By Alfred Bhulai, Janette Bulkan, Jocelyn Dow, Danuta Radzik, Vanda Radzik, Troy Thomas, Maya Trotz
This “In The Diaspora” article describes how the Guyana Constitution with 2003 Amendments and the Environmental Protection Act of 1996 address the oil and gas sector, and provides recommendations for how, as Guyanese, we can use them to safeguard a healthy environment and our human well-being.
Guyana’s Constitution and the Environmental Protection Act 1996 are the most important laws that protect us from the dangers to human beings and to the environment caused by operations of the oil and gas sector. The petroleum legislation that should govern the sector is decades old and woefully inadequate for the world we live in today with climate breakdown and catastrophic biodiversity loss. The Constitution and the Environmental Protection Act (EP Act), however, provide for people’s right to a healthy environment, and rights of inter-generational equity. As Guyana is being turned into a petro-state in the context of the climate emergency and Guyana’s vulnerability to sea-level rise and flooding, it is critical that we know our laws, our rights, and how to use them to protect ourselves and future generations.
The Constitution specifically states:
Article 13: “The principal objective …is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens and their organisations, in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.”
Article 25: “Every citizen has a duty to participate in activities designed to improve the environment and protect the health of the nation.”
Article 36: “In the interest of the present and future generations, the state will protect and make rational use of its land mineral and water resources, as well as its fauna and flora and will take all appropriate measures to conserve and improve the environment.”
The Environmental Protection Act (1996) has a strict legal regime to prevent harm to the environment through an Environmental Impact Assessment (EIA) managed by the Environmental Protection Agency (EPA). Section 11(4) of the Act says that every EIA must:
(a) identify, describe and evaluate the direct and indirect effects of the proposed project on the environment including—
(i) human beings;
(ii) flora and fauna and species habitats;
(iii) soil;
(iv) water;
(v) air and climatic factors;
(vi) material assets, the cultural heritage and the landscape;
(vii) natural resources, including how much of a particular resource is degraded or eliminated, and how quickly the natural system may deteriorate;
(viii) the ecological balance and ecosystems;
(ix) the interaction between the factors listed above;
(x) any other environmental factor which needs to be taken into account or which the Agency may reasonably require to be included; and
(b) assess every project with a view to the need to protect and improve human health and living conditions and the need to preserve the stability of ecosystems as well as the diversity of species.
Obviously, oil production emits air and water pollutants and greenhouse gases. Esso’s petroleum operations obviously emit greenhouse gases and pollutants and affect our right to a healthy environment. Offshore oil production threatens marine life and water quality. The EP Act already makes pollution a criminal offence (Article 39: (1) – (4) and the Fifth Schedule). But if you put the boss of an oil company in jail, that person still can’t bring back to life the marine resources such as whales, turtles, fish etc.
The best approach to safeguarding our health is to prevent harm, and applying Principles enshrined in Section 2 of the Act:
The Precautionary Principle: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason.
The Avoidance Principle: It is preferable to avoid environmental damage as it can be impossible or more expensive to repair rather than prevent damage.
Thirty-two years ago (1989) the Exxon Valdez tanker devastated Prince William Sound in Alaska. It has not recovered. Eleven years ago the BP Deepwater Horizon offshore blowout devastated the Gulf of Mexico. Its impact is still being measured, but has revealed extensive oil pollution remaining at the bottom of the seafloor. When oil gets into the ocean, its deleterious impact is both immediate and long lasting. On July 22, 2021 after a 10-year court battle the Puerto Rico’s District Court ordered Exxon Mobil Corp & Esso Standard Oil Co. to pay a 25 million US dollars settlement for contaminating the island’s ground water using methyl tertiary butyl ether (MTBE) a gasoline additive that permeated the island’s ground water through underground storage tanks.
Natural Capital: This means the assets that nature gives us that provide multiple services. Section 4 (3)(b) of the Act says the EPA must produce physical accounts in accordance with modern accounting standards to record the natural capital of Guyana. Article 36 of the Constitution also addresses this. For example, mangroves are natural assets along our coastal waterways. They protect shorelines from erosion and storm surge, serve as nurseries for fish and other aquatic species, and sequester carbon. Today they are classified as blue carbon sinks in a world trying to mitigate climate change and reduce CO2 levels in the atmosphere.
