In Court:
Isla Refinery versus the People
Lady Justice really
doesn't need a blindfold
with that smoke-screen
| Don't Get Mixed UP |
| There presently (2007) are two cases in court by SMOC versus Isla and the government. One is on behalf of inhabitants of the area downwind of the refinery, claiming damages caused by the refinery pollution; in an earlier one, started in 2005, SMOC demands stopping of all refinery activities that are in conflict with Hinderwet [nuisance act]. Below, both actions are discussed. And I got mixed up because, technically, it's Humanitaire Zorg SHZC, not SMOC that's the plaintiff. For most practical purposes, there's not much difference. |
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Judge: "This Nuisance Must Stop!"
On May 28 2009, Judge van Unen ruled that from 2010 Isla's yearly SO2 emissions may not exceed a limit, or will be fined US$3M. Exceeding a particulate limit for more than 18 times a year will result in another US$300K fine. Isla refinery had claimed that upgrading the refinery to achieve this would cost $1.5G, but the judge figured it was closer to 100M.
Mere peanuts to what foreign press representatives working in Venezuela call "PdVSA's best refinery"—that doesn't even take the trouble to collect hefty fees when it has to shut down because their BOO electricity supply fails.
And, naturally, the refinery is appealing again. Delay is the name of their game.
The judge also ruled, on June 18, that BC island government is obliged to apply the hinderwet [nuisance act] when Isla exceeds the norms.
Meanwhile, a chemistry teacher at MIL high school downwind of the refinery has asked for a transfer to another school, for health reasons.
On 30 September 2005 SMOC foundation renews an action against Bestuurscollege [Curaçao island government] for failing to abate the Isla nuisance. Isla now puts out as much SO2 (sulfur dioxide) as all of Holland, with 10 times or more as many inhabitants, put together. On 22 June 2006, the judge rules BC should be given more time; since SMOC's original request a total of six months has now passed by without anything having been accomplished.
The day before the case comes to court, Milieudienst states SMOC has no case, and that this new action 'comes as a complete surprise'.Maintaining a license implies more than reporting measuring results- says director Sillé. Duh.
The judge orders BC to write aclear refusal, only after which SMOC can start its new action to force BC to apply the Nuisance Act. BC does this the day before the verdict.
SMOC (end November 2005) starts a new procedure against BC, by sending a petition there. When BC does not react in 'a reasonable time', by stopping the forbidden and damaging activities of the refinery immediately as is its duty, SMOC can and will go to court again. This reasonable time varies from 10 days to 4 months, depending on who's talking.
SMOC gave the government nine months to respond and the re-sued, only to be thrown out of court by judge Joop Drop, who judged they had waited too long. An appeal by SMOC finally was turned down in December 2007 on the same grounds.
(Isla lawyer Luigi Virginia)The case finally came to court in June 2006. SMOC demands that Isla follows Hinderwet [nuisance act] stipulations. Island government Bestuurscollege and refinery claim no offenses are committed.
It turns out a lot has not been regulated here, or much too vaguely. The downwind barrios have been marked out as 'non-attainment' areas, of which the definition is downright cynical: It's an area where the norms have not been met for one year. It is not clear if there is a time limit when norms must be met again, nor why this has been kept a secret: Not even the inhabitants have been warned.
Both government and refinery experts repeatedly declare that if Isla is forced to follow Hinderwet stipulations, the refinery will have to be closed down; which does not exactly ring true with their assertions no offenses are committed. (Verdict July 19.)The Judge Verdict of July 19 2006, peanut-shell version: BC island government should decide in three months on how to stop Isla's offenses. It is only entitled not to stop them for explicit reasons, like there is a new law coming soon. BC's denying of SMOC's arguments has no merit. As regards the non-attainment areas, these don't even exist legally and should be regulated if they did. Finally, BC's arguments on the great economic importance of the refinery are of no merit either, because there has been not been any research on consequences of refinery control measures.
On August 31, BC announced it would appeal, while the term for that had expired already. Deputy of public health van der Gen 'assumed' the necessary actions had been taken. This obviously is a delaying tactic. If the island loses the appeal, the next stage is the European court for human rights. It seems clear from the government's recent reactions that they have not read the many expensive reports they paid for.Silly Reaction Milieudienst's head Sillé reacted with the remark that much must to be invested in the refinery to stop complaints, half of which has to be paid by the government. SMOC came back with the remark that the same Milieudienst has just held a rigorous control in Dominguito, warning offenders that they had to put up or shut down. The same obviously applies to the refinery; but as SMOC remarks, Sillé seems incapable of fulfilling his job and makes himself co-responsible for the damage done. What's Next? On March 28 2007, half an hour before the court session, BC withdrew their appeal. They may, for once, have actually read the judge's decision and figured out they were sure to lose, so threw in the towel. Still, BC took a decision on the last possible day (October 31) to reallystart measuring and do something about it (sarcastic quotes ours), to which SMOC has lodged another appeal. The following weeks will probably see expert testimony in court, a hearing and finally a judgment. SMOC expects the situation to have changed appreciably three years from now.
