Guyanese who brought legal challenge to environmental, oil and gas related issues

Sep 18, 2022 News

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The Court Journal

By Renay Sambach

Kaieteur News – This week I will highlight six courageous Guyanese who have taken it upon themselves to challenge the Government of Guyana (GoG) and American oil giant, ExxonMobil, in the local courts for environmental issues and tax waivers.

GLENN LALL
Earlier this year, Kaieteur News publisher and businessman, Glenn Lall moved to the court to challenge the tax waiver given to Exxon’s local affiliate, Esso Exploration and Production Guyana Limited (EEPGL).

Last month, weeks after it requested more time to seek expert advice to respond to the court case by Lall over its decision to grant excessive tax waiver to the oil companies, the Government finally completed its submission. The document filed through the office of the Attorney General, Anil Nandlall outlined a number of contentions raised in Lall’s application.
In January, the Kaieteur News publisher filed an action to challenge the Petroleum Agreement, dated June 27, 2016 between the Guyana Government and the oil companies. According to Lall, the agreement between the oil company and the Government grants exemptions to persons other than licensees, which violate the Petroleum Exploration and Production Act, the Financial Administration (and Audit) Act and the Constitution. Lall’s application raises several contentions for the court’s consideration including whether the agreement between the Government of Guyana and ExxonMobil are subject to the principles of private law or public law, whether the acts of the Minister of Natural Resources and certain sub-articles of the Petroleum Agreement were ultra vires and in breach of sections 10 and 51 of
Petroleum Exploration and Production Act (PEPA), sub-sections 1A and 1B of section 6 of the Financial Administration (and Audit) FAA, and whether upon its proper interpretation the PEPA permits the payment of taxes due on behalf of licensees.

SINKKA HENRY, SHERLINA NAGEER, AND RISKA THORINGTON
In January 2022, three courageous Guyanese women, Sinkka Henry, Sherlina Nageer and Andriska Thorington, through their Attorneys-at-Law, Melinda Janki and Ronald Burch-Smith, filed a case against Guyana’s Environmental Protection Agency (EPA) to put a stop to flaring by ExxonMobil.

It was reported that EEPGL was flaring associated gas almost continuously since it began production in December 2019, despite undertaking to reinject the associated gas, not flare it.
In May 2021, after ExxonMobil had flared billions of cubic feet of associated gas, the Environmental Protection Agency purported to modify Esso’s permit to allow it to flare gas in exchange for a US$45 fee per tonne of carbon dioxide equivalent.
The litigants are contending that the agency’s decision to modify Esso’s environmental permit to allow flaring was irrational and unlawful and that it should be quashed by the court. They also argue that the agency breached the Environmental Protection Act Cap. 20:05 by purporting to allow Esso to flare in return for paying a fee.

1. TROY THOMAS AND QUADAD DE FREITAS
   Convinced that ExxonMobil’s Stabroek Block operations will lead to the emission of tonnes of greenhouse gases in the billions, two Guyanese filed a landmark case in the Constitutional Court last year, seeking a declaration that the said operations violate their right to a healthy environment.
   The first applicant, Dr. Troy Thomas, is a scientist and a University of Guyana lecturer. The second applicant, Quadad De Freitas, is a young man from the South Rupununi Region of Guyana, an area rich in biodiversity, now threatened by climate change.
   The legal team for the duo consists of Ms. Melinda Janki and Mr. Ronald Burch-Smith, with support from Richard Lord, QC at Brick Court and Joshua Jackson of Cloisters in the United Kingdom.
   

   Sinkka Henry

   According to the court documents, the two applicants, through their lawyers, are asking that a declaration be made by the court to say that the State’s duties under Article 149J (1), require that it refrains from authorising activities that would contribute significantly to climate change, ocean acidification and/or sea level rise.
   The applicants are of the firm conviction that based on their research, which was attached to the claim, the court should provide a declaration that the direct emission of 22,030,000 tonnes of greenhouse gases from petroleum operations in the Liza Phase 1 Development Project, proposed direct emission of 34,545,000 tonnes of greenhouse gases from the Liza Phase 2 Development Project, and the proposed direct emission of 35,720,000 tonnes of greenhouse gases from petroleum operations in the Payara Development Project would make the environment more harmful to the health and wellbeing of citizens and future generations by significantly exacerbating and/or contributing to climate change, ocean acidification, and rising sea-levels and as such would amount to a violation of Article 149J(1).
   Article 149J(1) imposes upon the State two primary obligations: (a) An obligation to respect the environment, which requires the State to refrain from interfering with or causing damage to the environment, and (b) An obligation to protect or guarantee the health of the environment.
   Further to this, the applicants 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.

   

   Andriska Thorington

   Finally, the applicants are asking for a declaration 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 149J(1) to protect the environment and would be unconstitutional unless passed in accordance with the procedure for altering the Constitution.
   In their claim, the applicants note that the production, transportation, refining and use of fossil fuels (oil, gas and coal) emit greenhouse gases at every stage of the product lifecycle. With this in mind, the court documents note that any significant increase in the State’s overall direct or indirect greenhouse gas emissions makes the environment more harmful to the health and wellbeing of citizens and future generations by significantly contributing to climate change, ocean acidification and rising sea levels.
   The applicants on this premise were keen to remind 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.

   

   Quadad De Freitas

   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.
   Furthermore, the men cited through their lawyers that the State’s Nationally Determined Contribution of 2015 submitted by the State under the Paris Agreement states that Guyana will pursue a low carbon development path. The applicants noted, however, that the Stabroek Block operations are in stark contrast to this agenda. Dr. Thomas and Mr. De Freitas contended that Guyana’s combined petroleum reserves – in the Stabroek and other blocks – would in total emit
   billions of tonnes of greenhouse gases in the future if those resources are extracted and burned for energy.
   By enabling the production of petroleum from the ExxonMobil-led projects in the State’s exclusive economic zone, the State is facilitating the emission of substantial quantities of greenhouse gases, thereby significantly exacerbating and/or contributing to climate change, ocean acidification and rising sea levels and making the environment more harmful to health and wellbeing, the applicants stated.

2. TROY THOMAS
   Back in 2020, Justice Jo Ann Barlow, granted an order which brought ExxonMobil’s Liza I environmental permit in conformity with the law.
   

   Dr. Troy Thomas

   The order has effectively reduced Exxon’s environmental permit from 20+-years to five- the correct time as prescribed by law.
   The matter was settled in court following an initial hearing of the case filed against the Environmental Protection Agency (EPA) by the Guyanese scientist, Dr. Thomas. It was reported that, both the EPA and EEPGL agreed to limit the permit to five years, as provided by law.
   As a result, an order was issued for Exxon’s permit in the Liza 1 oil field development to expire in the next 18 months instead of 2040 —24 years after the issuance originally granted by the Environmental Protection Agency (EPA).

 

 

 

 

 

 

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