123
A number of mitigation measures were indicated:
» Suspension of dredging in rough conditions, use of silt
screens
» Relocation of approximately 140,000 healthy corals
» Replanting of 20 hectares of seagrasses to replace those
removed
» Replanting of 40 hectares mangroves, to replace those
destroyed for the market, parking and a sewage plant
120 Auditor General (2010) and (2016).
121 Ibid.
122 Ibid.
123 “Falmouth Cruise Ship Terminal Environmental Impact Assessment,” Mott MacDonald, June 2007, p. S4. (www.elaw.org/system/files/Final%20Report%20
by%20Mott%20Mac%20Version%202.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 41
NEPA’s 2009 and 2010 monitoring reports revealed:
» Dredging commenced before removal of coral and
continued in rough conditions
» Silt screens were often poorly deployed, ineffective and
failing to function for extended periods
» Sewage from the dredging vessel was dumped in the
harbour on at least one occasion
» Dredge spoils were dumped on the reef
» The coral reef replanting was poorly done: “There
appears to be a rush to move and replace items and
thus to make a daily quota of numbers of items moved.
Little or no regard is being given to their long-term
chances eventual survival (sic) which is directly impacted
by the manner in which the transplant is carried out and
the apparent lack of training or expertise of the crew/
individuals involved.”124
» There were at least two incidences of ship grounding,
destroying large areas of coral reef, resulting in NEPA
requiring the installation of two different types of
artificial reef
» The artificial reef structures were improperly sited and
impacted by the high turbidity
» A wastewater pipeline was poorly anchored and shifted,
causing extensive damage to benthic resources,
including the reef.
» Only phase one of the seagrass replanting was ever done
and the plugs were reported as heavily silted.
» All the wetlands were cleared, sewage and dredge spoils
were dumped in the area – the monitoring officer did
not know if the required restoration plan had ever been
submitted.
CL Environmental Ltd., a Jamaican environmental consultant,
was contracted by the Port Authority of Jamaica to review the
environmental status of the Falmouth Cruise Ship Terminal
roughly two years after completion. Field work was done in
2013 and CL Environmental concluded general indications
of success were poor:
» Survival rates of the relocated coral were low at 4.0%,
14.0% and 18% at relocation sites
» Success rates for sponges were even lower at 1.2%, 0.7%
and 0.4%
» Most of the seagrass plugs were said to be in “fair”
condition
» Dinoflagellate counts in Oyster Bay (Glistening Waters)
were much lower
» There was a significant increase in macroalgae cover
» There was no mention of the requirement for replanting
of mangroves.125
124 Technological and Environmental Management Network (TEMN), Report No 7, Dec 1-31, 2009. TEMN is a Jamaican environmental consulting firm that
conducted the monitoring.
125 CL Environmental Consultants, “Environmental Status of the Falmouth Cruise Ship Terminal, Trelawny, Jamaica (Final Report),” July 2013.
42 | BEYOND PET BOTTLES AND PLASTIC BAGS
5.2 RESOURCES AND CAPACITIES
The extent to which NEPA can properly fulfill its mandate
is dependent on what one considers that mandate to be. Its
stated mandate is, “to carry out the technical (functional)
and administrative mandate of [the] three statutory bodies”
(NRCA, TCPA and LDUC). As we have seen, the legal
process giving effect to this mandate was never completed,
but it could be said that NEPA nevertheless does this on a de
facto basis. The mission NEPA sets out for itself is “to promote
sustainable development by ensuring protection of the
environment and orderly development,” and its vision is that
“Jamaica’s natural resources are used in a sustainable way and
that there is broad understanding of environment, planning
and development issues, with extensive participation
amongst citizens and a high level of compliance to relevant
legislation.”126
A partial list of NEPA’s functions includes:
» Monitor natural resources (including those in the sea)
and public health indicators
» Conduct public education
» Prepare national environmental, planning and
development policies, strategies and plans
» Manage national parks and protected areas and oversee
delegation agreements for the management of national
parks and protected areas
» Consult with a wide range of other state agencies
» Prepare and update development orders
» Advise local planning authorities, the private sector, the
Natural Resources Conservation Authority, and the Town
and Country Planning Authority on a range of planning
and environmental issues
» Prepare plans and reports to meet requirements of
international agreements
» Enforce planning and environmental laws, permits and
licenses in areas covered by development orders, and for
all activities within permitted categories
» Process applications for permits and licenses
» Develop standards and regulations
» Set quotas for harvest and monitor imports and exports
of protected species
Table 10: Applications processed by NEPA 2017-2018 fiscal year
TYPE OF APPLICATION NO. PROCESSED NO. PROCESSED WITHIN 75-90 DAYS
Beach License 45 34
Environmental Permit 178 145
Environmental License 66 51
Non TPA Planning 36 24
TCPA Planning 32 24
Subdivision (9 lots and under) 96 94
Subdivision (10 lots and over) 27 22
Enquiries 16 9
TOTAL 496 403
126 “Agency Profile,” National Environment and Planning Agency, last modified July 21, 2014. (http://nepa.gov.jm/new/about/overview.php)
BEYOND PET BOTTLES AND PLASTIC BAGS | 43
The only areas which the organization’s senior management
acknowledges a lack of human resources is with regard to
having enough staff to process permits and licences (which
results in them now being assigned priority based on a
risk assessment,) and to respond to the large number of
complaints from the public requiring investigation, as well
as an inability to easily increase the staff complement in
these areas. The target for processing is 75-90 days, and for
fiscal year 2017/8, 403 out of 496 permits or licenses were
completed within this time frame.
The extent to which NEPA has the sufficient technical
expertise, personnel and equipment to enact its mission and
vision, and to carry out these many functions are debatable.
NEPA seems to have a large cadre of trained professionals—
the employees in the categories above (Table 10), according
to NEPA’s CEO, are some of the best trained environment
and planning practitioners, and they have “the minimum
qualification of a bachelor’s degree, many also have masters’
degrees.”127 With regard to its enforcement function, the
25 enforcement officers are supplemented by the support
of other staff members (e.g., members of the Ecosystem
Services Branch). They also co-opt the resources of other
GOJ agencies (e.g. the Marine Police and members of the
Island Special Constabulary Force), and the public (e.g.
Game Wardens).128
NEPA acknowledges resource constraints, particularly with
regard to physical equipment and technology, for example
to conduct sufficient water or air quality testing. Even with
these constraints, however, the organization’s focus appears
to be far more on processes rather than results. While there is
no definitive data showing the impact of enforcement actions
(or lack thereof) on natural resources, it is certain that fines
are too low and sanctions are too ineffective to disincentivize
breaches. The Natural Resources Conservation Authority Act
and the Town and Country Planning Act are seldom the basis
of legal action, monitoring visits are not frequent enough and
often significantly delayed after the permit/license is granted,
and there is tolerance for developers to embark on activities
without the required permits. Environmental permits
rely on a range of other documents that are not generally
accessible to the public, or even to monitoring officers. Even
if we assume that NEPA lacks the resources to effectively
implement laws and regulations, the agency could, but
doesn’t, look to alternative means of improving compliance,
such as publicizing the few instances where sanctions are
levied, or developments are stopped. Instead, there is an over-
reliance on “soft” enforcement measures such as warnings
and enforcement notices, which neither prevent nor remedy
environmental damage.
127 Peter Knight, CEO of NEPA, email correspondence with author, September 5, 2018.
128 Peter Knight, personal interview with author, September 3, 2018.
Source: Peter Knight, CEO, NEPA, email to author, September 5, 2018.
Table 11: Technical skills available at NEPA September 2018
TECHNICAL SKILLS NUMBER OF EMPLOYEES
Architect 1
Planners 48
Marine Biologists 11
Environmental Scientists 40
Civil Engineers 2
Chemical Engineers 10
Environmental Engineer 1
44 | BEYOND PET BOTTLES AND PLASTIC BAGS
6. CONCLUSION AND
RECOMMENDATIONS
Despite many public statements at the highest level assuring commitment to environmental protection
and sustainability, the Jamaican government (regardless of the administration’s political stripe) has
failed to operationalize these promises. The early commitment to protection of the environment via
the Natural Resources Conservation Authority Act has never been delivered. At the time, there seemed
to be an understanding that significant environmental risks were presented by state agencies, with
the result that the NRCA Act binds the Crown. This meant that the NRCA then (and NEPA now)
could take court action against government agencies which breached environmental laws. But this
has happened rarely over the 27 years of the NRCA Act’s existence, with the result that a culture of
non-compliance with environmental rules has been created, a culture in which the general public,
including the private sector, are not constrained by laws or regulations in their actions, regardless of
the environmental effects. This culture of impunity has been exacerbated by a lack of enforcement
of the Permit and Licensing System that was put in place five years after the promulgation of the
NRCA Act, where environmental permits and licenses were to be issued for a wide range of types of
development.
BEYOND PET BOTTLES AND PLASTIC BAGS | 45
While NEPA could and should be better resourced,
particularly with regard to physical infrastructure such as
laboratory space and equipment, the evident absence of
effective enforcement measures, including the application
of sanctions, has more to do with NEPA’s tacit definition of
its mandate as a facilitator of development than with a lack
of resources. NEPA’s monitoring of the health of the natural
environment remains extremely weak, and their focus is
overwhelmingly on processes rather than results, with the
result that there are significant execution gaps, and many
identified solutions, policies, plans and programmes take far
too long to be implemented.
A critical juncture occurred in 2001: the incomplete merger
of the NRCA, the TCPA and the LDUC resulted in an overly
complex iteration of what was a simple regulatory framework;
the required repeal of the NRCA Act and the promulgation
of a new NEPA Act has never been done. What we have been
left with for nearly 30 years is a situation where overlapping
and diffuse responsibilities for the environment remain
spread across many different government agencies, leading
to confusion, delays, and deflection of responsibilities.
The lack of commitment at the highest level to environmental
protection is illustrated by the frequent movement of the
environmental portfolio to different ministries. Qualified
environmental professionals have never comprised the
majority on the NRCA Board, with the result that decisions
inevitably reflect the pro-development-at-any-cost stance of
public and private sectors alike, regardless of environmental
impacts. Since 2016, the environmental portfolio is located in
the Ministry of Economic Growth and Job Creation – a clear
indication of the GOJ’s priorities, which is ironic given that
this administration’s leader has made the most meaningful
public statements about environmental protection than any
other Prime Minister in the past three decades.
What then remains is an environmental regulatory
framework comprised of a long list of worthwhile intentions,
codified in incomplete policies, and characterized by failure
to act over long time periods. Many recommendations have
simply not been carried out, many plans not implemented,
and many declarations not followed through. One might
even argue that it would suffice for Jamaica to implement
the policies that already exist, and enforce the laws already
on its books, for environmental protection to be far more
effective than it is at present—that before we add any new
laws or policies, we follow through on those we have now.
What this suggests is that the main weakness in Jamaica’s
environmental framework is a lack of sufficient interest on
the part of the government and its agents to protect our
natural environment in a substantive way. While there are
specific areas that call for attention, such as the current
ineffectiveness of low fines, and the need for greater and
more meaningful public engagement, the most important
change that is needed in Jamaica is a commitment to execute
and complete identified actions.
6.1 RECOMMENDATIONS
129 “Progress report on legislation addressing an integrated approach to environment and planning in Jamaica,” NEPA, March, 2005
PROMULGATE THE NEPA ACT AS AN URGENT PRIORITY
The steps that need to be taken to carry through on this commitment are contained in a 2005
document, “Progress report on legislation addressing an integrated approach to environment and
planning in Jamaica.”129 These include the repeal of the Natural Resources Conservation Authority
Act, the Town and Country Planning Act, the Land Development and Utilization Commission Act,
the Beach Control Act, the Watersheds Protection Act and the Wildlife Protection Act, as well as
amendments to the Local Improvements Act and the Housing Act.
Additional clauses should include third party rights for the general public, specification of the skills
required on the new regulatory authority, and explicitly stated parameters regarding ministerial
discretionary powers, with a view to minimizing them only to matters of emergency and national
security.
Given the long-standing and evident failure to adhere to development orders, sanctions for breaches
to the development orders should be included in the new NEPA Act. Discretion for state agencies and/
or ministers to vary development order provisions should be reduced, and development orders should
be updated on a specified schedule, including a review of compliance with the previous development
order.
The environmental focus should be made explicit by calling the new act the National Environmental
Protection Act.
46 | BEYOND PET BOTTLES AND PLASTIC BAGS
COMPLETE AND PROMULGATE THE ENVIRONMENTAL IMPACT
ASSESSMENT REGULATIONS
The environmental impact assessment system is the main environmental management system
in Jamaica. Complete the EIA regulations to establish, at a minimum, mandatory strategic
environmental assessments and environmental impact assessments for certain types of development
and/or developments in certain areas, certification of EIA consultants, and provisions to guard against
conflicts of interest and public consultation procedures.
COMPLETE AND PROMULGATE THE REGULATIONS FOR ALL TYPES OF
PARKS AND PROTECTED AREAS
Parks and protected areas of various types can be declared under the NRCA Act, but with the exception
of marine and national parks, there are no regulations in place for other types of protected areas. This
means that there are no restrictions on what types of development can occur in these areas, or how
they should be managed.
INCREASE FINES AND SANCTIONS
There are a number of proposals for increased fines for breaches of the NRCA Act and its regulations
(or whatever legislation replaces it). They need to be implemented on the basis of a modern assessment
as to what sanctions and fines comprise effective disincentives.
COMPLETE THE REMAINING DEVELOPMENT ORDERS AND CONDUCT
OUTREACH ON THEIR PROVISIONS
Summarize key requirements of the Development Orders in a format that can be easily understood by
the public. Conduct outreach to development organizations, such as architects, engineers, developers,
Jamaica Promotions (Trade and Investment) (JAMPRO), and private sector umbrella groups.
RATIONALIZE AND COMPLETE ENVIRONMENTAL POLICIES
There are more than 20 policies relating to the environment in various stages of development, many
long delayed. Identify, consolidate and complete the critical ones, including any gaps, starting with
the following:
¾ National Ocean and Coastal Zone Management Policy (to include beach access, overwater
structures, mangrove, seagrass and coral reef protection, cays management)
¾ Watershed and River System Management Policy
¾ Protected Areas System Policy and Master Plan
¾ National Environmental Education Policy and Plan
¾ Policy for Conservation and Management of Protected Plants and Animals
BEYOND PET BOTTLES AND PLASTIC BAGS | 47
FAST TRACK THE NATIONAL SPATIAL PLAN
Developers and investment agencies should be able to review the National Spatial Plan to see the
framework for development in any part of the island. If an area is identified as important for watershed
protection, for example, there would be no need to proceed with an application which would require
removal of forests. This would also insulate the GOJ against potential lawsuits if land has already been
purchased for certain purposes which were clearly prohibited in the NSP.
SETTLE THE LOCATION OF THE ENVIRONMENTAL PORTFOLIO
There are a number of options: the Ministry of Health is relevant because of the relationship between
poor environmental management and public health, for example, and thus in ensuring effective solid
waste management and preventing air and water pollution. The Ministry of Local Government may
be appropriate given its role in development orders. The Office of the Prime Minister has proven, in
this administration, a suitable home as the prime minister’s own apparent interest in the environment
seems to have spurred more action and gotten better results in environmental matters than has
previously obtained. Secure bipartisan approval for this commitment.
ESTABLISH A PARLIAMENTARY COMMISSION ON THE ENVIRONMENT
Given the immediate and existential threat of climate change to island states, the large numbers of
Jamaicans inhabiting zones vulnerable to disasters, and the manifest failure to manage development
or protect the environment over the country’s history, establish a Parliamentary Commission on the
Environment, along the lines of the Electoral Commission or the Office of the Children’s Advocate.
Establish outcome indicators for environmental health, such as air and water quality, coral reef health,
beach erosion status, forest restoration, waste management indicators, and others. Publish them in
annual State of the Environment Reports, which are tabled in Parliament.
INVESTIGATE THE FEASIBILITY OF AN ENVIRONMENTAL COURT FOR
JAMAICA
There has been an explosion of environmental courts and tribunals all over the world. In 2018, there are
almost 1,500 tribunals or courts in 44 countries, including the Caribbean.130 Courts with specialized
expertise in environmental matters are able to deliver faster and better judgments, and use alternative
dispute resolution processes. The experience of the Trinidad and Tobago Environmental Commission
may be useful as one aspect of assessing best practices appropriate for the Caribbean region.131
130 Don C Smith, “Environmental courts and tribunals: changing environmental and natural resources law around the globe,” Journal of Energy & Natural
Resources Law, 36:2, 137-140, 2018. (www.tandfonline.com/doi/full/10.1080/02646811.2018.1446404)
131 “Report on Performance and Activities, 2000-2003,” Environmental Commission of Trinidad and Tobago, 2003. (www.ec.gov.tt/index.php/publications/
category/1-annual-reports?download=2)
48 | BEYOND PET BOTTLES AND PLASTIC BAGS
LIST OF ACRONYMS
AG Auditor General
BCA Beach Control Act
CAA Civil Aviation Authority
CEO Chief Executive Officer
CEP Country Environmental Profile
DO Development Order
ED Executive Director
EHU Environmental Health Unit
EIA Environmental Impact Assessment
ELAW Environmental Law Alliance Worldwide
GOJ Government of Jamaica
ITA Island Traffic Authority
JCDT Jamaica Conservation and Development Trust
JAMPRO
Jamaica Promotions (Trade and Investment)
Co. Ltd.
JEAN Jamaica Environmental Advocacy Network
JET Jamaica Environment Trust
JBI Jamaica Bauxite Institute
JFB Jamaica Fire Brigade
JIEP
Jamaica Institute of Environmental
Professionals
JNHT Jamaica National Heritage Trust
JPSCo Jamaica Public Service Company Ltd.
LDUA Land Development and Utilization Act
LDUC
Land Development and Utilization
Commission
MEGJC
Ministry of Economic Growth and Job
Creation
MGD Mines and Geology Division
MOAF Ministry of Agriculture and Fisheries
NEPA National Environment and Planning Agency
NIC National Irrigation Commission
NGO Non-Governmental Organization
NLA National Land Agency
NRCA Natural Resources Conservation Authority
NRCAA Natural Resources Conservation Authority Act
NSWMA National Solid Waste Management Authority
NSP National Spatial Plan
NWC National Water Commission
NWA National Works Agency
ODPEM
Office of Disaster Preparedness and Emergency
Management (ODPEM)
P&L Permit and Licensing Regulations
RADA
Rural Agriculture Development Authority
(RADA)
SML Special Monitoring List
STP Sewage Treatment Plant
TEMN
Technological and Environmental Management
Network
TCP Act Town and Country Planning Act
TCPA Town and Country Planning Authority
UDC Urban Development Corporation
USA United States of America
US EPA United States Environment Protection Agency
UWI University of the West Indies
WPA Wildlife Protection Act
WRA Water Resources Authority
BEYOND PET BOTTLES AND PLASTIC BAGS | 49
REFERENCES
Auditor General (Jamaica). 2010. “Performance Audit Report of the National Environment and Planning Agency’s Role in
Protecting the Environment and Promoting Sustainable Development.”
(http://nepa.gov.jm/new/services_products/publications/reports/docs/agd/agd_audit_2010.pdf)
______. 2016. “Follow up Performance Audit Report National Environment and Planning Agency.”
(http://nepa.gov.jm/new/services_products/publications/reports/docs/agd/agd_audit_2016.pdf)
Government of Jamaica. 1987. Jamaica: Country Environmental Profile, 1987. Natural Resources Conservation Division, and
Ralph M. Field and Associates Inc. International Institute for Environmental Development.
______. 1997. Jamaica: State of the Environment Report, 1997. Ministry of Environment and Housing, Natural Resources
Conservation Authority.
______. 2010. Jamaica: State of the Environment Report 2010. Ministry of Housing, Environment, Water, and Local Government,
National Environment and Planning Agency.
(http://nepa.gov.jm/publications/SOE/2010/State-of-The-Environment-Report-2010-Jamaica.pdf)
______. 2013. Jamaica: State of the Environment Report, 2013. Ministry of Economic Growth and Job Creation, National
Environment and Planning Agency.
(http://nepa.gov.jm/new/media_centre/news/articles/SoE_Jamaica_2013.pdf)
______. 2013. The Town and Country Planning (Negril and Green Island Area) Provisional Development Order, 2013.
(http://nepa.gov.jm/new/legal_matters/laws/Planning_Laws/TCP_NGIA_Provisional_Development_Order2013.pdf)
Jamaica Environment Trust (JET). 2013. “Review of the Falmouth Cruise Ship Pier Environmental Status.”
(www.jamentrust.org/wp-content/uploads/2016/07/Review-of-Falmouth-Pier-Environmental-Status-JET-ELAW-Sept-2015.
pdf)
______. 2017. “Review of the Legal and Policy Framework for Air and Water Quality in the Island of Jamaica,” Commonwealth
Foundation.
Planning Institute of Jamaica (PIOJ). 2010. “Risk and Vulnerability Assessment Methodology Development Project (RiVAMP),
Linking Ecosystems to Risk and Vulnerability Reduction – the Case of Jamaica.” United Nations Environment Programme.
50 | BEYOND PET BOTTLES AND PLASTIC BAGS
APPENDIX 1
APPENDIX 3
APPENDIX 2
TERMS OF REFERENCE
Identify key areas of weakness in Jamaica’s current governance framework for environmental management and propose
institutional and other changes to address these deficiencies.
The following areas, amongst others, are proposed to be addressed through the research:
» Development orders: Jamaica has several development orders intended to govern the development of various parts of
Jamaica, with due regard to environmental considerations. However, these development orders are largely ignored in
development implementation - in some instances, aided by corruption in the permitting process, in others aided by lax or
non-existent monitoring and enforcement during the development process - generally, to the detriment of the environment;
» EIA process: Jamaica requires Environmental Impact Assessments (EIAs) for all major developments, but with EIA
consultants paid directly by developers there is a strong motivation for EIAs to make the case for the development rather
than not. Moreover, all decisions require ministerial approval which in some cases is given before the EIA process has been
completed. Finally, the EIA regulatory agency, NEPA, does not have sufficient technical or financial capacity to adequately
assess EIAs (e.g. by conducting field travel and independent verification) within the stipulated time limit and thus rely heavily
on the information in the provided EIA report;
» Enforcement: Enforcement of environmental regulations in Jamaica is lacking, due to lack of resources, including funding,
but also equipment and trained personnel.
