The Environmental Assessment Board (EAB) is appointed by the Natural Resources Minister and comprises three persons. No qualifications or experience are listed in the Environmental Protection (EP) Act for EAB members. The EAB Commissioners for the 2021 calendar year are Mr Omkar Lochan (Chair, third year of service on the EAB), Ms Pradeepa Bholanauth, who heads the Low Carbon Development Strategy office at the Ministry of Natural Resources and Dr Garvin Cummings, Chief Hydrometeorological Officer. The EAB convenes as necessary, inter alia, to consider submitted appeals (section 11(3)) against waivers (section 11(2)) of the requirements in the Environmental Protection Act 1996 for an Environmental Impact Assessment (EIA) by Guyana’s Environmental Protection Agency (EPA).
Members of the public listened via a Zoom link to two recent ‘public hearings’ convened by the EAB – the first on 9 September 2021 and the second on 7 October 2021. Both public hearings were held in a blended format: the three EAB Commissioners and some EPA staff were physically in the EPA Boardroom, while appellants (or some of them) and the public connected via the Zoom platform.
Both public hearings were triggered by the waiver of EIAs by the EPA granted to locally-incorporated Trinidadian companies that had applied for permission to construct and operate industrial-scale facilities to service the oil and gas industries. In both cases, the facilities are to be located in coastal communities, the first at Lot 1 & 2 Thuiste to Coverden, on the East Bank of Demerara, the second at Le Ressouvenir, on the East Coast of Demerara.
There were four formal appeals from Coverden residents against a project proposed by ‘Non Destructive Testers Guyana Limited’ and two appeals from Le Ressouvenir residents against a project from Vista Trading and Logistics (Guyana) Inc. Only formal appellants entered into the EAB process were allowed to speak, although there is nothing in the EP Act or EP Regulations which allows the EAB to impose such a restriction, which is contrary to section 6(2) of the third schedule in the EP Act and contrary to Articles 4(4) and 5 of the Escazú Agreement ratified by Guyana on 18 April 2019.
Here are some takeaways from the second hearing. A commentary on the Coverden hearing will be provided separately.
1. The Zoom link was only sent to the appellants. John and Jane Public could participate only IF they had received the Zoom link from one of the appellants. And IF they had access to a computer and Zoom app and could listen in that time slot.
2. The meetings were recorded by the EPA but the recordings are not shared. The EPA Boardroom has poor acoustics and the microphones were too few and poorly positioned so that sound quality was poor.
3. The EPA allegedly only published the Notice of its waiver of an EIA for Vista Trading’s specialised concrete batching plant and storage facility in the appellants’ community on one day only and only in the State-owned Guyana Chronicle newspaper. However, notification on a single day is all that section 11(2) of the EP Act requires, and is paralleled in forest sector law. According to the lawyer for one of the appellants: “We only now discovered that there was a single ‘Public’ Notice published in the least read newspaper in Guyana, the Guyana Chronicle, on June 6, 2021. That notice required appeals against the decision of the EPA to not require an Environmental Impact Assessment (EIA), to be filed within 30 days of that notice.”
4. Prior to the EAB hearings, the EPA had not complied with the requirement set out in its own Act – the Environmental Protection Act section 11(2)(a/b) – to provide the reasons for its decision on whether or not an EIA is required. While neither of the two cases is covered by schedule 4 of the EP Act, which automatically requires an EIA, they are covered by section 11(1) line 2 of the Act. The EPA was therefore in violation of its Act by disregarding its own legislation.
5. The appellants had not seen the full applications of either developer for an Environmental Authorisation. Only the Vista Trading project summary and Attachment #1 of Non Destructive Testers Ltd. are visible on the EPA website – https://www.epaguyana.org/epa/project-summary2/category/5-project-summary]
6. The EPA also said that it uses an in-house project screening procedure to determine whether an EIA is required and that the scorings of the Coverden and Le Ressouvenir projects were below the pre-set thresholds under that procedure. That screening procedure appears to correspond to the criteria provided for in the EP Act. Under the Escazú Agreement 2018, articles 4(4) and 5 of that Agreement should allow access by citizens to the screening procedure and all other documents related to participation and justice in the management of the environment.
7. According to the EPA, Vista Trading scored 530 out of 872 points, the threshold. The appellants who spoke at both hearings echoed the words of one of the lawyers: ‘We need a copy of the full application, a copy of the screening tool used. Without those materials, we do not know how the EPA arrived at their decision’ (7 October 2021).
8. The lawyer for Singer Guyana Ltd. alleged that Vista Trading’s project summary had dishonestly claimed that it was a subsidiary company of Toolsie Persaud Ltd, but at the hearing the developer and shareholder denied that association. The original Vista project summary was removed from the EPA’s website on or around 5 October 2021 and replaced with an amended summary.
