Judge throws out application filed to strike out new EAB case

Jan 28, 2024 Court Stories, ExxonMobil, Features / Columnists, News, Oil & Gas

Justice Simone Ramlall

Kaieteur News – High Court Justice Simone Ramlall on Friday threw out an application which was filed to strike out the new case brought against the Environmental Assessment Board (EAB) by rights activist Danuta Radzik.

The application was filed on January 15, 2024 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.

In making her determination, Justice Ramlall said that it is her view that the case cited by the attorney does not apply to the scenario of the EAB case.

The judge noted that the case cited was in relation to the old high court rules and as such could not be applied to the circumstances of a document filed under the CPR rules.

She noted nonetheless, that the court is not comfortable with the manner in which the affidavit was filed and instructed that the attorney for Radzik to re-file the document on or before January 27, 2024. The case is expected to continue on March 1, 2024.

In his application, Sharma had noted that 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 is challenging the 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 EPA to exempt the gas facility from an EIA and to hold new hearings in compliance with the Environmental Protection Act.

The grounds of Radzik’s application outline that the 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 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, i.e., Sharma, current 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, as a ground for the request.