LIST OF ENVIRONMENTAL LAWS ADMINISTERED BY NEPA
Beach Control Act 1956, most recent amendment 1991
moj.gov.jm/laws/beach-control-act
Endangered Species (Protection, Conservation and Regulation of Trade) Act 2000
moj.gov.jm/laws/endangered-species-protection-etc-act-0
INTERVIEWS
Franklin McDonald, former Executive Director and CEO of NRCA and NEPA
Carl Chen, Architect, former member of the TCPA and current member of the Advisory Planning Committee
Douglas Stiebel, Architect, former member of the TCPA, former Chairman of the Jamaica Environment Trust
Peter Knight, CEO of National Environment and Planning Agency (NEPA).
Susan Otuokon, Executive Director, Jamaica Conservation and Development Trust.
NEPA executives, personal interviews with author.
BEYOND PET BOTTLES AND PLASTIC BAGS | 51
Town and Country Planning Act 1958, most recent amendment 1999
moj.gov.jm/laws/town-and-country-planning-act
Watersheds Protection Act 1963, most recent amendment 1991
moj.gov.jm/laws/watersheds-protection-act-1
Wildlife Protection Act 1945, most recent amendment 2016
moj.gov.jm/laws/wild-life-protection-act-0
LIST OF ENVIRONMENTAL LAWS NOT ADMINISTERED BY NEPA
Building Act 2017
https://japarliament.gov.jm/attachments/article/339/The%20Building%20Act,%202017%20--hp.pdf
Clean Air Act 1964
http://moj.gov.jm/laws/clean-air-act
Country Fires Act 1942
http://moj.gov.jm/laws/country-fires-act
Exclusive Economic Zone Act 1991
http://moj.gov.jm/laws/exclusive-economic-zone-act
Fishing Industry Act 1976
http://moj.gov.jm/sites/default/files/laws/The%20Fishing%20Industry%20Act_0.pdf
Forestry Act 1996
http://moj.gov.jm/laws/forest-act
Housing Act 1969
http://moj.gov.jm/sites/default/files/laws/The%20Housing%20Act.pdf
Maritime Areas Act 1996
www.moj.gov.jm/sites/default/files/laws/Maritime%20Areas%20Act.pdf
Mining Act 1947
http://moj.gov.jm/laws/mining-act
National Solid Waste Management Authority Act 2001
http://moj.gov.jm/laws/national-solid-waste-management-act
Pesticides Act 1987
http://moj.gov.jm/laws/pesticides-act
Public Health (Nuisance Regulations) 1995
52 | BEYOND PET BOTTLES AND PLASTIC BAGS
APPENDIX 4
JAMAICA’S ENVIRONMENTAL POLICIES AND PLANS
Government of Jamaica Policy Development Programme March 2018 update
https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-Policy-Development-Programme-Update-at-March-2018-web-
version.pdf
Beach Policy for Jamaica, now Beach Access and Management Policy
http://nepa.gov.jm/symposia_03/Policies/BeachPolicyforJamaica-November2000.pdf
Biosafety Policy
http://nepa.gov.jm/documents/Draft-Biosafety-Policy.pdf
Cays Management Policy
https://jis.gov.jm/cay-management-policy-to-be-completed-in-2013/
Climate Change Policy Framework for Jamaica
http://nepa.gov.jm/Climate_Change/Climate_Change_Policy_Framework_and_Action_Plan_November_2013.pdf
Coral Reef Protection and Preservation Policy
http://nepa.gov.jm/symposia_03/Policies/CoralReefReg.pdf
Dolphin Conservation Policy
http://nepa.gov.jm/symposia_03/policies/dolphinpolicydraft.pdf
Emissions Policy Framework
https://jis.gov.jm/govt-develop-national-policy-emissions/
Jamaica Coral Reef Action Plan ; now called Action Plan for Corals and Reefs
http://nepa.gov.jm/symposia_03/Policies/JCRAP.pdf
http://nepa.gov.jm/new/legal_matters/laws/Other_Laws/Public_Health(Nuisance)Regulations_1995.pdf
Quarries Control Act 1984
http://moj.gov.jm/laws/quarries-control-act
Urban Development Corporation Act 1968
http://moj.gov.jm/laws/urban-development-corporation-act
Water Resources Act 1995
http://moj.gov.jm/laws/water-resources-act
BEYOND PET BOTTLES AND PLASTIC BAGS | 53
Jamaica’s Protected Areas System Master Plan (PASMP) 2013-2017
https://info.undp.org/docs/pdc/Documents/JAM/Jamaica’s%20Protected%20Areas%20System%20Master%20Plan%20
2013-17(Final%20Submission%20to%20the%20PAC).pdf
Jamaica’s National Environmental Action Plan 2006/9
http://nepa.gov.jm/documents/JANEAP-2006.pdf
Mangrove and Coastal Wetlands Policy and Regulation
http://nepa.gov.jm/symposia_03/Policies/Mangrove&WetlandsProtectionPolicy.pdf
National Energy from Waste Policy 2010-2030
www.mset.gov.jm/sites/default/files/pdf/Draft%20Waste%20to%20Energy%20Policy.pdf
National Environmental Education Action Plan for Sustainable Development
http://nepa.gov.jm/symposia_03/Policies/NEEAPSD.pdf
National Forestry Management and Conservation Plan
www.forestry.gov.jm/sites/default/files/Resources/draft_national_forest_management_conservation_plan-_2017.pdf
National Mariculture Policy
http://nepa.gov.jm/policies/draft/mariculture.htm
National Policy for the Conservation of Seagrasses
http://nepa.gov.jm/symposia_03/Policies/NationalPolicyfortheConservationofSeagrasses.pdf
National Ocean and Coastal Zone Management Policy
http://nepa.gov.jm/symposia_03/Policies/OceanandCoastalZoneManagementActionPlan.pdf
http://nepa.gov.jm/symposia_03/Policies/OceanandCoastalZoneManagementPolicy.pdf
National Policy on Environmental Management Systems
https://japarliament.gov.jm/attachments/article/1927/2018%20Green%20Paper%202%20-%20National%20Policy%20on%20
Environmental%20Management%20Systems.pdf
National Policy for the Environmentally Sound Management of Hazardous Wastes
National Water Sector Policy and Implementation Plan
www.wra.gov.jm/sites/default/files/Jamaica_water_sector_policy_2004.pdf
Policy and Guidelines for Overwater Rooms
Protected Animals in Captivity
Watershed Management Policy
http://nepa.gov.jm/projects/R2RW/R2RW%20CD%20-%2002/031/031.pdf
54 | BEYOND PET BOTTLES AND PLASTIC BAGS
To read any of our published reports in full, please visit
www.capricaribbean.org/publications
Contact us at:
info@capricaribbean.org
or by telephone at
(876) 970-3447 or (876) 970-2910
BEYOND PET BOTTLES
AND PLASTIC BAGS
FIXING JAMAICA’S ENVIRONMENTAL
REGULATORY FRAMEWORK
& CARIBBEAN
ey (o POLICY
oS RESEARCH
UWI INSTITUTE
NIA
National Integrity Action
of Jamaica's forests sw, More than20% = _—_ =~
are disturbed 30S of land within forest reserves has —_
TW been impacted by HUMAN ACTIVITY
Oo
eS
9
Almost all our watersheds
have been impacted by
human activity and degraded
All major river courses receive pollutants at some point: YA °f mangrove forests has been lost due to activities
INDUSTRIAL WASTE, SEWAGE, SILT, DEBRIS, AND AGRICULTURAL RUN-OFF like infilling for real estate developments
An internal NEPA report from
2004- 7
found only
of sewage treatment
plants meeting standards
for Biological Oxygen Demand (BOD)
A 2017-2018 unpublished list was made available by NEPA,
showing 19 legal cases before the Parish Courts under four Acts:
Natural Resources Town and Country
Conservation Planning Act
Authority Act
Except for 2 cases,
ALL FINES IMPOSED WERE LESS THAN
Beach Control Act Wildlife
Protection Act
J$50,000
aS
SS
Between
April 2012
&
March 2015
The Auditor General's
2016 performance review
of NEPA identified
452 CASES
referred to NEPA’s legal
branch, but only
11 CASES
BEFORE THE COURTS
Between 2012 and 2015
ONLY 1 PERMIT
WAS SUSPENED.
IN COMPARISON (OVER THE SAME TIME PERIOD):
163 59
ENFORCEMENT CESSATION
NOTICES ORDERS
were issued
70
50 STOP NOTICES
NOTICES OF 52
INTENTION SUMMONS
to suspend license or
permit SERVED
Sandals SOUTH COAST
WHITEHOUSE, JAMAICA
OVER-THE-WATER
BUNGALOWS
Perched above clear turquoi
waters, these ahiti.
and
ha ee Cee Moe Tt Pet eee eee ee
PLANNED MITIGATION MEASURES WERE T0
RELOCATE REPLANT REPLANT
140,000 200,000m’ 400,000m?
HEALTHY CORALS SEAGRASSES MANGROVES
(COMPLETED)
2013 field work by CL Environmental indicated underwhelming results
HEALTHY CORALS SEA SPONGES
SUCCESS RATE SUCCESS RATE
4' - 18" 0.4" - 1.2!
Other mentions and counts of seagrass, Which saw a
“MACROALGAE SIGNIFICANT INCREASE
dinoflagellate, and mangroves were
either fair, much lower or unavailable.
CARIBBEAN
POLICY
RESEARCH
INSTITUTE
R1810
OCTOBER 2018
BEYOND PET BOTTLES
AND PLASTIC BAGS
FIXING JAMAICA’S ENVIRONMENTAL
REGULATORY FRAMEWORK
CONTENTS
EXECUTIVE SUMMARY .................................................................................................................................
1 INTRODUCTION .....................................................................................................................................
2 THE LEGAL AND INSTITUTIONAL FRAMEWORK: SYSTEM FAILURE ....................................................
2.1 NATURAL RESOURCES CONSERVATION AUTHORITY ACT 1991 ...............................................................
GOVERNANCE OF THE IMPLEMENTING BODY
BINDS THE CROWN
INEFFECTIVE PENALTIES DECIDED ON AND LEVIED IN A FLAWED SYSTEM
PERMIT AND LICENSING REGULATIONS (1996)
VOLUNTARY COMPLIANCE AND VALIDATION OF SUBMITTED DATA
DELEGATION
2.2 THE TOWN AND COUNTRY PLANNING ACT ..............................................................................................
2.3 LAND DEVELOPMENT AND UTILIZATION ACT ..........................................................................................
2.4 MERGER OF THE THREE MAIN AUTHORITIES AND THE CREATION OF THE NATIONAL ENVIRONMENT
& PLANNING AGENCY ...............................................................................................................................
2.5 THE PUBLIC INTEREST ............................................................................................................................
2.6 A NEW ENVIRONMENTAL REGULATORY AUTHORITY ...............................................................................
3 THE ENVIRONMENTAL PLANNING FRAMEWORK: INCHOATE AND FRAGMENTED ..............................
3.1 DEVELOPMENT ORDERS ..........................................................................................................................
3.2 CASE STUDY: NEGRIL’S DEVELOPMENT ORDER ......................................................................................
3.3 SANCTIONS UNDER THE TOWN AND COUNTRY PLANNING ACT ..............................................................
3.4 PUBLIC CONSULTATION ............................................................................................................................
3.5 THE PLANNING AND ENVIRONMENTAL POLICY FRAMEWORK ................................................................
3.6 NATIONAL PHYSICAL PLANS ....................................................................................................................
3.7 STATE OF THE ENVIRONMENT REPORTS .................................................................................................
4 THE COMPROMISED ENVIRONMENTAL IMPACT ASSESSMENT PROCESS ...........................................
4.1 THE INHERENT WEAKNESS OF ENVIRONMENTAL IMPACT ASSESSMENTS ............................................
4.2 INADEQUATE BASELINE DATA ..................................................................................................................
4.3 PUBLIC ACCESSIBILITY ...........................................................................................................................
4.4 LACK OF REGULATIONS ...........................................................................................................................
5 JAMAICA’S INABILITY TO DELIVER QUALITY MONITORING AND EFFECTIVE ENFORCEMENT .............
5.1 CASE STUDY: THE FALMOUTH CRUISE SHIP PIER ...................................................................................
5.2 RESOURCES AND CAPACITIES .................................................................................................................
2
4
6
7
8
12
14
15
16
16
17
17
17
20
21
22
23
25
27
28
28
30
31
33
35
37
38
38
39
41
43
CONTENTS
6 CONCLUSION AND RECOMMENDATIONS ..............................................................................................
6.1 RECOMMENDATIONS ................................................................................................................................
PROMULGATE THE NEPA ACT AS AN URGENT PRIORITY
COMPLETE AND PROMULGATE THE ENVIRONMENTAL IMPACT ASSESSMENT REGULATIONS
COMPLETE AND PROMULGATE THE REGULATIONS FOR ALL TYPES OF PARKS AND PROTECTED
AREAS
PARKS AND PROTECTED AREAS OF VARIOUS TYPES CAN BE DECLARED UNDER THE NRCA ACT, BUT
WITH THE EXCEPTION OF MARINE AND NATIONAL PARKS, THERE ARE NO REGULATIONS IN PLACE
FOR OTHER TYPES OF PROTECTED AREA. THIS MEANS THAT THERE ARE NO RESTRICTIONS ON
WHAT TYPES OF DEVELOPMENT AN OCCUR IN THESE AREAS OR HOW THEY SHOULD BE MANAGED.
INCREASE FINES AND SANCTIONS
COMPLETE THE REMAINING DEVELOPMENT ORDERS AND CONDUCT OUTREACH ON THEIR
PROVISIONS
RATIONALIZE AND COMPLETE ENVIRONMENTAL POLICIES
FAST TRACK THE NATIONAL SPATIAL PLAN
SETTLE THE LOCATION OF THE ENVIRONMENTAL PORTFOLIO
ESTABLISH A PARLIAMENTARY COMMISSION ON THE ENVIRONMENT
INVESTIGATE THE FEASIBILITY OF AN ENVIRONMENTAL COURT FOR JAMAICA
LIST OF ACRONYMS .....................................................................................................................................
REFERENCES ..............................................................................................................................................
APPENDIX 1 ................................................................................................................................................
APPENDIX 2 ................................................................................................................................................
APPENDIX 3 ................................................................................................................................................
APPENDIX 4 ................................................................................................................................................
45
46
46
47
47
47
47
47
47
48
48
48
48
49
50
51
51
51
53
Lead Author: Diana McCaulay
This study is made possible by the generous support of the American people through the United States Agency for
International Development (USAID). The contents are the responsibility of CAPRI, and do not necessarily reflect
the views of USAID or the United States Government.
LIST OF TABLES
TABLE 4: MOVEMENT OF THE ENVIRONMENTAL PORTFOLIO 1991-2018 ...................................................
TABLE 1: PARTIAL LIST OF STATE AGENCIES THAT EXERCISE ENVIRONMENTAL FUNCTIONS .................
TABLE 2: OTHER MAIN ENVIRONMENTAL STATUTES ADMINISTERED BY NRCA ........................................
TABLE 3: SAMPLE OF ENVIRONMENTAL STATUTES NOT ADMINISTERED BY NRCA ..................................
TABLE 5: CURRENT STATUS OF DEVELOPMENT ORDERS ...........................................................................
TABLE 6: PARTIAL LIST OF JAMAICA’S ENVIRONMENTAL PLANS AND POLICIES AND THEIR STATUS ......
TABLE 8: ENFORCEMENT WEAKNESSES IDENTIFIED BY JET IN 2009. UPDATED 2018. .............................
TABLE 9: ENVIRONMENTAL ENFORCEMENT BY NEPA UNDER ITS RESPECTIVE ACTS (2010-2013) ..........
TABLE 10. APPLICATIONS PROCESSED BY NEPA 2017-2018 FISCAL YEAR ................................................
TABLE 11. TECHNICAL SKILLS AVAILABLE AT NEPA SEPTEMBER 2018 ....................................................
8
10
11
11
24
28
40
40
43
44
EXECUTIVE SUMMARY
Despite many public statements at the highest level assuring commitment to environmental protection
and sustainability, the Jamaican government has failed to operationalize these promises. Deforestation,
soil erosion, degradation of coastal ecosystems, over-fishing, poor air quality, poorly managed parks
and protected areas, pollution of harbours, rivers, streams and aquifers, unplanned and unregulated
settlements in areas most vulnerable to natural disasters, inadequate management of solid and liquid
waste, and poor development planning and control are key features of the state of Jamaica’s natural
environment. It has long been recognized that the weakness of the environmental regulatory and
institutional framework is the primary obstacle to good environmental stewardship.
The promulgation of the Natural Resources Conservation Authority Act in 1991 ostensibly sought
to address the extant fragmentation of multiple laws, policies and regulations, the majority of
them incomplete and not promulgated, but almost thirty years later, the consolidation of Jamaica’s
environmental regulatory framework remains unfinished business.
2 | BEYOND PET BOTTLES AND PLASTIC BAGS
Given the seriousness of the problem and Jamaica’s
vulnerability to the impacts of environmental degradation
on the economy and public health, this report seeks to obtain
a better understanding of why the environmental protection
framework is so weak, and how it can be strengthened. This
report reviews and assesses four aspects of Jamaica’s planning
and environmental legislative and enforcement framework,
with a view to identifying weaknesses and proposing
remedies:
» The Natural Resources Conservation Authority Act of
1991, relevant regulations and the permit and licensing
system
» The Town and Country Planning Act of 1958 and
Development Orders
» The environmental impact assessment process
» Monitoring and enforcement procedures
The early commitment to protection of the environment
via the Natural Resources Conservation Authority Act has
never been delivered. A culture of non-compliance with
environmental rules has evolved, a culture in which state
agencies and private sector actors are not constrained by laws
or regulations in their actions, regardless of the environmental
effects. This culture of impunity has been exacerbated by a
lack of enforcement of the Permit and Licensing System
that was put in place five years after the promulgation of
the NRCA Act, where environmental permits and licenses
were to be issued for a wide range of types of development.
There is an absence of effective enforcement measures,
including the application of sanctions. Monitoring of the
health of the natural environment remains extremely weak.
There are significant execution gaps, and many identified
solutions, policies, plans and programmes take far too long
to be implemented. What has existed for nearly 30 years is
a situation where overlapping and diffuse responsibilities
for the environment remain spread across many different
government agencies, leading to confusion, delays and
deflection of responsibilities.
What then remains is an environmental regulatory
framework comprised of a long list of worthwhile intentions,
codified in incomplete policies, and characterized by failure
to act over long time periods. Many recommendations have
simply not been carried out, many plans not implemented,
and many declarations not followed through. The main
weakness of Jamaica’s environmental framework is lack
of sufficient interest on the part of the government and its
agents to protect our natural environment in a substantive
way. While there are specific areas that call for attention, such
as the current ineffectiveness of low fines, and the need for
greater and more meaningful public engagement, the most
important change that is needed in Jamaica is a commitment
to execute and complete identified actions.
The report recommends:
» Promulgate the NEPA Act as an urgent priority
» Complete and promulgate the environmental impact
assessment regulations
» Complete and promulgate the regulations for all types of
parks and protected areas
» Increase fines and sanctions for breaches of the NRCA
Act and regulations
» Complete the remaining Development Orders and
conduct public outreach on their provisions
» Rationalize and complete draft environmental policies
» Fast-track the National Spatial Plan
» Settle the location of the environmental portfolio for at
least ten years
» Establish a Parliamentary Commission on the
Environment
» Investigate the Feasibility of an Environmental Court for
Jamaica
BEYOND PLASTIC BAGS AND PET BOTTLES | 3
1. INTRODUCTION
The state of Jamaica’s natural environment, and its management, have been documented by the Jamaican
government in a series of six reports between 1987 and 2013.1 The reports consistently describe
deforestation, soil erosion, degradation of coastal ecosystems, over-fishing, poor air quality, poorly
managed parks and protected areas, pollution of harbours, rivers, streams and aquifers, unplanned and
unregulated settlements in areas most vulnerable to natural disasters, inadequate management of solid
and liquid waste, and poor development planning and control.
The very first State of the Environment (SOE) Report, the Jamaica Country Environment Profile
(CEP) in 1987, identified the weakness of the environmental regulatory and institutional framework
as an obstacle to good environmental stewardship: “…a review of the institutional framework that
existed in the 1960s to early 1970s reveals a fragmented approach to environmental management,
with numerous agencies and committees sharing responsibility for the administration of various
environmental laws.”2 The CEP also identified the chronic shortage of technical staff as an obstacle.
The promulgation of the Natural Resources Conservation Authority Act in 1991 ostensibly sought to
address this fragmentation, but almost thirty years later, the consolidation of Jamaica’s environmental
regulatory framework remains unfinished business.3
1 State of the Environment (SOE) Reports have been done in 1995, 1997, 2001, 2010 and 2013. The State of the Environment
Reports will hereinafter be footnoted as “SOE” with the relevant year.
2 “Jamaica Country Environmental Profile,” Natural Resources Conservation Division, Ministry of Agriculture, 1987.
3 SOE (2010), p. 138.
4 | BEYOND PET BOTTLES AND PLASTIC BAGS
One of the goals of Jamaica’s National Development
Plan, Vision 2030, is that Jamaica has a healthy natural
environment.4 Vision 2030 outlines examples of Jamaica’s
environmental problems as follows:
» 94 per cent of Jamaica’s forests is disturbed and more
than 20 per cent of land within forest reserves has been
impacted by human activity;
» Almost all of our watersheds have been impacted
by human activity and experience some level of
degradation;
» All major river courses receive pollutants at some
point from industrial waste, sewage, silt, debris, and
agricultural run-off;
» 30 per cent of mangrove forests has been lost due to
activities such as infilling for construction of hotel and
housing developments;
» Land use pressures have resulted in environmental
degradation, including exacerbation of erosion
and flooding, degraded and diminishing wetlands,
compromised water resources, and deteriorating coral
reefs. Land use pressures are greatest in the coastal
and urban areas. Contributing factors are related to poor
agricultural and forestry practices, human encroachment
in forest reserves and protected areas, urbanization, and
population growth in vulnerable areas;
» Direct release of pollutants to the air occurs from
economic activities such as bauxite and alumina mining
and production.
