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Appeal Court to test merits of EPA’s challenge – turns down request for stay of judgment
Justice Kissoon’s ruling…
Kaieteur News – The Environmental Protection Agency (EPA)’s challenge to the High Court ruling against it and the Exploration and Production (Guyana) Limited (EEPGL), will see oral arguments taking place on the 29th May.
Director of the EPA, Kemraj Parsram
The Court of Appeal intends to apply the merit test to the EPA appeal against High Court Judge, Sandil Kissoon’s ruling for ExxonMobil (Guyana) to provide parent company guarantee for offshore oil operations it is engaged in with its co-venturers in the Stabroek Block in the event of an oil spill.
Justice of Appeal Rishi Persaud has fixed May 29 at 10:00h to hear arguments on whether the appeal has a reasonable prospect of success. During Monday’s proceedings into the case before the Appeal Court, EPA’s lawyer, Sanjeev Datadin asked for a stay of the May 3 order directing the EPA to issue ExxonMobil’s local affiliate, Esso Exploration and Production (Guyana) Limited (EEPGL), with an Enforcement Notice.
He asked the Appeal Court to issue the stay on or before May 9, 2023. The stay will put a hold on the order for the company to provide, within 30 days, unlimited Parent Company Guarantee Agreement and/or unlimited liability Affiliate Company Guarantee, together with environmental liability insurance, as is customary in the international petroleum industry.
Datadin’s application for the judgment to be suspended pending the hearing and determination of the appeal was, however, refused, with the Judge indicating that he intends to hear arguments on the reasonable prospect of success and render his ruling before June 10—the last day for compliance with Justice Kissoon’s ruling. “We’re opposing any order for a stay,” said Senior Counsel Seenath Jairam, one of the lawyers representing the respondents, President of the Transparency Institute of Guyana Inc (TIGI), Fredericks Collins, and Guyanese citizen Godfrey Whyte.
The EPA had filed a Notice of Appeal against the High Court ruling that is in favour of Guyana receiving unlimited parent company guarantee from. EEPGL and its parent company, Exxon Mobil in the event of an oil spill.
In the document seen by this newspaper, the EPA is seeking to reverse the High Court decision on the grounds that the trial court erred in law in interpretation, consideration and application of the combined effect of Clause 14 of the Environmental Permit issued to EEPGL, and erroneously concluded that the financial assurance must be provided by EEPGL.
The EPA argued that the trial court erred in law and misconstrued the Environmental Protection Act and its Regulations to determine that the Appellant, a statutory body had specific statutory powers which in fact it did not. The EPA argued too that the trial court erred in law and misconstrued the substance and effect and wrongly ascribed to it an interpretation superior to the Environmental Protection Act and thereby ascribed meaning to it which was expressly contrary to the specific provisions of the said Act and its Regulations.
Further, the EPA submitted that the trial court erred in law in directing and determining the exact manner of the exercise of the discretion of the EPA in a manner contrary to established law and practice.
In effect the EPA said that the trial court substituted its own discretion as the decision of the EPA when the Agency at all material times, had exercised its discretion and acted well within it statutory and regulatory powers. As a result, the EPA seeks a stay of execution of the judgment of the Court as it contends that irreparable harm would be suffered by the nation’s economy.
Director of the EPA, Kemraj Parsram in an affidavit inter alia lamented that Guyana as a nation now earns billions of dollars annually from the petroleum activities conducted on the Liza 1 and Liza 2 fields; both are subject to the permit suspension or cancellation which will have a catastrophic effect on national funds for development and also the private sector which supports the activities on the said Liza 1 and 2 fields.
Justice Sandil Kissoon ordered the EPA to issue an Enforcement Notice to EEPGL and its parent company, Exxon Mobil to ensure it provides unlimited parent company guarantee to safeguard Guyana against the devastating effects of an oil spill by June 10.
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