Govt. says Court has no jurisdiction to order release of Exxon’s US$2B guarantee

Jan 19, 2024 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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– litigants threaten to take matter to CCJ over contempt

Kaieteur News – Sanjeev Datadin, the lawyer representing the State-owned Environmental Protection Agency (EPA) is challenging the jurisdiction of the Court of Appeal to order ExxonMobil Guyana to produce evidence that it has lodged the $2 billion parent guarantee in the event of an oil spill here.

Datadin raised the issue of jurisdiction in the case where two Guyanese challenged the oil company over the failure to provide unlimited liability coverage to Guyana in the event of oil spills. Pending the final outcome of an appeal, presiding Justice Rishi Persaud had Exxon to lodge a US$2 Billion parent and/or affiliate company guarantee. Since that order was issued on June 8, 2023, the litigants said their lawyers have been unable to secure a copy of the said guarantee for perusal.

A summons was subsequently filed on November 1, 2023 for orders directing the EPA and Exxon to produce a copy of the US$2 billion guarantee.  On Thursday, Datadin told the Court, that his client the EPA’s instructions are not to acquiesce to the summons at this time.

“My instruction at this time is to resist the application while they will consider their position as it relates to the disclosure. It is not as if one person can do it they want to speak to the members of t he board as it relates to that … between last week and today they haven’t been able to do that…,” Datadin said.

He related too that his position on the application before the court is that the court does not have the jurisdiction to proceed with that sort of order. As such, the lawyer has requested time to address the court on the issue of its jurisdiction. Senior Counsel, Seenath Jairam who is representing the litigants in the matter lamented on the fact that Exxon has been dragging its feet to provide proof that it lodged the sums with the Court.

Jairam stressed that the judge made the order to lodge the sum since June 2023, and though the litigants have used appropriate mediums to request to see the proof that the $2B was lodged with the Court, they have not provided …

“Exxon is playing with fire…l am going to file contempt proceedings and I am going to argue that they are not incompliance. Since they are being difficult and adversarial, I will take a very hard view and they will end up at the CCJ,” blurted a visibly upset Jairam.

For his part, ExxonMobil Guyana’s lawyer, Senior Counsel Edward Luckhoo told the Court that the company has complied with the order and lodged the $2billion guarantee.  However, since the Court must hear the contentions raised by the EPA, he said he too will submit a response to the point of jurisdiction.  As such, the court ordered to the lawyers to make their submission on the issue of jurisdiction on or before January 22.  Senior Counsel Jairam was granted until January 25 to respond to the jurisdictional contentions. The court will hear the oral argument on February 1, 2024 at 11:00 am.

The litigants had filed a case back in September 2022 so that the Environmental Protection Agency (EPA) can be ordered to secure from Exxon Guyana, unlimited liability coverage for oil spills. In so doing, Guyana would be fully protected from any hidden costs associated with an unmitigated spill from one or more projects in the Stabroek Block.

On May 3, 2023, High Court Judge, Justice Sandil Kisson ruled in favour of the litigants and ordered the EPA to secure an unlimited parent and/or affiliate company guarantee for oil spills. To circumvent compliance with that order, Exxon and the EPA through their lawyers, appealed and were successful in staying Justice Kissoon’s decision.

Two Guyanese who have made numerous requests through their lawyers to see ExxonMobil Guyana’s US$2 billion parent company guarantee continue to hit a brick wall. The litigants, Frederick Collins and Godfrey Whyte, had filed a case back in September 2022 so that the Environmental Protection Agency (EPA) can be ordered to secure from Exxon Guyana, unlimited liability coverage for oil spills.

In so doing, Guyana would be fully protected from any hidden costs associated with an unmitigated spill from one or more projects in the Stabroek Block. On May 3, 2023, High Court Judge, Justice Sandil Kissoon ruled in favour of the litigants and ordered the EPA to secure an unlimited parent and/or affiliate company guarantee for oil spills.

To circumvent compliance with that order, Exxon and the EPA through their lawyers, appealed and were successful in staying Justice’s Kissoon’s decision. Pending the final outcome of the appeal, Justice Persaud ordered Exxon to lodge a US$2 Billion parent and or affiliate company guarantee. Since that order was issued on June 8, 2023, the litigants said their lawyers which include Jairam SC, leading Melinda Janki and Abiola Wong-Inniss have been unable to secure a copy of the said guarantee for perusal.

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. In fact, requests were also made to the Registrar of the Supreme Court and the Court of the Appeal but these efforts did not bear fruit.

In light of the foregoing, a summons was filed on November 1, 2023, for orders directing the EPA and Exxon to produce a copy of the US$2billion guarantee. In the summons seen by this newspaper, Collins said, “I am advised by my Attorney-at-Law, Melinda Janki, and do verily believe that over the course of four months, she has consistently and persistently sent four unanswered communications, copying all the parties’ representatives, to the Court’s Registrar requesting a copy of the said Order and the reasons associated with same…”

Given the failure to see the document, Collins said, “I, in particular feel that we have been gravely denied justice and I feel hurt that after such interminable delays in a relatively straightforward matter we encounter obstacles in our way obstructing our progress in a public interest matter before the hierarchy of courts in Guyana…”

He further noted that in the absence of any evidence in the court record that Exxon has lodged the guarantee, the company is therefore in contempt of court, and the original order issued on May 3, 2023 by Justice Kissoon, is reinstated.

While the matter languishes and the remedy already granted is inhibited by the stay handed down by Justice of Appeal Persaud, Collins said Guyana remains on the hook for all costs of clean-up, restoration and compensation which Exxon cannot meet. He reasoned that such a massive expense is a direct threat to Guyana’s economic viability, particularly in light of the uncooperative and evasive responses from the attorneys-at-law for Exxon and the EPA and their failure to provide a copy of the said US$2 billion guarantee.

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• Environmental Protection Agency (EPA), EPA, Exxon Mobil Guyana, High Court Judge, Justice Sandil Kissoon, Sanjeev Datadin

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