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Judge who ordered Exxon to lodge US$2B guarantee says he cannot direct EPA to show citizens the proof
Kaieteur News – Justice of Appeal Rishi Persaud on Monday ruled that the Court of Appeal has no jurisdiction to summon the Environmental Protection Agency (EPA) to produce evidence that ExxonMobil Guyana has lodged the $2 billion oil spill guarantee with the agency, as ordered by the Court.
Justice of Appeal Rishi Persaud
Sanjeev Datadin, the lawyer representing the State-owned EPA, had challenged the jurisdiction of the Court of Appeal to order the agency to show proof that ExxonMobil Guyana had lodged the $2 billion oil spill parent guarantee.
Datadin raised the issue of jurisdiction in the case where two Guyanese, Frederick Collins and Godfrey Whyte, 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 to stay the order by High Court Justice, Sandil Kissoon, that ExxonMobil Guyana provides unlimited liability coverage for oil spills, Court of Appeal judge, Justice Rishi Persaud had instructed ExxonMobil to lodge a US$2 Billion oil spill guarantee.
Since that order was issued on June 8, 2023, the litigants said their lawyers were 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 ExxonMobil to produce a copy of the US$2 billion oil spill guarantee.
The summons to see the US$2B [interim] guarantee that ExxonMobil was ordered to lodge, was filed by Senior Counsel, Seenath Jairam in association with Attorneys Ms. Melinda Janki and Mrs. Abiola Wong-Innis.
In his ruling on Monday, Justice Persaud concurred with the contentions raised by Datadin. He held that under Order Two; Rule 16 of the Court of Appeal Act, a single judge cannot make an Order of Discovery for the respondents to produce the evidence that the Order was complied with. The Court held further that the judge does not have the inherent jurisdiction to enquire into his own Order.
The lawyers for the litigants had filed a case back in September 2022 asking the court to order the EPA to secure from ExxonMobil Guyana, unlimited liability [parent company] 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. It is in this case that, Justice Persaud had ordered Exxon to lodge the USD $2billion oil spill guarantee until the outcome of the substantive appeal, which is currently before the Court of Appeal.
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