Climate change: The earth is undergoing catastrophic climate change. ExxonMobil has been accused of denying climate change, and undermining climate science even though its own scientists, since 1979, warned about climate change from fossil fuel emissions. In the Netherlands, local environmental group MilieuDefensie accused Royal Dutch Shell Plc of violating human rights by not adhering to the Paris Agreement’s aim of limiting the average increase in global temperatures to less than 1.5 Degrees Celsius. In May of this year, the Court ordered the oil giant to significantly cut its emissions.Guyana’s EP Act requires every EIA to identify, describe and evaluate the direct and indirect effects of a proposed project on climatic factors and, most importantly, on the climate and atmosphere. This includes the impact of greenhouse gases from fossil fuel production. The EPA has to apply and enforce this Act and its protections against the deep water petroleum operations that threaten air, water, land and people’s health and well-being. People need to use the protections under the Act. Oil companies have to obey Guyana’s laws as do the Government, the EPA and the Private Sector. We Guyanese have to speak out and take action when anyone abuses or violates the protections that the Act and our Constitution provide for us. We have to lobby government to give the EPA the resources it needs to function effectively. And, we citizens and civil society organisations have to make our voices heard if the EPA does not take appropriate action to protect the people and the environment. This might mean taking the EPA to court if necessary. It is these kinds of engagements that make a democracy real; people power and people voice. In any country, if people don’t use their democratic rights they can end up with a government that violates human rights. Two Guyanese citizens, Quadad de Freitas and Dr. Troy Thomas have exercised their democratic right and have filed a case in Guyana, challenging fossil fuel production on climate and human rights grounds. They have taken the Government of Guyana to court for approving oil production and they ask the court to say whether greenhouse gas emissions from petroleum exploration, production and consumption violate the State’s constitutional duty to protect their right and the right of future generations to a healthy environment. Dr. Thomas also took the Guyana EPA to court last year for issuing environmental permits for 24 years instead of the 5 years allowed by law. In October 2020 the EPA and Esso consented to a court order cutting the environmental permits down to 5 years. The first permit will now expire in June 2022. Guyanese should get ready from now to insist on strong protection when Esso applies for its next permit.
Not everybody can go to court. But everybody can tell the EPA what he/she wants. The EP Act gives people the right to question why an EIA is waived, how internal assessment are done to award environmental permits without EIAs and to make appeals and submissions to the EPA on project summaries and EIAs. The EPA has to take these into account. If you cannot get to a public meeting on an EIA, you can still write to the EPA. The letter can be simple. It doesn’t have to be a great scientific paper or legal analysis. Common sense is good enough. You can send your views (and questions) to the EPA (epa@epaguyana.org). People’s views can also be expressed in the media and in the press. As a part of the EIA approval process, people have a right to be consulted. The EIA document is usually very long with a lot of jargon that makes it difficult to understand. But, even if you pick just one issue that you understand and raise it – that would be better than doing nothing. For example, common sense should tell you that if an EIA uses a fish list from 1962 as was done for Liza 1, then the EPA should have required an updated list before it approved the relevant EIA for Liza 1.
Citizens and Civil Society groups can and should go to the public meetings and speak out. We should demand that the oil companies do not damage the fisheries, do not kill endangered species, do not dump sewage into the ocean, do not bring alien invasive species and diseases into Guyana’s waters, do not endanger the health of Guyanese, do not make climate change worse etc. We should demand that the oil companies do not damage the fisheries, do not kill endangered species, do not dump sewage into the ocean, do not bring alien invasive species and diseases into Guyana’s waters, do not endanger the health of Guyanese, do not make climate change worse etc. The Liza 1 public consultation on the EIA was dominated by ExxonMobil who took up most of the time talking and left little time for the public’s views. People must not put up with that kind of disrespect, and going forward we must demand due process for these public consultations.
During the recently concluded consultations held by the Guyana EPA on the Terms of Scope for the “Gas to Energy” project, persons expressed disappointment with the EPA’s denial of requests for access to Esso Exploration and Production Guyana Limited’s (EEPGL) actual application. The project summary shared with the public lacked significant details on the project. There are several O&G related developments and shore-based facilities being proposed and/or rolled out in tandem with each other by companies with permits approved and EIA’s waived by the EPA – or pending – as per the Gas to Energy project. This situation and the recent consultations have galvanized Guyanese to engage in the public process guaranteed us by the laws; and some of us are pooling our knowledge and resources around a shared interest to help safeguard our environmental and human health. Citizen action is necessary. This is democracy at work.
Democracy is not a goal you achieve. It is something that you have to practice every day.