Jamaica is ranked 78th out of 180 countries in the 2018
Environmental Performance Index, behind its Caribbean
neighbours of Trinidad and Tobago, St. Vincent and the
Grenadines, the Dominican Republic, Cuba, Dominica, and
Antigua and Barbuda.5
Given the seriousness of the problem and Jamaica’s
vulnerability to the impacts of environmental degradation
on the economy and public health, there is an urgent
and objective need for a better understanding of why the
environmental protection framework is so weak, and how it
can be strengthened.
This report reviews and assesses four aspects of Jamaica’s
planning and environmental legislative and enforcement
framework, with a view to identifying weaknesses and
proposing remedies:
» The Natural Resources Conservation Authority Act of
1991, relevant regulations and the permit and licensing
system
» The Town and Country Planning Act of 1958 and
Development Orders
» The environmental impact assessment process
» Monitoring and enforcement procedures
The report conducts detailed reviews of the main
environment and planning statutes and orders, the State of
the Environment (SOE) Reports between 1997 and 2013, and
a number of other relevant reports such as Auditor General’s
performance audits, green papers (policies), and reports
issued by environmental NGOs. Interviews with key actors
and stakeholders were conducted to gather additional data
and insights not contained in the reports.
4 “Vision 2030 Jamaica, National Development Plan,” 2009. Planning Institute of Jamaica. (www.vision2030.gov.jm/National-Development-Plan)
5 Yale Center for Environmental Law & Policy, “2018 Environmental Performance Index.” (https://epi.envirocenter.yale.edu/downloads/
epi2018policymakerssummaryv01.pdf). The Environmental Performance Index ranks country performance on high priority environmental issues.
BEYOND PET BOTTLES AND PLASTIC BAGS | 5
2. THE LEGAL AND
INSTITUTIONAL FRAMEWORK:
SYSTEM FAILURE
The protection and use of Jamaica’s natural environment is governed by a number of laws administered
by various state agencies across different ministries. Some policy direction is set by the environmental
minister with regard to specific environment-related matters, with the idea that these policies and
the respective legal mandates are carried out by the relevant technical agencies and/or ministry staff.
However there are other environment-related matters that are administered by other government
agencies and ministries, pertaining to other laws and regulations, and these often overlap with the
direct functions of the environmental ministries and agencies. For example, mining and quarrying is
governed by the Mining Act of 1947 and the Quarries Control Act of 1984, which is regulated by the
Mines and Geology Division, currently under the portfolio of the Ministry of Transport and Mining.
This complex regulatory framework has not delivered an effective environmental management regime
for Jamaica, as deterioration of natural resources continues to be evident.
6 | BEYOND PET BOTTLES AND PLASTIC BAGS
2.1 NATURAL RESOURCES CONSERVATION
AUTHORITY ACT 1991
The first and most significant of the environment-specific
laws is the Natural Resources Conservation Authority Act
(NRCAA) of 1991, which established the Natural Resources
Conservation Authority (NRCA), to “take such steps as
are necessary for the effective management of the physical
environment of Jamaica so as to ensure the conservation,
protection, and proper use of its natural resources.”6 The
NRCAA is Jamaica’s main environmental statute and it
regulates specific categories of enterprise, construction
and development which have been declared in the Order
and take place anywhere in Jamaica.7 An order under the
NRCAA 1996 Permit and Licensing regulations conferred
prescribed area status on the entire island, giving the NRCA
jurisdiction over any activity conducted anywhere in Jamaica
which could result in damage to the natural environment or
public health.8 There is also provision for Ministerial Orders
for protection of the environment under Section 32 of the
NRCA Act.
The NRCAA and its corresponding regulations (emission
standards and regulations, wastewater and sludge, permit
and licensing regulations, marine parks, national parks, and
movement of hazardous waste) give the broadest powers
relating to environmental protection to any single body in
Jamaica.9 These powers are highly discretionary and include
the authority to:
» Issue permits and licenses to guide specific categories of
development that are likely to pose harm to the natural
environment or public health and therefore require an
environmental permit;10
» Regulate air emissions and discharges of liquid
effluent;11
» Require an environmental impact assessment (EIA)
for any development that is having or likely to have an
adverse impact on the environment;12
» Carry out enforcement action (warning notices,
enforcement notices, breach notices, cessation notices,
suspension or withdrawal of permits, verbal warnings,
legal action) against any undertaking which “poses
a serious threat to the natural resources or to public
health” anywhere in Jamaica;13
» Carry out and recover costs of a cleanup or restoration of
environmental damage;14
» Make orders, declare, and manage national parks and
protected areas;15
» Establish regulations, codes of practice, standards and
guidelines regarding any sort of development;16
» Promote public awareness “of the ecological systems of
Jamaica” and their importance;17 and,
» Advise the relevant minister on matters of general policy
relating to the environment.18
6 The Natural Resources Conservation Authority Act 1991, s. 4(1)(a). The URLs for all the laws and regulations mentioned in this report are in Appendices 3
& 4.
7 The Natural Resources Conservation Authority Act 1991, s. 9(1).
8 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) Order, 1996; The Natural Resources
(Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015.
9 “Regulations,” National Environment and Planning Agency, last updated December 31, 2014. (http://nepa.gov.jm/new/legal_matters/legal_framework/
regulations.php)
10 The Natural Resources Conservation Authority Act 1991, s. 9(1). Development here can mean virtually any physical structure or alteration to the natural
environment, including roads, airports, ports, hotels, farms, housing developments, and fish farms.
11 Regulations exist pertaining to types of factories, but not—so far—for ships, and not for cars.
12 The Natural Resources Conservation Authority Act 1991, s. 10(1)(b).
13 The Natural Resources Conservation Authority Act 1991, s. 11, 13, 15, 17, 18.
14 The Natural Resources Conservation Authority Act 1991, s. 19(1)
15 The Natural Resources Conservation Authority Act 1991, s. 4(1)(c), 5(1).
16 The Natural Resources Conservation Authority Act 1991, s. 4(2)(d).
17 The Natural Resources Conservation Authority Act 1991, s. 4(1)(b).
18 The Natural Resources Conservation Authority Act 1991, s. 4(1)(d).
BEYOND PET BOTTLES AND PLASTIC BAGS | 7
GOVERNANCE OF THE IMPLEMENTING BODY
TThe NRCA, generally referred to as “the Authority,” or the
NRCA Board, consists of between seven and ten members
appointed by the relevant minister for a renewable term, not
to exceed three years for each term.19 The “relevant minister”
is determined by which ministry the environmental portfolio
is assigned to.
Since its inception, the environmental portfolio (as it is
embodied by the NRCA) has fallen under 13 different
government ministries and been led by 11 different
ministers, including two Prime Ministers.20 Placing the
environmental portfolio within other ministries, often with
explicit development mandates such as tourism or housing,
can lead to conflicts of interest. Inevitably, the environmental
mandate loses.
Since the change in administration in 2016, portfolio
responsibility for the environment falls under the Ministry of
Economic Growth and Job Creation at the Office of the Prime
Minister. The de jure environmental minister is therefore the
Prime Minister. The Prime Minister has, however, delegated
the environmental portfolio to Minister without Portfolio in
the Office of the Prime Minister, the Hon. Daryl Vaz, who is
thus the de facto environmental minister.
19 The Natural Resources Conservation Authority Act 1991, First Schedule 1, 3(1).
20 Under the Westminster-Whitehall system of government, the model of Jamaica’s democratic system, the cabinet is comprised of members of Parliament of
the ruling party, and from the ruling party’s senators. With each change of administration there is often a shuffling of the tasks and responsibilities that come
under various cabinet portfolios.
Table 4: Movement of the Environmental Portfolio 1991-2018
DATES MINISTRY
MINISTER WITH PORTFOLIO RESPONSIBILITY
FOR THE ENVIRONMENT
1991 Ministry of Development, Planning and Production Hon. P.J. Patterson
1992 Ministry of Tourism and the Environment Hon. John Junor
1993 Ministry of Public Service and the Environment Hon. Easton Douglas
1995 Ministry of Environment and Housing Hon. Easton Douglas
2000/1
Office of the Deputy Prime Minister and the Ministry of
Land and Environment
Hon. Seymour Mullings
2001/2 Ministry of Land and Environment Hon. Horace Dalley
2002/6 Ministry of Land and Environment Hon. Dean Peart
2006/7 Ministry of Local Government and Environment Hon. Dean Peart
2007/8 Ministry of Health and Environment Hon. Rudyard Spencer
2008/11 Office of the Prime Minister
Most Hon. Bruce Golding
Hon. Daryl Vaz (Minister without portfolio)
? (short period) Ministry of Water and Housing Hon. Horace Chang
2011 Ministry of Water, Environment and Housing Hon. Horace Chang
2011
Ministry of Water, Environment, Housing and Local
Government
Hon. Horace Chang
2012/16 Ministry of Water, Land, Environment and Climate Change Hon. Robert Pickersgill
2016 Ministry of Economic Growth and Job Creation
Most. Hon. Andrew Holness
Hon. Daryl Vaz (Minister without portfolio)
Source: NEPA Key: Orange – Government formed by the Peoples National Party; Green – Government formed by the Jamaica Labour Party
8 | BEYOND PET BOTTLES AND PLASTIC BAGS
Board appointees are political appointments. When the
administration changes, the directors of all state boards
typically resign to be replaced by others more aligned with the
new administration, a process which can cause considerable
delay as well as find certain well-connected people sitting on
multiple boards. As such, directors’ main qualification tends
to be an affiliation to the ruling party; they are not necessarily
equipped with the required technical knowledge to assess
the recommendations of the agency’s technical staff, nor
do many of them have any experience with environmental
matters. While the argument may be made that it is the role
of the salaried technocrats within the agency to carry out its
mandate, there is an informed view that the boards should be
populated by people concerned with conservation, and with
experience and insight in ecological matters, sustainability,
and climate resilience. While the technical agency provides the
political directorate with lists of competent persons with those
attributes and qualifications, these seem to be of limited value,
as the practice has been that those who are appointed generally
do not meet that criteria.21 While there is often a selection of
a highly visible and/or well-known environmental advocate,
it is generally just one or two people with insufficient clout to
have any meaningful influence on the board’s decisions. The
appointment of sufficient numbers of people with a known or
stated interest in the environment seldom occurs. This issue of
lack of specific expertise related to the organization’s mandate
was recognized by the administration in 2016 as a problem
across all state boards and a proposed reform was promulgated
in 2018.
The NRCA Board carries out its work by various modalities,
including communicating government policy directions,
monthly and ad hoc board meetings, monthly subcommittee
meetings, review of technical reports and directing specific
interventions for protection/preservation of the environment.22
The number and type of sub-committees vary, but generally
include a Technical Review Committee, a Beaches and Coastal
Resources Management Committee, a Biodiversity and Game
Birds Committee, a Legal and Enforcement Committee, and
an Air Quality Management Committee.23 Each committee is
guided by its own Terms of Reference. The Technical Review
Committee, for example, reviews all applications for permits
and licenses, and recommends approval or rejection to the
NRCA Board, along with suitable permit/license conditions.
The Act explicitly gives the minister broad discretionary
powers, and the regulations allow for ministerial discretion to
“give directions of a general character” regarding policy and
the performance of the NRCA’s functions.24 An “aggrieved
person” has the right to appeal against any decision of the
NRCA in relation to a permit or license, and the Minister has
wide powers to vary or uphold decisions and does not have
to give reasons.25 An aggrieved person is defined as anyone
who has been refused a permit or license, or who objects to the
terms and conditions of the permit/license.26 The Minister’s
decision is final.27 The implications of the Act’s openness in this
regard are manifest. Regardless of the intentions of the NRCA
salaried staff or even the appointed board, the minister’s
intentions, however ill-advised, will prevail. The Minister can
ignore the recommendations of his technical staff, legally, and
there is no explicit right of appeal contained in the NRCA Act
for the public to object to the granting of permits/licenses, or to
challenge their conditions. The public can, however, subject a
minister’s final decision to judicial review by the courts. A 2010
Green Paper on a proposed new environmental regulatory
authority included a specific provision to protect the proposed
entity from interference from the political directorate.28 (The
new authority never materialized.)
There are other aspects of the Act which allow for highly
discretionary decisions, and where the Act is open to
interpretation. Chief among these is the word “may”. The
Act uses the word “may” to cover most of the Authority’s
functions. For example, Section 2, 1 (a) reads: “The Authority
may develop, implement and monitor plans and programmes
relating to the management of the environment and the
conservation and protection of natural resources.” Section 6
(a,b): “The Authority may grant a permit subject to such terms
and conditions as it thinks fit; or refuse to grant a permit.”
The unwieldiness of the regulatory framework further lends
to the Act’s inefficacy. Section 9 of the NRCA Act requires the
Authority to consult “any agency or department of Government
exercising functions in connection with the environment.”
This is extremely broad, and the law prescribes no time frame
for response. The website of the National Environment and
Planning Agency (NEPA) lists 100 statutes and regulations
relating to the environment.29 Applications for large projects
may have to be reviewed by over 20 state agencies, spanning
several ministries.
21 Franklyn McDonald, former Executive Director of NRCA and CEO of the National Environment and Planning Agency (NEPA) 1992-2004, phone
conversations with author, August 22, 2018.
22 Peter Knight, CEO of NEPA, e-mail to author, October 4, 2018.
23 NEPA executives, personal interviews with author, September 3, 2018.
24 The Natural Resources Conservation Authority Act 1991, s. 7.
25 The Natural Resources Conservation Authority Act 1991, s. 35(1) and (2).
26 The Natural Resources Conservation Authority Act 1991, s. 35(3).
27 The Natural Resources Conservation Authority Act 1991, s. 35(2).
28 Whether this was inserted in the proposal because of specific concerns about ministerial overreach in environmental matters, or was simply a reflection of
broader concerns about the abuse of ministerial power, is not clear.
29 “Environmental and Planning Laws of Jamaica,” National Environment and Planning Agency, last updated July 9, 2018. (http://nepa.gov.jm/new/legal
matters/laws/). NEPA, which is discussed in much greater detail further on, was created in 2001 as a state executive agency to carry out the technical
(functional) and administrative mandate of the three statutory bodies: the Natural Resources & Conservation Authority (NRCA), the Town & Country
Planning Authority (TCPA), and the Land Development & Utilisation Commission (LDUC).
BEYOND PET BOTTLES AND PLASTIC BAGS | 9
Table 1: Partial list of state agencies that exercise environmental functions
1
Environmental Health Unit (EHU) (e.g. all
sewage treatment facilities)
13
Office of Disaster Preparedness and Emergency
Management (ODPEM) (e.g. developments
which increase vulnerability to natural disasters
or occur in flood or earthquake zones)
2
National Water Commission (NWC) (e.g. new
housing developments requiring water supply
14
Parish Councils, now called Municipal
Corporations (on a case by case basis)
3
National Environment and Planning Agency
(NEPA) (e.g. all developments which could affect
the environment or public health
15
National Land Agency (NLA) (e.g. developments
occurring on Crown lands)
4
Jamaica Public Service Company Ltd. (JPSCo)
(e.g. new housing developments requiring
electricity supply)
16
National Irrigation Commission (NIC) (e.g.
farming projects requiring water for irrigation)
5 National Works Agency (NWA) (e.g. roads) 17
Rural Agriculture Development Authority
(RADA) (e.g. developments occurring in areas
designated for agriculture)
6
Jamaica Fire Brigade (JFB) (e.g. multi storey
buildings, or any development where access to
fight fires is an issue)
18
Civil Aviation Authority (CAA) (e.g. multi storey
developments whose height or location might
impede air traffic)
7
Jamaica Bauxite Institute (JBI) (e.g. bauxite
mining or processing, bauxite roads)
19
Urban Development Corporation (UDC) (e.g.
projects taking place on land owned by the UDC)
8
Mines and Geology Division (MGD) (e.g.
all mining or quarrying projects, including
prospecting)
20
Island Traffic Authority (ITA) (e.g. regulations to
control vehicular emissions)
9
Water Resources Authority (WRA) (e.g.
developments which want to abstract water for
farming or domestic use)
21
National Solid Waste Management Authority
(NSWMA) (e.g. projects which generate solid
waste, or in areas where solid waste collectionis
inadequate)
10
Forestry Department (e.g. developments taking
place in forest reserves)
22
Ministry of Economic Growth and Job Creation
(MEGJC)30 (e.g. projects which may conflict with
official policy)
11
Fisheries Division (e.g. activities taking place
in marine parks, requiring quotas for protected
species)
23
Customs Department (e.g. importation of goods
which could affect the environment or public
health)
12
Jamaica National Heritage Trust (JNHT) (e.g.
developments which could affect heritage
resources)
24
Ministry of Agriculture (MOA), Plant and
Animal Quarantine Division (e.g. importation
of live animals which could introduce diseases or
become invasive if allowed to escape)
30 Compiled from SOE (2010) and “Establishment of an Environmental Regulatory Authority,” Green Paper No 2/2010, Public Sector Modernisation Division,
Office of the Cabinet (Jamaica), November 16, 2010. (http://japarliament.gov.jm/attachments/440_Green%20Paper%20No.%202%20-%202010%20pt1.pdf)
Hereinafter referred to as Green Paper No 2/2010.
In addition to the sheer number of agencies that may
“exercise functions in connection with the environment”,
many of them perform overlapping functions. For example,
with regard to air quality, there are four state agencies:
NEPA, via air quality standards under the NRCA Permit and
Licensing regulations; the Ministry of Health via the Public
Health Nuisance Regulations; the Jamaica Fire Brigade via
Country Fires Act; and the Jamaica Bauxite Institute (JBI),
via delegation of environmental monitoring of the bauxite
industry. There are five agencies whose work pertains
to water: NEPA, regarding raw water quality; the Water
Resources Authority, regarding underground and surface
water resources; the National Water Commission, regarding
treated water; the Forestry Department, regarding forests
and watersheds; and the Ministry of Health regarding treated
water quality.31
10 | BEYOND PET BOTTLES AND PLASTIC BAGS
31 SOE (2010), SOE (2013).
Beach Control Act 1956, most
recent amendment 1991
Endangered Species
(Protection, Conservation and
Regulation of Trade) Act 2000
Wildlife Protection Act 1945,
most recent amendment 2016
Town and Country Planning
Act 1958
Watersheds Protection Act
1963, most recent amendment
1991
Table 2: Other main environmental statutes administered by NRCA
Table 3: Sample of environmental statutes NOT administered by NRCA
1 Forestry Act 1996 9 Fisheries Industry Act 1976
2
National Solid Waste Management Authority Act
2001
10 Clean Air Act 1974
3 Public Health (Nuisance Regulations) 1995 11 Country Fires Act 1942
4 Building Act 2017 12 Pesticides Act 1987
5 Housing Act 1969 13 Water Resources Act 1995
6 Urban Development Control Act 1968 14 Quarries Control Act 1984
7 Exclusive Economic Zone Act 1991 15 Mining Act 1947
8 Maritime Areas Act 1996
BEYOND PET BOTTLES AND PLASTIC BAGS | 11
BINDS THE CROWN
While the NRCA is obliged by the Act to consult a plethora
of state agencies, Section 39 of the Natural Resources
Conservation Authority Act empowers the NRCA to take
enforcement action against state agencies which are either
in breach of permits/licenses, or have not applied for or
been granted a permit or license before carrying out a
development. When a statute explicitly requires adherence
by the state, this is referred to as “binding the Crown”. In
practice, however, effective and meaningful sanctions against
state agencies is rare.32 For example, in September 2018,
seven of eight of Jamaica’s “approved” waste disposal sites are
operating without the permits required by law.33
Poorly managed waste disposal sites can have significant
environmental impacts on air, water and public health.
Properly designed and managed sanitary landfills are lined
to prevent contamination of ground water, collect all gases
and leachate (water contaminated by flowing through or over
the waste) for treatment, are covered daily to prevent fires,
and separate different types of waste for processing. Access
to a sanitary landfill is strictly controlled and workers wear
protective gear. All Jamaica’s waste disposal sites are accessible
to the public due to lack of fencing and inadequate security
and in some cases, people live on the dumpsites. Jamaica has
no sanitary landfills.
The sewage treatment plants operated by the National Water
Commission are another example of state agencies failing to
adhere to the law, without sanction. An internal NEPA report
from 2004-2005 found that there was “very low frequency”
of monitoring visits by NEPA, and compliance with effluent
standards was “an alarming situation”, with only 40% of
sewage treatment plants meeting standards for Biological
Oxygen Demand (BOD).34 The report described the waste
treatment sector as in a “woeful state”, with specific mention
of improper plant design, old technology, overloading, poor
maintenance, and improper operations.35
Some five years later, there was a 26% compliance rate for
the National Water Commission’s sewage treatment plans, a
37% rate for plants operated by the GOJ, and none of nine
hospitals with sewage treatment plants met standards.36 The
situation continues to be grim: in 2013 only 4% of the Water
Commission’s sewage treatment plants were in compliance,
and only 33% of GOJ-operated plants met standards. There
were fewer hospital sewage plants, from nine to five, and
one was by then meeting standards. Even the hotel-operated
STPs met standards only 54% of the time.37
This surfeit of GOJ agencies that exercise functions
regarding the environment affects both those who apply for
permits and licenses and the general public. The Natural
Resources Conservation Authority Act’s requirement for
consultation can cause considerable delay in processing
development applications. Further, the responsibility for
regulating environmental issues resides in numerous state
agencies under multiple laws, resulting in a lack of clarity
for developers, the public, and, it would appear, the agencies
themselves, which readily deflect responsibility, sometimes
incorrectly. For example, citizens affected by the burning
of trash or the clearing of land by fire (open burning) are
often told by NEPA to call the Ministry of Health, but the
Ministry of Health then advises that they are only responsible
for indoor air quality and suggests a call to the Jamaica Fire
Brigade.
