When DoE zeal collides with objectivity

Don’t yawn yet, but we’ve got to quote to you a little bit of constitutional law. It’s important:

Underpinning lawmakers’ justification for passing the National Conservation Law late last year was Section 18 of the 2009 Cayman Islands Constitution, which charges the government with protecting the natural environment by taking measures that “(a) limit pollution and ecological degradation; (b) promote conservation and biodiversity; and (c) secure ecologically sustainable development and use of natural resources.”

What will determine the success or failure of the implementation of the law, however, is how well government adheres to the next part of the Constitution, Section 19, which states, “All decisions and acts of public officials must be lawful, rational, proportionate and procedurally fair.”

In other words, officials cannot allow any personal zeal for the environment to predispose them to oppose or support an application for a particular project. Doing so would invite allegations of bias, potentially expose the government to retaliatory legal action that drains the public treasury and, no doubt, have a chilling effect on economic development going forward.

But that’s just what Department of Environment Deputy Director Tim Austin did when he employed, by his own admission, a “poor choice of words” in correspondence related to the proposed marina near the Alexander Hotel on Cayman Brac.

The emails, from April 2014, involve Mr. Austin and a volunteer who gathers data on Brac turtle nesting sites, and who had made her personal prejudices against the project and developers abundantly clear, saying “I really hate cooperating with him in working FOR the marina.”

In his response to the volunteer, Mr. Austin said, “Are you aware of turtle nests in the beach vicinity of Salt Water Pond? I hope so.”

He concluded the email, “Can you let me know as soon as possible if there are any nests in the vicinity?”

There are two problems with Mr. Austin’s language, as pointed out by the Dilbert family, who own the now-shuttered resort:

First, Mr. Austin appears to have expressed hopes that turtles are nesting near the hotel property, thus stymieing the marina.

Second, Mr. Austin appears to be unsure whether there are turtle nesting sites in the vicinity at all — despite the department’s earlier definitive statements that “the works will require the removal of active turtle nesting beach.”

Mr. Austin has tried to explain away the emails by saying he was inquiring about precise GPS data for known turtle nests, not whether the nests were there or not. Too late. The appearance of bias is bias, and the Dilberts had already made political hay out of the emails, which played right into their ongoing argument that the Cayman government is unfairly obstructing their marina proposal, while green-lighting two other Brac marinas from a rival developer.

(The scenario also contains a separate, but related, cautionary tale on trusting the government: The Dilberts say they only built the Alexander Hotel in the first place on the promise of politicians that they would be allowed to dredge, and deodorize, the adjacent “Stink Pond,” which at the time enjoyed protected status as an Animal Sanctuary.)

The issue at hand is not whether the Dilberts should be allowed to dredge the pond and build their marina. The Compass is simply not in a position to make that determination. Rather, the issue raised by the emails is whether the Dilberts, or any developer, can hold a reasonable expectation of objectivity when dealing with the Department of Environment.

In regard to the Brac marina, the department has failed to meet the professional standard of maintaining the appearance of neutrality. When the Conservation Law takes effect, it will not only boost the influence and powers of environmental officials, but will also amplify by magnitudes the ramifications of any egregious errors they commit.

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