Citizen files Court action against conflict of interest on Environmental Board

Jun 04, 2023 News

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Kaieteur News – Danuta Radzik, a citizen with an established history of rights advocacy since the 1970s, has moved to the High Court, challenging the legality of two serving members of the Environmental Assessment Board (EAB): Dr. Mahendar Sharma and Mr. Joslyn McKenzie, in relation to their involvement in deliberating and deciding on appeals against the Environmental Protection Agency’s (EPA) exemption of the government’s 300 megawatt (MW) Power Plant for the Gas to Shore Project from an Environmental Impact Assessment (EIA).

The 300 MW combined cycle power plant will be financed through a loan the government is seeking from the United States Export Import (EXIM) Bank that Guyanese will have to repay. It is a component of the Gas-to-Energy (GTE) project which will double the country’s debt burden.

On February 10, 2023, the government appointed Sharma, who is Head of the Guyana Energy Agency (GEA) and a Director of the Guyana Power and Light Inc. (GPL), and McKenzie, who is Permanent Secretary of the Ministry of Natural Resources to serve as Chairman and member of the EAB, respectively. The EAB is comprised of another government employee, Dr. Garvin Cummings, making it a body comprised entirely of government employees.

The EAB held a public hearing on appeals against the EPA’s waiver of an EIA for the power plant project on March 22, 2023, amidst public outcry that Dr. Sharma and Mr. Mckenzie were in conflicts of interest and should recuse themselves. On May 10, 2023, the EAB issued its decision upholding the EPA’s waiver of an EIA.

The court document filed on May 22, 2023, by Danuta Radzik, through her attorney, Mr. Mohamed Ali, provides evidence of what appears to be Sharma and McKenzie’s blatant conflicts of interest, which undermine the integrity of the EAB and principles of the rule of law and good governance.

Radzik submitted 14 exhibits containing evidence of alleged conflicts of interest and actions she believes were illegally taken by Dr. Sharma and Mr. McKenzie.

The applicant is asking for declarations that Sharma and McKenzie’s specific duties as government employees are in direct and indirect conflict with their duties on the EAB and that they illegally took part in the deliberation and decision of the Board regarding the waiver of an EIA for the power plant.

Furthermore, Radzik has asked the High Court to order that all deliberations, hearings, submissions, and decisions taken by members of the Board in the matter of the EPA’s decision to waive an EIA for the 300 MW Natural Gas Power Plant Project are unlawful, null and void, and of no legal effect, pursuant to Section 8 of the Third Schedule to the Environmental Protection Act Cap. 20:05, and any further or other orders as the Court may deem just.

Functions of the EAB

The Environmental Protection Act, (EP Act) Cap. 20:05, Section 11 mandates that the EPA must ensure that an EIA is conducted for any activity that will “significantly” affect the environment before granting an environmental permit. The EP Act specifies that impacts on human beings and the natural environment constitute the scope of what must be assessed. The EP Act specifies that whenever the Agency chooses to waive the requirement for an EIA, it must publish a Public Notice notifying the public of its decision and providing the reasons justifying its decision. Further, the public must be given 30 days in which to object to the EPA’s decision by lodging an appeal with the EAB.

Section 18 of the EP Act tasks the EAB with hearing appeals against decisions of the EPA to waive the requirements for EIAs when granting an environmental permit. In situations where an EIA is conducted, the EAB is also the body for appeals, tasked with deciding whether the EIA is acceptable, and an Environmental Permit should be granted. The EAB, therefore, plays an important appeal and review role. Its independence from any form of external influence, with members capable of making impartial decisions and maintaining public trust in their decisions, is crucial.

Section 8 of the Third Schedule of the EP Act addresses the importance of the EAB’s impartiality specifically by requiring: “(1) Any member of the Board who has any interest, directly or indirectly, in any matter before the Board – (a) shall disclose the nature of his interest to the Board; and (b) shall not take part in any deliberation or decisions of the Board with respect to that matter.”

Conflicts of Interest

Soon after the appointment of the three-member EAB in February 2023, the EAB published a notice of a Public Hearing on the EPA’s decision to waive an EIA for the power plant. A considerable number of citizens and civil society organizations publicly objected to Dr. Sharma and Mr. McKenzie’s involvement in the power plant appeal process because of conflicts of interest.

Concerned groups alleged that GPL, where Dr. Sharma is a director, was involved in the application process for the power plant and would be the beneficiary of power generated. Further, Dr. Sharma, as Head of Guyana’s Energy Agency, had an interest in seeing the planned project come to fruition, and he had an additional conflict of interest in the matter, as his wife was a director of Guyana Power and Gas Company, which applied for the environmental permit. They also alleged that Mr. McKenzie was involved in administrating aspects of the Gas to Energy project at the Ministry of Natural Resources. As Permanent Secretary for the Ministry he has, among other things, been involved in procurement processes for various consultants, studies, and bids for the development of the gas project, and specifically components of the power plant, that were covered in the application involved in the appeal before the EAB.

Despite public outcry, neither Sharma nor McKenzie addressed the specific allegations before the statutory public hearing was held at Cara Lodge Hotel on March 22, 2023. At the hearing, Ms. Radzik, and other citizens stated their objection to Sharma and McKenzie’s participation in the process and asked them to recuse themselves. However, both gentlemen refused to address the allegations and proceeded to participate as part of the statutory required three-member EAB quorum, and the EAB published its decision on May 10, 2023.

As such, Radzik has moved to court. The failure of the EAB to follow due process and rule of law is however not a recent matter. Democracy and environmental advocate Simone Mangal-Joly has been raising concerns about the lack of independence and procedural unfairness at the EAB since 2021, concerning their handling of the waiver of EIAs for the Demerara Harbour Bridge, Exxon Mobil’s exploratory drilling campaign in the Canje and Kaieteur Blocks, and even filed a complaint about procedural unfairness in Exxon Mobil’s Yellowtail EIA and environmental permit process.

Mangal-Joly’s efforts to engage the EAB for solutions were ignored, and she consequently boycotted the statutory public hearing on the Canje and Kaieteur Blocks drilling campaigns in 2022 in protest. In a bid to address the festering problem, Mangal-Joly wrote several public letters beginning in January 2023, appealing to President Irfaan Ali, who is also the Minister in charge of the Environment with responsibility under the EP Act for appointing members of the EAB, to act to ensure the independence and integrity of the EAB. However, her efforts were also ignored.

This is the fourth matter concerning poor environmental governance that has caused citizens to approach the court for a remedy after prolonged efforts to engage with the authorities either fell on deaf ears or were actively rebuffed. Thus far, the citizens filing the applications have won two of the cases. The most recent ruling by Justice Sandil Kissoon in the case of the EPA’s failure to enforce the terms of parent company guarantee in Exxon Mobil’s Lisa 1 Environmental Permit described the EPA’s conduct in the matter as “reprehensible”. The other successful matters brought before the Court include the challenge to the duration of environmental Permits and another on the waiver of an EIA for a radioactive waste facility at Houston, East Bank Demerara. There are other oil and gas related matters, presently pending at the Court.

The High Court will now consider the applicant’s claims and, hopefully, shed light on the alleged improprieties within the EAB.

 

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• conflict, court, EAB, GTE, interest

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