By Melinda Janki
Melinda Janki is a Guyanese attorney-at-law and an international environmental lawyer. She drafted much of the Environmental Protection Act 1996. She has worked in more than 20 countries. She was an in-house counsel at oil company BP.
Guyana’s Environmental Protection Act is a powerful tool that citizens can use to protect themselves from dangerous oil/gas operations. The Environmental Protection Act is overarching legislation. It governs everything that affects the environment – fisheries, forestry, tourism, agriculture, wildlife, roads, aviation, waste, genetically modified organisms, mining, energy including oil and gas, etc. There are no grounds whatsoever for altering the Environmental Protection Act in order to make it apply to petroleum.
The Environmental Protection Act is visionary. Climate change is now the biggest legal issue in Europe and North America. Guyana is ahead of them. For 25 years our Environmental Protection Act has required that every environmental impact assessment (EIA) must address impacts on the climate, the ocean and the atmosphere. Every oil/gas project must disclose its emissions of greenhouse gases which worsen climate change, contribute to rising sea level and make the ocean more acid. EIAs must also address heat, light and noise, all of which inflict severe damage on Guyana’s environment and ecosystems.
Environmental justice depends on strong public rights to information and participation, and remedies when the law is broken. Once again Guyana is ahead. The Environmental Protection Act gives all Guyanese legal rights to participate in EIAs, to obtain information, to challenge decisions, to stop illegal activities and even to obtain compensation.
Unfortunately the Environmental Protection Act is under threat from the Government of Guyana, the petroleum sector, the World Bank and others. They want to change it because it stops the oil/gas sector from destroying Guyana’s natural capital. Are the government and the World Bank afraid that the Guyanese people might find out the true cost of oil? Today, natural capital is being recognised as worth billions of American dollars. In comparison, for 25 years the Environmental Protection Act has required the Environmental Protection Agency (EPA) to value Guyana’s natural capital. The EPA has failed. Guyana should have been leading the new economic development based on natural capital, instead of squandering the nation’s vast wealth so that some foreign companies can hang on to oil/gas.
In 2019 World Bank staff told the World Bank directors that Guyana’s Environmental Protection Act is out of date and complex. The World Bank still cannot provide a shred of evidence to support their outrageous claim. The World Bank wants Guyana to join its ‘Zero Gas-Flaring Initiative’. That would allow Esso to flare gas until 2030. Flaring is illegal so the law would have to be changed. Readers may remember that a World Bank project hired American law firm Hunton Andrews Kurth to change Guyana’s laws. Guyanese citizens told David Malpass the president of the World Bank that this firm has worked for ExxonMobil for around 40 years. The firm’s website boasted that the World Bank most often turns to them when it wants international legal advice for African governments. Mr Malpass was asked to disclose the relationship between the World Bank and the law firm. He did not reply. The press later reported that the firm had withdrawn from the project. No doubt the World Bank will keep trying. Meanwhile, having previously brought in Alison Redford, the disgraced former premier of Alberta, to assess the Payara development plan, the Canadian government is now funding a project that is apparently looking for shortcomings in Guyana’s Environmental Protection Act. I have asked the High Commissioner to make all project information and reports publicly available.
The Environmental Protection Act appears to cover everything. For example section 11(4) (a) says that every environmental impact assessment (EIA) must identify, describe and evaluate the direct and indirect effects of a proposed project on human beings, flora, fauna, species habitats, soil, water, air and climatic factors, cultural heritage, landscape, natural resources, ecological balance and ecosystems. There is a catch all for any other environmental factor which needs to be taken into account or which the EPA may reasonably require to be included. These stringent requirements apply to every oil/gas project. Is that the reason for wanting to change the Environmental Protection Act?
Section 11(5) is another important legal provision. It requires every EIA to provide detailed information on the geographical area of the project, the production process, timeline, alternatives, best available technology, forecasting methods of impacts, technical deficiencies/difficulties, hazards, mitigation methods etc. It also applies to every project in the petroleum sector. One little bit, section 11(5)(a)(iii) requires every EIA to estimate the type and quantity of all emissions such as pollutants, noise, heat, light – basically anything that is emitted into air, atmosphere, water, land.
