How Guyana’s environmental body breached its statutory duty

Jan 15, 2023 News

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By Renay Sambach

Kaieteur News – In an historic case, High Court Judge, Justice Nareshwar Harnanan ruled that Guyana’s Environmental Protection Agency (EPA) breached its statutory duty.

The EPA’s mandate is to: “Promote, facilitate and coordinate effective environmental management and protection; and the sustainable use of Guyana natural resources.”

Last month, Justice Harnanan ruled that the EPA breached its statutory duty by not publishing reasons/adequate reasons as to why it waived the requirement for an Environmental Impact Assessment (EIA) for Schlumberger Guyana Inc. (SGI), to build a radioactive facility at Houston, East Bank Demerara.

The High Court of the Supreme Court of Judicature of Guyana, had issued several administrative orders on December 16, 2022. Those orders dealt with the issue of the EPA failing to publish the reasons why it did not require an EIA for the construction and operation of a source storage/calibration building, in accordance with Section 11 (2) of the Environmental Protection Act, Cap.20:05, Laws of Guyana.

The ruling was as a result of a legal challenge filed by three Environmental Activists and residents who live nearby the facility, Vanda Radzik, Danuta Radzik, and Raphael Singh, through their Lawyers: Marlene Alleyne, Siand Dhurjon, and Ronald Burch-Smith. The lawsuit was filed on February 14, 2022.

CASE INFORMATION

On January 19, 2022, the EPA without any notice given to the public, granted Schlumberger permission to use, store and possess radioactive materials at its facility located at Houston. Notably, the public was also not given any notice that any such permit was under consideration by the EPA.

However, on April 11, 2022, the EPA in a notice published in the daily newspapers, disclosed that Schlumberger wanted to construct a building to house radioactive materials and that the construction process would not require an EIA.

After seeing the EPA’s notice to waiver the EIA for Schlumberger, several residents formally objected to the decision stating that radioactive materials should not be used or stored in close proximity to schools, neighbourhood, or the Demerara River.

Kaieteur News had reported that the EPA then convened a meeting with the residents and their Lawyers.

During the meeting, EPA assured the residents that this was only for the construction aspect of the facility and that they would get a better opportunity to speak on the merits and demerits of the actual radioactive storage facility’s operation when Schlumberger seeks an application for same.

Three residents later approached the court seeking an Order of Certiorari to quash the construction permit EPA granted to Schlumberger and an order of injunction to prevent the company from continuing any construction of the facility.

However, in responding to the residents’ lawsuit, the EPA in its Defence disclosed that the construction of the radioactive facility was already completed and that it had granted permission to Schlumberger to use, possess and store radioactive substances at the facility since January 26, 2022.

The State Agency also submitted to the court that the Orders the residents sought ought not to be granted since the construction was completed and that operation had already started.

The applicants through their Lawyers challenged the EPA’s contention.

For its part, Schlumberger in its Affidavit of Defence argued that the public did not need any notice that the EPA was considering a radioactive materials usage, possession and storage permit, because the Authority was satisfied that there would be no substantial impact on the environment.

Notably, the EPA had joined Schlumberger in its Defence stating that it was clear that the project would not affect the residents or the environment.

However, the Lawyers for the residents contended and maintained that the use and storage of radioactive materials at Houston, EBD could significantly impact the environment and should be moved to a less populated area.

RULING

Justice Nareshwar Harnanan in his judgment declared, “That the EPA’s decision to waive the requirement of an Environmental Impact Assessment with respect to Schlumberger Guyana Inc. (SGI)’s application for environmental authorization for the construction of the said facility is in breach of the EPAs statutory duty for failure to provide reasons for the wavier as mandated under section 11(2) of the Environmental Protection Act, Cap.20:05.”

Justice Harnanan granted an Order of Certiorari issued and directed to the EPA quashing its decision on June 9, 2021 to award an environmental authorisation to Schlumberger to construct a radioactive substances and material storage and calibration facility on the ground that the decision is ultra vires and breached the EPA’s statutory duty set out under section 11 (2) of the EPA Act.

A second Order of Certiorari, was issued and directed to the EPA quashing its decision made in January 2022, that permitted Schlumberger to operate its radioactive substances and materials storage and calibration facility and to possess, use and store radioactive materials, on the ground that the decision was in breach of the EPA statutory duty set out under Section 11 (1) and (2) of the EPA Act.

Further, the Judge issued an injunction against Schlumberger, restraining it from continuing the possession, use and storage of radioactive chemicals at its Houston facility, unless and until it is in receipt of a lawfully issued permit pursuant to the provisions of the EPA Act.

The Judge also ordered costs to be paid by EPA and Schlumberger to the Applicants.

Section 11 of EPA Act, stipulates that any project that may significantly affects the environment requires an EIA and such an assessment requires publication in the newspapers of the intended project as well as consultations with the public.

The Judge also said during his ruling that, “This court is of the view that the EPA’s decision to waive the requirement or EIA cannot be found to be lawful as it directly contravenes [section] 11 (2) of the [EPA] Act, the court also finds that no adequate reasons were contained in the notice published by the EPA…”

Justice Harnanan highlighted too that while the EPA contended that by granting a permit to Schlumberger to construct the facility it does not guarantee storage of the radioactive sources at the facility – the EPA Act explains – that the agency should not issue a construction or operation permit unless the agency includes in the permit conditions that are reasonably necessary to protect the environment.

EPA RESPONSE

After losing the case the EPA issued a statement. EPA acknowledged its error and promised to adhere to the Court’s judgment.

[To share any useful information, you can contact me via email: [email protected]]

 

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• East bank Demerara, EPA Head, EPA’s, Guyana’s Environmental Protection Agency, High Court Judge, Kemraj Parsram, Nareshwar Harnanan, RULING

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