more info
Stichting Humanitaire Zorg
Humane Care Foundation CuraçaoIn July 2006, SMOC and Humanitaire Zorg announced to start an action on behalf of inhabitants of Wishi/Marchena, barrios in the smoke, against the refinery. Some twenty people claimed damages, and about one hundred more of those present at the meeting took home a form to fill out. The action was formally announced on 17 August:It's worth giving it as detailed as we can: Bestuurscollege [BC - island government] is held responsible for not informing inhabitants on the consequences of the nuisance act permission granted to Isla and BOO, with direct and indirect influences on life and health of inhabitants. BC has also emitted to inform on financial consequences (liability expires after 30 years.) BC carries legal and final responsibility for proper and sound researching, estimating and monitoring by GGD health service of health damages caused by dumped chemical, poisonous air, water and ground pollution. Inhabitants lack the opportunity of judging the risks to their health. BC has the legal responsibility of guaranteeing the fundamental right to life and a healthy environment, and is held responsible for health risks in the forms of cancer, genetic damage and other illnesses; with their medical, judicial and other associated costs; and for offenses against fundamental human rights.SMOC and Humanitaire Zorg went back to court in the first week of September 2006, 'coinciding' with a visit by Chavez cousin Granado, director of PdVSA, who was very successful in bamboozling our rulers. This time, SMOC's case is that after nine months, BC still has not responded to the 18 November 2005 SMOC letter (sent because of the verdict of October 20), so that verdict now is unlawful and should be annulled. There are at least three cases in court now; island government is obviously using delaying tactics here as long as they can. November 30 they managed to get another postponement (to 1 February 2007) so PdVSA can be represented as well.
Isla Refinery - It Stinks The Lawsuit - Summary Judgment
Day One
After a false start where the plaintiffs unsuccessfully try to have judge van Nunen replaced, the fireworks begin on February 1. Isla, PdVSA, BOO, the Island and the Country all have their own teeming crews of lawyers; and then some, imported from Holland and the USA. There are many more people swarming on the judiciary stage than there is public.
Defendants argue that maintaining air pollution norms is 'utopian' with no norms clearly established. But plaintiffs pose that Isla routinely exceeds norms, fails to maintain installations properly, does not measure pollution and does not give information on it, and that government fails to enforce the Nuisance Act, all resulting in health and material damages and inferior living conditions.
Defendants claim that as regards SO2 and fine dust, Isla is not obliged to conform to the nuisance act, and that it is not proven it is Isla that causes this pollution. They seem to fail to convince the judge, repeatedly giving the same reply to his questions. They further argue that death estimates are based on research done in other countries.
Government-owned Isla merely leases the refinery and is unable to enforce compliance to the nuisance acts, even though this is stipulated in the rental agreement (which they are strangely reluctant to show). Isla refinery is of the opinion plaintiffs have not shown they have suffered damages.
The same is argued by Curaçao: Many of the plaintiffs do not suffer any damage. The judge wonders why, in that case, measurement reports are not made public.
The attitude of defendants seems that it is impossible to reduce pollution to acceptable levels; the only alternative is to close down.
Day Two
Plaintiffs argue that Isla has not taken any measures at all to reduce nuisance. Pollution must be stopped or it will continue for generations, until the refinery has become economically unviable. The doom scenario of having to close down is labelled as 'mere power-play'. Isla claims alternatives, like lowering production and processing crude with lower sulphur content are unfeasible. But the high-sulphur crude originates in Venezuela, which is not interested in processing oil from other sources. Plaintiffs claim Isla causes forty premature deaths per year, which are not justified by economic motives.
Plaintiffs exaggerate the case's complications to deny the unlawfulness of causing damage to people's lives and health, defendants say. The only valid argument of defendants is the economic inportance of the refinery, plaintiffs say.Judge van Unen's judgment, 5 March.
Court does not accept Isla's argument that SMOC should sue the government, not the refinery, for not controlling Isla's Hinderwet [nuisance act] obligations, as Isla is obliged to abstain from acts that are unfitting in social traffic. Isla thus is obliged to follow 'Attachment F', stipulating rules, standards and norms regarding the environment.