32 NEPA regards enforcement action, regardless of outcome, as a sanction. For example, although the dumps have been operating illegally NEPA has neither
closed them nor taken them to court. Nevertheless they regard the enforcement notice they sent as a sanction.
33 National Environmental Planning Agency (NEPA) senior director, personal communication with author, September 3, 2018. The Riverton Dump (waste
disposal site) was granted an environmental permit in 2005, which was suspended, although the dump continued to operate. The permit expired in 2010
without adherence to any of its conditions, and was not reissued until 2018. The Riverton waste disposal site now has been issued with two environmental
permits, governing general disposal and hazardous waste disposal.
34 Biological Oxygen Demand (BOD) is the amount of dissolved oxygen needed by aerobic biological organisms to break down organic material present in a
given water sample. It is a common measure of water quality.
35 Dillard Knight, “State of the Sewage Treatment and Disposal Sector in Jamaica: Towards meeting the requirements of local sewage effluent regulations and
the LBS protocol,” 2004.
36 SOE (2010).
37 SOE (2013), p. 210.
12 | BEYOND PET BOTTLES AND PLASTIC BAGS
NEPA’s Wastewater Treatment Plant audit report (2017-2018)
of the National Water Commission plants showed 46.3%
of NWC plants produced effluent of poor quality (meeting
less than two of the required parameters), 41.4% produced
effluent deemed satisfactory by NEPA (meeting three to
four of the required parameters), and 12.2% produced
effluent of good quality (meeting five to six of the required
parameters). None of the NWC’s plants audited met all of the
required standards. One of the plants producing poor quality
effluent was the Soapberry Wastewater Treatment Plant in St.
Catherine, the main sewage plant for Kingston and environs.
NEPA’s audit report went on to list the following concerns
regarding the NWC plants:
1. While the aesthetics of some plants especially
those with current licensees could be considered
satisfactory, most were in a deplorable state.
2. Many of the facilities were considered operational;
however some had non-functional mechanical
component(s) or the overall plant was not working
efficiently.
3. 95% of the plants lacked flow meters or a flow
measuring mechanism.
4. Some plants had inadequate supply of chlorine for
the disinfection of the effluent.
5. In some instances the wastewater treatment plants
were used as a walkway for nearby residents as well as
housing for squatters.
6. Livestock were observed to be tied or loitering at
some facilities.
7. The majority of the facilities are not licenced under
the current Wastewater and Sludge Regulations.
8. Insufficient effluent data submitted to the Agency for
some plants.38
Inadequate treatment of sewage threatens public health, due
to the discharge of bacteria-laden effluent into water bodies,
drainage channels, or on land, where it is eventually washed
to the sea in heavy rain. The nutrients in sewage also harm
coral reefs, causing algae to grow over the reefs, killing them.
This failure in the area of sewage treatment, and the absence
of any punitive action taken against those operating plants
that consistently do not meet basic standards set out in law,
is emblematic of the overall picture of impunity enjoyed
by state agencies who perpetuate environmental breaches.
Throughout the system there is little political will to apply
sanctions to state agencies. Various enforcement measures
(enforcement notices, stop orders and others) are used, but
prosecutions are rare. In any event, the fines are so low that
they do not deter breaches, so that even in those cases where
a fine is levied it is generally painless. State agencies in breach
of environmental laws may claim there is insufficient budget
to carry out statutory functions, but it is not clear whether
this is an adequate defence in law. Cases argued before United
Kingdom (UK) courts have reached different conclusions
on this point, depending on whether the applicable statute
imposed a duty or a power on the government agency.39 This
principle has not been tested in Jamaican courts, although
there was a case brought by the Jamaica Environment Trust
and Harbour View residents in 2010 challenging the National
Water Commission’s failure to effectively operate the Harbour
View Sewage Treatment Plant, which ended with a consent
order whereby the National Water Commission agreed to fix
the plant.40
There is a moral hazard contained in this dynamic. Even in
the event that the NRCA exercises its powers in this regard,
and a violation does become a matter for the court, this is a
no-win situation: if prosecution against state agencies results
in a fine, it would have to be paid by taxpayers. There are also
hurdles to enforcement action against entities that manage
essential facilities and services such as sewage treatment
plants and waste disposal sites, because they cannot simply
be shut down, however poorly managed, given the massive
inconvenience to the entire society, and the likely greater
environmental degradation that would result. Indeed,
malfunctioning sewage plants cannot be closed, they can only
be decommissioned after an alternative method of sewage
treatment has been found, which would also take resources,
the lack of which would have brought about the compliance
failures in the first instance.
The visible breaches of environmental standards by state
agencies and the general understanding that they can “get
away” with low standards, weak compliance, and causing
damage to the natural environment establishes a perverse
norm that is then followed by private citizens and businesses.
The state’s example, together with the extant complexity
and lack of clarity on which agency has responsibility for
what aspect of the environment, makes for a regulatory
environment that is observed mostly in the breach.
38 “Wastewater Treatment Plant Audit Report, April 2017 – March 2018”, NEPA, 2018.
39 R. v East Sussex CC Ex.p. Tandy [1998] AC 714; R. v Gloucestershire CC Ex.p. Barry [1997] AC 584.
40 Jamaica Environment Trust et al v National Water Commission and Others, (unreported), Supreme Court, Jamaica, Claim no. HCV 00114 of 2010, judgment
delivered 6 July 2010. (www.caribbeanenvirolaw.org/sites/default/files/JET_v_NWC_andOthers_FinalOrder_FiledJuly6_2010.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 13
INEFFECTIVE PENALTIES DECIDED ON AND LEVIED IN A FLAWED SYSTEM
Governments use disincentive policies such as fines or
penalties to punish those who do not comply with laws and
rules. However, the penalties under the NRCA Act are so low
that they are virtually meaningless, and hardly disincentivize
anyone to comply with the law.
In Jamaica in 2018, the fines of J$20,000.00 for failing to
comply with notices or orders, and J$50,000 for an offending
activity, are likely a fraction of the gain that the rule-breaker
is making in their offence. Where offences are continuing,
the fine is J$3,000.00 per day for each day on which the
offence continues after conviction.41 It is likely that better
suits a developer to break the rule and pay the fine than to
curtail his (or her) activity.
The system via which fines are imposed is itself a flawed
process. Fines are imposed after successful prosecution in
a Resident Magistrate’s Court, and court cases take many
years to bring to conclusion. An example of such a case is R v
Nordie Smith: The defendant was charged with undertaking
a development of a prescribed description (construction and
operation of a sewage treatment facility) without a permit,
contrary to s.9(2) of the Natural Resources Conservation
Authority Act. The first court date was 23 January 2013. The
defendant was to apply for the required permit by 24 July
2013, and the court then instructed NEPA to meet with the
defendant to guide him through the application process. The
first mention date was 22 January 2014, and the trial began
on 20 October 2014. After eight adjournments, the defendant
was “admonished and discharged” on 20 September 2018 as
being, by then, “fully compliant”.
In the case of failure to pay the fine the punishment is
imprisonment for a term not exceeding two years, a
considerably more weighty sanction but no one in Jamaica
has ever been incarcerated for an environmental crime as
fines are usually paid.
NEPA’s website lists only five cases currently before the
courts, with no indication as to start dates.42 A 2017-2018
unpublished list was made available by NEPA,43 showing 19
legal cases before the Parish Courts under four Acts – the
Natural Resources Conservation Authority Act, the Town
and Country Planning Act, the Beach Control Act, and the
Wildlife Protection Act. Except for the cases under the Beach
Control Act and one under the Wildlife Protection Act, all
fines imposed by the court under the Natural Resources
Conservation Authority Act were less than J$50,000.00. The
Auditor General’s (AG) 2016 performance review of NEPA
identified 452 cases referred to NEPA’s legal branch between
April 2012 to March 2015, but only 11 cases before the
courts.44
In the absence of effective deterrents (fines are too low), and
where court cases take many years to be heard, NEPA has
not employed other techniques to ensure compliance with
environmental laws or statutes. NEPA does not use “name
and shame” techniques effectively, with the result that even
successful court cases do not serve as a deterrent to others as
few know about them.45
41 Fines are higher under some of the other acts administered by NEPA, notably the Wildlife Protection Act (WPA), the Endangered Species (Protection,
Conservation and Regulation of Trade) Act and the Beach Control Act (BCA).
42 “Matters which have been heard/are to be heard before the Parish Courts, 2017-2018,” NEPA, undated. (http://nepa.gov.jm/new/legal_matters/legal_
framework/docs/court_cases.pdf)
43 Ibid.
44 Auditor General (2016).
45 “Name and shame” techniques may be used by regulatory agencies (or civil society groups) to publish the names of environmental offenders, usually private
sector companies, to encourage compliance.
14 | BEYOND PET BOTTLES AND PLASTIC BAGS
PERMIT AND LICENSING REGULATIONS (1996)
Section 9 of the NRCA Act forms the basis of the NRCA
(Permits and Licences) Regulations (1996) which came
into force in January 1997. The Permits and Licenses (P&L)
regulations require proponents of activities falling into so
called “prescribed categories” to apply for a permit or license
and pay the required fee. The P&L regulations provide for
the Authority to evaluate the potential environmental
impacts of these types of activity before they are underway.
The NRCA may refuse to issue a permit, order changes to
the plans to reduce environmental damage, modify or vary
permits/licenses, and revoke permits/licenses.46 The list of
prescribed categories in 2018 includes power generation
facilities, pipelines, port and harbour development, housing
projects of 10 houses or more, hotel complexes of more than
12 rooms, new highways, mining projects, solid, liquid and
hazardous waste treatment facilities, and many others.47
The Permit and Licensing Regulations were amended in
2004 and 2015. Prior to the 2015 amendment, an industry
which was already in operation before 1996 was not required
to apply for an environmental permit, even if the industry
fell into a prescribed category as outlined in the Permit and
Licensing Regulations. As of the 2015 amendment, however,
all industries/activities are now required to apply, even those
which have been in operation long before environmental
laws were passed.48 In practice, industries agree a compliance
plan with NEPA, which is supposed to bring their operation
into compliance with standards and regulations over a period
of years.
The consequences of breaches to environmental permits/
licenses, however, are insignificant. Typically, various
warnings, notices, and orders are issued by NEPA, developers
may be required to attend meetings, compliance plans
may be established, and projects might be shut down for
short periods, but permits are rarely withdrawn. Broadly,
environmental harm seems to be accepted as collateral
damage if “development objectives” are to be achieved. The
most infrequently applied type of enforcement action is
Suspension of Permit – only one was suspended between
2012 and 2015. By comparison, 163 enforcement notices
were issued over the same time period, 59 cessation orders,
70 stop notices, 50 notices of intention to suspend license or
permit, and 52 summons served.49
Permits and licenses may be approved and issued but not
collected, with the result that the proponent does not know
what the conditions of the permit or license are, which is an
obvious impediment to compliance. NEPA provided a list of
over 270 uncollected permits going back as far as 2008. Most
uncollected permits, however, were from 2015 to the present
date. In some cases, projects have not gone ahead, and some
beaches’ licenses are renewals, presumably with the identical
conditions as the expiring license. NEPA advised that this is
less of a problem than it used to be, due to permit fees having
to be paid at the application stage.50
The sanctions for failure to apply for the required permits/
licenses or for breaches to permits/licenses are weak. In
2016, draft instructions for increases in fines for both the
NRCAA and the Wildlife Protection Act were said to be in
preparation.51 Drafting instructions were completed in 2017,
and are said, in 2018, to be “far advanced.”52
46 The Natural Resources Conservation Authority Act 1991, s. 9 and 11.
47 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) Order, 1996; The Natural Resources
(Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015.
48 The Natural Resources (Prescribed Areas) (Prohibition of Categories of Enterprise, Construction and Development) (Amendment) Order, 2015, s. 2.
49 Auditor General (2016), p.18.
50 NEPA executives, ibid.
51 NEPA executives, ibid.
52 NEPA executives, ibid.
BEYOND PET BOTTLES AND PLASTIC BAGS | 15
VOLUNTARY COMPLIANCE AND VALIDATION OF SUBMITTED DATA
DELEGATION
The NRCA and NEPA have relied on voluntary compliance
throughout their history. Section 17 of the NRCA Act allows
for voluntary submission of data on emissions and effluent
to NEPA from business or state entities, but this is done
much less frequently following the 2015 amendment to the
Permit & Licensing regulations which require all prescribed
activities to apply for an environmental permit. Whether
under Section 17 or pursuant to an environmental permit,
the results reported may not be validated by NEPA, in part
due to the inability to conduct a wide range of air and water
quality tests, and inadequate laboratory facilities.53 NEPA
does not have all the required equipment and technical
expertise to spot check reported results.
Voluntary compliance is much more likely to occur where
there is a real possibility of unwelcome consequences to lack
of compliance, which is absent in Jamaica. Even in countries
with a strong regulatory framework, like the United States
of America (USA), an assessment of the success of the US
Environmental Protection Agency’s (EPA) flagship voluntary
compliance programmes found that they did not produce
much environmental benefit. “The EPA was never able to
demonstrate that regulated facilities that participated in
the Performance Track (voluntary compliance) had better
outcomes than facilities that did not participate.”54
The Natural Resources Conservation Authority may delegate
any of its functions under the Act, except the power to make
regulations.55 This power has been exercised to delegate
responsibility for environmental monitoring of the bauxite
industry to the Jamaica Bauxite Institute (JBI), a clear conflict
of interest, and to some non-governmental organizations
(NGOs) for the management of protected areas and national
parks, including marine parks.
The delegation of responsibility for parks and protected areas
has been only partially successful, as some NGOs have been
unable to raise sufficient funds to supplement the subvention
received from the Government of Jamaica (GOJ), or meet
due diligence requirements. The management of national
parks in Jamaica presents a mixed picture with some parks/
protected areas under very little visible management, such
as the Palisadoes/Port Royal Protected Area and the Negril
Environmental Protection Area, both currently managed by
NEPA, while others benefit from NGO efforts, such as the
Blue and John Crow Mountain National Park, managed by
the Jamaica Conservation and Development Trust, and the
Portland Bight Protected Area, managed by the Caribbean
Coastal Area Management Foundation.
All parks and protected areas in Jamaica are underfunded.56
National parks and marine parks have regulations under
the NRCA Act, but protected areas do not, which presents
a hurdle to enforcement. Some important areas remain
unprotected, such as the Cockpit Country; though a new
protected area was announced by the Prime Minister in
November 2017, the boundary has not yet been finalized.57
While delegation can bring new skills and funding to
environmental management, delegation agreements may
present conflicts of interest, and there is no guarantee
delegates will deliver adequate results. Oversight is still
needed by the NRCA/NEPA to ensure the terms and
conditions of delegation agreements are met. In some cases,
delegates have failed to deliver adequate results and have had
their delegation agreements terminated, such as the Negril
Coral Reef Preservation Society and the Negril Environment
Protection Trust, which together managed the Negril
Environmental Protection Area and the Negril Marine Park
up until March 2016.
53 “Review of the Legal and Policy Framework for Air and Water Quality in the Island of Jamaica,” Jamaica Environment Trust, August 2017, p. 8-9.
54 “Cary Coglianese and Jennifer Nash, “Motivating Without Mandates: The Role of Voluntary Programs in Environmental Governance Faculty Scholarship,
Paper 1647,” June 3, 2016. (http://scholarship.law.upenn.edu/faculty_scholarship/1647)
55 The Natural Resources Conservation Authority Act 1991, s.6.
56 Susan Otuokon, Executive Director, Jamaica Conservation and Development Trust, telephone interview with author, August 17, 2018.
57 Petre Williams-Raynor, “Earth Today | Cockpit Country Ground Truth Ongoing,” Gleaner, July 19, 2018. (http://jamaica-gleaner.com/article/news/20180719/
earth-today-cockpit-country-ground-truth-ongoing)
16 | BEYOND PET BOTTLES AND PLASTIC BAGS
58 The Town and Country Planning Act, 1958, s. 3 and First Schedule
59 The Town and Country Planning Act, 1958, s. 17-21 and 27.
60 The motivations for this effort are unclear but ought to be explored.
61 The Land Development and Utilization Act, 1966, s. 5, 8-9.
62 -
63 -
2.2 THE TOWN AND COUNTRY PLANNING ACT
2.3 LAND DEVELOPMENT AND UTILIZATION ACT
Jamaica’s main planning statute is the Town and Country
Planning Act of 1958 (with amendments 1991, 1993 and
1999). As with the Natural Resources Conservation Authority
Act, the law requires the minister to appoint a Town and
Country Planning Authority (TCPA) of not less than six
members, as well as an Advisory Planning Committee of
not less than three members.58 The TCP Act also outlines
compensation regimes in the event that development is
restricted or prohibited on privately owned land.59
The TCP Act’s main regulatory instruments are the
Development Orders through which the TCPA seeks
to control the development of land. Currently, there
is a concerted effort underway to update or produce
Development Orders for most of Jamaica,60 but for decades,
the TCPA and the Parish Councils were working with long
outdated Development Orders, or with areas of the island not
under any planning control at all. A Development Order for
Portmore, for example, after five decades of dense housing
development in a low-lying wetland area, only began to be
prepared in 2016 and up to 2018 was still in process. (The
TCPA and Development Orders are discussed in more detail
in the next section.)
The Land Development and Utilization Act (LDUA) was
passed in 1966 (amended in 1997) and constituted the
Land Development and Utilization Commission (LDUC),
consisting of nine members, appointed by the minister. The
main object of the Act is to ensure that land parcels over
ten acres that are designated as agricultural land are being
farmed, and that privately owned agricultural land is not
unused. The Act gives the Commission powers to declare
land idle, and if the owner or leaseholder fails to respond to
notices, the power to require vacant possession, though this
appears to be rarely applied.61
2.4 MERGER OF THE THREE MAIN AUTHORITIES
AND THE CREATION OF THE NATIONAL
ENVIRONMENT & PLANNING AGENCY
In 2001, the Natural Resources Conservation Authority,
the Town and Country Planning Authority, and the Land
Development and Utilization Commission were merged
to create the National Environment and Planning Agency
(NEPA). There was to be a phased approach to the merger,
including the repeal of the NRCAA and the promulgation of
a new NEPA Act, but this was never completed. As a result,
NEPA has continued to operate under multiple laws that
predate the organization. There is no legislation to give legal
authority to the agency, and it continues to depend on the
NRCA to make legally-binding decisions based on the NRCA
Act, and associated regulations and additional legislation that
have either not been finalized or operationalized.62
Following the change in administration in September 2007,
when the Jamaica Labour Party (JLP) took office, almost
the same individuals were appointed to both the Natural
Resources Conservation Authority and the Town and
Country Planning Authority boards, and board meetings
dealt with matters under both laws. The rationale was to
improve coordination between the environmental protection
and planning agencies. This has since continued though in
the most recent round of appointments, after the change
in administration in 2016, not all members appointed to
the first board term, 2016-8, were common to both boards.
Nevertheless, NEPA advised that, up to 2018, the NRCA and
the TCPA boards “meet as one body.”63
BEYOND PET BOTTLES AND PLASTIC BAGS | 17
The NRCA Board remains a statutory body, which through
its chairman, reports directly to the minister with portfolio
responsibility for the environment. NEPA is an executive
agency, which under the law (Executive Agencies Act) has
an advisory board, which should be comprised of persons
from the public and private sectors, and the function of
the advisory board is to advise the chief executive officer.
The full executive authority and total accountability for the
management of the agency are reposed in the position of the
chief executive officer, who reports directly to the responsible
minister. The advisory board has no legal power over the
agency’s actions or policy decisions. There is no articulated or
codified relationship between the NRCA board chair and the
NEPA CEO. Because the Natural Resources Conservation
Authority Act was never repealed, however, the Authority
continues to grant permits and instruct on enforcement,
while NEPA administers the decisions of the Authority along
with other functions, including public education. In effect
NEPA is the NRCA’s de facto agent. The Town and Country
Planning Authority also has its own Board, as does the Land
Development and Utilization Commission, although in the
latter case, meetings seem to be infrequent. They operate
along the same lines as the NRCA with regard to reporting
to the ministers, and implementation and enforcement, with
NEPA as their agent. This is an inherently unwieldy structure.
(See Figure 1.)
Figure 1. Organizational chart environmental governance and decision-making
CEO NEPA/Gov’t
Town Planner
MINISTER
(ENVIRONMENT PORTFOLIO)
Director General
Senior Directors
Ministry
Permanent
Secretary
Chief Technical
Director
Ministry Staff
TCPA ChairmanNRCA Chairman LDUC Chairman
TCPA BoardNRCA Board
NRCA Board
Committees
LDUC BoardSenior Directors NEPA
NEPA/TCPA Staff
18 | BEYOND PET BOTTLES AND PLASTIC BAGS
The decision to merge the Natural Resources Conservation
Authority, the Town and Country Planning Authority, and
the Land Development and Utilization Commission was
taken nearly two decades ago, yet there is still a question as to
whether the merger should proceed, or to revert to pre-merger
status.64 Both avenues have advantages and disadvantages,
but it is more likely that the merger will proceed. The biggest
drawback to this path is the extant need for new legislation,
which has very long lead times.
