Caribbean organisations object to Yellowtail EIA

Dec 19, 2021 News

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-cite lack of consultations with Region on oil spill risks

Kaieteur News – Now that the Environmental Protection Agency (EPA) has officially closed off the public submissions phase for ExxonMobil’s fourth project, the Yellowtail development Environmental Impact Assessment (EIA), organisations as well as concerned experts have been coming forward to let the Guyanese public hear their voices as well.

In fact, a group of Caribbean organizations, including the Caribbean Coastal Area Management (C-CAM) Foundation, The Jamaica Fish Sanctuary Network, Jamaica Environment Trust, Institute for Small Islands, Fishermen and Friends of the Sea and Freedom Imaginaries, recently submitted a letter to Kaieteur News in which representatives complained that Exxon’s Consultant, the Environmental Resources Management (ERM), has violated international laws by failing to consult them on the likely impacts of the project, even though the EIA clearly outlines the dangers they are exposed to.
Section 9.24 of the EIA document states, “The planned project activities are not predicted to have any measureable “transboundary impacts”, (i.e. impacts outside the Guyana (Exclusive Economic Zone) EEZ. All predicted impacts from planned Project activities will occur within the Guyana EEZ. However, there is the potential for transboundary impacts to result from unplanned events that may occur, such as oil spills.”
A release from a loss-of-well control event over 30 days, according to the document, is likely to have impact on over a dozen Caribbean nations. “…there is the potential for oil to reach portions of Trinidad and Tobago, Venezuela, Aruba, Bonaire, Curaçao, Barbados, St. Lucia, Grenada, St. Vincent and the Grenadines, the Dominican Republic, Haiti, and Jamaica,” the EIA details.
Furthermore, the document notes that impacts on resources and receptors in these other countries would be similar to those Guyana would encounter.
These include “(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 the ecosystem, (vii) loss of enjoyment of normal use of property; and (viii) interference with the normal conduct of business” as is highlighted in Section Four of the EIA.
But in addition to these, ERM said that some additional resources could potentially be affected such as corals.
As a consequence, the organisations have argued that the Government of Guyana, Exxon’s subsidiary, Esso Exploration and Production Guyana Limited (EEPGL), and its British and Chinese partners have been aware of possible transboundary impacts of a potential deep well oil spill, since the conduct of the first EIA for the Liza 1 development in 2017, yet the countries remain unaware of the dangers they are exposed to as a result of this project.
The representatives in the joint letter said, “Except for efforts to develop a MOU with Trinidad and Tobago, neither the Government of Guyana nor EEPGL have alerted our governments with the specifics of the risk shown in the oil spill modelling or invited them to consult, thus enabling them to consult internally with directed affected parties. The proposed approach in the Yellowtail EIA of engaging us as potential transboundary victims only when a crisis is upon us is prejudicial against our interests. Among other things, it deprives us of the opportunity to participate in preventative efforts and it fails to allow for a fair process for establishing ecological and socio-economic baselines as the basis for damage claims. It is, in fact, a clear violation of our rights under international law”.
The Inter-American Court of Human Rights, in its 2017 advisory opinion on “The Environment and Human Rights” summarised the status of international law on this point in paragraph 196, which states: “Consequently, the Court concludes that States have the obligation to notify other potentially affected States when they become aware that an activity planned within their jurisdiction could result in a risk of significant transboundary harm. This notice must be timely, before the planned activity is carried out, and must include all relevant information. This duty arises when the State of origin becomes aware of the potential risk, either before or as a result of the environmental impact assessment. Carrying out environmental impact assessments requires time and resources, so in order to ensure that potentially affected States are able to take the appropriate steps, States of origin are required to give this notification as soon as possible, without prejudice to the information transmitted being completed with the results of the environmental impact assessment when this has been concluded.”
As noted by the Inter-American Court in para 189, this duty “extends to every case in which there is a possibility of significant transboundary environmental harm … as a result of activities planned by a State or by private individuals with State authorisation. In such cases, notification is usually the first step towards facilitating cooperation and also permits compliance with the duty of prevention [of environmental harm].”
In this regard, the organisations agreed that to date, all of the EIAs conducted by ERM, since 2018, have identified the possibility of significant transboundary harm. Yet, all the EIAs conducted by ERM have failed to identify Guyana’s legal obligations to notify and consult with potential transboundary victims before a project is undertaken.
On the other hand, the groups said that they were also not pleased that ERM’s oil spill modelling, “which was done with an unrealistic worst-case scenario that heavily favours the company at an underestimated 30-day spill window”, when the Macondo deep water well took 87 days to control, “and at the very least this sets the precedent for a worst-case scenario”.
The organisations added that ERM has been in fact copying and pasting sections of their previous EIAs into this new document, without considering whether or not those assessments were done to honour the steps it had outlined regarding potential transboundary victims.
The document now says that “In the event that there is an oil spill incident that impacts areas outside the Guyana Exclusive Economic Zone, EEPGL—with support and approval from the Government of Guyana—will work closely with representatives for the respective locations to: Coordinate oil spill response operations and communication between different command posts in the region; Create a spill-specific transboundary workgroup to manage waste from a product release—including identifying waste-handling locations in the impacted regions and managing commercial and legal issues; Work with nominated spill response vessel owners/operators to identify places of refuge in the impacted regions where vessels could go for repairs and assistance; Determine how EEPGL and the impacted regional stakeholders can work together during a spill response to allow equipment and personnel to move to assist in a spill response outside the region while still retaining a core level of response readiness within the jurisdictions; Determine spill-specific financial liability during a response to a transboundary event; and on a spill-specific basis, work with local communities within the impacted areas to raise awareness of oil spill planning and preparations”.
During the Yellowtail EIA Consultation, held on November 11, 2021, Exxon’s Consultant, ERM, was questioned as to why these countries were not consulted when they stand to be impacted. An ERM representative responded by saying that the firm was guided by Guyanese laws.

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