Citizens threaten court action over Wales gas project

Mar 28, 2023 Court Stories, Features / Columnists, News

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…call for thorough EIA for power plant, say pipeline permit to Exxon was illegal

By Davina Bagot

Kaieteur News – The Environmental Permit issued to ExxonMobil, for the pipeline and Natural Gas Liquids (NGL) facility is likely to be challenged in the local courts as the Environmental Protection Agency (EPA) has been served a pre-action letter by International Lawyer, Melinda Janki on behalf of two Guyanese citizens.

In the document seen by this newspaper, it is understood that the attorney-at-law has so far requested that the EPA revoke the Permit granted to the oil company as the agency did not have the legal power to authorise Esso Exploration and Production Guyana Limited (EEPGL)- ExxonMobil’s subsidiary and the operator of the Stabroek Block- to construct a pipeline in the absence of the proof, the developer owns the project lands, as required by regulation 17, under the Environmental Protection (EP) Act.

Regulation 17(2) of the Environmental Protection (Authorisation) Regulations made under the Environmental Protection Act requires that an application for an environmental authorisation “(c ) shall contain the following information: (ii) proof that the applicant either owns the facility or has a lease or other agreement with the landowner or occupier to enable the applicant to conduct the activity on the facility or has the legal right of way to conduct the activity without the consent of the landowner or occupier.”

In her letter to the Executive Director, Kemraj Parsram dated January 31, 2023, Janki on behalf of Elizabeth Deane-Hughes and Danuta Radzik, explained “Along the proposed pipeline route, individuals hold tracts of land under transports and leases. Further evidence that the land is held by Guyanese citizens and not by EEPGL is provided by the orders published in the Official Gazette for the acquisition of lands for the pipeline route. These orders list transports and leases to be acquired for the pipeline route. It is therefore incontrovertible that the route for the proposed pipeline will run on land that is not owned by EEPGL, not held by EEPGL under any lease, and not subject to an agreement which would allow EEPGL to construct the onshore pipeline along the route proposed in the Environmental Impact Statement.”

In this regard, the lawyer concluded that the Permit issued was in breach of the EP Act. “The Agency did not have the legal power to authorise EEPGL to construct a pipeline in the absence of the proof required by regulation 17…it has acted unlawfully and irrationally, and has misused its powers. The permit is therefore invalid,” she said.

Janki therefore requested the agency to revoke the permit and direct Exxon to restart the application process in compliance with the Environmental Protection Act and the regulations.

Janki told the EPA boss in her letter that as a general matter of law, ministers may not use their statutory powers to facilitate illegality. She explained that the Acquisition of Lands for Public Purposes Act empowers the subject minister to acquire lands for public purposes. “It is not (and cannot be) a public purpose to acquire private land in order to facilitate a breach of law or circumvent legal requirements such as the regulations,” she argued. As such, the Lawyer insisted that the orders made by the Minister under the Acquisition Lands for Public Purposes Act to acquire private land for the pipeline route are “ultra vires and unlawful”. According to her, the orders (including Orders 3, 4, 5, 6, and 7 of 4th January 2023 as published in the Official Gazette on 6th January 2023) do not have legal effect and cannot deprive the landowners and leaseholders of their property rights.

The letter was also copied to Minister of Public Works, Juan Edghill.

EIA waiver

In a separate letter to the EPA, dated February 13, 2023, Janki on behalf of civil society member, Ramon Gaskin alerted the EPA that its decision to waive an Environmental Impact Assessment (EIA) for the gas-fired power plant at Wales, West Bank Demerara is unlawful. On January 6, 2023, the EPA published a Notice to the Public stating that the construction and operation of the project will not significantly affect the environment and is exempt from the requirement to conduct an EIA.

The attorney explained, “the agency’s decision to exempt the Gas Plant Project from an environmental impact assessment 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.”

She therefore implored the EPA to revoke its decision regarding the waiver of the study, citing half a dozen of reasons. In her 45-point submission, the Lawyer said Section 11(1) of the Act requires the “developer” of a project which may significantly affect the environment to apply for an environmental permit. Notably, the Act defines the developer as the applicant for an environmental authorisation.

Janki said item 1 of the application made on November 14, 2022 seeking the environmental authorisation for the Gas Plant Project states that the Applicant is, “Guyana Power and Gas Inc.” Even though this makes it clear that this organization is the project developer, the Guyana Power and Light (GPL) submitted the Project Summary to the EPA.  To this end, the International Lawyer posited, “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. The Agency’s decision to exempt the project is therefore illegal.”

She was keen to note that the Guyana Power and Gas Inc. cannot now simply resubmit the GPL Project Summary under its own name, as this would be a violation of the developer’s obligation to consider the requirements of the Act and take the appropriate steps to comply. In addition, Janki stated that the GPL Project summary does not meet the requirements of the Act.

The Lawyer explained that Section 11(1)(ii) of the EP Act requires a Project Summary to provide information on the “possible effects on the environment.”

Section 2 of the Act goes on to define 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.”

Janki contended that the Project Summary does not state the possible effects on ‘climate’ or ‘atmosphere’ and fails to even mention them. Additionally, the document does not state the ‘possible’ effect on the Demerara River of dumping treated sewage into its water.

Importantly, she also noted that the Project Summary for the power plant states “The production process can result in a decreased [sic] in ambient air quality which can pose potential health risk to humans and wildlife in close proximity to the construction site. Combustion from hydrocarbons can contribute to greenhouse gas emissions.”  As such, Janki said “It is wholly irrational and unreasonable for the Agency to conclude that the project will not have a significant impact on the environment when the Project Summary states quite clearly that there is a potential health risk and therefore the Agency’s decision is unlawful.”

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• court, Environmental Permit, International Lawyer, Melinda Janki, Natural Gas Liquids (NGL)

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