Govt retreats from fight against unlimited oil spill liability so must withdraw court appeal

Apr 29, 2025 Letters

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Dear Editor

Hopefully, all of Guyana have recovered from the shock of the bombshell pre-election revelation that the Government has retreated from their rabidly fought 5-year battle against unlimited liability protection to cover an oil spill. During their respective media programs of last week, both Vice President Jagdeo and Attorney General (AG) Nandlall, announced tabling of the Oil Pollution Prevention Preparedness Response and Responsibility Bill (the Bill) scheduled for next sitting of the National Assembly during the week of April 28, 2025.

First, Nandlall announced that “significantly, the Bill doesn’t limit liabilities and it provides very clearly for the responsible party to be held liable for all damages”. Jagdeo, on the very next day, confirmed that “there is no cap on the liability”. In plain vanilla language, their words simply mean “unlimited liability” – the term regularly used by yours truly and others, but ridiculed for years by the government as impossible.

Needless to say, this sudden colossal flip flop has set heads spinning with conjecture as to what could have brought about such unimagined government’s enlightenment at this particular time after they have been waging such a fervent 5-year war against this very same requirement for unlimited liability which they have now embraced and putting into the Bill. They even went to the inconceivable extreme of steadfastly fighting the requirement in court in a case filed by eminent Attorney Melinda Janki on behalf of Collins and Whyte; and after a crushing defeat, went all the way to the Caribbean Court of Justice (CCJ) obtaining standing to enjoin Exxon in appealing the loss. The senselessness here is that while they await a pending appeal against unlimited liability in the Collins and Whyte case, at the same time, they are proposing the exact law into the Bill.

Naturally, all Guyanese welcome a change of heart of the government to provide the nation with such meaningful environmental security in the form of unlimited liability protection. For this reason, the government could instantly clear the air upon making sense of this apparent madness in washing away all of the hovering dark clouds of skepticism and mistrustfulness, by:

1. Immediately withdrawing both the AG and the EPA from their appeals in the Collins and Whyte case, since the Government has reversed itself to now agreeing with Collins and Whyte in their case for unlimited liability protection;
2. Immediately directing the EPA to enforce Judge Kissoon’s Decision in the Collins and Whyte case for unlimited liability that is already in the permit;
3. Reimburse the legal team of Collins and Whyte for all costs incurred to date, since now proven to be an admitted error in judgement on the government’s part.

Considering that the unlimited liability protection is at the root of this sea change reversal, it is essential that the readers be refreshed with the historical context as to how we have gotten here:

1. With no liability coverage for an oil spill provided by EMGL as the oil operator, the Coalition Government enshrined into law, unlimited liability protection to cover all costs related to a spill.
2. Upon taking office, the PPPC Government took the illegal and callous action to cancel the liability coverage, thus triggering the Collins and Wyte lawsuit against EPA and EMGL for violating the legal requirements in the permit calling for unlimited coverage.
3. Judge Kissoon’s Decision on the Collins and Whyte case dealt a mortal blow to the Government and EMGL, adjudicating that the language in the permit requiring unlimited coverage was “expressed in clear unambiguous terms” and “such a course of action to violate the permit is made permissible only by a derelict, pliant and submissive EPA”, and that “The EPA has descended into a state of slumber at the critical juncture of an emerging oil sector and has, at every juncture, engaged in a course of action to undermine and erode the terms and conditions of its own permit.”
4. Instead of saving face and honor the Judge’s Decision as any responsible and law abiding democratic and caring Government will do, the AG belligerently fought all the way to the CCJ to be allowed to enjoin Exxon in appealing the Decision.
5. To add insult to injury, while the appeal is pending, the government flies in the face of the judiciary in concocting an agreement with EMGL to cap the liability at $2 Billion USD. However, despite several attempts to verify, no proof of $2B has ever been shown. In any case, this no longer matters with the Government’s metamorphosis from being against unlimited liability to a $2B cap, to finally for unlimited liability, hopefully.
6. For the two years following the Judge’s Decision, Jagdeo and Nandlall promised week after week, the soon delivery of the Bill; hence, just like the many other goodies being doled out at this time, the sudden gift of an unthinkable sweetener after five years of ferocious fighting against it, gives rise to suspicion of an election stunt. Maybe we should wish for an election every year, so, won’t have to wait for five years to be provided with what is best for the country. That notwithstanding, that question mark will only disappear if, and when the three earlier recommended actions are enacted.

Conjointly, a likewise reversal must be put into the Bill to stop the treacherous producing of oil above the safe operating limit as dictated in the legally sanctified Environmental Impact Assessment (EIA). Prevention is the most fundamental tenet to avoid occurrence of an incident such as an oil spill, and indeed a prominent feature of the Bill as depicted by its title. The current rate dangerously exceeds the safe rate by close to 40%, and lawlessly, the EIA enshrines one thing, while the operators are allowed to do differently, significantly enhancing the risk of a spill. The Bill will be meaningless without taking this prevention measure to stop the dangerously unsafe production rate exceedance in compliance with the EIA. Simply put, if the incident could be prevented, there would be no need for enforcing the liability protection.

Looking forward to the opportunity to intensely scrutinize the Bill, for the devil is always in the details.

Respectfully,

Dr. Vincent Adams

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