A judge and a lawyer were at odds yesterday over whether a set of pollutants should have been included in the environmental impact study for a cross-border bridge, even though they are not part of the government's objectives for air quality.
Philip Dykes, SC, for Tung Chung resident Chu Yee-wah, said fine particles - those 5 microns or less in size - should have been included because they were a recognised threat to public health.
His stance was questioned by Mr Justice Robert Tang Ching, one of three judges hearing the government's appeal against a Court of First Instance ruling that quashed the environmental impact report for the Hong Kong-Zhuhai-Macau bridge, who said it could amount to introducing an environmental standard 'through the back door'.
The exchange took place on the third and last day in the Court of Appeal case seeking to overturn the judicial review in April, which led to the quashing of a permit issued by the Director of Environmental Protection to the Highways Department for the project. The ruling was made on the grounds that a 'standalone analysis' - an assessment of what would happen if the bridge was not built - had not been done. Chu brought the judicial review. Other grounds, including the exclusion of fine particles from the report, were rejected by the lower court.
Dykes said there was medical and scientific evidence of the harmful impact of such particles and they should have been dealt with even though they did not appear in the official list of air quality objectives. 'If the project proponent identifies a health risk in a pollutant, he is obliged to include and address it in the report, even though it does not fall into the air quality objectives,' he said.
Tang questioned whether the director could refuse a permit in these circumstances. Dykes said the environment chief had the discretionary power to do so.
But Tang later raised further questions. 'The question is who should decide,' he said. 'It is entirely for the administration and legislature to decide and it should not be introduced through the back door by the director ... I find it impossible to accept that the director can go over the legislature and people and say I want it.'
In his closing submission, Benjamin Yu for the director said there was no need for a separate study on fine particles as the assessment on respirable suspended particles, which measures particles with a size at or below 10 microns, had taken them into account.
Dykes said Yu's argument was inconsistent with the fact that the Environmental Protection Department proposed introducing a separate standard on fine particles in its public consultation on upgrading the 24-year-old air quality objectives.
Dykes also asked whether ozone pollutants, listed in the air quality objectives, should have been assessed as it would have an impact on regional air quality that might affect areas where ozone concentration had exceeded the objectives by 40 per cent.
He argued that setting 2031 as the year likely to see the worst emissions was wrong because of the failure to take background air quality into account.
Yu said it was not a mandatory requirement to assess all pollutants listed in the air quality objectives.
All three issues - fine particles, ozone and year of assessment - were rejected in the Court of First Instance ruling in April.
The Court of Appeal has not set a date for its ruling.
The number of years since the introduction of Hong Kong's air quality objectives in 1987, which covers seven air pollutants