64 -
Figure 2: Members of statutory boards related to the environment, and NEPA Advisory Board 2016-2018
NATURAL
RESOURCES
CONSERVATION
AUTHORITY
(NRCA)
1. Hon. Danville Walker,
OJ – Chairman
2. Christopher Whyms-
Stone - Deputy
Chairman
3. Dr. Susan Otuokon
4. Gregory Mair
5. Robert Taylor
6. Denise Forrest
7. Dr. Geoffrey Williams
8. Stephen Edwards
9. Sean Azan
10. Mr. Peter Knight
TOWN AND
COUNTRY
PLANNING
AUTHORITY
(TCPA)
1. Hon. Danville Walker,
OJ - Chairman
2. Christopher Whyms-
Stone - Deputy
Chairman
3. Dr. Susan Otuokon
4. Gregory Mair
5. Robert Taylor
6. Andrew Issa
7. Robert Woodstock
8. Elizabeth Stair
9. Peter Knight - Ex Officio
Member
LAND
DEVELOPMENT
& UTILISATION
COMMITTEE
(LDUC) BOARD
1. Mr. Don Mullings -
Chairman
2. Mr. Peter Knight
3. Mrs. Elizabeth Stair
4. Mr. Ewan Simpson
5. Mr. Keith Blake
6. Managing Director,
Water Resources
Authority
7. Representative of the
Permanent Secretary,
Ministry responsible for
Agriculture Commission
8. Representative, Jamaica
Agricultural Society
NEPA ADVISORY
BOARD
1. Mr. Ewart Scott -–
Chairman
2. Ms. Leonie Barnaby, OD
- Deputy Chairman
3. Mr. Robert Taylor
4. Ms. Eleanor Jones
5. Professor Homero Silva
6. Dr. Ken James
Source: NEPA (http://nepa.gov.jm/new/legal_matters/authorities/board_of_directors.php)
BEYOND PET BOTTLES AND PLASTIC BAGS | 19
2.5 THE PUBLIC INTEREST
And where, in all of this, is the voice of the people? In some
countries, (Guyana,65 Trinidad and Tobago,66 for example)
the main environmental legislation recognizes the legitimate
interest of the public in protecting natural resources, and
grants third party rights to file legal action. The Natural
Resources Conservation Authority Act does not give third
party rights to members of the public. While the Act allows
an “aggrieved party” (defined as someone whose permit has
been denied or someone objecting to the conditions of the
permit) to appeal to the Minister in relation to a permit or
license, the right of appeal contained in law for members of
the public is vague.67
In 2011, the Jamaica Environment Trust filed an appeal
against an environmental permit granted to RIU Hotel at
Mahoe Bay in St James, on behalf of the Whitehouse Fishing
Cooperative; their submission was heard, albeit after a long
delay, during which time the hotel continued construction.68
In 2013, JET was heard by the Appeals Tribunal of the NRCA
regarding an appeal filed by the Ministry of Agriculture and
Fisheries (MOAF) against enforcement action taken by the
NRCA concerning destruction of trees in the riparian zone
of the Cabarita River and other rivers in Westmoreland.69 The
tribunal upheld the NRCA’s decision, and the Ministry was
ordered to replant the trees that were already cut down.
Jamaican citizens do have a broad right to challenge the
actions of the state through judicial review.70 Jamaican
environmental NGOs have twice filed judicial review
cases alleging flaws in the public consultation process,
and asserted standing; both were accepted by the Supreme
Court.71 However, establishing one’s legal standing in order
to challenge environmental infractions or appeal a NRCA
or NEPA decision, is an expensive and lengthy process. The
Jamaica Environmental Trust’s ability to pursue legal action
was only possible because the organization received external
funding to pursue the matter; those types of resources are
generally not available to environmental NGOs, much less
to individuals. The scope for the public to have a say in
the governance of their natural environment is extremely
proscribed.
There are other barriers to access to justice. Judicial review
requires filing the application in court within three months of
the state’s decision or “promptly”.72 There is no requirement
for timely notification of NRCA decisions and generally,
only permittees are notified directly. NRCA Board decisions
are posted on NEPA’s website, but not in a timely manner.
The judge has discretion to require the claimant to give an
undertaking for damages if an injunction is applied for. If
the claimant loses their case, they have to pay the economic
losses suffered by the defendant. This restricts the willingness
of the public to apply for injunctive relief, with the result that
construction (and the risk to the environment and public
health) continues while the case is being heard.
65 The Environmental Protection Act (Guyana) 1996, s. 28.
66 The Environmental Management Act (Trinidad and Tobago) 2000, s. 69.
67 The Natural Resources Conservation Authority Act, 1991, s. 35.
68 Appeal of Environmental Permit No 2006-08017-EP00094 granted to RIU Jamaicotel, Jamaica Environment Trust on behalf of the Whitehouse Fishing
Cooperative.
69 Submissions of the Jamaica Environment Trust Hearing of the Appeal filed by the Ministry of Agriculture and Fisheries against the Natural Resources
Conservation Authority: Enforcement Notice served for clearing of Riparian Zone along Cabarita River and other rivers.
70 Rule 56.2 (1) of The Civil Procedure Rules of Jamaica 2002 allows any person, group or body to apply for judicial review which has sufficient interest in the
subject matter of the application. This includes:
(a) any person who has been adversely affected by the decision which is the subject of the application;
(b) any body or group acting at the request of a person or persons who would be entitled to apply under paragraph (a);
(c) any body or group that represents the views of its members who may have been adversely affected by the decision which is the subject of the application;
(d) any statutory body where the subject matters falls within its statutory remit;
(e) any body or group that can show that the matter is of public interest and that the body or group possesses expertise in the subject matter of the application;
(f) any other person or body who has a right to be heard under the terms of any relevant enactment or the Constitution.
71 The Jamaica Environment Trust v The Natural Resources Conservation Authority et al, Supreme Court of Jamaica unreported judgment delivered October
13, 2011. Claim No. HCV 5874 of 2010; and The Northern Jamaica Conservation Association et al v The Natural Resources Conservation Authority et al.,
Supreme Court of Jamaica, unreported judgment delivered May, 16 2006. Claim no. HCV 3022 of 2005.
72 Rule 56.6 Civil Procedure Rules of Jamaica 2002.
20 | BEYOND PET BOTTLES AND PLASTIC BAGS
2.6 A NEW ENVIRONMENTAL REGULATORY
AUTHORITY
In 2011, the GOJ released a concept paper that outlined a
new entity to strengthen Jamaica’s environmental regulatory
framework.73 The main recommendations were:
» To establish an environmental regulatory authority
which would assume full responsibility for environmental
monitoring and enforcement;
» To develop a National Spatial Plan (NSP), to be done by
NEPA; and
» To give NEPA the lead role in environmental education,
outreach, advisory assistance and problem solving.
During stakeholder consultations in 2011, there was
pushback from the Jamaica Environmental Advocacy
Network (JEAN), a network of over 40 environmental and
civil society non-government organizations. Their main
concerns were the scant details on the legal reform necessary,
the paucity of information about the interface between the
many government agencies, incomplete problem analysis,
and lack of comparative investigation with other developing
countries. JEAN recommended a return to the pre-merger
status but supported the recommendation for an independent
commission on environmental issues.
As of 2018 this environmental regulatory authority has not
been brought to life. While the State of the Environment
Report 2013, stated: “Work towards the promulgation of
an Environment and Planning Act, and the creation of
the Environmental Regulatory Authority, were the two
main areas of focus,”74 the most recent utterances of NEPA
executives suggest that the new environmental regulatory
authority will not go ahead.75
In sum, Jamaica possesses a cumbersome and unwieldy
administrative framework that retards the effective
management and protection of the island’s natural
environment. The extant system facilitates ministerial
overreach and corruption, evinces little accountability, and
makes moral hazard in environmental matters inevitable.
The legal framework does not provide for the public to have
a say in the enforcement of environmental laws, and fails
to disincentivize actions that cause environmental damage,
thereby promoting the impunity with which developers
and others continuously break the law, with disastrous
environmental consequences. The proposal to replace this
disjointed environmental framework was badly flawed, and
for better or for worse, was never brought into effect. Thus
while the country has been spared the birth and enactment
of yet another defective institution through which the
environment would continue to be mismanaged, there are no
other efforts by the GOJ to act on identified solutions in a
meaningful time frame. The apparent lack of priority given
to the environmental portfolio by the political directorate
causes leadership instability, policy uncertainty/delay, and
fails to engender a long-term commitment to environmental
protection at the highest level of national leadership.
73 Green Paper 2/2010.
74 SOE (2013).
75 NEPA executives, ibid.
BEYOND PET BOTTLES AND PLASTIC BAGS | 21
3. THE ENVIRONMENTAL
PLANNING FRAMEWORK:
INCHOATE AND FRAGMENTED
The planning process for cities, towns and rural areas in any country seeks to set out a rational
framework for development, in order to deliver a predictable regulatory environment and prevent
the impacts of disorderly, illegal and hodge-podge construction. An effective planning framework
will consider transportation needs, availability of other types of critical infrastructure, such as sewage
treatment and water supply, current and future land use patterns, and vulnerability to natural disasters.
A good planning regime will “bring an offending activity under planning control, remedy or mitigate
its undesirable effects, and punish and deter the wrongdoer.” Jamaica’s planning system, despite its
early origins, has so far not managed to develop effective enforcement, which remains “complex,
technical, challenging, and weak.”76
76 Carole Excell, “The Enforcement of Planning Laws in Jamaica,” NEPA Judicial Symposia, 2003. (http://nepa.gov.jm/
symposia_03/Papers/TownandCountryplanningEnforcement3.pdf)
22 | BEYOND PET BOTTLES AND PLASTIC BAGS
A development order is a legal document whose purpose
is to guide development in the area to which it applies.
Development orders are created for cities, towns, parishes
and other specifically designated areas, by the Town and
Country Planning Authority (TCPA), and serve to guide the
relevant authorities—the Parish Municipal Authorities (what
were formerly called Parish Councils)—to regulate land
developments within the area defined as the Development
Order Area. The TCPA also issues interim development
orders, after consultation with local planning authorities, in
respect of any land which is not the subject of a confirmed
development order. An interim order is made where an area
needs to be brought urgently under planning control and no
confirmed development order exists.
Development orders (whether provisional or confirmed)
are the Town and Country Planning Authority’s principal
regulatory instrument.77 They contain guidelines on a range
of issues, including:
» Development control (densities, setbacks, heights of
buildings, parking, drainage)
» Sanitary conditions and conveniences
» Advertisements on public roads
» Roads and public services (road reservations, types of
roads, access by fire services, utilities, sewage treatment)
» Protecting and expanding amenities (views, open spaces,
parks, access to coast)
» Protecting natural resources (trees, coastal assets such
as beaches)
» Guiding local planning authorities (formerly parish
councils, now called municipal corporations)
» Receiving referrals from local planning authorities on
developments which are not in conformance with the
Development Order
» Providing information to the public on land development
policies in a specific region
When a development order is prepared, it is printed and
gazetted as a Provisional Development Order, and is made
available to the public for comments in a specified time
period, but only “interested persons” can legally object.78
Although it is regarded as material, the provisional
development order is not the legal land use document for the
area. After the expiration of the period for comments and/
or objections, a confirmation notice is prepared to include
any modifications. The confirmation notice, along with the
comments/objections, is then submitted to the minister for a
decision, and thereafter the confirmation notice is published
in the Gazette.79
The first development orders in Jamaica were done in the
1950s and 1960s. They governed land use and development
of Jamaica’s coastline up to one mile inland from the
highwater mark. A few other areas and some towns also had
Development orders, but much of the rest of the island was
left without a development control instrument until a recent
initiative, which began in 2015, and which is currently (in
2018) underway.80
3.1 DEVELOPMENT ORDERS
77 Pauline McHardy,“Gap Analysis of Relevant Policies,” NEPA Judicial Symposia, 2003. (http://nepa.gov.jm/symposia_03/others/policygapanalysis.pdf)
78 An “interested person” means: (a) any local authority concerned; (b) any person in whom is vested any freehold estate in any land within the locality to which
the provisional development order relates; (c) any person in whom is vested any term of years in any land in such locality, the unexpired portion of which on
the day on which such objection is made is not less than three years, or who holds an option to renew such lease for a period of not less than three years; (d)
any person who is entitled under the Water Resources Act to exercise any right in relation to the use of any public water in a public stream within the locality
and whose interest therein will be affected by the application of the order.
79 The Town and Country Planning Act 1958, s. 5-7.
80 O. Rodger Hutchinson, “Development Orders for all Parishes Should be in Place by 2017,” Jamaica Information Service, November 12, 2015. (https://jis.gov.
jm/development-orders-for-all-parishes-should-be-in-place-by-2017). As at October 2018, the parishes/areas without recent provisional development orders
were St James and Portmore.
BEYOND PET BOTTLES AND PLASTIC BAGS | 23
81 “Development Order Areas,” National Environmental Planning Agency, last revised February 6, 2004. (http://nepa.gov.jm/symposia_03/Laws/Maps/Map_
of_Development_Orders_FullScreen.htm)
Table 5: Current Status of Development Orders
PARISH FIRST PROMULGATED PROVISIONAL CONFIRMED
Kingston 1966
Kingston & St Andrew & Pedro Cays 2017 2017 No
Tinson Pen Harbour Front 1963 1963 unknown
St Thomas (coast) 1965
St Thomas Parish 2018 No
Portland (coast) 1963
Portland Parish 2013 2013 2015
St Mary (coast) 1963
St Mary Parish 2017 2017 No
St Ann Parish 1999 1999 2000
Trelawny Parish 1982 2013 2015
St James Parish 1982
Manchester/Mandeville Parish 1976 2013 No
Hanover (coast) 1957 1957 1962
Hanover Area 2018 No
Westmoreland Area 2018 No
Negril/Green Island Area 1959, 1984 2013 2015
South St Elizabeth 1966, 1976
St Elizabeth Parish 2018 2018 No
Clarendon Parish 1982 2017 No
Spanish Town 1964
St Catherine (coast) 1965
St Catherine Area 2017 2017 No
Bog Walk/Linstead/Ewarton Area 1965
Source: NEPA81
24 | BEYOND PET BOTTLES AND PLASTIC BAGS
Development orders for areas throughout Jamaica have
not been updated for decades, allowing development to
take place in a planning vacuum. In some cases, developers
argue that what has been permitted previously justifies new
developments along the same lines, even if this violates the
development order, and regulators have found this persuasive.
Development orders seek to regulate and control the use
of land in conformance with pre-established guidelines
and long-term planning objectives, but they have not been
complied with or enforced since their inception. While there
are sanctions under the Town and Country Planning Act for
carrying out developments without planning permission,
there are no sanctions for granted permissions that do not
confirm with the provisions of a development order.
Where no development order exists for an area or parish, or
for any other reason, the minister with portfolio responsibility
for the environment can “call in” an area. In these cases, all
development applications must be submitted to the Town
and Country Planning Authority directly, and can no longer
be handled by local planning authorities alone.82 Planning
permission can only be granted if the application is in
conformance with the Natural Resources Conservation Act.83
The 1984 Negril/Green Island Development Order is an
instructive case study in assessing the history of compliance,
or rather, non-compliance of these requirements. The
Negril/Green Island Area actually had one of the earliest
development orders in Jamaica in 1959. It was only confirmed
in 1984, however, after being updated in 1981, well after
resort development was underway, beginning in the 1970s.
(A more recent update was confirmed in 2015.) The 1984
Development Order describes the importance of Negril’s
natural resources and sets out a range of measures to protect
them.
3.2 CASE STUDY: NEGRIL’S DEVELOPMENT ORDER
Sample list of the provisions of the 1984 Negril/Green Island DO and the current status
PROVISION STATUS
No development will be permitted on land adjacent to the line of
high-water mark which would preclude public access to and along the
foreshore.
Access is now limited and declining. Access ways between private property
development have not been consistently required
The coast and coastal waters are to be protected against pollution by
control of adjoining development and of such development inland.
Negril’s most recent sewage treatment plant was built in the 1990s,
and many properties on the hills overlooking the West End are still
not connected. Due to development outpacing early sewage treatment
capacity, Negril’s coral reefs are severely degraded by nutrient pollution
from poorly treated sewage and agricultural runoff.
Pipe from one of the hotels going straight into the sea – this is Long Bay Beach where people swim
Drain dumping what appears to be laundry water directly into the sea
82 The Town and Country Planning Act 1958, s. 12(1A)
83 The Town and Country Planning Act 1958, s. 11(1A)
BEYOND PET BOTTLES AND PLASTIC BAGS | 25
The 2015 Negril/Green Island Area Development Order
repeats many of these requirements, but they continue to not
be heeded, whether because they are ignored or not known
about is unclear. Indeed the motivation and rationale for
updating the development orders is thrown into question by
their continued irrelevance to what actually obtains.
Sample list of the provisions of the 1984 Negril/Green Island DO and the current status
PROVISION STATUS
No modification of natural features of the foreshore and or floor of the
sea without the permission of the NRCA
Permission has been given to build groynes, wave attenuation devices,
remove seagrass beds and “nourish” beaches. Modifications have also
been done without the required permits/licences, but all have since been
“regularized”.
Photo showing unrepaired and failed groyne
Tree Preservation Orders should be enacted There are no Tree Preservation Orders enacted in Negril.
A national park should be declared to cover the majority of the DO area Negril Environmental Protection Area, Negril Marine Park and
Orange Bay Special Fishery Conservation Area have been declared, but
management and enforcement are weak.
The natural vegetation covering the beach sand dunes at the sea edge
must be protected from removal and trampling by regulating access to
the beach.
Very little natural vegetation or dunes remain in Negril.
The already impaired swamp forest should not be further destroyed. Incursions into the Negril Morass continue for farming, parking and land
clearance
Strict observance should be made of present regulations regarding
capture of fish and lobsters
Lobsters are readily available for sale on Long Bay beach during the
closed/off season.
The use of beach seines (a type of fishing net) should be discontinued Still in use, even in the Special Fishery Conservation Area
No building shall be closer than 150 feet from the highwater mark Due to beach erosion in some parts of Long Bay beach, the highwater
mark has moved inland. At least three hotels have been built with less
setback for some of its buildings than stipulated by the DO; two with
permission, and one which is the subject of legal action.
One of many examples of buildings too close to the shoreline
Buildings higher than two storeys will not be permitted within the DO,
except on very special consideration by the authorities
The height restriction has been varied repeatedly, to three stories in
1996/7, and then to five stories in 2016.
It is desired that buildings should not be obtrusive, and the architectural
expression be low-keyed
Hotels have become larger, higher and more and more obtrusive over
Negril’s history
In order to preserve the amenity of views to the sea on the cliffs,
buildings shall be as unobtrusive as possible, one storeyed and small
scaled
Very few views to the sea remain from the cliffs
26 | BEYOND PET BOTTLES AND PLASTIC BAGS
The Town and Country Planning Act provides for the service
of a stop notice in circumstances where a development
is proceeding without permission from the planning
authorities or the Town and Country Planning Authority, or
if the permission granted has not been adhered to. Failure to
comply with a stop notice attracts a fine of between J$25,000
and J$1 million, on conviction in a Resident Magistrate’s
Court. Failure to pay the fine can result in imprisonment
not exceeding six months.84 The Act provides for service of
an enforcement notice, which can require the demolition of
buildings, and restoration of land to its condition before the
development took place.85
These provisions are seldom enforced. In the late 1980s
construction commenced on a six-story building at the
corner of Trinidad Terrace and St Lucia Avenue in New
Kingston. The KSAC put a stop order for breaching its permit
by building six floors instead of the approved four, and for
defying other zoning rules, and ordered the top three floors
demolished. This was never done; it sat incomplete and idle
for decades. The mortgaged building later fell into the hands
of its bankers who claimed a default on loan payments, and
was among assets taken over during the 1990s financial
sector crisis and the subsequent government bailout. The
still incomplete building was sold in 2014 through the
government’s debt collection partner; the building was
refurbished and renamed the Dawgen Towers. When this
rare occurrence does actually happen, it is an extremely
protracted and lengthy process. For example, a building in
Kingston that was demolished in 2011 because it had been
erected without the authorisation of the KSAC, and was
deemed too close to the roadway, only occurred after a 15-
year court battle.87
The Act also allows for an application for retention of use
for buildings existing before permission has been granted.88
Whereas this may have been intended to facilitate buildings
existing before the completion of the applicable development
order, it is applied to buildings constructed without the
required planning permission, and which are already being
used. While NEPA acknowledges that this happens,89 the
exact extent to which it occurs is debatable. The decision
whether to allow the retention of use, according to NEPA,
is based on whether planning permission would have been
granted at the outset.90 In any case, it is clear that there will
likely be no serious penalty for beginning developments
without permission.
The fines pertaining to the Town and Country Planning
Act, as with the Natural Resources Conservation Authority
Act, are too low to serve as an effective deterrent, (though
they are higher than the NRCAA,) and the retention of use
clause provides a loophole for developments which have
been started without permission to continue, or which
have been completed without permission to remain. NEPA
acknowledges that few illegally constructed buildings have
been demolished.91 There was only one case before the courts
under the Town and Country Planning Act in 2017/8.92
This creates another opening for the regularization of
developments to proceed without permission.
3.3 SANCTIONS UNDER THE TOWN AND COUNTRY
PLANNING ACT
84 The Town and Country Planning Act 1958, s. 22A.
85 The Town and Country Planning Act 1958, s. 23-25. Avia Collinder, “Dawgen Buys Old Auburn Court Building - Renames It St Lucia Towers,” Gleaner, July
13, 2014. (http://jamaica-gleaner.com/gleaner/20140713/business/business1.html)
87 “Demolished - KSAC Destroys Structure At Auburn Court After 15-Year Legal Battle,” Gleaner, June 20, 2011. (http://jamaica-gleaner.com/gleaner/20110620/
lead/lead1.html)
88 The Town and Country Planning Act 1958, s. 15.
89 NEPA executives, ibid.
90 Ibid.
91 Ibid.
92 “Matters which have been heard/are to be heard before the Parish Courts,” NEPA, 2017/8.
BEYOND PET BOTTLES AND PLASTIC BAGS | 27
The Town and Country Planning Act requires consultation
with local planning authorities in the preparation of
provisional development orders, followed by publication
via Gazette and in local newspapers.93 “Interested parties”
(defined as local planning authorities, landowners,
leaseholders and anyone holding water rights) may submit
objections.94 Beyond publishing a notice in the newspapers,
there is no requirement for the general public to be consulted
about the contents of the development order, either before or
after it has been produced.
