Court yet to set date for hearing of appeal to quash Exxon’s gas pipeline

May 28, 2024 News

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6 months later…

Kaieteur News – The Court of Appeal is yet to set a date for the hearing of an appeal filed by Elizabeth Hughes and Vanda Radzik on the High Court decision not to quash the Environmental Permit granted to ExxonMobil Guyana Limited (EMGL) for the 12- inch pipeline that will be used to transport natural gas for the Gas-to-Energy (GTE) project since November 15, 2023.

On October 5, 2023 Justice Priya Sewnarine-Beharry in a 24-page ruling, determined that the Environmental Protection Agency (EPA) acted ‘contrary to the law’ and ‘improper’, by granting a Permit to EMGL – formerly Esso Exploration and Production Guyana Limited. Even though she flagged the improper decision made by the EPA, the High Court Judge determined that the reliefs sought by the Applicants would not be granted.

The Judge stated that judicial review is not concerned with vindication in the public sphere and was never intended to be a sword for satisfaction but rather a shield against excesses of public functionaries.

Applicants Vanda Radzik and Elizabeth Hughes had asked the Court in their Fixed Date Application, filed on March 27, 2023, to reverse the Permit, since the EPA failed to comply with the legal requirements.

In an invited comment, Hughes told this newspaper yesterday that it was very disappointing that a date is yet to be set by the Court for hearing the matter.

She said, “We are in the queue behind the unlimited parent guarantee case not yet slotted into a timeframe. At this rate, it is possible that it will become moot points as ExxonMobil is scheduled to hook up to the FPSOs (Floating, Production, Storage and Offloading vessels) finished pipeline in the third quarter or early fourth quarter (of this year).”

Hughes explained that while Exxon’s Project Manager, Friedrich Krispin has informed that the Court case did not affect the progress of the project, he failed to indicate that the design of the pipeline was adjusted which is expected to cost Guyana an additional amount. She told this publication that another citizen who filed separate proceedings for land compensation is still before the Court. To this end, Hughes noted that Exxon was forced to change the pipeline alignment.

Pipeline Permit Appeal

In their Notice of Appeal, the citizens through their lawyers, Melinda Janki and Abiola Wong-Inniss, are seeking a reversal and/or setting aside of the decision of the High Court not to grant the declarations sought; the administrative orders and other reliefs sought by the appellants; costs and such further order and/or relief deemed just by the Court.

The EPA, EMGL and the Attorney General of Guyana, Anil Nandlall, S.C are respondents in the matter.

Radzik and Hughes in their appeal told the Court that the decision of the learned Judge not to grant the Certiorari or declarations or award costs was “plainly wrong, irrational and otherwise contrary to law.”

They further noted, “No court of law acting judicially and directing itself as to the law could have come to the conclusions under appeal since (among other things) the decision is inconsistent with her Honour’s finding and conclusion at paragraph 64 of her judgement that “the decision by the EPA to grant the permit to Esso Guyana was contrary to law and improper.”

The citizens said that the learned Judge, having regard to the Judicial Review Act Cap 3.06, in particular section 8, would have acted fairly and justly in accordance with the principles of justice had she granted an order of Certiorari.

Radzik and Hughes in their appeal also notes that, “the learned Judge took into account irrelevant matters namely the purported expenditure while failing to take judicial notice of relevant matters such as the questionable expenditure claims made by (Exxon) as revealed in the public pronouncements of members of government.”

They argue that the learned judge failed to have due regard to the utility of the declaration in the context of the application of Guyana’s Environmental Laws and the importance of a declaration to clarify and confirm the legal duties of the respondent authority.

Justice Sewnarine-Beharry in her October 5, 2023 decision stated that, “Cognisance must be paid to the fact that significant fiscal expenditure has been injected into the Gas to Energy pipeline. A quashing order would disproportionately disadvantage Esso Guyana and the State by halting significant project development already underway. Moreover, it may also have an unintended consequence of impacting innocent third parties to the project development, all while proving to be a brutum fulmen in the way of substantive relief for the Applicants.”

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• appeal, court, Hughes, Permit, pipeline

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