EPA not legally obligated to show proof that $2B parent company guarantee was lodged – Jagdeo

Jan 21, 2024 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

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Kaieteur News – Vice President (VP) Bharrat Jagdeo has said that the Environmental Protection Agency (EPA) is under no legal obligation to release proof that a $2 billion parent company guarantee was lodged by ExxonMobil Guyana in keeping with an order of the Court.

The VP made this disclosure in response to a question posed by Kaieteur News at his weekly press conference last Thursday; moments after Sanjeev Datadin, a lawyer representing the State-owned Environmental Protection Agency (EPA), challenged 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 ordered ExxonMobil to lodge a US$2 Billion parent and/or affiliate company guarantee. Since that order that was issued on June 8, 2023, the litigants, Frederick Collins and Godfrey Whyte 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.

Speaking on the issue, Jagdeo said that in his personal capacity, he sees nothing wrong with the document being made public. However, as VP, he cannot tell the EPA how to conduct its business.

According to the Vice President, the EPA views the request to see the document that it is not legally required to release, as opening the door for an avalanche of similar requests.  The environmental body, he claims is not willing to entertain such requests.

Jagdeo said: “I spoke with the EPA about this, their biggest concern is about the avalanche of requests that this could trigger. In principle, I don’t see a problem with the guarantee because a guarantee is there to be made public …”

He continued: “[However] It is up to the institution and I can’t override the institution, when it says to its lawyers under the law, there are documents we have to make public and documents we don’t have to make public and this is one of those documents because where does it stop and if we start doing this every day, we will have a request not just oil and gas sector but every sector for documents that are submitted in this manner to us.”

He noted that the evidence that the money was lodged is a matter between the two parties—the EPA and Exxon. Further, the VP said the ultimate decision is to be made by the Court of Appeal.

“I don’t want to as a politician to override any agency…For me publicly, it is a matter for the Court, if the Court believes that the public interest to see this document overrides their allegiance to their law and the court rules that way then they will have to make it public,” Jagdeo added.

Last Thursday, when the matter came up before the Court of Appeal, 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 the 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.

In response, Senior Counsel Seenath Jairam who is representing Collins and Whyte, the litigants in the matter pointed to the fact that ExxonMobil has been dragging its feet to provide proof that it lodged the sums with the Court.

Jairam reminded 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 with any.

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

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 the lawyers to make their submission on the issue of jurisdiction on or before January 22, 2024.

Senior Counsel Jairam was granted until January 25, 2024 to respond to the jurisdictional contentions. The court will hear the oral argument on February 1, 2024 at 11:00 am.

The litigants filed a case in September 2022 asking that the Environmental Protection Agency (EPA) be ordered to secure from ExxonMobil 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, ExxonMobil and the EPA through their lawyers, appealed and were successful in staying Justice 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, Melinda Janki and Abiola Wong-Inniss have been unable to secure a copy of the said guarantee for perusal.

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• company, Dr. Bharrat Jagdeo, guarantee, Sanjeev Datadi, Vice President

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