Development orders are dense, lengthy documents which are
not easily accessible to a layperson. The new development
orders are available online on NEPA’s website;95 the public
can also obtain hard copies from NEPA or at local Municipal
Corporations at a cost of J$3,000.00. While these efforts
to make the documents more accessible is a positive step,
the public is generally unaware of development order
requirements, and there is very little public outreach or
awareness building.
Policies to guide aspects of planning and environmental stewardship are developed by the many ministries and state agencies
involved in this area. They can take decades to complete.
3.4 PUBLIC CONSULTATION
3.5 THE PLANNING AND ENVIRONMENTAL POLICY
FRAMEWORK
93 The Town and Country Planning Act 1958, s. 5
94 The Town and Country Planning Act 1958, s. 6
95 “Environment and Planning Laws of Jamaica,” NEPA, last modified July 9, 2018. (http://nepa.gov.jm/new/legal_matters/laws/)
Table 6: Partial List of Jamaica’s Environmental Plans and Policies and their status
POLICY IN DRAFT MINISTRY/AGENCY STATUS
National Forestry Management and
Conservation Plan
1990, 2001-2010; 2010-14; 2017
Agriculture Ministry, Industry
and Commerce Ministry
2017 update
National Policy for the Conservation of
Seagrasses
1996 NRCA In draft
Coral Reef Protection and Preservation
Policy
1997 NRCA In draft
Mangrove and Coastal Wetlands Policy 1997 NRCA In draft
Protected Animals in Captivity 1997 NRCA In draft
National Mariculture Policy 1998 NRCA In draft
National Water Sector Policy and
Implementation Plan
1999, 2004
Water Ministry; Environment
Ministry
White Paper; submitted to
Cabinet 2018
National Environmental Education
Action Plan for Sustainable
Development
1998-2010 NRCA Expired
Jamaica Coral Reef Action Plan; now
called Action Plan for Corals and Reefs
1999 NRCA In draft
Jamaica National Environmental
Action Plan
1999-2002 NRCA In draft
2006-2009 NEPA Expired In draft
National Ocean and Coastal Zone
Management Policy
2000 Foreign Affairs Ministry In draft
28 | BEYOND PET BOTTLES AND PLASTIC BAGS
Table 6: Partial List of Jamaica’s Environmental Plans and Policies and their status
POLICY IN DRAFT MINISTRY/AGENCY STATUS
Beach Policy for Jamaica, now Beach
Access and Management Policy
2000 Environment Ministry With Cabinet 2018
Watershed Management Policy 2003 NEPA In draft, being revised
Jamaica’s Protected Areas System
Master Plan (PASMP)
2006; 2013-2017 Environment Ministry Recently expired
Dolphin Conservation Policy 2006 Environment Ministry White Paper. In draft.
Jamaica’s National Environmental
Action Plan
2006-2009 NRCA Expired
Biosafety Policy 2007 Environment Ministry; NEPA In draft
National Energy from Waste Policy 2010 Energy Ministry In draft
Cays Management Policy 2013 Foreign Affairs Ministry In draft
Climate Change Policy Framework for
Jamaica
2013 Environment Ministry Finalized
Policy and Guidelines for Overwater
Rooms
2016 Environment Ministry Finalized. Now being revised
National Policy for the Environmentally
Sound Management of Hazardous
Wastes
Not known Environment Ministry; NEPA
Green Paper; approved by
Cabinet July 2017, to be tabled
in Parliament August 2018
National Policy on Environmental
Management Systems
Not known Environment Ministry
Green Paper; approved by
Cabinet March 2018, tabled in
Parliament July 2018
Emissions Policy Framework Not known Environment Ministry; NEPA In draft
Source: Cabinet Office (Jamaica)96
96 “Government of Jamaica Policy Development Programme as at 31 March 2018,” Cabinet Office. (https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-
Policy-Development-Programme-Update-at-March-2018-web-version.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 29
96 “Government of Jamaica Policy Development Programme as at 31 March 2018,” Cabinet Office. (https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-
Policy-Development-Programme-Update-at-March-2018-web-version.pdf)
97 “Planning Guideline for Overwater Structures, 1/2016,” Ministry of Economic Growth and Job Creation (Jamaica).
98 “The Risks of Overwater Rooms for Jamaica,” Jamaica Environment Trust, Brief, 2017. (www.jamentrust.org/wp-content/uploads/2017/05/Overwater-
rooms-JET-brief-updated-May-2017.pdf)
99 NEPA executives, ibid.
100 McHardy (2003), ibid.
As was seen with the many laws, statutes and regulations
relating to the environment in Jamaica, which are cumbersome
and opaque, policies relating to the environment are equally
dysfunctional. The list in Table 6 is by no means exhaustive,
but there are dozens (or more) of policies across scores of
state agencies and many government ministries. This in
part reflects the movement of the environment portfolio
to different ministries over the years, which comes with
the inherent risk that when it is moved, priorities may be
different in the new ministry, causing the policy to languish,
and new policies developed. Another factor is that policies
are frequently developed with donor funds to the draft
stage, but there is then no funding to complete them. As
Table 6 shows, some policies have been in draft since 1996.
Sometimes policies become other policies, for example: the
mangrove and seagrass policies were never finalized and are
now being subsumed under the National Ocean and Coastal
Zone Management Policy, which has been in draft since 2000.
Similarly, the Beach Policy has been in draft since 2000; in
2018 it was called the Beach Access and Management Policy.
Policies which include Action Plans are usually for a stated
time period, and may be evaluated at some point, but this is
not generally shared with the public.
Policy prescriptions have been ignored. For example, the
Policy and Guidelines for Overwater Rooms developed in
2016 required overwater rooms to (a) have an environmental
permit; (b) an environmental impact assessment; (c) not
be located where seagrass beds covered more than 30%
of the seafloor; and (d) not be located in special fishery
conservation areas.97 The overwater rooms which began
construction at Sandals Whitehouse in Westmoreland in
2017 breached all those conditions, but were allowed by the
NRCA Board to proceed.98 The Guidelines are now under
review by the NRCA’s Beaches and Coastal Management
Resources Subcommittee, with the stated intention to make
them more robust.99
A national physical plan is a written statement that summarizes
strategic policies and directions for spatial planning, land
use, physical development, and environmental conservation.
National Physical Plans were prepared for Jamaica (1970-
1990) and (1978-1998) but were never implemented.100
The proposed Environmental Regulatory Authority Green
Paper (referred to earlier) identified the need for a national
spatial plan to “…establish clear priorities, identify areas
in which particular types of land use would be encouraged
and others prohibited (e.g. no build zones), and guide the
development of transport routes, residential accommodation
and industrial development, and conservation of the built
and natural environment.” A process to develop a national
spatial plan, which was conceptualized in 2009, was launched
in 2018, with funding from the Inter-American Development
Bank. (A spatial plan has the same general characteristics
as a physical plan.) Seven technical papers, funded by the
Caribbean Development Bank, were commissioned and
scheduled to be completed by June 2019.
Without an implemented and/or enforced physical plan,
a vacuum has been created which has allowed illegal
developments to proliferate throughout the island. In 2010,
the author of the proposal for a new environmental regulatory
authority wrote:
3.6 NATIONAL PHYSICAL PLANS
30 | BEYOND PET BOTTLES AND PLASTIC BAGS
101 Green Paper 2/2010. The author was Professor Anthony Clayton, University of the West Indies lecturer in the Institute of Sustainable Development, Mona
campus.
102 “Amnesty for Building Plans,” St. Catherine Municipal Corporation, not dated. (https://stcatherinemc.gov.jm/news/08-2018/amnesty-building-plans)
103 SOE (1997).
Little appears to have changed. The lack of commitment to
planning laws was made manifest in August 2018, when the
St. Catherine authorities issued an amnesty for completed
developments, and those underway, without the required
building plans to be “regularized.”102
SOEs were done in 1995, 1997, 2001, 2010 and 2013. The 2010
and 2013 Reports are online; a new State of the Environment
Report was in preparation as of September 2018. Two
editions of the Jamaica National Environmental Action Plan
were produced: in 1998 and 2000; none has been done since.
The reports, when they are produced, are not consistent with
regard to frequency or indicators, and issues raised in one
report are often not updated in the next. There is greater
emphasis on process indicators compared to outcome
indicators. Most SOEs to date have been funded by donors;
There was little or no planning taking place at local level, nor was any local-level planning
authorized under the Town and Country Planning Act, so the primary functions of
planners at the local level was simply processing applications. There were significant
numbers of illegal developments, where people had proceeded with construction without
submitting an application. Estimates of the level of this activity varied from relatively
insignificant to about half of all development applications, so the true extent of the problem
was hard to gauge, but it was clear that a significant portion of society did not believe in
the planning system, had no commitment to its purpose, or appreciation of its benefits.101
The objective of the State of the Environment (SOE) Report is to provide readily available
information on an annual basis about Jamaica’s environment and natural resource
use. Together with the Jamaica National Environmental Action Plan (JANEAP), the
SOE provides a basis for the public [sic] participation in development planning and
environmental protection… . [T]he State of the Environment Report records changes and
identifies trend [sic] of indicators measuring the impact of all human activities and natural
events on our natural resources.103
According to the 1997 State of the Environment Report:
3.7 STATE OF THE ENVIRONMENT REPORTS
BEYOND PET BOTTLES AND PLASTIC BAGS | 31
if funding is not available, they are either long-delayed or not
produced at all. Despite the objectives outlined above, public
outreach on the contents of the SOEs is weak. In effect, the
SOEs have never realized their potential, nor have they been
much heeded.
In sum, Jamaica’s environmental planning policy situation
is in a dire state. Planning laws and regulatory instruments
tend to be outdated, and even when they are updated they are
ignored or unheeded. Penalties are too low to act as effective
disincentives to breaches, and enforcement has been weak.
Many environmental policies languish in draft for decades,
and others are simply overlooked. Throughout the gamut of
laws, regulations, policies and reports there is insufficient
public education and engagement. The intention of closer
collaboration between environmental regulation and the
planning function has never been realized.
32 | BEYOND PET BOTTLES AND PLASTIC BAGS
4. THE COMPROMISED
ENVIRONMENTAL IMPACT
ASSESSMENT PROCESS
An environmental impact assessment (EIA) gathers scientific information about the potential impact
of a project on natural resources to help decision makers determine whether the project should go
ahead, and if so, how damage to natural resources can or should be mitigated. The EIA process may
include the requirement for a public meeting to present the findings of the EIA to the public and allow
for their input or objections.
There is no mandatory requirement for an environmental impact assessment under Jamaican law,
and they are seldom done. The Natural Resources Conservation Authority Act gives the NRCA the
discretion to require an EIA for any “enterprise, construction or development” which has or could
have an adverse impact on the environment.104 Of the 3,655 permits and licenses granted by the NRCA
between 2010 and 2013, only seven were the subject of completed EIAs.105
NEPA makes a determination whether or not an EIA is necessary by reviewing the proponent’s
application form. In general, EIAs may be required where there is a risk to natural resources or public
health or whether the development falls within a “prescribed category” under the Permit and Licensing
Regulations. NEPA makes provision for a shorter type of assessment, called a Technical Report, if it
deems that a full environmental impact assessment is not necessary.
104 The Natural Resources Conservation Authority Act 1991, s. 10.
105 SOE (2013), p. 302.
BEYOND PET BOTTLES AND PLASTIC BAGS | 33
There is no provision for developments and activities that are
not in a prescribed category but for which there are obvious
environmental implications, and thus no environmental
impact assessment is conducted. In practice, some actors
who are pursuing non-prescribed activities have done
EIAs voluntarily. For example, Tullow Oil, an oil and gas
exploration company, commenced prospecting for oil in
Jamaican waters in 2014-5; their own company policy
required an environmental assessment, though this was not
required by any Jamaican law or regulation. (Drilling for oil
is a prescribed category, but prospecting was not at the time
Tullow Oil began. Prospecting has since been added to the
list of prescribed categories.)
Further, there is no mandated requirement for a strategic
environmental assessment (SEA). This is a method of
assessing and mitigating environmental risks in national
policies, plans and programmes, and/or the cumulative
impacts of development on a particular region (a stretch of
coastline, for instance), national park or city/town. A SEA
is comprised of comprehensive or long-term considerations
of the environmental impact of a development should it go
beyond an individual development or project. Whereas one
or two developments or projects may have low environmental
impacts on their own, a number of projects in the same
region or of the same type may have significant cumulative
impacts. For example, a single hotel on a stretch of coastline
may have little impact on natural resources, but as more
and more are built, the impact becomes significant. Central
sewage treatment becomes necessary, but may be built after
hotel development is well underway, or may be undersized as
more and more hotels are added. Greater requirements for
housing for workers also result in environmental impacts.
This has happened in all of Jamaica’s major resort towns –
Montego Bay, Ocho Rios and Negril.
Strategic environmental assessments ought to be conducted
to inform the policy framework that should guide project
decisions, such as for transportation, energy, or the impacts
of climate change, and their terms of reference should be
the subject of public consultation. Environmental impact
assessments, on the other hand, relate to specific projects
and are often required too late in the process when land has
already been acquired, investors identified, and the decision
to go ahead already taken. A Strategic Environmental
Assessment policy was developed by NEPA in 2003, but
remains in draft.
Relatively few strategic environmental assessments have been
required or conducted in Jamaica. Examples of completed
strategic environmental assessments are:
» Port Royal Heritage Tourism Project, Kingston and St
Andrew
» Highway 2000, St Catherine/Clarendon/Manchester
» Rose Hall Developments Ltd., St James
» Amaterra Resort Development, Trelawny
No strategic environmental assessment was done for the
North South Highway Link, which crossed the entire island,
including the floodplains of five major rivers, traversed steep,
forested slopes, and encountered significant geological risks.
Before the highway was completed, soil erosion caused by
reportedly inappropriate excavation practices during its
construction caused significant volumes of silt, solid waste
and debris to wash into the Old Fort Bay, a coastal resort
community that lies below the highway; the estimated
restoration cost from one major rainfall and the ensuing
damage was US$6 million.106
106 Christopher Serju, “‘We Prefer Not To Sue’ - Property Owners Hope To Settle Old Fort Bay Issue With CHEC Out Of Court,” Gleaner, August 13, 2016.
(http://jamaica-gleaner.com/article/lead-stories/20160813/we-prefer-not-sue-property-owners-hope-settle-old-fort-bay-issue-chec)
34 | BEYOND PET BOTTLES AND PLASTIC BAGS
Even where NEPA requires an environmental impact
assessment, however, the process is flawed. The normal steps
are:
» Develop a terms of reference for the EIA, which may be
the subject of public input,
» Gather background information with regard to relevant
legislation,
» Collect background scientific data, for example rainfall,
topography, and baseline data on environmental
parameters,
» Assess the main environmental impacts (which are often
scored in various ways as to their long- or short-term
impacts and the significance of those impacts),
» Recommend mitigation measures
» Consult local communities directly affected, and
» Hold a public meeting in accordance with NEPA’s
published guidelines, though this step is discretionary.107
Despite this ostensibly clear-cut and logical process, there
are a number of systemic weaknesses which undermine the
intention of an environmental impact assessment, sometimes
to the point of rendering the EIA process meaningless.
Environmental impact assessment consultants are contracted
and paid by developers; this presents a clear conflict of
interest. An EIA consultant who frequently recommends that
projects not proceed will very likely soon be out of business.
Recommendations from the Jamaican NGO community that
developers pay for EIAs into an escrow account managed by
NEPA, which would then appoint the EIA consultant, have
never been acted upon.
Anyone can call themselves an EIA consultant, as they are
not held to any standard, nor is there a scheme for their
certification, though this has been discussed since 2012,
and forms part of the draft EIA regulations. The quality of
some EIAs has been called into question by members of
the public during the public consultation process. This has
sometimes led to NEPA requiring an addendum from the
EIA consultant, but the process for making sure the public
knows this has been done is insufficient. Typically, the
addendum will simply be posted on NEPA’s website, without
any accompanying public outreach.
Indeed specific EIAs and the associated public consultation
process have been deemed flawed by the Supreme Court in
two separate legal cases.108 In 2005 the Northern Jamaica
Conservation Association, the Jamaica Environment Trust,
and some residents of the area filed a legal challenge to
the environmental impact assessment conducted for the
construction of a hotel at Pear Tree Bottom in St Ann. The
developer planned to build a 1,918 room hotel in an area that
is particularly ecologically sensitive and rich in biodiversity.
In the Pear Tree Bottom matter, the court stated in its first
ruling that:
4.1 THE INHERENT WEAKNESS OF
ENVIRONMENTAL IMPACT ASSESSMENTS
107 “Guidelines for Conducting Environmental Impact Assessments,” National Environmental Planning Agency, last revised October 2007. (http://nepa.gov.jm/
new/services_products/guidelines/docs/EIA-Guidelines-and-Public-presentation-2007.pdf)
108 Supreme Court Claim HCV 3022 of 2005 Northern Jamaica Conservation Association et al v Natural Resources Conservation Authority et al, Pear Tree
Bottom; Supreme Court HCV 5674 of 2010 Jamaica Environment Trust v Natural Resources Conservation Authority et al.
BEYOND PET BOTTLES AND PLASTIC BAGS | 35
A second judgment in the Pear Tree Bottom matter stated:
The NRCA and NEPA failed to give adequate weight to the obvious empirical failings of
the EIA, thereby depriving themselves of the opportunity to put in place adequate controls
in light of the circumstances that actually existed in the ecologically sensitive area. Unless
there was reasonably accurate empirical data in the EIA, in light of the fact that neither
NEPA nor the NRCA nor anyone else undertook such studies to submit to NEPA or the
NRCA, there was no evidence upon which the NRCA and NEPA could act in determining
the proper terms to include in the permit. Without a proper evidential basis it would
be difficult to see on what basis an effective monitoring programme could be developed,
since one would need to know the true ecological state of Pear Tree Bottom at the time the
monitoring programme is implemented.109
I understand Environmental Solutions Ltd. (the consultant that conducted the EIA) to
be saying that given all the time “forced” on them by the NRCA’s approval and reviews
procedures, they produced an acceptable EIA in accordance with the terms of reference.
What this means is that if there is any problem with the EIA, the source of it is the
shortcomings in the existing procedures and not with the consultants. While past studies
ought to be taken into account there has to be some limit on how far back one can go
without raising serious questions about the reliability of the information, even if the EIA
complies with the terms of reference. In so far as it was stated or implied in my previous
judgment that the consultants deliberately produced a questionable EIA, I say that is not
the case, in light of Dr. Wade’s explanation. However, this is only an explanation for the
EIA produced and is not sufficient to disturb my conclusion that the Water Resources
Authority ought not to have acted on the EIA as it was.110
109 The Northern Jamaica Conservation Association et al v The Natural Resources Conservation Authority and the National Environment and Planning Agency
(Claim no. HCV 3022 OF 2005) (May 16, 2006) (Judgment No. 1), p. 52. (http://supremecourt.gov.jm/content/northern-jamaica-conservation-association-
et-al-v-natural-resources-conservation-authority)
110 The Northern Jamaican Conservation Association and the Jamaican Environment Trust and ors v The National Environmental Planning Agency (NEPA)
No. 2 (Claim no. HCV 3022 of 2005) (June 23, 2006) (Judgment No. 2), p. 23 para. 64. (www.jamentrust.org/wp-content/uploads/2016/03/Pear_Tree_
Botton_Judgment_No_2.pdf.)
36 | BEYOND PET BOTTLES AND PLASTIC BAGS
The Court concluded that the order should be granted
quashing NEPA/NRCA’s decision to issue the permit. It also
emphasized that consultation of citizens by public bodies
and authorities was a well-established feature of modern
governance, including the requirement that the public body
take the input of the public into account, and that even if
there is no statutory requirement for consultation, it had to
be done in accordance with a certain standard.111 The Court
ruled that the public had been deprived of participating in a
consultation process with complete information, specifically
a marine ecology report, and instructed the Authority to
reconsider its decision to grant a permit to the developer. The
developer then applied to be heard by the Court, as the hotel
was well underway. The Court found that stopping the hotel
would present undue hardship to the investors, strengthened
the declarations made in the first hearing, and allowed the
hotel to be completed.
In the second case, in 2011, the Jamaica Environment Trust
(JET) sought judicial review of the NRCA’s decision to grant
a beach license for the construction of sea defence works in
the Palisadoes/Port Royal Protected Area, and the associated
public consultation process. JET contended that the clearing
of the beach was a prescribed category and therefore needed
an environmental permit (as well as a beach license), and
that the public consultation process was flawed, given that
the public meeting had occurred after work on the site had
started. The Court ruled that the proper licenses had been
issued, but that the public consultation process had not met
legal standards.112
These two cases are not outliers. JET has conducted over
50 reviews of Jamaican EIAs, with assistance from the
Environmental Law Alliance Worldwide (ELAW),113 and
completed a summary of the main weaknesses observed in
multiple EIAs conducted by different EIA consultants over a
period of six years. These weaknesses were:
» Insufficient analysis of alternatives and cumulative
impacts
» Inadequate baseline data and poor study methods
» Failure to comply with NEPA’s Terms of Reference
» Inadequate assessment of public health impacts
» Insufficient care taken in parks/protected areas or
proposed protected areas
» Downplaying of environmental impacts, particularly
dredging, sewage treatment and discharge, coastal
works, run off from roads and parking lots and solid
waste handling
» Failures in the public process
» Failure to assess associated activities, such as mining
and quarrying at other sites
» Failure to provide a comprehensive monitoring plan
» Piecemeal approach to permit review and approval,
leaving critical aspects to a later date, such as sewage
treatment facilities
111 “It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out
properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular
proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product
of consultation must be conscientiously taken into account when the ultimate decision is taken.” R v Brent London Borough Council, Ex p Gunning (1985)
84 LGR 168.
112 Jamaica Environment Trust v Natural Resources Conservation Authority et al (Claim no. HCV 5674 of 2010) (October 13, 2011). (www.jamentrust.org/
wp-content/uploads/2016/03/Final_Judgement_Palisadoes_Judicial_Review.pdf)
113 ELAW is a public interest, non-profit, environmental organization that helps communities protect the environment and public health through law. (www.
elaw.org)
The terms of reference for environmental impact assessments
invariably require baseline data on a number of parameters,
which are not easily available, if at all. This means that a
proponent, in theory, must stand the cost of collecting these
data over time. Marine water quality data, for example,
should be collected at different depths for at least a year to
account for different climatic conditions. This has been
regarded as producing too much delay, so NEPA has allowed
abbreviated data collection, which, when needed to assess
impacts during post-permit monitoring, is almost useless
because the baseline data was not robust. As another example,
NEPA has allowed daytime “windscreen surveys” to assess
biological diversity, which omits all nocturnal animals and is
likely to exclude all migratory birds. This practice supported
the reasoning by Justice Sykes in the Pear Tree Bottom case
discussed previously.
