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EAB conflict of interest case to be refiled as judge throws out matter due to error in claim
Kaieteur News – The conflict of interest case brought against Chairman of the Environmental Assessment Board (EAB), Dr. Mahendar Sharma and the Permanent Secretary of the Ministry of Natural Resources, Mr. Joslyn McKenzie by civil society activist, Danuta Radzik was on Wednesday dismissed by a High Court judge.
Applicants: Danuta Radzik
The matter was thrown out due to an error in the claim. As a result, lawyer for the applicant, Mr. Mohamed Ali told Kaieteur News that the case will be refiled as soon as possible. “It was just an error but we will move to refile as soon as possible,” he said.
Radzik had moved to court to challenge the legality of Sharma and McKenzie given that they are serving members of the EAB as well as employees of the government and have been tasked with making important environmental decision.
On Wednesday, High Court Justice Fidela Corbin upheld objections to the case which was filed for Judicial Review. She essentially agreed with the contention that the case could not stand since it was directed to Sharma and Mc Kenzie in their individual capacities instead of the EAB. Lawyer for Sharma, Arudanauth Gossai had argued that the claim was misguided in that Judicial Review cases can only be brought against the decisions of public bodies or an officer performing a public function. Mr. McKenzie who was represented by attorney Darshan Ramdhani made an identical submission to the Court.
CEO of the GEA, Mahendar Sharma
The attorneys had reasoned that neither Sharma nor McKenzie can be called officers performing a public function since they are members of the EAB. According to Gossai the matter should have been brought against the EAB which is the public body that makes the decisions as a collective. Radzik had moved to the High Court in May challenging the legality of Sharma and 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 geared towards reducing the cost of electricity by 50 percent.
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 conflict 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 by Radzik, provided 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 had 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 had asked 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 had 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. Sharma and McKenzie were both listed as respondents in the matter.
- Applicants, Civil society activist, Danuta Radzik, Dr. Mahendar Sharma, Environmental Assessment Board (EAB)
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