On March 5, the Privy Council in London began hearings on a landmark case that was brought by environmental nongovernmental organisation (NGO) Eco-Sud against the Ministry of Environment, Solid Waste Management and Climate Change. At stake is the interpretation of the Environment Protection Act (EPA), specifically, who can appeal to have an Environmental Impact Assessment (EIA) licence quashed at the Environment and Land Use Appeal Tribunal (ELUAT).

The facts of the case date back to an EIA licence granted by the ministry to the Pointe d’Esny Lakeside Company Ltd to develop residential properties over two plots of land. Back on October 6, 2021, the ELUAT ruled that Eco-Sud did not have the locus standi to contest the EIA licence given to the company, arguing that Eco-Sud had failed to show how it was directly affected by the development. The NGO then contested the decision at the Supreme Court.

In a landmark judgement on July 18 last year, the Supreme Court overturned the decision of the ELUAT. In its judgement, the Supreme Court noted that courts in the UK and Australia “are gradually moving towards a more expansive and liberal approach to the concept of ‘standing’ especially with regard to public interest groups in the field of environment and climate justice. It can be gathered from the case law that a restrictive interpretation of the concept of ‘standing’ can actually deny access to justice to a person or body genuinely concerned with environment protection and whose qualms need to be considered. This awareness has given rise to the concept of ‘representative standing’”.

Interpreting Section 54 of the EPA, the court argued that the law only meant to “restrict frivolous challenges against projects which are highly desirable and beneficial for our economy; not to prevent challenges against unscrupulous projects with high environmental impacts on our already vulnerable island”. The Supreme Court’s interpretation of the EPA greatly relaxed the ‘locus standi’ requirement making it easier for environmental groups and citizens to bring challenges to EIA licences at the ELUAT. After this setback at the Supreme Court, the Ministry of Environment then took the case to the Privy Council to overturn the Supreme Court’s verdict.

At the hearing on March 5, arguments from both sides focused on the interpretation of the EPA, with Eco-Sud’s lawyers essentially backing the interpretation of the Supreme Court, while the lawyers for the Ministry of Environment insisting that the EPA’s locus standi requirement was more restrictive than the Supreme Court’s decision concluded it was.