4.2 INADEQUATE BASELINE DATA
BEYOND PET BOTTLES AND PLASTIC BAGS | 37
The extent to which the public is excluded from the
environmental assessment impact is particularly concerning.
While EIAs are made available online and at various libraries
or state agencies in the vicinity of the applicable projects,
due to their length and technical nature, they are simply
not accessible to the general public. They have become
increasingly lengthy and complex over the past 15 years.
A very early EIA conducted on the first phase of the Pear
Tree Bottom tourism development in 1993 was just over 100
pages, including photographs and appendices. A 2017 EIA
conducted on the Southern Coastal Highway Improvement
Project ran to 393 pages, also including plates, tables and
appendices.114 The public consultation guidelines require a
non-technical summary to be given at public meetings, but
this frequently is only slightly more understandable for the
general population.
The United Nations Environment Programme’s (now
UN Environment) Principle of Environmental Impact
Assessment provides a good roadmap for the basic principles
of an effective EIA system. Principle 2 provides that “the
criteria and procedures for determining whether an activity is
likely to significantly affect the environment and is therefore
subject to an EIA, should be defined clearly by legislation,
regulation, or other means, so that subject activities can be
quickly and surely identified, and EIA can be applied as the
activity is being planned.”
There are no regulations under the NRCA Act for the
conducting of EIAs, but NEPA does provide written
guidelines, last updated in 2007.115 Based on its own
exhaustive investigations of the EIA process in Jamaica,
the Jamaica Environment Trust submitted a detailed set of
recommendations for EIA regulations to the environmental
ministry in 2011.116 Proposed regulations were completed
by NEPA in 2015 and reviewed by the Jamaica Institute of
Environmental Professionals (JIEP), which also submitted
comments. The regulations remain in draft.117
The environmental impact assessment, the most significant
tool for environmental preservation, as it is utilized in
Jamaica—without standards or regulations—is an ineffective
means through which development can be approved,
guided and monitored. Neither are strategic environmental
assessments adequately conducted or utilized for
environmental protection and planning.
4.3 PUBLIC ACCESSIBILITY
4.4 LACK OF REGULATIONS
114 “Environmental Impact Assessment Draft Final Report Southern Coastal Highway Improvement Project Part B (ii) Works – Harbour View to Yallahs
Bridge,” Ministry of Economic Growth and Job Creation (Jamaica), October, 2017. (http://nepa.gov.jm/new/services_products/applications/eias/docs/misc/
southern_coastal_highway/EIA_SCHIPSeg1_HarbourViewYallahs_Draft%20Final_NEPA_Rev2.pdf)
115 “Guidelines,” ibid.
116 Jamaica Environment Trust, “Submission on Proposed EIA Regulations for Jamaica,” December, 2011.
117 NEPA executives, ibid.
38 | BEYOND PET BOTTLES AND PLASTIC BAGS
5. JAMAICA’S INABILITY TO
DELIVER QUALITY MONITORING
AND EFFECTIVE ENFORCEMENT
Monitoring and enforcement of Jamaica’s environmental laws, policies and regulations is weak at both
the national and local levels.118 (See Table 8.) As one example, in 2018 there were only two cases before
the courts of breaches of the Beach Control Act, where the defendants pleaded guilty, but “following
pleas in mitigation the charge was withdrawn.”119
118 SOE (2013), p.302.
119 R v Orville Webb; R v Rashidi Williams.
BEYOND PET BOTTLES AND PLASTIC BAGS | 39
Table 8: Enforcement Weaknesses Identified by JET in 2009. Updated 2018.
Projects which start without a permit and are “regularized” No data available
Insufficient monitoring of permits, delays in collecting
permits
The AG’s 2016 report found insufficient monitoring of the
Special Monitoring List (SML). 270 permits were uncollected
in 2018, a few going back to 2008
Ineffective enforcement action, generally not including
sanctions
In 2018, NEPA reported 19 cases before the courts: six for
breaches of the NRCA Act, five for breaches of the WPA, one
for breaches of the TCPA Act, and seven for breaches under
the BCA.
Failure to seek court sanctions against state agencies in
breach of environmental laws
The 2017/8 list contains no cases against state agencies
Failure to respond effectively to public concerns and conform
consistently to the requirements of the Access to Information
(ATI) Act
The Auditor General’s 2016 Performance Report reports
1,217 complaints to NEPA by the public, of which 90% were
investigated. No details are provided on how these were
resolved.
Failure to finalize or enforce a range of policy documents and
development orders
There are now new development orders for several parishes.
Many policies remain in draft.
Failure to implement an effective EIA process The EIA regulations are still in draft
Source: Jamaica Environment Trust
Source: State of the Environment Report 2013, Table 75
Table 9: Environmental Enforcement by NEPA under its respective Acts (2010-2013)
TYPE OF ENFORCEMENT ACTION AMOUNT
Enforcement Notices 105
Cessation Orders 35
Stop Notices 42
Notice of Intention to Suspend 30
Notice of Intention to Revoke 1
Warning Notice (air quality regulations) 0
Onsite Breach Notices 1,188
Warning Letters 213
Summons served 48
Bird shooting prosecutions 20
TOTAL 1,682
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The Auditor General of Jamaica (AG) conducted two
Performance Audits of NEPA, in 2010 and 2016.120 Serious
monitoring and enforcement deficiencies were identified
in 2010, and the 2016 audit sought to assess progress in
addressing those deficiencies. While there had been
improvements in the numbers of technical staff able to conduct
monitoring visits, and greater numbers of enforcement
actions including legal cases, there were egregious failures.
For example, of the permits/licences on NEPA’s own Special
Monitoring List (which prioritizes those developments
presenting serious threats to the environment,) a number
of them had expired, nearly half did not meet the standard
for monitoring, many were not consistently monitored, and
NEPA could not verify the status of nine sewage/wastewater
treatment facilities, “to determine whether they were
operational and discharged sewage and trade effluent.”121
Regarding permits not on the Special Monitoring List, the AG
found that, “NEPA did not conduct the required monitoring
on a timely basis to ensure that approved activities were being
carried out in accordance with the terms and conditions
of the permits/licenses.”122 The AG sampled 108 permits/
licenses and found gaps of up to five years between the time
the license was issued and the conduct of the first monitoring
visit, many permits were not monitored in accordance with
NEPA procedures, and many were not monitored at all.
The environmental permit itself is problematic. A typical
NRCA environmental permit relies heavily on other
documents or plans, for example: outlining monitoring and
mitigation activities, drainage plans, habitat conservation
and revegetation activities, and waste management. The
enforcement officer may or may not have these plans to hand.
The post-permit monitoring reports generally cover the
receipt (or otherwise) of required plans, but include few or
even none of the details contained therein. The enforcement
officer will record that a required plan, for example a drainage
plan, has or has not been received, but if it has been received,
the enforcement officer may not have it on site, or may not
report on any of the requirements contained in the drainage
plan.
5.1 CASE STUDY: THE FALMOUTH CRUISE SHIP PIER
The Falmouth Cruise Ship Terminal was constructed
in Trelawny (Jamaica’s north coast) in 2009-2011 to
accommodate the mega cruise ships that were too big for
the island’s existing cruise ship facilities. The project entailed
extensive dredging and reclamation works, including the
creation of the cruise ship terminal itself, and the dredging of
an access channel and two berthing pockets through a coral
reef. The environmental impact assessment was contracted
to Mott MacDonald, a UK engineering consulting firm, who
then subcontracted to Technological and Environmental
Management Network (TEMN), a Jamaican environmental
management agency. The EIA stated that, “the dredging
activities will contribute to physical, chemical and biological
changes to the harbour’s ecology, with possible direct and
indirect impacts on the nearby fringing coral reef, seagrass
beds and bioluminescence in Oyster Bay.”123
A number of mitigation measures were indicated:
» Suspension of dredging in rough conditions, use of silt
screens
» Relocation of approximately 140,000 healthy corals
» Replanting of 20 hectares of seagrasses to replace those
removed
» Replanting of 40 hectares mangroves, to replace those
destroyed for the market, parking and a sewage plant
120 Auditor General (2010) and (2016).
121 Ibid.
122 Ibid.
123 “Falmouth Cruise Ship Terminal Environmental Impact Assessment,” Mott MacDonald, June 2007, p. S4. (www.elaw.org/system/files/Final%20Report%20
by%20Mott%20Mac%20Version%202.pdf)
BEYOND PET BOTTLES AND PLASTIC BAGS | 41
NEPA’s 2009 and 2010 monitoring reports revealed:
» Dredging commenced before removal of coral and
continued in rough conditions
» Silt screens were often poorly deployed, ineffective and
failing to function for extended periods
» Sewage from the dredging vessel was dumped in the
harbour on at least one occasion
» Dredge spoils were dumped on the reef
» The coral reef replanting was poorly done: “There
appears to be a rush to move and replace items and
thus to make a daily quota of numbers of items moved.
Little or no regard is being given to their long-term
chances eventual survival (sic) which is directly impacted
by the manner in which the transplant is carried out and
the apparent lack of training or expertise of the crew/
individuals involved.”124
» There were at least two incidences of ship grounding,
destroying large areas of coral reef, resulting in NEPA
requiring the installation of two different types of
artificial reef
» The artificial reef structures were improperly sited and
impacted by the high turbidity
» A wastewater pipeline was poorly anchored and shifted,
causing extensive damage to benthic resources,
including the reef.
» Only phase one of the seagrass replanting was ever done
and the plugs were reported as heavily silted.
» All the wetlands were cleared, sewage and dredge spoils
were dumped in the area – the monitoring officer did
not know if the required restoration plan had ever been
submitted.
CL Environmental Ltd., a Jamaican environmental consultant,
was contracted by the Port Authority of Jamaica to review the
environmental status of the Falmouth Cruise Ship Terminal
roughly two years after completion. Field work was done in
2013 and CL Environmental concluded general indications
of success were poor:
» Survival rates of the relocated coral were low at 4.0%,
14.0% and 18% at relocation sites
» Success rates for sponges were even lower at 1.2%, 0.7%
and 0.4%
» Most of the seagrass plugs were said to be in “fair”
condition
» Dinoflagellate counts in Oyster Bay (Glistening Waters)
were much lower
» There was a significant increase in macroalgae cover
» There was no mention of the requirement for replanting
of mangroves.125
124 Technological and Environmental Management Network (TEMN), Report No 7, Dec 1-31, 2009. TEMN is a Jamaican environmental consulting firm that
conducted the monitoring.
125 CL Environmental Consultants, “Environmental Status of the Falmouth Cruise Ship Terminal, Trelawny, Jamaica (Final Report),” July 2013.
42 | BEYOND PET BOTTLES AND PLASTIC BAGS
5.2 RESOURCES AND CAPACITIES
The extent to which NEPA can properly fulfill its mandate
is dependent on what one considers that mandate to be. Its
stated mandate is, “to carry out the technical (functional)
and administrative mandate of [the] three statutory bodies”
(NRCA, TCPA and LDUC). As we have seen, the legal
process giving effect to this mandate was never completed,
but it could be said that NEPA nevertheless does this on a de
facto basis. The mission NEPA sets out for itself is “to promote
sustainable development by ensuring protection of the
environment and orderly development,” and its vision is that
“Jamaica’s natural resources are used in a sustainable way and
that there is broad understanding of environment, planning
and development issues, with extensive participation
amongst citizens and a high level of compliance to relevant
legislation.”126
A partial list of NEPA’s functions includes:
» Monitor natural resources (including those in the sea)
and public health indicators
» Conduct public education
» Prepare national environmental, planning and
development policies, strategies and plans
» Manage national parks and protected areas and oversee
delegation agreements for the management of national
parks and protected areas
» Consult with a wide range of other state agencies
» Prepare and update development orders
» Advise local planning authorities, the private sector, the
Natural Resources Conservation Authority, and the Town
and Country Planning Authority on a range of planning
and environmental issues
» Prepare plans and reports to meet requirements of
international agreements
» Enforce planning and environmental laws, permits and
licenses in areas covered by development orders, and for
all activities within permitted categories
» Process applications for permits and licenses
» Develop standards and regulations
» Set quotas for harvest and monitor imports and exports
of protected species
Table 10: Applications processed by NEPA 2017-2018 fiscal year
TYPE OF APPLICATION NO. PROCESSED NO. PROCESSED WITHIN 75-90 DAYS
Beach License 45 34
Environmental Permit 178 145
Environmental License 66 51
Non TPA Planning 36 24
TCPA Planning 32 24
Subdivision (9 lots and under) 96 94
Subdivision (10 lots and over) 27 22
Enquiries 16 9
TOTAL 496 403
126 “Agency Profile,” National Environment and Planning Agency, last modified July 21, 2014. (http://nepa.gov.jm/new/about/overview.php)
BEYOND PET BOTTLES AND PLASTIC BAGS | 43
The only areas which the organization’s senior management
acknowledges a lack of human resources is with regard to
having enough staff to process permits and licences (which
results in them now being assigned priority based on a
risk assessment,) and to respond to the large number of
complaints from the public requiring investigation, as well
as an inability to easily increase the staff complement in
these areas. The target for processing is 75-90 days, and for
fiscal year 2017/8, 403 out of 496 permits or licenses were
completed within this time frame.
The extent to which NEPA has the sufficient technical
expertise, personnel and equipment to enact its mission and
vision, and to carry out these many functions are debatable.
NEPA seems to have a large cadre of trained professionals—
the employees in the categories above (Table 10), according
to NEPA’s CEO, are some of the best trained environment
and planning practitioners, and they have “the minimum
qualification of a bachelor’s degree, many also have masters’
degrees.”127 With regard to its enforcement function, the
25 enforcement officers are supplemented by the support
of other staff members (e.g., members of the Ecosystem
Services Branch). They also co-opt the resources of other
GOJ agencies (e.g. the Marine Police and members of the
Island Special Constabulary Force), and the public (e.g.
Game Wardens).128
NEPA acknowledges resource constraints, particularly with
regard to physical equipment and technology, for example
to conduct sufficient water or air quality testing. Even with
these constraints, however, the organization’s focus appears
to be far more on processes rather than results. While there is
no definitive data showing the impact of enforcement actions
(or lack thereof) on natural resources, it is certain that fines
are too low and sanctions are too ineffective to disincentivize
breaches. The Natural Resources Conservation Authority Act
and the Town and Country Planning Act are seldom the basis
of legal action, monitoring visits are not frequent enough and
often significantly delayed after the permit/license is granted,
and there is tolerance for developers to embark on activities
without the required permits. Environmental permits
rely on a range of other documents that are not generally
accessible to the public, or even to monitoring officers. Even
if we assume that NEPA lacks the resources to effectively
implement laws and regulations, the agency could, but
doesn’t, look to alternative means of improving compliance,
such as publicizing the few instances where sanctions are
levied, or developments are stopped. Instead, there is an over-
reliance on “soft” enforcement measures such as warnings
and enforcement notices, which neither prevent nor remedy
environmental damage.
127 Peter Knight, CEO of NEPA, email correspondence with author, September 5, 2018.
128 Peter Knight, personal interview with author, September 3, 2018.
Source: Peter Knight, CEO, NEPA, email to author, September 5, 2018.
Table 11: Technical skills available at NEPA September 2018
TECHNICAL SKILLS NUMBER OF EMPLOYEES
Architect 1
Planners 48
Marine Biologists 11
Environmental Scientists 40
Civil Engineers 2
Chemical Engineers 10
Environmental Engineer 1
44 | BEYOND PET BOTTLES AND PLASTIC BAGS
6. CONCLUSION AND
RECOMMENDATIONS
Despite many public statements at the highest level assuring commitment to environmental protection
and sustainability, the Jamaican government (regardless of the administration’s political stripe) has
failed to operationalize these promises. The early commitment to protection of the environment via
the Natural Resources Conservation Authority Act has never been delivered. At the time, there seemed
to be an understanding that significant environmental risks were presented by state agencies, with
the result that the NRCA Act binds the Crown. This meant that the NRCA then (and NEPA now)
could take court action against government agencies which breached environmental laws. But this
has happened rarely over the 27 years of the NRCA Act’s existence, with the result that a culture of
non-compliance with environmental rules has been created, a culture in which the general public,
including the private sector, are not constrained by laws or regulations in their actions, regardless of
the environmental effects. This culture of impunity has been exacerbated by a lack of enforcement
of the Permit and Licensing System that was put in place five years after the promulgation of the
NRCA Act, where environmental permits and licenses were to be issued for a wide range of types of
development.
BEYOND PET BOTTLES AND PLASTIC BAGS | 45
While NEPA could and should be better resourced,
particularly with regard to physical infrastructure such as
laboratory space and equipment, the evident absence of
effective enforcement measures, including the application
of sanctions, has more to do with NEPA’s tacit definition of
its mandate as a facilitator of development than with a lack
of resources. NEPA’s monitoring of the health of the natural
environment remains extremely weak, and their focus is
overwhelmingly on processes rather than results, with the
result that there are significant execution gaps, and many
identified solutions, policies, plans and programmes take far
too long to be implemented.
A critical juncture occurred in 2001: the incomplete merger
of the NRCA, the TCPA and the LDUC resulted in an overly
complex iteration of what was a simple regulatory framework;
the required repeal of the NRCA Act and the promulgation
of a new NEPA Act has never been done. What we have been
left with for nearly 30 years is a situation where overlapping
and diffuse responsibilities for the environment remain
spread across many different government agencies, leading
to confusion, delays, and deflection of responsibilities.
The lack of commitment at the highest level to environmental
protection is illustrated by the frequent movement of the
environmental portfolio to different ministries. Qualified
environmental professionals have never comprised the
majority on the NRCA Board, with the result that decisions
inevitably reflect the pro-development-at-any-cost stance of
public and private sectors alike, regardless of environmental
impacts. Since 2016, the environmental portfolio is located in
the Ministry of Economic Growth and Job Creation – a clear
indication of the GOJ’s priorities, which is ironic given that
this administration’s leader has made the most meaningful
public statements about environmental protection than any
other Prime Minister in the past three decades.
What then remains is an environmental regulatory
framework comprised of a long list of worthwhile intentions,
codified in incomplete policies, and characterized by failure
to act over long time periods. Many recommendations have
simply not been carried out, many plans not implemented,
and many declarations not followed through. One might
even argue that it would suffice for Jamaica to implement
the policies that already exist, and enforce the laws already
on its books, for environmental protection to be far more
effective than it is at present—that before we add any new
laws or policies, we follow through on those we have now.
What this suggests is that the main weakness in Jamaica’s
environmental framework is a lack of sufficient interest on
the part of the government and its agents to protect our
natural environment in a substantive way. While there are
specific areas that call for attention, such as the current
ineffectiveness of low fines, and the need for greater and
more meaningful public engagement, the most important
change that is needed in Jamaica is a commitment to execute
and complete identified actions.
6.1 RECOMMENDATIONS
129 “Progress report on legislation addressing an integrated approach to environment and planning in Jamaica,” NEPA, March, 2005
PROMULGATE THE NEPA ACT AS AN URGENT PRIORITY
The steps that need to be taken to carry through on this commitment are contained in a 2005
document, “Progress report on legislation addressing an integrated approach to environment and
planning in Jamaica.”129 These include the repeal of the Natural Resources Conservation Authority
Act, the Town and Country Planning Act, the Land Development and Utilization Commission Act,
the Beach Control Act, the Watersheds Protection Act and the Wildlife Protection Act, as well as
amendments to the Local Improvements Act and the Housing Act.
Additional clauses should include third party rights for the general public, specification of the skills
required on the new regulatory authority, and explicitly stated parameters regarding ministerial
discretionary powers, with a view to minimizing them only to matters of emergency and national
security.
Given the long-standing and evident failure to adhere to development orders, sanctions for breaches
to the development orders should be included in the new NEPA Act. Discretion for state agencies and/
or ministers to vary development order provisions should be reduced, and development orders should
be updated on a specified schedule, including a review of compliance with the previous development
order.
The environmental focus should be made explicit by calling the new act the National Environmental
Protection Act.
46 | BEYOND PET BOTTLES AND PLASTIC BAGS
COMPLETE AND PROMULGATE THE ENVIRONMENTAL IMPACT
ASSESSMENT REGULATIONS
The environmental impact assessment system is the main environmental management system
in Jamaica. Complete the EIA regulations to establish, at a minimum, mandatory strategic
environmental assessments and environmental impact assessments for certain types of development
and/or developments in certain areas, certification of EIA consultants, and provisions to guard against
conflicts of interest and public consultation procedures.
COMPLETE AND PROMULGATE THE REGULATIONS FOR ALL TYPES OF
PARKS AND PROTECTED AREAS
Parks and protected areas of various types can be declared under the NRCA Act, but with the exception
of marine and national parks, there are no regulations in place for other types of protected areas. This
means that there are no restrictions on what types of development can occur in these areas, or how
they should be managed.
INCREASE FINES AND SANCTIONS
There are a number of proposals for increased fines for breaches of the NRCA Act and its regulations
(or whatever legislation replaces it). They need to be implemented on the basis of a modern assessment
as to what sanctions and fines comprise effective disincentives.
COMPLETE THE REMAINING DEVELOPMENT ORDERS AND CONDUCT
OUTREACH ON THEIR PROVISIONS
Summarize key requirements of the Development Orders in a format that can be easily understood by
the public. Conduct outreach to development organizations, such as architects, engineers, developers,
Jamaica Promotions (Trade and Investment) (JAMPRO), and private sector umbrella groups.
