EPA Yellowtail Permit should be deemed null and void – Environmentalist

Apr 17, 2022 News

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By Davina Bagot

Kaieteur News – Citing “blatant irregularities” in the conduct of an Environmental Impact Assessment (EIA) process for oil giant, ExxonMobil’s fourth project, the Yellowtail development, Environmentalist, Simone Mangal-Joly has written to the Environmental Protection Agency (EPA) insisting that the permit recently granted for the company’s operations be cancelled.
In a letter to the EPA head, Mr. Kemraj Parsram, dated April 16, 2022, Mangal-Joly contended that the regulator deeply erred when it granted the oil company the go-ahead for its project, even though the principles of the EIA process were not adhered to.

According to the specialist, “The EPA has systematically and knowingly violated the Environmental Protection Act in its handling of ExxonMobil’s local subsidiary EEPGL’s (Esso Exploration and Production Guyana Limited) Yellowtail Project environmental assessment and permit.”
She went on to explain that there were four violations of the process, which renders the Yellowtail Permit invalid.
During a virtual consultation held with the public back in November last year on the project’s environmental impacts, several questions to the developer were left unanswered. In fact, EEPGL and the Consultant that prepared the EIA, Environmental Resources Management (ERM) merely referred the public to sections of the EIA to understand the project, rather than clear up any misconceptions or directly provide answers.
To this end, Mangal-Joly in her letter to the EPA head, which was also copied to the Environmental Assessment Board (EAB), said there was a failure to assess the significant impacts of the project, before its approval.
She said, “The EPA illegally deferred the assessment of impacts to the Environmental Permit. For example, Section 1.3 of the permit specifies that: “The Permit Holder shall conduct an updated targeted marine environmental baselines studies program to develop a robust understanding of the marine environment within the area of influence (AOI) of the Yellowtail project.” Among the listed requirement is 1.3.c: “Fisheries stock assessment and impacts.” It is well established in law that deferring the assessment of impacts defeats the whole purpose of an environmental impact assessment.
The deferral was not only incorrect, but also “irrational and illegal” the environmentalist concluded. Mangal-Joly pointed out that the EPA’s core responsibility is to assess impacts, and based on the findings, determine whether a permit should be granted for an activity.
Instead, she said that the EPA “disgracefully reneged” on this responsibility by placing the responsibility on ExxonMobil and affiliates to assess their own impacts. “The Agency is openly subverting the law with this permit. In so doing, the EPA is further depriving the public of their statutory rights to participate in the development of the TOR (Terms Of Reference), and the right to scrutinise an environmental impact study.”
On the other hand, the environmentalist also challenged the selection of ERM to conduct the EIA on behalf of the oil company. Environmentalists in a letter to the EAB had alerted the review committee that ERM was the only Consultant ever selected to conduct EIA studies for ExxonMobil and requested that the EPA publish the list from which the company was selecte, in keeping with the Environmental Protection (EP) Act.
The concern was reportedly never addressed, but the EPA recently issued a statement to the media on April 4, last, where it explained that it is currently in the process of developing a list of consultants which can be used to undertake the studies. In the absence of that list of credible consultants, the EPA said it has been approving Consultants on a case by case basis, making sure to review the company’s experience in developing such documents.
However, Mangal-Joly noted that the agency seems to have allowed itself the right to cheat the process, by ignoring Section 3 (a) of the EP Act.
“There is nothing in the Act that speaks to an alternative means through which the EPA may select qualified persons to conduct EIAs. Whether one does it on a case-by-case basis or from a pool, or whether it is a local or foreign individual or company, Section 3(a) of the Act is clear that the Agency cannot select the consultants by itself; the selection must be done “with the assistance of internationally recognised environmental groups.” This is specifically to avoid bias and underhandedness,” she pointed out.
The environmentalist argued that the EPA was aware of this requirement before selecting ERM, as complaints on the subject were raised during the Yellowtail public comment period.
While making her third point, the environmentalist said that the EPA failed to publish the reasons for justifying the issuing of the Yellowtail Permit.
“Section 12(1) of the EP Act (a)(b) and (c) directs the EPA to consider: (i) Recommendations of the EAB; (ii) Views expressed during consultation under section 11(9), and (iii) The environmental impact assessment and statement in deciding on a permit. Notably, Section 12(2) compels the EPA to account for its decision: “The Agency shall publish its decision and the grounds on which it is made”. The Agency’s published Notice of Decision on April Fool’s Day, April 1, 2022, merely parrots the instructions of the EP Act. It says that the EAB found the environmental impact study acceptable, and: “The EPA has taken all relevant considerations into account, including the views expressed by members of the public during consultations done in accordance with section 11(9) of the Environmental Protection Act, Cap. 20:05,” the environmentalist pointed out.
In this regard, she noted that the description of the agency’s perceived steps of actions are not justifications for the granting of a permit as required by law. In fact, the agency failed to identify and account for how significant impacts and public concerns were satisfactorily addressed before it granted a permit, the environmentalist reasoned. She said the EPA was in breach of Section 12 (1) of the EP Act.
On her fourth point, the environmentalist said that the EPA failed to disclose the Terms of Reference (TOR) for the EIA, a document which specifies the obligations consultants are required to fulfill in the conduct of the study.
The EPA had said it was not required by law to publish the TOR for the project.
However, Mangal-Joly is questioning the reasoning behind this stance of the EPA. She said that the absence of the document was raised with the EPA before and it decided to publish the report only two days prior to the closure of the public comment period.
She said, “The Agency has since told the public that it is not required under law to disclose the TOR. If it honestly believed this, why didn’t it say so back in December 2021? Would the EPA have the public believe that after the pains the Environmental Protection Act goes to ensuring public input into the TOR for an EIA, the Act also preserves the Agency’s right not to disclose the TORs as part of consultations on the study?”
The environmentalist explained that Section 11(6) of the EP Act requires that before an impact assessment is begun, the EPA shall publish a notice to the public with a project summary. Section (11) (7), specifically states that: “Members of the public shall have 28 days from the date of publication referred to subsection (6) to make written submissions to the agency setting out those questions and matters which they require to be answered or considered in the environmental impact assessment.”
To this end, she questioned the conclusion reached by the EPA that “what is important is that section 11(4) and (5) already sets out what every EIA must contain and consider” as was published in a statement issued by the EPA.
Moreover, the specialist challenged another section of the EPA statement, in which it said the agency went beyond the requirements of the EP Act to engage the public. According to her, “Even if the Agency had held ten thousand meetings, these would not have negated the sabotage of the public comment period occasioned by depriving the public of the knowledge of the requirements of the TOR. Performing meetings and merely keeping up appearances do not meet legal standards of consultation. When the EPA granted the Yellowtail Permit it knew full well that none of the meetings took place before the public had sight of the TOR.”
As a consequence of the “blatant irregularities,” she called on the EPA to cancel the Permit issued for the Yellowtail project and asked that the EIA process be restarted in alignment with the legal provisions of the EP Act.

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