EPA giving ExxonMobil permission to flare in special cases, applying new US$30 charge unlawful –Int’l Lawyer

May 22, 2021 News

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Kaieteur News- Though the Environmental Protection Agency (EPA) has claimed this past week that its recent modification to ExxonMobil Guyana’s Liza Phase One Environmental Permit to allow flaring in special circumstances as well as a US$30 fee to be charged when done in excess, are in accordance with the law, one prominent industry stakeholder contend otherwise.
According to International Lawyer, Melinda Janki this move by the EPA is not only in violation with the laws that protect the right of Guyanese to a healthy environment, but there is also no legal standing for the EPA to permit the pollution of the environment via flaring. It is on this basis that she recently wrote the EPA challenging it to justify its modifications to the Liza Phase One Permit.
In her letter seen by Kaieteur News, Janki noted that the permit for ExxonMobil’s subsidiary, Esso Exploration and Production Guyana Ltd. (EEPGL) was purportedly ‘modified’ by the Agency on May 12, 2021. One of the ‘modifications’ is that the permit now allows the subsidiary to flare for 60 days on ‘start-up’ and for 14 days in special circumstances. With this in mind, Janki challenged the EPA to provide its reasons for ‘modifying’ the permit to allow this flaring, including any findings of fact and the evidence or other material upon which it relied.

Janki went on to note that Page One of the permit states that it is modified pursuant to Regulation 14 of the Environmental Protection (Authorisations) Regulations. In her letter, the lawyer noted, reminded of what Regulation 14 (1) states: that a modification shall not give rise to an additional adverse effect. Further to this, Janki said the legal definition of an adverse effect covers any one or more of the following— (i) impairment of the quality of the natural environment or any use that can be made of it; (ii) injury or damage to property or to plant or animal life; (iii) harm or material discomfort to any person; (iv) an adverse effect on the health of any person; (v) impairment of the safety of any person; (vi) rendering any property or plant or animal life unfit for use by human or unfit for its role in its ecosystem; (vii) loss of enjoyment of normal use of property; and (viii) interference with the normal conduct of business.
With this in mind, Janki said it is common knowledge that flaring is harmful and would therefore amount to an adverse impact as legally defined. She added, “The purported modification of the permit would therefore not be authorised by Regulation 14 but would be an unlawful act by the Agency.”
Expounding further, Janki pointed out that the modification of EEPGL’s permit to allow pollution, which is the inevitable result of flaring, is incompatible with Regulation 15.
Janki noted that Regulation 15(1) (b) of the Environmental Protection (Authorisations) Regulations requires the agency to take the steps needed to ensure that the conditions of an environmental permit are complied with. Therefore, Janki said the ‘modification’ of an environmental permit to allow previously unauthorised flaring is inconsistent with the agency’s duty under this regulation.
She outlined that Regulation 15(1)(a) requires the agency to take steps to ensure that the activities authorised by the environmental authorisation do not cause pollution of the environment. “Clearly it is the duty of the Agency to enforce the permit without any ‘modification’ in order to protect the environment,” Janki noted in her letter to the EPA.
The international lawyer also addressed the EPA’s contention that the modification for the Permit Holder to pay US$30 per tonne of carbon dioxide equivalent (CO2e) emitted as a result of flaring in excess of the periods stipulated at 3.6.(ii) and 3.6.1 of the permit are consistent with the Polluter Pays Principle. The timeline at 3.6.(ii) of the permit notes that flaring is allowed for 60 days for start-up while the latter provision (3.6.1) allows flaring for 14 days in special circumstances such as during maintenance or project upsets.
It is Janki’s understanding that the charge appears to be due only if EEPGL flares for more than 60 days on start-up or for more than 14 days during special circumstances. She was keen to note however that the ‘Polluter Pays Principle’ means that the polluter should bear the cost of measures to reduce pollution decided upon by public authorities, to ensure that the environment is in an acceptable state, and should compensate citizens for the harm they suffer from pollution.
Janki stressed that the ‘Polluter Pays Principle’ does not give the agency legal authority to permit EEPGL to pollute the air/atmosphere by flaring gas.
“Therefore, both the permission to flare and the application of a charge of US$30 per tonne would appear to be unlawful,” expressed the international lawyer in her letter addressed to Sharifah Razack, Director (Ag.) of the Environmental Protection Agency.

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