Latest update November 21st, 2024 1:00 AM
High Court dismisses case against EPA over permit that allows Exxon to flare gas
Kaieteur News – The High Court on Tuesday dismissed an application filed against Guyana’s Environmental Protection Agency (EPA) to put a stop to flaring by ExxonMobil Guyana Limited in the Stabroek Block.
Chief Justice (Ag), Roxane George-Wiltshire.
The case was filed back in January by three Guyanese women: Sinkka Henry, Sherlina Nageer and Andriska Thorington, through their attorneys-at-law Melinda Janki and Ronald Burch-Smith.
In their application the women said that the EPA acted unlawfully and Ultra Vires the Envirommetal Protection (EP)Act Chapter 20:05 when it issued a modified Environmental Permit (EP) which governed the conduct of the petroleum operations and production by Exxon Mobil Guyana.
In the Fixed Date Application (FDA), the women sought orders to quash the decision to replace the original permit dated September 25, 2020, with the said modified permit declaring that a charge of USD $30 per tonne of carbon dioxide equivalent as set out in the modified EP is in breach of the Polluter Pays Principle.
The modified permit had been previously amended pursuant to an order of Court so as to limit its validity to five years as stipulated by the EP Act. The applicants sought a number of mandamus orders directing the EPA to issue certain orders and directions to ExxonMobil as regards its operations for the production of oil.
The women claimed in their application that the oil company has been flaring associated gas almost continuously since it began production in December 2019, despite undertaking to reinject the associated gas, not flare it. In May 2021 after ExxonMobil had flared billions of cubic feet of associated gas, the Environmental Protection Agency purported to modify Esso’s permit to allow it to flare gas in exchange for a US$30 fee per tonne of carbon dioxide equivalent.
The litigants therefore contended that the agency’s decision to modify Esso’s environmental permit to allow flaring was irrational and unlawful and that it should be quashed by the court. They also argued that the agency breached the Environmental Protection Act Cap. 20:05 by purporting to allow Esso to flare in return for paying a fee.
Exxon Mobil has been given a permit that allows company to flare for a fee.
In her ruling on Tuesday, Chief Justice (ag) Roxane George Wiltshire noted that while references made by the counsel for the applicant were acknowledged, the case ultimately turns on the evidence presented.
According to the Chief Justice, the evidence proffered in support of the application was “confusingly expressed” and ultimately “difficult to follow.” Justice George Wiltshire noted to that the application consisted of a lot of opinions by the applicant and their lawyer.
“I got the distinct impression that the applicants were cherry-picking what they wanted o rely on to support their case, identifying and relying on clauses or parts in isolation,” the Chief Justice said.
As it relates to the fees, the judge noted that while EPA did not respond to allegation about pollution fee, ExxonMobil’s country Manager, Alistair Routledge produced evidence of comparative flaring fee for other countries including the European Union and Central and South America which said USD $30 fee is in the mid-range of fee charged internationally.
To this end, Justice George Wiltshire concluded that the EPA act of issuing the modified EP to Exxon has not breached the EP Act and Regulation.
“Nor has it been proven that the issuance of the said modified EP gave rise and has given rise to an additional adverse effect on the environment. There is nothing in the law that prevents the issuance of a modified EP; and in this case, nothing of the facts rendered the issuance of the modified EP unlawful,” she said
Additionally the chief justice found the EPA’s implementation of the Polluter Pays Principle in the modified EP is in compliance with section 4 (4) (a) of the EP Act.
Given her conclusion, the judge said in hindsight, the application should have been dismissed when it became clear that the applicants were not pursuing most of their claims and or had evidential basis to support them all in relation to a purely academic point. As such the application was dismissed with costs to the EPA in the nominal sum of sum of $150, 000 to be paid on November 3, 202. However, there was no order as to cost in favour of Exxon.
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