CCJ dismisses Gaskin’s appeal over absence of environmental permits for Exxon partners

Jun 28, 2024 Court Stories, Features / Columnists, News

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Kaieteur News – The Caribbean Court of Justice (CCJ) on Thursday dismissed an appeal brought by social activist, Ramon Gaskin against the Environmental Protection Agency (EPA).

Gaskin had filed an appeal to the CCJ seeking orders to have Hess Guyana Exploration Ltd (Hess) and China National Offshore Oil Cooperation Guyana (CNOOC) obtain separate environmental permits for their involvement in the local oil sector.

Hess and CNOOC shared licenses to engage in oil development through their partner Exxon Mobil Guyana Limited. Exxon was required to get an environmental permit as part of the licensing process but its partners Hess and CNOOC did not undergo the same process. The EPA did not require the two companies to obtain environmental permits since they were operating under Exxon. The social activist found this action questionable and sought to challenge the EPA’s decision in Court.

Gaskin had filed the case in 2020 but Chief Justice Roxane George Wiltshire dismissed his application. He then moved to the Guyana Court of Appeal, where again his appeal was tossed out.  Similarly, in Thursday’s ruling, the CCJ noted that Exxon as the operator of the project was subject to extensive environmental obligations which were also extended to Hess and CNOOC through joint liability.

Gaskin had moved on to the CCJ, seeking to have the Court of Appeal’s decision set aside.

The CCJ was asked to determine two issues—whether the Minister acted unlawfully in granting the Petroleum Production License to Exxon, Hess, and CNOOC when Exxon was granted an environmental permit and whether the High Court and Court of Appeal breached the statutory time limit in delivering its Judgement.

However, the Court found that the three companies share responsibility for environmental harm caused by their operations and that there was no increased risk of harm to the environment on either the precautionary principle or avoidance principle by the inclusion of the two companies.

Interpreting the Environmental Protection Act as a whole and within the context of its objectives and constitutional underpinnings, CCJ judge Winston Anderson concluded that environmental authorisation must be given for the undertaking of a project and that the Environmental Protection Agency must be convinced that a developer can fulfill their role and responsibilities and comply with the terms and conditions of the environmental permit.

“As the sole operator, Exxon alone was able to comply with the obligations of the developer under the Environmental Protection Act,” the judge said.

The court nevertheless highlighted the importance of transparency and accountability in environmental governance, acknowledging Mr. Gaskin’s concerns about environmental risks.

In a summary of the ruling, the Court’s President Justice Adrian Saunders noted that the Appellant as a member of the public has played a key role in advancing environmental law in Guyana through the pursuit of this matter.

“In this context, it is important to observe that the Rio Declaration 81 places emphasis on the role of the public in the decision-making process. Principle 10 states that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, and the opportunity to participate in decision-making processes. It also calls for States to facilitate and encourage public awareness and participation by making information widely available,” he said.

Additionally, the Court found that both the High Court and Court of Appeal were in breach of their statutory obligations relating to the length of time in delivering their respective Judgements but cited the technical nature of the matter. The court nevertheless underscored the need for timelines to be adhered to.

Gaskin had filed a Fixed Date Application in the High Court seeking to quash the Minister’s decision to issue the Petroleum Production Licence and to prevent him from granting the Licence to Hess and CNOOC until they acquired an environmental permit. The High Court dismissed the application but took three hundred and sixty-six (366) days to deliver judgment.

On appeal, the Court of Appeal determined that the Minister did not breach the Environmental Protection Act or the Petroleum (Exploration and Production) Act (‘PEP Act’) by granting the Licence to the three added respondents because the environmental permit was tied to the Liza 1 Project of the Stabroek Block itself and not to the permit holder Exxon. The Court of Appeal also held that the trial judge did not unduly delay in giving her decision and was not in breach of the Time Limit for Judicial Decisions Act. Mr. Gaskin then appealed to the CCJ seeking to have the Court of Appeal decision set aside.

He contended that the delay by the High Court and Court of Appeal in delivering judgment contravened the relevant statutory time limits.

In delivering the judgment of the Court, Justice Anderson commented that Articles 25, 36, and 149J of the Constitution of Guyana, in expressly providing for environmental rights, placed protection of the environment upon an exalted plane and that these provisions must be borne in mind when interpreting legislation that touch and concern the environment.

“Under Subsection 14 and 4(5) of the Environmental Protection Act, the granting of environmental authorisation was a condition precedent to the power exercisable by the Minister under s 35 of the PEP Act to grant a Petroleum Production License,” the judge pointed out.

The ruling was delivered by Justices Adrian Saunders, Winston Anderson, Andrew Burgess, Maureen Rajnauth-Lee, and Denis Barrow.

Ms. Melinda Janki is among the attorneys on record for the Appellant Gaskin.

Edward Luckhoo SC, and Ms. Eleanor Luckhoo for the respondent and Andrew M F Pollard SC and Nigel Hughes were for the added respondents.

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• appeal, dismisses, environmental permits, Exxon, partners

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