Local climate change case…State required by the constitution to protect the environment – lawyers argue

Dec 05, 2021 News

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Kaieteur News – The State has a legal obligation to protect the environment against the harmful effects of greenhouse gases. That is essentially the argument of attorneys in the first case filed against the State to determine whether the operations of ExxonMobil contravene the rights of citizens to a healthy environment.

The case was brought against the State by Dr. Troy Thomas, a Scientist and a University of Guyana lecturer, and Quadad De Freitas, a young man from the South Rupununi Region of Guyana, an area rich in biodiversity, now threatened by climate change. The case seeks to protect children, young people and future generations who bear a disproportionate burden in having to live with the effects of climate change.
Attorneys, Ms. Melinda Janki and Mr. Ronald Burch-Smith, with support from Richard Lord, QC, at Brick Court and Joshua Jackson of Cloisters in the UK are on record for the applicants in the matter. The matter which was filed in May has since seen arguments from both the applicants and the State. Esso Exploration and Production Guyana Limited (EEPGL), a subsidiary of ExxonMobil, has been added as a party.
In their written response to the State’s argument that Guyana has sufficient policies to safeguard against the harmful effects of oil drilling operations and its adverse effects to climate change, lawyers (Burch-Smith and Janki) underscored the constitutional provisions by which the State is legally required to protect the environment.
To this end, the lawyers cited Article 149(J) of the Guyana Constitution. The attorney rebuffed the argument of the Attorney General; the State legal representative that the Environmental Protection Act is the only measure taken in compliance with Article 149(J).
They noted that the Defence of the Attorney-General admits that the State has taken a number of other initiatives in compliance with Article 149(J). Additionally the lawyers noted, “It is frivolous and vexatious and an abuse of process for the added defendant (EEPGL) to claim that by enacting the Environmental Protection Act in 1996, the State has fulfilled its obligations under/Article 149(J) of the Constitution.”
The attorneys also contend that any bill or delegated legislation to amend or alter the Environmental Protection Act Cap 20:05 or subsidiary legislation made under such statute with the aim or effect of allowing activities that make the environment more harmful to human health and wellbeing would be a violation of the State’s duty under Article 149 J(1) which is to protect the environment and would be unconstitutional unless passed in accordance with the procedure for altering the Constitution.

Further, the lawyers are asking the Constitutional Court to declare that the State’s duty under Article 149J(2) to take reasonable measures to protect the environment for present and future generations requires the State to carry out or obtain independent verification of the types and amounts of greenhouse gases actually emitted by the Liza Phase 1 Development Project, and the greenhouse gases actually emitted by future petroleum development in the Liza Phase 2 Development Project, the Payara Development Project and other subsequent oil and gas projects.
The lawyers noted, among other things, that the oil operations will lead to the emission of tonnes of greenhouse gases in the billions. On this premise, the attorneys were keen to note that Guyana is a signatory to the United Nations Framework Convention on Climate Change, which has as an objective for the stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Guyana is also a signatory to the Paris Agreement, which aims to restrict the increase in global temperature to no more than 1.5°C above pre-industrial levels.
Last May, two Guyanese, through their lawyers, filed a case in the High Court against ExxonMobil’s Stabroek Block projects.
For his part, Dr. Thomas contended, “Guyana is a carbon sink. The Guyanese people are not responsible for climate change, but we are already suffering the effects. Climate change, ocean acidification and rising sea level pose existential threats to the people and State of Guyana. As a scientist, I urge people to look at the evidence and to face reality.”
Dr. Thomas referred to the overwhelming scientific evidence of the devastating effect of greenhouse gas emissions, pointing out that oil and gas production are a major source of greenhouse gas emissions. Guyana is particularly vulnerable to climate change and rising sea levels while ocean acidification threatens the Guyanese livelihoods that depend on healthy marine ecosystems.

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