Appeal Court tells EPA, Exxon Justice Kissoon’s ruling stands

May 17, 2023 Court Stories, Features / Columnists, News

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— Orders lawyers to limit submissions to ten pages

Kaieteur News – Appeal Court Justice Rishi Persaud on Monday refused to overturn the ruling of Justice Sandil Kissoon in which he ordered that ExxonMobil Corporation to provide an unlimited parent company guarantee for its oil operations in the Stabroek Block within 30 days.

When the matter was called for case management, attorney for the Environmental Protection Agency (EPA) Sanjeev Datadin requested a Stay of Justice Kissoon’s Order but his request was bluntly refused.

Datadin had asked the Appeal Court to issue the Stay on or before May 9, 2023. Had the Stay been granted, it would have put a hold on the Judge’s 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.

Alfred Ramdhani, another lawyer for the EPA also urged the court once more, to grant the interim stay, while noting that if the judgment is not granted in the EPA’s favour on May 29, 2023, then it would only afford the agency and the oil company about two weeks to comply. Justice Persaud made it clear that his words spoken to deny same was already clear.

Justice Persaud instructed the lawyers for the EPA as well as for Exxon’s affiliate, Esso Exploration and Production Guyana Limited (EEPGL) to have their submissions be no more than 10 pages as the issue before the court is a narrow one. The parties agreed. The court also set May 25 for oral arguments. The Court of Appeal intends to apply the merit test to the EPA appeal against Justice Kissoon’s ruling.

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, ExxonMobil 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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• Appeal Court, EPA, Exxon, Justice Kissoon’s ruling, Stabroek Block, TIGI

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