EPA’s exemption of 300MW gas plant from environmental study illegal, irrational, an abuse of power – Lawyer urges regulator to rescind decision in 14 days

Feb 14, 2023 News

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Kaieteur News – Attorney-at-Law, Melinda Janki issued a letter to Head of the Environmental Protection Agency, Kemraj Parsram yesterday, urging him to rescind the decision to exempt a 300MW gas plant from undergoing an Environmental Impact Assessment (EIA).

The plant in question, forms part of the onshore facilities that will collect and utilise gas from the Liza field in the Stabroek Block. A massive pipeline to be constructed by ExxonMobil will pipe the gas to shore to be utilised by the 300MW power plant.

Writing on behalf Ramon Gaskin and other concerned citizens, Janki recalled the EPA’s Notice to the Public on January 6, 2023 which stated that the construction and operation of the 300MW project will not significantly affect the environment and is exempt from the EIA requirement.

Janki noted that the Agency’s decision is: unlawful being inter alia unauthorised/contrary to law, an excess of jurisdiction, a failure to satisfy conditions required by law, an unreasonable irregular and improper exercise of discretion, an abuse of power, conflict with the policy of the Environmental Protection Act Cap: 20.05, irrational, and arbitrary.

In the eight page missive seen by this newspaper, Janki outlined several reasons to support the foregoing conclusion.

WRONG APPLICANT

She highlighted that Section 11(1) of the Act requires the “developer” of a project which may significantly affect the environment to apply for an environmental permit. The Act defines the “developer” as the applicant for an environmental authorisation. She noted that the application of November 14, 2022 for the environmental authorisation for the Gas Plant Project states that the Applicant is, “Guyana Power and Gas Inc,” thus Guyana Power and Gas Inc. is the developer.

The lawyer further noted that Section 11(2) of the Act states that “where it is not clear whether a project will significantly affect the environment, the developer shall submit to the agency, a summary of the project…”

On this premise, she said the Guyana Power and Gas Inc. as the developer was required to submit a project summary. This was done, however, Janki pointed out that it is an unsigned and undated document which states in its introduction that, “The Guyana Power and Light Incorporated is submitting this Project Summary to furnish the Environmental Protection Agency with all the required relevant information for the processing of the Environmental Authorisation application. The application seeks a permit for the construction and operation of a 300MW Gas-fired Power Plant within the Wales Development Zone, West Bank Demerara.”

In light of the foregoing statement, Janki said GPL is not the developer. She said, “The Agency has acted unlawfully and in breach of its duties under section 11 of the Act in relying on a project summary submitted by a person other than the developer.”

ABSENCE OF REQUIRED INFO

Janki was also keen to point out that the Project Summary submitted by Guyana Power and Light Inc. does not meet the requirements of the Act and must be discarded. The lawyer said Section 11(1)(ii) requires a Project Summary to provide information on the “possible effects on the environment.”

She highlighted that Section 2 defines the environment as “all land, area beneath land surface, atmosphere, climate, all water, surface water, ground water, sea, seabed, marine and coastal areas, and natural resources or any combination or part thereof.”

It also defines natural resources as, “the living plants, animals and organisms, ecosystems, forests, waterways, soils, and other biological factors within the natural environment, and the geologic formations, mineral deposits, renewable and non-renewable assets, and the habitat of the living plants, animals and organisms.” Janki said a Project Summary should therefore list all of the items in Section 2 of the Act and show the possible effects on each. She said the GPL Project Summary does not state the possible effects on the environment and therefore does not meet the requirements of section 11 of the Act. In relying upon such a deficient document, she said the Agency has acted unlawfully.

IRRELEVANT MATERIAL

Janki’s clients also took issue with the fact that the EPA relied on information from another document to hand down its decision. That document was an EIA that was done on the Gas-to-Energy Project by Exxon.

The lawyer recalled the EPA’s reasons for exemption as follows: “1. The proposed location for this project falls within the area of influence/footprint of an EPA approved Gas to Energy Project (GTE), that was subjected to a comprehensive EIA, including a Cumulative Impact Assessment (CIA). The CIA concluded that there will be no significant impact from the combined activities/projects.

“2. The result of the CIA revealed that while there is potential for temporary impacts on air quality, the maximum predicted concentrations of key pollutants nitrogen dioxide (NO2), sulphur dioxide (SO2), particulate matter (PM2.5 and PM10) and carbon monoxide (CO) will be within the World Health stipulated limits. ”

Janki was keen to note however that there is no evidence in the Project Summary for the 300MW plant to support reasons one and two.

She noted that Section 11(2) of the Act makes it clear that the Agency’s power to determine whether a project will not significantly affect the environment is based only on the information on the Project Summary.  Janki wrote, “The section does not authorise the Agency to look at other material in order to exempt the project. The Project Summary must contain all of the information that the EPA is relying on to determine that the project ‘will not’ affect the environment.”

Janki said the EPA has relied upon irrelevant material in reasons 1 and 2 and its decision is therefore unlawful.

DISADVANTAGE

Janki also reminded that the Act is predicated on the principles of public access to information and public participation. She said the EPA is however acting contrary to the policy of the Act. In relying upon material that is not in the Project Summary, she said it is putting the public at a disadvantage.

Janki said Section 11(3) states that, “Any person who may be affected by a project exempted under subsection (2) (a) may lodge an appeal with the Environmental Assessment Board.” The lawyer contended that it is unlawful for the agency to require the public to look for the Cumulative Impact Assessments (CIA) (which the EPA said it considered in a separate document submitted by Exxon), to read through it and to try to work out what data the Agency is relying on.

Since the Agency has relied on this material which is not in the Project Summary, she said members of the public cannot exercise their right to appeal without fear of being ambushed by the Agency with this other unknown material.

She said the rule of law requires public authorities to act transparently and not secretively, adding that the agency is in breach of this legal principle. Furthermore, Janki said the Agency is acting against the policy of the Act and its own function in section 4(b) to promote public participation.

Taking the foregoing and other critical factors into consideration, she urged Parsram to immediately revoke/cancel the decision to exempt the Gas Plant Project from an EIA and inform the applicant Guyana Power and Gas Inc. of same.

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• Environmental Impact Assessment (EIA), Environmental Protection Agency, Kemraj Parsram, Melinda Janki, Stabroek Block

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