When section 11(5)(a)(iii) is applied to oil/gas activities, oil companies must estimate everything they put into the air – greenhouse gases such as carbon dioxide and methane, as well as nitrogen oxides, sulphur oxides, carbon monoxide, particulate matter, etc. Oil companies must list every pollutant they will discharge into the ocean. The Liza 1 EIA contains tables of pollutants. It says that Esso will discharge 4,000 barrels of sewage into Guyana’s pristine ocean every day. That would amount to about 1.2 billion gallons of sewage over the proposed 23 years of the project. Esso’s EIA does not say whether the fouling from Esso’s sewage is limited to Guyana’s waters and fisheries or whether Esso will also pollute Caribbean countries. The Liza 1 EIA also says that Esso will discharge ‘cooling water’ that will raise the temperature of the ocean by 30C for 100 metres. Imagine the impact on marine life. Not exactly ‘cool’.
It is critical to deal with noise. The Environmental Protection Act does so. It requires oil companies to disclose all noise from drilling and seismic surveys and to address the impacts in the EIA. Oil companies use guns. Guns make noise. Two hundred decibels will kill a human. The guns used by oil companies can produce thousands of decibels. Readers can imagine the horrific impact on marine mammals and fish. Those that are not killed outright are made deaf and sick. They cannot communicate, locate prey, eat or reproduce. This oil company activity is particularly destructive for the rare and endangered species in Guyana’s Exclusive Economic Zone. The EPA knows this. The EPA’s website says, “Animals use sound to navigate, find food, attract mates, and avoid predators. Noise pollution makes it difficult for them to accomplish these tasks, which affects their ability to survive.” The EPA’s failure to require an EIA for Esso’s Canje exploration, with or without seismic surveys, is grossly irresponsible and looks like a blatant breach of the Environmental Protection Act.
Rather worryingly, the EPA keeps breaching the Environmental Protection Act. The environmental permit which the EPA granted to Esso for the Liza 1 development is dated June 1, 2017. It says it is granted following the EIA which is also dated June 1, 2017. The EIA is about 1500 pages. Who believes that the EPA properly assessed Esso’s EIA? It is established science that flaring exacerbates climate system breakdown. I have written to the EPA pointing out that Esso’s flaring, the EPA’s purported modification of the Liza 1 Permit to allow flaring, and the EPA’s misuse of the polluter pays principle are all illegal. The EPA’s failure to apply the precautionary principle is illegal. So is their failure to stop Esso from using faulty equipment. The list goes on.
Public participation is essential to protect Guyana from oil/gas and from the EPA’s regulatory failures. Fortunately the Environmental Protection Act ensures public participation from the very beginning. Before oil companies do anything they must publish a summary of their proposed petroleum project. The public are entitled to get that summary. They are entitled to tell the EPA what they want the EIA to cover. The EPA must take into account every single point made by every single person who writes to them. If you think the EPA ignored what you said you can challenge their decision. The next stage is the EIA. There must be public consultation. That does not mean the sort of consultation I attended on the Liza 1 project where rude US Peace Corps volunteers had music blaring, the meeting started late, the EPA seemed clueless about Liza 1, and Esso and ERM took up the time with mind-numbingly boring presentations. Consultation means genuinely listening to the Guyanese people and treating their views with respect. Otherwise the exercise does not meet the legal standards that govern consultation.
After the EIA is completed the public are entitled to get the entire environmental impact statement. They can object to the environmental permit being granted. They can say what they want. The EPA has to take into account all demands made by the Guyanese people to protect themselves, their families, their communities and Guyana from projects like Esso’s dangerous deep water offshore drilling. If the EPA does not take the public submissions into account, their decision can be challenged.
Nevertheless it’s obvious that something is missing – the regulations that normally govern the petroleum sector. Such regulations are necessary to set the detailed standards such as technical standards for blow out preventers and other equipment, prohibition/limits on toxic discharges etc. which are updated from time to time as technology improves or science progresses. As a temporary emergency measure we can adapt regulations from other countries and use them in Guyana. The act does not need to be changed.
Meanwhile, the continuing failure of the government and the EPA to enforce the Environmental Protection Act exposes Guyana to severe risks of irreversible harm. If that harm spreads to Caribbean countries, it could cost Guyana millions or billions of American dollars, making the Guyanese people poorer from oil, not richer.
Guyanese are becoming aware of the oil curse. People can see the damage that oil/gas inflicts on ‘developing’ countries with the support of ‘developing’ country governments. When courageous citizens like Ramon Gaskin, Troy Thomas and Quadad de Freitas challenge unlawful action, they are protecting the rule of law, democracy, freedom and the entire society. Dr Thomas’ case cut Esso’s environmental permits to five years which helps to protect Guyana’s valuable natural capital. Other citizens must also use the Environmental Protection Act to stop oil/gas from harming Guyana. Use it now. Before the Guyana government dismantles the Environmental Protection Act in favour of oil/gas. Use it before it’s too late.