Lawsuit filed against U.S. state regulatory agencies for not upholding their constitutional duties to protect environment, natural resources and citizens

May 27, 2023 News

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Kaieteur News – Earlier this month, a lawsuit was filed against the state of New Mexico, its Legislature, the state’s two environmental regulatory agencies, their directors and Governor Michelle Luja Grisham for not upholding their constitutional duties to protect the environment, natural resources and citizens’ health from despoilment by oil and gas production – Capital & Main reported.

The suit was filed against the officials and regulatory agencies in a Santa Fe District Court by a group of 15 plaintiffs. The lawsuit argues the state is not equally upholding environmental protections enshrined in its constitution.

The plaintiffs are led by lawyers from the Center for Biological Diversity (CBD) and WildEarth Guardians.

Gail Evans, lead attorney on the case for CBD said, “Seeks a complete overhaul of the statutory, regulatory and enforcement scheme for oil and gas,” adding, “This problem has risen to crisis levels as oil and gas production and the resulting pollution has exploded in the state.”

“How much louder do we have to yell?” asks Zephyr Jaramillo, from the Pueblos of Isleta and San Felipe, campaign organizer with youth-based climate group YUCCA and a co-plaintiff in the case. He added, “Legal action is our last recourse. It’s time to demand accountability.”

The media entity reported that for decades, environmental groups and individuals have sued oil and gas production companies for violating environmental laws. But this latest lawsuit takes aim at New Mexico itself, using the state’s own constitution to sue its leaders.

It was explained that it is a strategy shift that could force elected officials to dramatically increase oilfield enforcement in the second-largest oil-producing state in the nation.

Oil output in New Mexico has risen tenfold since 2010, while natural gas production has more than doubled. “This means that New Mexico plays a major role in the climate crisis,” Jaramillo says.

“The governor gets appointed for these committees and whatnot, and they look up to her as a climate champ. It’s just not the reality.” ~ Jeremy Nichols, WildEarth Guardians

The plaintiffs hope that Article XX, Section 21 of the New Mexico Constitution — 66 words in two brisk sentences — holds the solution to their environmental and climate fears: “The protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.”

“Ideally … this case would not be necessary,” said Evans, the lawyer with CBD. “We’d have a government that took action to protect us all from the grave risks and harms of oil and gas pollution,” she added.

On the local front, High Court Judge, Justice Sandil Kissoon on May 3, ruled that Guyana’s Environmental Protection Agency (EPA) breached its statutory duty, while handing down his ruling in the case for unlimited parent guarantee from American oil giant, ExxonMobil Corporation for a major oil project by its subsidiary Esso Exploration and Production Guyana Limited (EEPGL), offshore Guyana.

EEPGL along with its co-ventures Hess Corporation and China National Offshore Oil Corporation (CNOOC) has been operating in the Stabroek Block with a mere US$600 million insurance package given to the country. To complement this, Guyana’s Environmental Protection Agency (EPA) has since agreed to accept a US$2 billion parent company guarantee from ExxonMobil and is poised to receive supporting documents on this front soon.

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

In September 2022, two citizens, President of the Transparency Institute of Guyana Inc. (TIGI) Frederick Collins and Godfrey Whyte, through their lawyers, Mr. Seenath Jairam, SC, and Ms. Melinda Janki, had approached the court to get the EPA to enforce a critical clause, Condition 14 in the Liza Phase 1 Environmental Permit (Renewed) issued on May 31, 2022 to EEPGL. That provision says ExxonMobil Corporation, the parent company for EEPGL, must cover costs for all environmental loss and damage that might result from a well blowout, oil spill or other failure in the Liza Phase One Development Project in Guyana’s Stabroek Block.

On the issue of whether the EPA has acted in breach of its statutory duty, unreasonably, and also allowing EEPGL to carry out petroleum operations in the absence of the compliance with Condition 14, Justice Kissoon underscored that at every juncture from the day the renewed permit was issued to EEPGL to date, the EPA engaged in a course of action to undermine and erode the terms and conditions of its own environmental permit.

It was highlighted that the agency carrying out public law functions, notwithstanding that EEPGL’s activities are of significant impact, failed several aspects of its duties.

The court had ruled that the EPA failed and omitted to mandate compliance by EPPGL with its financial assurance obligations of environmental liability insurance together with an unlimited parent company guarantee; the EPA also failed to take any meaningful step of any step whatsoever to assess what was provided to it by the oil company purportedly as the environmental liability insurance when it was not in fact in keeping with Condition 14 of the renewed permit. Importantly, it was also stated that despite failing to do the aforementioned, the EPA also failed to suspend/ cancel EEPGL’s renewed environmental permit even though the oil company made public pronouncements, communicating its intention to increase production levels.

The judge said too, “The EPA has relegated itself to a state of laxity of enforcement and condonation compounded by a lack of vigilance thereby putting this nation and its people in grave potential danger of calamitous disaster.”

Justice Kissoon ruled that the EPA must secure unlimited parent guarantee from ExxonMobil by June 10 – however, the Government of Guyana (GoG) and the oil company has since moved to appeal and overturn the ruling. Vice President (VP), Bharrat Jagdeo has said that such ruling could affect investment in Guyana’s oil and gas sector and kill the momentum.

 

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• a lawsuit was filed against the state of New Mexico, Earlier this month, from the Pueblos of Isleta and San Felipe, Zephyr Jaramillo

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