February 22, 2010 5:35 AM
The Court of First Instance of Curaçao on 28 May 2009 in civil interlocutory proceedings rendered a judgment, whereby Isla, the operator of the Curaçao Oil Refinery (“Isla”) was ordered to lower its emissions by 2010, failing which penalties would be incurred.
Legal proceedings against Isla, a subsidiary of Venezuelan State owned oil giant PDVSA were instituted by residents who live nearby the refinery, as well as SMOC, a foundation specifically incorporated for such purposes and by ‘Stichting Humanitaire Zorg Curaçao’ (Human Health Foundation).
On 12 January 2010, the Court of Appeal of the Netherlands Antilles and Aruba rendered a decision on appeal in this case.
The Court of Appeal ruled that the Isla cannot be obliged to end the exceeding of the common emission limits. Isla – according to the Court of Appeal - cannot be held responsible for the contribution of other emissions, such as emissions of cars and the utility company, which are not related to it. However, Isla must restrict its own contribution to the emission of sulphur dioxide. The Court of Appeal prohibited the Isla to contribute more than a specific amount (80 ug/m³) as annual average. Additionally the judicially imposed penalty by the Court of First Instance was increased to the amount of seventy five million Antillean guilders (approx. $ 40 mil USD)
From the expert’s report, which report was made at the instruction of the Court of Appeal, it followed – according to the Court of Appeal - that the costs for Isla to meet the requirements of the emission standards are minor and do not threaten its continued existence. As a result of balancing the interests of Isla vis a vis, the interests of the residents who live nearby the refinery with reference to their health, the latter are considered more important than the economic damage for the Isla.
The ground of appeal by Isla against the judgment relating to the prohibition to exceed the yearly average standard for the TSP emissions of more than 18 times a year, succeeded. The Court of Appealed ruled that it was not considered likely that the standard has been violated. On that issue it cannot be considered - so ruled the Court - that the Isla acted wrongfully.
Curacao, 17 February 2010