Court of Appeal throws out AG’s request to help ExxonM fight against citizens’ case for full oil spill coverage

Dec 22, 2023 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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Kaieteur News – The Court of Appeal on December 19, 2023, unanimously rejected the application by Attorney-General, Anil Nandlall to join the case of two Guyanese, Frederick Collins and Godfrey Whyte, who are fighting for the Environmental Protection Agency (EPA) to get ExxonMobil Guyana to furnish the nation with unlimited liability coverage for oil spills.

In the said case, the EPA is represented by Frances Carryl and Sanjeev Datadin. ExxonMobil Guyana is represented by Edward Luckhoo SC, Andrew Pollard SC and Eleanor Luckhoo.

The Attorney General was represented by a battery of lawyers including Darshan Ramdhanie, KC, and Nigel Hawke.

Kaieteur News understands that Justice of Appeal, Rishi Persaud read the first written judgment, then Justice of Appeal,  Dawn Gregory Barnes read the second written judgment and finally the Chancellor (Ag.),  Yonette Cummings Edwards read her written judgment, whereby the three judges all agreed to dismiss the AG’s Application to join the appeal.

The Court of Appeal unanimously upheld the submissions made by Seenath Jairam ,SC, leading Ms Melinda Janki and Mrs. Abiola Wong-Innings on behalf of Collins and Whyte, strenuously objecting to the joinder of the Attorney-General (AG). The Attorney-General had sought to join the side of Exxon Guyana which opposed the orders made by High Court Judge, Justice Sandil Kissoon for there to be a full coverage for all oil spill costs.

Jairam , SC made a number of legal arguments as to why the AG should not be allowed to join but in particular pointed out that the Attorney-General has no place in judicial review proceedings – a legal position that has now been judicially endorsed by the Court of Appeal.

The Collins and Whyte case is currently in the Court of Appeal following the internationally renowned and historic decision by Justice Sandil Kissoon on May 3, 2023. The High Court Judge had ordered the EPA to obtain from Exxon Guyana, environmental liability insurance as is customary in the petroleum industry and an unlimited parent company guarantee to cover all costs of an oil spill, in accordance with the environmental permit issued to Exxon Guyana.

In his judgment, Justice Kissoon was very clear and had castigated the EPA for abdicating its statutory responsibilities stating that the EPA had “relegated itself to state of laxity of enforcement and condonation compounded by a lack of vigilance thereby putting this nation and its people in grave potential danger of calamitous disaster.”

Justice Kissoon also found in the evidence that Exxon Guyana, “was engaged in a disingenuous attempt which was calculated to deceive when it sought to dilute its liabilities and settled obligations stipulated and expressed in clear unambiguous terms” in its environmental permit.

Both the EPA and Exxon Guyana appealed the decision which is now before the Court of Appeal for a date to be heard and determined.

On June 8, 2023, Appellate Court Judge, Justice Rishi Persaud granted a stay of Justice Kissoon’s orders and ordered Exxon Guyana to produce a guarantee for US$2 billion within a fixed time frame instead. Justice Persaud also stayed the requirement for insurance.

On July 5, 2023 Collins and Whyte filed a Motion for an urgent hearing to vary or discharge the Order made by Justice Persaud. In his Affidavit in Support of the Motion, Collins pointed out that as a result of the stay granted by Justice Persaud, Guyana is now on the hook for damage caused by an oil spill and warned that “the potential harm to Guyana’s economy cannot be overstated. Liability for clean-up, restoration and compensation following an oil spill, well blow out, or tanker accident from Exxon’s operations is unlimited and uncapped and could run into billions of US dollars or trillions of Guyana dollars, far exceeding the National Resource Fund and Guyana’s biggest ever annual budget, and even exceeding the amount of said fund and budget combined.”

On behalf of Collins and Whyte, Attorney-at-Law, Melinda Janki wrote several letters to the lawyers for the EPA and Exxon requesting a copy of the US$2 billion guarantee but none was produced.

On November 1, 2023, a summons was filed for orders directing the EPA and Esso to produce a copy of the US$2 billion guarantee. Neither the motion nor the summons has been heard as yet. However, following the hearing on December 19, the Court of Appeal directed Wong-Inniss to follow up with the Registrar with regard to obtaining a copy of the US$2 billion guarantee and dates for the hearing of the appeal and other applications.

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• Anil Nandlall, Attorney General, Ms Melinda Janki, SC, Seenath Jairam

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