9. The appellants drew the EAB’s attention to the issue of land zoning, that each developer intended to locate an industrial site in a residential area and expose community members to a range of environmental hazards, with immediate (e.g. noxious smells, noise levels 24/7, increased road traffic, threat of road accidents) and long-term negative impacts (inhalation of carcinogenic particulate matter). Since there are industrial sites set up by the government, it would not be unreasonable for industrial-scale projects to be limited to such zones. If the current industrial sites are full, then the relevant government agencies might consider setting up new ones. At the Vista hearing, the EAB or EPA staff said that they had not had a reply from the Central Housing & Planning Authority to a question in late 2020 about the current zoning status of the Vista site. The Vista project summary states (page 4) that is in a Mixed Commercial zone – so apparently the EPA staff at the EAB hearing had also not read that summary.
10. Residents would be denied the ‘quiet enjoyment’ of their homes and neighbourhoods, a concept enshrined in colonial and post-colonial legislation.
11. The EPA had no baseline data for either project. EPA said that it would acquire baseline data from future Environmental Management Plans (EMP). [The term ‘management plan’ is not in the EP Act or EP Regulations.] The EPA is not required to share EMPs with the public. EIAs are available in the public record only for five years – EP Act section 11(11).
12. Spokespersons for the developers did not provide basic information on the projected size of their operations. Vista Trading did not provide information on the rate of flow (in and out), or even a flow diagram, limiting its response to: ‘Our operation is based on the requirements of the oil rigs’. The apparently important Appendix 2 – Standard Operating Procedure for Cement loading process, Analysis Sheets and Silo designs – is mentioned in the Vista summary but not accessible through the EPA website.
13. It appeared at each hearing that the EPA staff were learning details of the two operations for the first time, details which might or might not have been included in the full project applications. The summaries are on the EPA website: https://www.epaguyana.org/epa/project-summary2/summary/5-project-summary/804-superior-concrete-inc-concrete-batching-plant-proposal; and https://www.epaguyana.org/epa/project-summary2/summary/5-project-summary/807-project-summary-vista-trading-revised. A resident commented in the Zoom chat log: ‘Wow the EPA has no idea of the basic operations of Vista. Which mean they have no idea how to gauge the air, noise emissions. How did they really come to the conclusion that no EIA is needed?’
14. In both hearings, the appellants noted that EPA discounted ‘social’ issues as not being technical, disregarding sections 11(4)(a)(i) and 11(4)(b) in the EP Act. However, there is no obligation in the application form for Environmental Authorisation for public consultation, or in the EP Act. Vista Trading had held no consultations with the affected community members.
15. ‘Social’ is the fabric of Guyanese society, passionately defended by the appellants. Some residents on the Zoom call expressed unhappiness at being muzzled and shared their disapproval with the proceedings by typing into the Zoom chat log. At the second hearing, Sheik Samsair wrote in the chat log: ‘As the Chairman of the BH-LBI NDC, I am very much concern of this project. Our residents concerns is of utmost importance’; ‘I am assuming EPA has not done enough study on this project’; ‘Most of our Councilors are not in approval with this’; ‘Also we have to take into consideration the infrastructure deterioration that will be done to the roadways’. Mr Samsair did not appear to know that Section 7 of the application form for Environmental Authorisation requires a letter of No Objection from the relevant Local Government, RDC, NDC, M&CC, CH&PA…
16. Another resident at the Vista Trading and Logistics (Guyana) Inc. public hearing wrote in the Zoom chat log: ‘Residents need to be more integrated into the process. Is there an appeal process for residents if they disagree with your [EPA] decision? Waiver cannot be’. The powers of the appeal Tribunal under section 51(5) of the EP Act do not extend to appeals against either no requirement for an EIA or to the granting of an Environmental Authorisation.
General comments
In both hearings, appellants drew attention to the need for separation between the EPA and EAB, and avoidance of the suggestion of a conflict of interest since ‘the EAB is a body which is independent of the Environmental Protection Agency (EPA), and is designated to conduct public hearings into such appeals, to either confirm or set aside the EPA’s decision. The EAB also serves as a review body for EIAs, in order to make a recommendation on whether or not a project should be approved.’ As a lawyer for one of the Le Ressouvenir appellants noted disapprovingly: ‘The EPA Boardroom is the venue used by the EAB. And we have to speak to the EAB via an email address that is monitored by the EPA’ (7 October 2021).
Institutions are critical in the building of a nation, and need to demonstrate strict adherence to their mandates, to serve under the political administration at the apex of power without fear or favour. Both the EPA and EAB are required to be guard rails and serve the public interest.
One of the lawyers drew attention to the unseemly appearance of cronyism between the developers and the EPA: ‘The reason why the EIA has been waived is because the EPA is on the side of the developer. It does not want the developer to be delayed by an EIA, which takes between 6 months [and] a year’.
Twenty-five years after its passage into law, the EP Act and its several Regulations and Guidelines are long overdue for revision. A revised EP Act should incorporate the Free, Prior and Informed Consent (FPIC) mechanism, which is promoted in the Low Carbon Development Strategy (LCDS) and the livelihoods, justice and environmental information rights in the Escazú Agreement. Like much legislation in Guyana, the drafts of the EP Act were apparently not tested for counterfactual situations, and that should certainly form part of a revision process.
Dr Janette Bulkan is an Assistant Professor for Indigenous Forestry in the Department of Forest Resources Management at the University of British Columbia.
