The Ombudsman’s Report performs a valuable and much-needed service in helping the public and policy-makers to understand and appreciate the usefulness of Environmental Impact Assessments. The following is the second in a series of BEST commentaries on the Report intended to assist this understanding and appreciation, particularly as it applies to the Special Development Order (SDO) issued for Tucker’s Point Club (TPC).

The Ombudsman in her Report on Special Development Orders stated that “… it is a mistake in law not to conduct an Environmental Impact Assessment (EIA) prior to approval of development proposals that are major or likely to have significant adverse effect on the environment.” (see “Today’s Choices — Tomorrow’s Costs:” Exec Summary, pp. 9-10, 13). The Ombudsman is basing this in part on the commitment made by the Bermuda Government to the Environment Charter, which it signed onto on September 26th, 2001. In Clause 4 of the Charter, the Bermuda government commits to “Ensure that environmental impact assessments are undertaken before approving major projects. . .” [emphasis added].

An EIA is an assessment of the possible positive or negative impact — environmental, social and economic — that a proposed project may have on a community. Its purpose is to ensure that decision makers are fully informed of these impacts before deciding whether to proceed with a project.

In the Executive Summary of her Report, the Ombudsman reinforces that the purpose of an EIA is to gather information to identify risks, examine ways to mitigate them, as well as explore alternatives to development proposals. In addition to this, EIAs can bolster transparency, public consultation, disclosure and input.

A properly conducted EIA would accomplish the following:
• identify the true costs of economic activity today that could adversely affect the environment for generations to come;
• guard against approval of development that cannot realistically be carried out;
• promote transparency and public trust;
• mute suspicions that information is deliberately withheld and that the grant of SDOs benefits the interest of a few rather than Bermuda as a whole;
• ultimately secure inter-generational justice through the principles sustainable development (see Exec Summary of the Ombudsman’s Report).

During the public discussion that was taking place on the Tucker’s Point SDO Jan – Mar 2011, BEST continually raised the issue that the SDO was being granted in principle, by both houses of the legislature of Bermuda, without the benefit of an EIA process to support this decision. In doing so the legislature was forced by the government to act contrary to the agreed-upon guiding principles for the UK Government and Government of Bermuda (see pp. 5 of the Ombudsman’s Report). Once this had taken place, as the O points out in her Report, no matter how flawed the legislature’s decision was later found to have been, it would have then been awkward for the Development Applications Board (DAB) to overturn in-principle approval already granted by the legislature.

Had it insisted that an EIA be conducted before the granting of the TP SDO, the Bermuda Government would have upheld its commitment to the Environment Charter. It would have been seen as fulfilling its obligation under the Charter by beginning the additional steps to develop the process and standards in carrying out EIAs. Without the benefits of a timely EIA the legislature was deprived of information it needed to make an informed decision and, consequently, the public interests were poorly served.

Our next commentary will look at the remedies offered by the Ombudsman’s analysis of legislative SDO decisions in general and the TPC SDO in particular.