Court rules EPA decision to grant permit was contrary to law and improper

Oct 06, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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ExxonMobil’s Gas-to-Energy Project…

Kaieteur News – Even though the High Court ruled on Thursday that the Environmental Protection Agency (EPA) acted ‘contrary to the law’ and ‘improper’, by granting a Permit to ExxonMobil Guyana Limited (EMGL) – formerly Esso Exploration and Production Guyana Limited- for the pipeline aspect of the Gas-to-Energy (GTE) project, it did not quash the approval.

Citizens Vanda Radzik and Elizabeth Hughes in a Fixed Date Application filed on March 27, 2023 asked the Court to reverse the Permit, since the Agency failed to comply with the legal requirements.

The pipeline is being constructed by Exxon and is intended to transport natural gas from the Liza Fields offshore to the Wales, West Bank Demerara site, where the Government of Guyana (GoG) will be separately constructing a Natural Gas Liquids (NGL) facility and a 300-megawatt power plant.

Justice Priya Sewnarine-Beharry in a 24-page ruling said that Regulation 17 of the Environmental Protection Act Regulation (EPAR) requires all applicants seeking an environmental authorisation or environmental permit under Section 11, Section 19, or Section 21 of the Environmental Protection (EP) Act to submit certain relevant information to the EPA.

She noted that Regulation 17 (2) (c) (ii) directs the project developer or applicant to prove an entitlement, of some sort, to conduct the activity on the lands impacted by the project development. However, if the Applicant does not have a legal right of ownership to the property or the consent of the landowner, the Applicant is required to submit information to the EPA to prove its legal entitlement to conduct the activity without such consent from the landowner or land occupier.

To this end, Justice Sewnarine-Beharry stated that the respondents relied on various correspondences, Ministerial Orders and other documents which they claim to amount to establish Exxon’s legal rights or ability to conduct the activities associated with the GTE Project without the consent of the landowner or occupier.

For instance, the High Court Judge cited a letter dated June 23, 2021 in which Project Head, Winston Brassington related Government’s intention to acquire lands for the activity. The Judge made it clear that, “This statement of the government’s intention has no legal impact on the owners and occupiers of the lands and does not authorise Esso Guyana to carry out the activity on the land.”

Further, she highlighted that the respondents cited a letter dated July 29, 2021 which states that the Guyana Lands and Surveys Commission (GLSC) will seek permission to appoint Exxon as an agent of GLSC for the purpose of surveying or otherwise examining the land with a view to acquisition the whole or part of such land. Justice Sewnarine-Beharry added that the letter also authorised Exxon to conduct geotechnical surveys and environmental studies for the Gas to Energy Project. She was keen to note that the document “does not authorize Esso to carry out the activity in the application.”

Additionally, she indicated that the respondents relied on Order Number 18 of 2021 made on August 7, 2021 which declared the land to be a public work. In this instance too, the High Court determined that the document only authorised the GLSC to conduct surveys and examine the land rather than carry out any activity relative to construction and operations of the GTE project.

Meanwhile, the High Court Judge stated that in another letter dated October 18, 2021 from Exxon to EPA, the company said it was authorised to access the ‘privately owned lands’ that the government is acquiring through compulsory purchase.

Consequently, she said, “The need for compulsory purchase shows that Esso Guyana did not have a lease, arrangement with the land owner or occupier or any other legal right or ability to carry out the activity in the application.”

In her ruling, the Judge highlighted that extracts from Exxon’s Environmental Impact Assessment (EIA) were used to establish the company has a legal right /ability to conduct the project activities. The EIA however made it clear that the government will acquire lands for the activity.

Furthermore, she said Orders 3, 4, 5, 6, 7 of 2023 which relate to the proposed gas pipeline route clearly establish that at the 4th January 2023 the lands described therein were privately owned hence the need to compulsory acquire them.

Consequently, the Court ruled, “It therefore cannot be said, that at the time of grant of the permit on 25th November 2022, that Esso Guyana had submitted all the relevant documents which could potentially evince a legal right or ability to conduct the proposed project without the consent of the landowner or occupier.”

To this end, Justice Sewnarine-Beharry said, “It can be concluded therefore that the decision by the EPA to grant the permit to Esso Guyana was contrary to law and improper.”

NO GOOD TO QUASH PERMIT

Even though she flagged the improper decision made by the EPA, the High Court Judge determined that the reliefs sought by the Applicants would not be granted.

She said, “There is no evidence that the Applicants were personally aggrieved by the EPA’s decision to grant a permit to Esso Guyana. The Fixed Date Application took issue with compliance to the law and sought, in essence, vindication through various orders and declarations the effect of which would bring the project works to a halt.”

The Judge stated that Judicial review is not concerned with vindication in the public sphere and was never intended to be a sword for satisfaction but rather a shield against excesses of public functionaries. She noted that the Applicants have not clearly articulated what real or substantial public wrong occurred to them or the wide Guyanese populace upon the grant of the environmental permit facility, which would justify quashing the decision of the EPA.

To this end, she stated, “Cognisance must be paid to the fact that significant fiscal expenditure has been injected into the Gas to Energy pipeline. A quashing order would disproportionately disadvantage Esso Guyana and the State by halting significant project development already underway. Moreover, it may also have an unintended consequence of impacting innocent third parties to the project development, all while proving to be a brutum fulmen in the way of substantive relief for the Applicants.”

As a result, Justice Sewnarine-Beharry said, “It is upon a delicate balancing exercise, that I am of the view that no good to the public can be done by granting the reliefs sought in the Amended Fixed Date Application.” Consequently, she refused the Orders sought by the Applicants.

Attorneys-at-Law Abiola Wong-Innis and Melinda Janki appeared for the Applicants, while the EPA was represented by Francis Carryl. Meanwhile, Andrew Pollard SC and Edward Luckhoo SC appeared for EMGL and Anil Nandlall SC MP, Attorney General and Minister of Legal Affairs appeared in person. The AG and Exxon were added as a second and third respondent in the matter on June 12, 2023.

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• court, EPA, GTE, improper, RULING

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