RATIONALIZE AND COMPLETE ENVIRONMENTAL POLICIES
There are more than 20 policies relating to the environment in various stages of development, many
long delayed. Identify, consolidate and complete the critical ones, including any gaps, starting with
the following:
¾ National Ocean and Coastal Zone Management Policy (to include beach access, overwater
structures, mangrove, seagrass and coral reef protection, cays management)
¾ Watershed and River System Management Policy
¾ Protected Areas System Policy and Master Plan
¾ National Environmental Education Policy and Plan
¾ Policy for Conservation and Management of Protected Plants and Animals
BEYOND PET BOTTLES AND PLASTIC BAGS | 47
FAST TRACK THE NATIONAL SPATIAL PLAN
Developers and investment agencies should be able to review the National Spatial Plan to see the
framework for development in any part of the island. If an area is identified as important for watershed
protection, for example, there would be no need to proceed with an application which would require
removal of forests. This would also insulate the GOJ against potential lawsuits if land has already been
purchased for certain purposes which were clearly prohibited in the NSP.
SETTLE THE LOCATION OF THE ENVIRONMENTAL PORTFOLIO
There are a number of options: the Ministry of Health is relevant because of the relationship between
poor environmental management and public health, for example, and thus in ensuring effective solid
waste management and preventing air and water pollution. The Ministry of Local Government may
be appropriate given its role in development orders. The Office of the Prime Minister has proven, in
this administration, a suitable home as the prime minister’s own apparent interest in the environment
seems to have spurred more action and gotten better results in environmental matters than has
previously obtained. Secure bipartisan approval for this commitment.
ESTABLISH A PARLIAMENTARY COMMISSION ON THE ENVIRONMENT
Given the immediate and existential threat of climate change to island states, the large numbers of
Jamaicans inhabiting zones vulnerable to disasters, and the manifest failure to manage development
or protect the environment over the country’s history, establish a Parliamentary Commission on the
Environment, along the lines of the Electoral Commission or the Office of the Children’s Advocate.
Establish outcome indicators for environmental health, such as air and water quality, coral reef health,
beach erosion status, forest restoration, waste management indicators, and others. Publish them in
annual State of the Environment Reports, which are tabled in Parliament.
INVESTIGATE THE FEASIBILITY OF AN ENVIRONMENTAL COURT FOR
JAMAICA
There has been an explosion of environmental courts and tribunals all over the world. In 2018, there are
almost 1,500 tribunals or courts in 44 countries, including the Caribbean.130 Courts with specialized
expertise in environmental matters are able to deliver faster and better judgments, and use alternative
dispute resolution processes. The experience of the Trinidad and Tobago Environmental Commission
may be useful as one aspect of assessing best practices appropriate for the Caribbean region.131
130 Don C Smith, “Environmental courts and tribunals: changing environmental and natural resources law around the globe,” Journal of Energy & Natural
Resources Law, 36:2, 137-140, 2018. (www.tandfonline.com/doi/full/10.1080/02646811.2018.1446404)
131 “Report on Performance and Activities, 2000-2003,” Environmental Commission of Trinidad and Tobago, 2003. (www.ec.gov.tt/index.php/publications/
category/1-annual-reports?download=2)
48 | BEYOND PET BOTTLES AND PLASTIC BAGS
LIST OF ACRONYMS
AG Auditor General
BCA Beach Control Act
CAA Civil Aviation Authority
CEO Chief Executive Officer
CEP Country Environmental Profile
DO Development Order
ED Executive Director
EHU Environmental Health Unit
EIA Environmental Impact Assessment
ELAW Environmental Law Alliance Worldwide
GOJ Government of Jamaica
ITA Island Traffic Authority
JCDT Jamaica Conservation and Development Trust
JAMPRO
Jamaica Promotions (Trade and Investment)
Co. Ltd.
JEAN Jamaica Environmental Advocacy Network
JET Jamaica Environment Trust
JBI Jamaica Bauxite Institute
JFB Jamaica Fire Brigade
JIEP
Jamaica Institute of Environmental
Professionals
JNHT Jamaica National Heritage Trust
JPSCo Jamaica Public Service Company Ltd.
LDUA Land Development and Utilization Act
LDUC
Land Development and Utilization
Commission
MEGJC
Ministry of Economic Growth and Job
Creation
MGD Mines and Geology Division
MOAF Ministry of Agriculture and Fisheries
NEPA National Environment and Planning Agency
NIC National Irrigation Commission
NGO Non-Governmental Organization
NLA National Land Agency
NRCA Natural Resources Conservation Authority
NRCAA Natural Resources Conservation Authority Act
NSWMA National Solid Waste Management Authority
NSP National Spatial Plan
NWC National Water Commission
NWA National Works Agency
ODPEM
Office of Disaster Preparedness and Emergency
Management (ODPEM)
P&L Permit and Licensing Regulations
RADA
Rural Agriculture Development Authority
(RADA)
SML Special Monitoring List
STP Sewage Treatment Plant
TEMN
Technological and Environmental Management
Network
TCP Act Town and Country Planning Act
TCPA Town and Country Planning Authority
UDC Urban Development Corporation
USA United States of America
US EPA United States Environment Protection Agency
UWI University of the West Indies
WPA Wildlife Protection Act
WRA Water Resources Authority
BEYOND PET BOTTLES AND PLASTIC BAGS | 49
REFERENCES
Auditor General (Jamaica). 2010. “Performance Audit Report of the National Environment and Planning Agency’s Role in
Protecting the Environment and Promoting Sustainable Development.”
(http://nepa.gov.jm/new/services_products/publications/reports/docs/agd/agd_audit_2010.pdf)
______. 2016. “Follow up Performance Audit Report National Environment and Planning Agency.”
(http://nepa.gov.jm/new/services_products/publications/reports/docs/agd/agd_audit_2016.pdf)
Government of Jamaica. 1987. Jamaica: Country Environmental Profile, 1987. Natural Resources Conservation Division, and
Ralph M. Field and Associates Inc. International Institute for Environmental Development.
______. 1997. Jamaica: State of the Environment Report, 1997. Ministry of Environment and Housing, Natural Resources
Conservation Authority.
______. 2010. Jamaica: State of the Environment Report 2010. Ministry of Housing, Environment, Water, and Local Government,
National Environment and Planning Agency.
(http://nepa.gov.jm/publications/SOE/2010/State-of-The-Environment-Report-2010-Jamaica.pdf)
______. 2013. Jamaica: State of the Environment Report, 2013. Ministry of Economic Growth and Job Creation, National
Environment and Planning Agency.
(http://nepa.gov.jm/new/media_centre/news/articles/SoE_Jamaica_2013.pdf)
______. 2013. The Town and Country Planning (Negril and Green Island Area) Provisional Development Order, 2013.
(http://nepa.gov.jm/new/legal_matters/laws/Planning_Laws/TCP_NGIA_Provisional_Development_Order2013.pdf)
Jamaica Environment Trust (JET). 2013. “Review of the Falmouth Cruise Ship Pier Environmental Status.”
(www.jamentrust.org/wp-content/uploads/2016/07/Review-of-Falmouth-Pier-Environmental-Status-JET-ELAW-Sept-2015.
pdf)
______. 2017. “Review of the Legal and Policy Framework for Air and Water Quality in the Island of Jamaica,” Commonwealth
Foundation.
Planning Institute of Jamaica (PIOJ). 2010. “Risk and Vulnerability Assessment Methodology Development Project (RiVAMP),
Linking Ecosystems to Risk and Vulnerability Reduction – the Case of Jamaica.” United Nations Environment Programme.
50 | BEYOND PET BOTTLES AND PLASTIC BAGS
APPENDIX 1
APPENDIX 3
APPENDIX 2
TERMS OF REFERENCE
Identify key areas of weakness in Jamaica’s current governance framework for environmental management and propose
institutional and other changes to address these deficiencies.
The following areas, amongst others, are proposed to be addressed through the research:
» Development orders: Jamaica has several development orders intended to govern the development of various parts of
Jamaica, with due regard to environmental considerations. However, these development orders are largely ignored in
development implementation - in some instances, aided by corruption in the permitting process, in others aided by lax or
non-existent monitoring and enforcement during the development process - generally, to the detriment of the environment;
» EIA process: Jamaica requires Environmental Impact Assessments (EIAs) for all major developments, but with EIA
consultants paid directly by developers there is a strong motivation for EIAs to make the case for the development rather
than not. Moreover, all decisions require ministerial approval which in some cases is given before the EIA process has been
completed. Finally, the EIA regulatory agency, NEPA, does not have sufficient technical or financial capacity to adequately
assess EIAs (e.g. by conducting field travel and independent verification) within the stipulated time limit and thus rely heavily
on the information in the provided EIA report;
» Enforcement: Enforcement of environmental regulations in Jamaica is lacking, due to lack of resources, including funding,
but also equipment and trained personnel.
LIST OF ENVIRONMENTAL LAWS ADMINISTERED BY NEPA
Beach Control Act 1956, most recent amendment 1991
moj.gov.jm/laws/beach-control-act
Endangered Species (Protection, Conservation and Regulation of Trade) Act 2000
moj.gov.jm/laws/endangered-species-protection-etc-act-0
INTERVIEWS
Franklin McDonald, former Executive Director and CEO of NRCA and NEPA
Carl Chen, Architect, former member of the TCPA and current member of the Advisory Planning Committee
Douglas Stiebel, Architect, former member of the TCPA, former Chairman of the Jamaica Environment Trust
Peter Knight, CEO of National Environment and Planning Agency (NEPA).
Susan Otuokon, Executive Director, Jamaica Conservation and Development Trust.
NEPA executives, personal interviews with author.
BEYOND PET BOTTLES AND PLASTIC BAGS | 51
Town and Country Planning Act 1958, most recent amendment 1999
moj.gov.jm/laws/town-and-country-planning-act
Watersheds Protection Act 1963, most recent amendment 1991
moj.gov.jm/laws/watersheds-protection-act-1
Wildlife Protection Act 1945, most recent amendment 2016
moj.gov.jm/laws/wild-life-protection-act-0
LIST OF ENVIRONMENTAL LAWS NOT ADMINISTERED BY NEPA
Building Act 2017
https://japarliament.gov.jm/attachments/article/339/The%20Building%20Act,%202017%20--hp.pdf
Clean Air Act 1964
http://moj.gov.jm/laws/clean-air-act
Country Fires Act 1942
http://moj.gov.jm/laws/country-fires-act
Exclusive Economic Zone Act 1991
http://moj.gov.jm/laws/exclusive-economic-zone-act
Fishing Industry Act 1976
http://moj.gov.jm/sites/default/files/laws/The%20Fishing%20Industry%20Act_0.pdf
Forestry Act 1996
http://moj.gov.jm/laws/forest-act
Housing Act 1969
http://moj.gov.jm/sites/default/files/laws/The%20Housing%20Act.pdf
Maritime Areas Act 1996
www.moj.gov.jm/sites/default/files/laws/Maritime%20Areas%20Act.pdf
Mining Act 1947
http://moj.gov.jm/laws/mining-act
National Solid Waste Management Authority Act 2001
http://moj.gov.jm/laws/national-solid-waste-management-act
Pesticides Act 1987
http://moj.gov.jm/laws/pesticides-act
Public Health (Nuisance Regulations) 1995
52 | BEYOND PET BOTTLES AND PLASTIC BAGS
APPENDIX 4
JAMAICA’S ENVIRONMENTAL POLICIES AND PLANS
Government of Jamaica Policy Development Programme March 2018 update
https://cabinet.gov.jm/wp-content/uploads/2018/06/GOJ-Policy-Development-Programme-Update-at-March-2018-web-
version.pdf
Beach Policy for Jamaica, now Beach Access and Management Policy
http://nepa.gov.jm/symposia_03/Policies/BeachPolicyforJamaica-November2000.pdf
Biosafety Policy
http://nepa.gov.jm/documents/Draft-Biosafety-Policy.pdf
Cays Management Policy
https://jis.gov.jm/cay-management-policy-to-be-completed-in-2013/
Climate Change Policy Framework for Jamaica
http://nepa.gov.jm/Climate_Change/Climate_Change_Policy_Framework_and_Action_Plan_November_2013.pdf
Coral Reef Protection and Preservation Policy
http://nepa.gov.jm/symposia_03/Policies/CoralReefReg.pdf
Dolphin Conservation Policy
http://nepa.gov.jm/symposia_03/policies/dolphinpolicydraft.pdf
Emissions Policy Framework
https://jis.gov.jm/govt-develop-national-policy-emissions/
Jamaica Coral Reef Action Plan ; now called Action Plan for Corals and Reefs
http://nepa.gov.jm/symposia_03/Policies/JCRAP.pdf
http://nepa.gov.jm/new/legal_matters/laws/Other_Laws/Public_Health(Nuisance)Regulations_1995.pdf
Quarries Control Act 1984
http://moj.gov.jm/laws/quarries-control-act
Urban Development Corporation Act 1968
http://moj.gov.jm/laws/urban-development-corporation-act
Water Resources Act 1995
http://moj.gov.jm/laws/water-resources-act
BEYOND PET BOTTLES AND PLASTIC BAGS | 53
Jamaica’s Protected Areas System Master Plan (PASMP) 2013-2017
https://info.undp.org/docs/pdc/Documents/JAM/Jamaica’s%20Protected%20Areas%20System%20Master%20Plan%20
2013-17(Final%20Submission%20to%20the%20PAC).pdf
Jamaica’s National Environmental Action Plan 2006/9
http://nepa.gov.jm/documents/JANEAP-2006.pdf
Mangrove and Coastal Wetlands Policy and Regulation
http://nepa.gov.jm/symposia_03/Policies/Mangrove&WetlandsProtectionPolicy.pdf
National Energy from Waste Policy 2010-2030
www.mset.gov.jm/sites/default/files/pdf/Draft%20Waste%20to%20Energy%20Policy.pdf
National Environmental Education Action Plan for Sustainable Development
http://nepa.gov.jm/symposia_03/Policies/NEEAPSD.pdf
National Forestry Management and Conservation Plan
www.forestry.gov.jm/sites/default/files/Resources/draft_national_forest_management_conservation_plan-_2017.pdf
National Mariculture Policy
http://nepa.gov.jm/policies/draft/mariculture.htm
National Policy for the Conservation of Seagrasses
http://nepa.gov.jm/symposia_03/Policies/NationalPolicyfortheConservationofSeagrasses.pdf
National Ocean and Coastal Zone Management Policy
http://nepa.gov.jm/symposia_03/Policies/OceanandCoastalZoneManagementActionPlan.pdf
http://nepa.gov.jm/symposia_03/Policies/OceanandCoastalZoneManagementPolicy.pdf
National Policy on Environmental Management Systems
https://japarliament.gov.jm/attachments/article/1927/2018%20Green%20Paper%202%20-%20National%20Policy%20on%20
Environmental%20Management%20Systems.pdf
National Policy for the Environmentally Sound Management of Hazardous Wastes
National Water Sector Policy and Implementation Plan
www.wra.gov.jm/sites/default/files/Jamaica_water_sector_policy_2004.pdf
Policy and Guidelines for Overwater Rooms
Protected Animals in Captivity
Watershed Management Policy
http://nepa.gov.jm/projects/R2RW/R2RW%20CD%20-%2002/031/031.pdf
54 | BEYOND PET BOTTLES AND PLASTIC BAGS
To read any of our published reports in full, please visit
www.capricaribbean.org/publications
Contact us at:
info@capricaribbean.org
or by telephone at
(876) 970-3447 or (876) 970-2910
BEYOND PET BOTTLES
AND PLASTIC BAGS
FIXING JAMAICA’S ENVIRONMENTAL
REGULATORY FRAMEWORK
& CARIBBEAN
ey (o POLICY
oS RESEARCH
UWI INSTITUTE
NIA
National Integrity Action
of Jamaica's forests sw, More than20% = _—_ =~
are disturbed 30S of land within forest reserves has —_
TW been impacted by HUMAN ACTIVITY
Oo
eS
9
Almost all our watersheds
have been impacted by
human activity and degraded
All major river courses receive pollutants at some point: YA °f mangrove forests has been lost due to activities
INDUSTRIAL WASTE, SEWAGE, SILT, DEBRIS, AND AGRICULTURAL RUN-OFF like infilling for real estate developments
An internal NEPA report from
2004- 7
found only
of sewage treatment
plants meeting standards
for Biological Oxygen Demand (BOD)
A 2017-2018 unpublished list was made available by NEPA,
showing 19 legal cases before the Parish Courts under four Acts:
Natural Resources Town and Country
Conservation Planning Act
Authority Act
Except for 2 cases,
ALL FINES IMPOSED WERE LESS THAN
Beach Control Act Wildlife
Protection Act
J$50,000
aS
SS
Between
April 2012
&
March 2015
The Auditor General's
2016 performance review
of NEPA identified
452 CASES
referred to NEPA’s legal
branch, but only
11 CASES
BEFORE THE COURTS
Between 2012 and 2015
ONLY 1 PERMIT
WAS SUSPENED.
IN COMPARISON (OVER THE SAME TIME PERIOD):
163 59
ENFORCEMENT CESSATION
NOTICES ORDERS
were issued
70
50 STOP NOTICES
NOTICES OF 52
INTENTION SUMMONS
to suspend license or
permit SERVED
Sandals SOUTH COAST
WHITEHOUSE, JAMAICA
OVER-THE-WATER
BUNGALOWS
Perched above clear turquoi
waters, these ahiti.
and
ha ee Cee Moe Tt Pet eee eee ee
PLANNED MITIGATION MEASURES WERE T0
RELOCATE REPLANT REPLANT
140,000 200,000m’ 400,000m?
HEALTHY CORALS SEAGRASSES MANGROVES
(COMPLETED)
2013 field work by CL Environmental indicated underwhelming results
HEALTHY CORALS SEA SPONGES
SUCCESS RATE SUCCESS RATE
4' - 18" 0.4" - 1.2!
Other mentions and counts of seagrass, Which saw a
“MACROALGAE SIGNIFICANT INCREASE
dinoflagellate, and mangroves were
either fair, much lower or unavailable.
CARIBBEAN
POLICY
RESEARCH
INSTITUTE
Email domain
capricaribbean.orgPhone numbers
- 198420132015
- 198220132015
- 8769702910
- 195719571962
- 8769703447
- 201320132015
- 199919992000
- 98512206811822
- 200608017
- 264681120181446404
Phone numbers
- 2013 2013 2015
- 1957 1957 1962
- (876) 970-2910
- 2646811.2018.1446404
- 1984 2013 2015
- 1999 1999 2000
- (876) 970-3447
- 98512206811822
- 1982 2013 2015
- 2006-08017
Law clause
- Section 6
- Section 32
- art 2007/8
- article/339
- Section 9
- art 2006/7
- Section 17
- Section 2
- article/1927
- Section 39
Law code
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- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.image.ImageParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
- [org.apache.tika.parser.DefaultParser, org.apache.tika.parser.ocr.TesseractOCRParser, org.apache.tika.parser.jpeg.JpegParser]
etl_enhance_extract_text_tika_server_time_millis_i:
6390
6390
etl_enhance_extract_text_tika_server_b:
1
1
etl_enhance_pdf_ocr_time_millis_i:
10
10
etl_enhance_pdf_ocr_b:
1
1
etl_enhance_detect_language_tika_server_time_millis_i:
34
34
etl_enhance_detect_language_tika_server_b:
1
1
etl_enhance_contenttype_group_time_millis_i:
1
1
etl_enhance_contenttype_group_b:
1
1
etl_enhance_pst_time_millis_i:
1
1
etl_enhance_pst_b:
1
1
etl_enhance_csv_time_millis_i:
0
0
etl_enhance_csv_b:
1
1
etl_enhance_extract_hashtags_time_millis_i:
29
29
etl_enhance_extract_hashtags_b:
1
1
etl_enhance_warc_time_millis_i:
6
6
etl_enhance_warc_b:
1
1
etl_enhance_zip_time_millis_i:
1
1
etl_enhance_zip_b:
1
1
etl_clean_title_time_millis_i:
0
0
etl_clean_title_b:
1
1
etl_enhance_rdf_annotations_by_http_request_time_millis_i:
38
38
etl_enhance_rdf_annotations_by_http_request_b:
1
1
etl_enhance_rdf_time_millis_i:
0
0
etl_enhance_rdf_b:
1
1
etl_enhance_regex_time_millis_i:
262
262
etl_enhance_regex_b:
1
1
etl_enhance_extract_email_time_millis_i:
216
216
etl_enhance_extract_email_b:
1
1
etl_enhance_extract_phone_time_millis_i:
173
173
etl_enhance_extract_phone_b:
1
1
etl_enhance_extract_law_time_millis_i:
307
307
etl_enhance_extract_law_b:
1
1
etl_export_neo4j_time_millis_i:
436
436
etl_export_neo4j_b:
1
1
X-TIKA_content_handler:
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
- ToTextContentHandler
X-TIKA_embedded_depth:
- 0
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
- 1
X-TIKA_parse_time_millis:
- 6207
- 110
- 60
- 47
- 102
- 47
- 51
- 49
- 113
- 103
- 139
- 123
- 79
- 104
- 72
- 66
- 62
- 77
- 44
- 92
- 75
- 88
- 103
- 95
- 91
- 73
- 93
- 70
- 51
- 56
- 49
- 69
- 62
- 46
- 58
- 104
X-TIKA_embedded_resource_path:
- /image0.png
- /image1.png
- /image2.png
- /image3.jpg
- /image4.jpg
- /image5.jpg
- /image6.jpg
- /image7.jpg
- /image8.jpg
- /image9.png
- /image10.jpg
- /image11.jpg
- /image12.png
- /image13.png
- /image14.png
- /image15.jpg
- /image16.jpg
- /image17.jpg
- /image18.jpg
- /image19.png
- /image20.png
- /image21.jpg
- /image22.jpg
- /image23.jpg
- /image24.png
- /image25.jpg
- /image26.jpg
- /image27.jpg
- /image28.jpg
- /image29.jpg
- /image30.jpg
- /image31.png
- /image32.png
- /image33.jpg
- /image34.jpg