Govt. and Exxon unite again to fight citizens in another court case

Jun 16, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

Wales Gas Plant permit…

Kaieteur News – Attorney General, Anil Nandlall, S.C and Esso Exploration and Production Guyana Limited (EEPGL) have been added as respondents in a matter filed in the High Court by two citizens, challenging the legality of the Permit, issued by the Environmental Protection Agency (EPA) for the Gas-to-Energy (GTE) project.

The Permit in question was issued by the EPA to EEPGL for the pipeline aspect of the GTE project. It was approved by the agency, which is the first named respondent, on November 25, 2022. The application challenging the legality of the Permit was filed by two citizens, Vanda Radzik and Elizabeth Hughes on March 27, 2023 through their lawyers Melinda Janki, Abiola Wong-Inniss and Joel Ross.

Attorney General, Anil Nandlall, S.C

The Attorney General Chambers in a statement on Thursday revealed that after applications for both EEPGL and the AG to join the matter were opposed on May 11, 2023 by Counsel for the Applicants, their requests were approved on June 12, 2023 by the hearing Judge, Justice Priya Sewnarine Beharry.

In its application to join the proceedings, the State noted that it would be adversely affected by a judgment quashing the Permit, since several contracts for the project have already been awarded, to which the government is a party. “It would place the Government in a position of breach in relation to contracts already entered into for the construction of the power plant and would likely attract liabilities under those contracts,” the AG stated.

To this end, the Court held that given the State’s substantial public, economic and pecuniary interests in the project, the AG has demonstrated sufficient interest to intervene in his capacity as guardian of the public interest. The Judge ruled, “I find further that the AG, because of his unique position as the Government’s principal legal advisor, may be privy to relevant facts and information (of which the Respondents/Applicants are in no position to speak) and may be able offer a different, useful or practical perspective which this Court ought to take into consideration in determining the issue raised. I find that this of itself counterbalances any delay or prejudice caused to the Respondents/Applicants. I therefore find that the AG ought to be given the opportunity to participate fully in the proceedings and place before the Court, for its consideration, evidence which he believes will vindicate the State’s interest.”

Kaieteur News understands that the AG is being supported by Shoshanna Lall, Assistant Solicitor General, Patricia Shepherd and Laurel Dundas, State Counsel. In the meantime, the pool of lawyers representing EEPGL includes Edward Luckhoo, SC, Andrew Pollard, SC and Eleanor Luckhoo. Both parties had applied to join the case on May 10, 2023.

EEPGL President, Alistair Routledge

Justice Sewnarine-Beharry in her June 12 ruling said that the Respondents/Applicants have conceded that both Esso and the AG have an interest in the proceedings as it is obvious that both parties would be adversely affected if the Orders sought by the Respondents/Applicants were granted by the High Court. She noted, “In deciding this issue this court must have regard whether such intervention will unduly delay or prejudice the determination of the rights of Respondents/Applicants.”

In granting EEPGL its application to join as respondent, the Judge stated, “Esso is the holder of the Environmental Permit which is being impugned and named operator of the GEP and undoubtedly has an economic interest in this venture or to borrow the words of their Counsel “a real, substantial and direct interest” in the subject matter of the proceedings. Moreover, it has rights accrued or derived from the Permit and in all fairness ought to heard and be able to fully defend its rights to the Permit.”

Similarly, she pointed out that the state should join the matter, given its “substantial public, economic and pecuniary” interests in the project. The AG and EEPGL have until June 30, 2023 to serve an Affidavit in Defence on the matter. Meanwhile, the applicants are expected to file Affidavits in Reply, if necessary, on or before 14 July 2023 and written submissions on or before 28 July, 2023. The Respondents will then file written submissions in answer, on or before 11 August, 2023.

The Judge said the decision of the court will be handed down on September 25, 2023.

The pipeline is a critical component of the GTE project that is intended to reduce the cost of electricity by 50 percent. It was reported that the infrastructure is being funded by the oil company and will be repaid by Guyana via annual payments of US$55 million for 20 years. Separately, the GoG is pursuing a Natural Gas Liquids (NGL) facility to treat and separate the gas, along with a 300-megawatt power plant to generate electricity to power the national grid. Government intends for the project to startup by the end of next year.

Background on case

Radzik and Hughes moved to the High Court on March 27, 2023 seeking an Order of Certiorari to quash the decision made by the EPA to award an Environmental Permit to EEPGL – ExxonMobil Guyana – to undertake the GTE project activities, on the grounds inter alia that the decision was in breach of the provisions of the Environmental Protection Act (Cap. 20:05), and more particularly, the Environmental Protection (Authorisation) Regulations.

The applicants outlined that ExxonMobil Guyana in its application to the regulator, dated June 24, 2021 includes details of the project site, the proposed route of the pipeline and the areas to be used and affected by the project, which includes residential properties, commercial properties and state-owned properties. Be that as it may, the application did not include or provide any proof of ownership, a lease or other agreement with the land owners of the said area.

Notwithstanding, the EPA granted EEPGL a Permit to undertake the project on November 25, 2022. Subsequently, the Minister of Public Works, Juan Edghill in January 2023 passed various orders to acquire lands for the purpose of the project, pursuant to the Acquisition of Lands for Public Purposes Act, Chapter 62:05.

The applicants are therefore seeking a declaration that the respondent acted in breach of the Environmental Protection (Authorisation) Regulations; a declaration that the Permit is null, void and of no legal effect with costs and such further order the Court considers just. In their application to the High Court, Radzik and Deane-Hughes stated that Pursuant to Regulation 17 (2)(c)(iii) of the Environmental Protection (Authorisation) Regulations, an application for an environmental authorization must contain “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 without the consent of the landowner or occupier.”