Citizens continue fight to quash Exxon’s gas pipeline permit

Nov 18, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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…files Motion to overturn High Court’s ruling

By Davina Bagot

Kaieteur News – Two Guyanese women on Wednesday filed an appeal of the High Court’s decision not to quash the Environmental Permit granted to ExxonMobil Guyana Limited (EMGL) for the 12- inch pipeline that will be used to transport natural gas for the Gas-to-Energy (GTE) project.

On October 5, 2023 Justice Priya Sewnarine-Beharry in a 24-page ruling, determined that the Environmental Protection Agency (EPA) acted ‘contrary to the law’ and ‘improper’, by granting a Permit to EMGL – formerly Esso Exploration and Production Guyana Limited- project. 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.

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.

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

In their Notice of Appeal, the citizens through their lawyers, Melinda Janki and Abiola Wong-Inniss, are seeking a reversal and/or setting aside of the decision of the High Court not to grant the declarations sought; the administrative orders and other reliefs sought by the appellants; costs and such further order and/or relief deemed just by the Court.

The EPA, EMGL and the Attorney General of Guyana, Anil Nandlall, S.C are respondents in the matter.

Radzik and Hughes in their appeal told the Court that the decision of the learned Judge not to grant the Certiorari or declarations or award costs was “plainly wrong, irrational and otherwise contrary to law.”

They further noted, “No court of law acting judicially and directing itself as to the law could have come to the conclusions under appeal since (among other things) the decision is inconsistent with her Honour’s finding and conclusion at paragraph 64 of her judgement that “the decision by the EPA to grant the permit to Esso Guyana was contrary to law and improper.”

The citizens said that the learned Judge, having regard to the Judicial Review Act Cap 3.06, in particular section 8, would have acted fairly and justly in accordance with the principles of justice had she granted an order of Certiorari.

Radzik and Hughes in their appeal also notes that, “the learned Judge took into account irrelevant matters namely the purported expenditure while failing to take judicial notice of relevant matters such as the questionable expenditure claims made by (Exxon) as revealed in the public pronouncements of members of government.”

They argue that the learned judge failed to have due regard to the utility of the declaration in the context of the application of Guyana’s Environmental Laws and the importance of a declaration to clarify and confirm the legal duties of the respondent authority.

Justice Sewnarine-Beharry in her October 5, 2023 decision stated that, “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.”

Background on case

Radzik and Hughes moved to the High Court earlier this year, arguing 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.”

The citizens outlined that ExxonMobil Guyana in its application, 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, 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.

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• Davina Bagot, Environmental Permit, Environmental Protection Agency (EPA), ExxonMobil Guyana Limited (EMGL), Justice Priya Sewnarine-Beharry

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