Application filed to strike out EAB case over waiver of impact assessment

Jan 23, 2024 Court Stories, Features / Columnists, News

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Kaieteur News – An application has been filed in the High Court to strike out the new case against the Environmental Assessment Board (EAB) by rights activist Danuta Radzik.

The application was filed on January 15 by Arud Gossai Attorney on behalf of EAB Board member Mahender Sharma. Gossai’s contention is that Radzik’s case breached a mandatory provision of the 2016 Civil Procedures Rules. In an affidavit to support their application for dismissal, Sharma pointed out that Radzik’s application was filed on November 23, 2023. However, rule 8.04 (20 (a) of 2016 CPR mandates that a Fixed Date Application (FDA) must contain an affidavit in support.  It was noted however that the affidavit in support was sworn to even before the FDA existed.

Sharma noted he was advised by his lawyer that an affidavit under rule 30 of the 2016 CPR is not an originating process and can only be sworn to in support of an existing originating process. As such, the EAB member is asking the court to strike out the matter.  Radzik’s challenging the Environmental Assessment Board’s (EAB’s) decision to uphold a waiver of an Environmental Impact Assessment (EIA) for the two gas plants to be constructed at Wales, West Bank Demerara.

The EAB issued a decision in May 2023, upholding a decision of the Environmental Protection Agency (EPA) to exempt the gas facility from an EIA. Radzik is seeking an Order of Certiorari to quash the decision to exempt the gas facility from a thorough impact assessment. She argues that the decision of the EAB is flawed and/or contrary to, or in breach of the law.

In court documents seen by Kaieteur News, Radzik through her attorney Mohamed Ali is asking the Court to declare the decision a nullity; is void and of no legal effect; was made without or  want of or in excess of jurisdiction; is ultra vires; is unreasonable or irrational, arbitrary, capricious or erroneous at law; is illegal; disproportionate;  in defiance of logic; without any legal foundation or basis or authorization or authority; and/or contrary to or in breach of the provisions of the Act and/or the regulations.

In addition, the Court is being asked to issue an Order of Mandamus directed to the EAB, that the board reinstate the appeal against the decision of the Environmental Protection Agency (EPA) to exempt the gas facility from an Environmental Impact Assessment (EIA) and to hold new hearings in compliance with the Environmental Protection Act. The grounds of Radzik’s application outline that the Environmental Assessment Board (EAB) is empowered by Section 18 of the Environmental Protection Act Cap. 20:05 to conduct hearings into appeals lodged. The document notes further that the composition and operation of the Environmental Assessment Board (EAB) is set out in the Third Schedule of the Environmental Protection Act, Cap. 20:05.

The application outlined that, “…The disclosure of interest and recusal of any member of the Environmental Assessment Board (EAB) is set out in the section 8 of the third schedule of the Environmental Protection Act (EPA) Cap. 20:05…It was via Application for Environmental Authorisation dated the 14th day of November 2022, Guyana Power and Gas Inc., a company incorporated under the Laws of Guyana Companies Act Cap. 89:01, with its registered office at Lot 116-117, Cowan Street, Kingston, Georgetown (hereinafter called the Company), sought an environmental permit from the Environmental Protection Agency (EPA) for the construction and operation of a 300 MW Natural Gas-Fired Power Plant (the project).”

It noted that, “The project is strategically aimed at utilizing piped natural gas from the Floating Production Storage and Offloading (FPSOs), which will be processed by a Natural Gas Liquids (NGL) facility which will generate lean gas that will be used to fuel a power plant that will generate and deliver electricity into GPL’s existing power grid. The completed project is expected to deliver every month 187.56 GWh of electricity into the Demerara Berbice Interconnected System to support Guyana’s current and projected economic development.”

Meanwhile, touching on the appointments of members of the EAB, the application seeks to highlight the conflict of interest by its members as a ground for the request. According to the application, three public servants, i.e., Dr. Mahender Sharma, Head of the Guyana Energy Agency and member of the Board of Directors of the Guyana Power and Light Inc. (GPL), Mr. Joslyn McKenzie, Permanent Secretary of the Ministry of Natural Resources, and Dr. Garvin Cummings, Chief Meteorological Officer were appointed members of the EAB.

The application noted that both Sharma and Mc Kenzie have direct and indirect interests in the Project which he failed to declare and he participated in deliberations and decisions regarding the exemption of the power plant from an environmental impact contrary to paragraph 8 of the Third Schedule of the Environmental Protection Act. The document outlined that “Mahender Sharma is a director on the Board of Directors of the Guyana Power and Light Inc. (GPL) reappointed on the 27th day of August 2021.  Guyana Power and Light Inc (GPL) is a company that is essentially a Co-applicant along with Guyana Power and Gas Inc., for a permit from the Environmental Protection Agency (the EPA) for the construction and operation of a 300 MW Natural Gas-Fired Power Plant (the Project), a power generation facility to be located at Wales, West Bank Demerara, Guyana. In his capacity as Permanent Secretary of the Ministry of Natural Resources, Energy Project and specific power plant components from its inception and continues to actively administer parts thereof.

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• court case, EAB, Mahender Sharma, Radzik, strike out

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