The nuisance act also refers to this 'Attachment F'. If Isla exceeds the norms for sulphurdioxide and fine dust, Isla acts illegally. Isla tries to reason that it has not been proved that it is Isla that crosses the norms, but it is well-known that when the refinery does not work there is no nuisance, only to return with the refinery re-starting. Upwind from the refinery there is 20 microgram of SO2 per m3 of air; downwind it is three times the norm of 80, which must be caused mainly by Isla. Besides, the Isla Department Head Environmental Engineering writes that the SO2 release has to be reduced with 90-95% to confirm to the norm.
The refinery can therefore be forced to stop the norm-exceeding exhaust. Plaintiffs haveconstant and seriousdamage caused by refinery, with damage to health and under threat to their lives. This has to be balanced with the interests of Refineria Isla and other defendants, to wit island government. Economic interests for the island may be considerable but have been strongly reduced; the island has no direct income because of a 'complete and permanent' tax holiday, and the yearly rent of $18M is a mere trifle.
While Isla still maintains that the entire refinery will have to be closed down to meet nuisance act requirements, judge finds thisnot credible. He asks for information from more experts (before March 30) about possible upgrading, estimated cost $1G.
Appeal against interim judgment
On the last possible day, with SMOC presenting a list of four what they call 'impressive international experts', Isla c.s. appealed against the summary judgment (a highly unusual step). It is not immediately clear what the consequences will be.
The Appeal
Served in court on 21 September 2007. Isla lawyers hide behind their infamous smoke-screen: Isla is not the only pollutant, and it is impossible to figure how much is caused by BOO and Aqualectra. Both of these did not exist when in 1977 and 1999 reports on pointed at health problems caused by the smoke. Anyway, Isla maintains that if they are forced to keep to Hinderwet [nuisance act] regulations, which Isla admits they do exceed heavily, they will have to close. There are techniques available to lessen pollution significantly, but they are 'not economical'; the same applies to lowering production. Summing up, they do not want to do a thing.
Appeal: The VerdictIsla has argued, mainly, that in their nuisance act license and in the agreement between PdVSA, the Country and the Island there's no obligation to exploit the refinery in such manner that island air pollution norms are not transgressed. But the judge reasons that, according to the same license, Isla is bound to confirm to 'Attachment F', stipulating these norms.
While Isla reasons that not all pollution is caused by them, but also by BOO and Aqualectra, measurements show that Isla by itself transgressed those norms before BOO was operating.
Again, following the first verdict, Isla in cooperation with plaintiffs, will have to propose steps in which the nuisance will be abated. One of the possibilities is a refinery shut-down (read on).
No doubt Isla will now hire still more lawyers in efforts to postpone any acts to stop pollution for as long as possible, rather than act in the public interest.
Continued in Court
After the appeal, judge van Unen ordered Isla to pay an advance of ANG155K (before Christmas 2007) for an expert appraisal to be delivered before May 12 2008. This has to indicate how, at what costs and when Isla can operate within norms, after which the case will be back in court on May 27.Judge assigned chemists/process technologists Eric Feringa and Carla Weemaes of Foundation for advise in government jurisdiction STAB, the Hague, to answer questions on technical possibilities for reduction of SO2 and fine dust pollution, costs and term of execution. Short term possibilities of burn-off reduction must be looked at. Judge van Unen also wants to know how large the share is of other sources of pollution, and if air quality norms will be met if only Isla reduces pollution.
Isla-PdVSA negotiations on future investments
During the proceedings in court, reference was made to negotiations (now stopped) on sharing of future investment costs. Judge van Unen asked details on the costs to make the refinery comply with norms, how long the present situation would last and if there was a feasible solution. Isla lawyers, without answering, referred to the negotations. PdVSA only wants to invest as co-owner of Isla. According to Isla, Curaçao island is committed to paying half of investments outside IRUP Refinery Upgrade Program. This is denied by plaintiffs: It only applies to investments necessary because of a change in the Nuisance Acts resulting in stricter norms. But plaintiffs have no knowledge of the terms of the agreement.
To judge's remark that plaintiffs may be asking for an effective refinery shut-down, as the adaptations may take three to seven years, plaintiff's lawyer In 't Veld replied there are many studies on this showing a lot of possibilties, but little interest on defendant's side.
One possible means is lower production, which Isla maintains is not economically feasible. But in the past Isla has lowered production for economic reasons.
It is not clear how the case may influence proceeding of negotiations between Curaçao island and PdVSA.
Shell Comments
Shell has declared that, in 1985, they left the refinery in a 'good condition'.
Work then had already started on processing the asphalt-lake, which had been cleared for about 30%.
(It has been stopped after take-over by Curaçao island.)
Curaçao economy
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