Justice Nareshwar Harnanan yesterday ruled that the Environmental Protection Agency (EPA) breached its statutory duty by issuing environmental permits to Schlumberger-Guyana Inc. and waiving the requirement for an Environmental Impact Assessment (EIA) for the construction of a radioactive chemical facility.
As a result, he ordered the quashing of an environmental permit issued by the EPA on June 9, 2021 in favour of Schlumberger to permit it to construct a radioactive substances and materials storage and calibration facility at lot 1 Area X Houston on the East Bank of Demerara.
The High Court judge also declared that the decision of the Environmental Protection Agency (EPA) to not conduct an environmental impact assessment into the effects of the construction of the facility was illegal, ultra vires, unreasonable, irrational for breaching the Environmental Protection Act, Cap.20:05.
At the conclusion of the almost 40 minute’s judgment, Justice Harnanan also granted an injunction against the company to refrain from continuing the possession, use and storage of radioactive chemicals at its Houston facility. The injunction is in place until the company can legally obtain a lawful permit under the EPA Act.
The ruling comes in light of a legal challenge brought against the EPA and Schlumberger-Guyana by residents of Houston.
Schlumberger, one of ExxonMobil’s major subcontractors, has constructed a source storage and calibration building facility Area X Houston, EBD.
The favourable decision against the major ExxonMobil subcontractor is seen as a big win for citizens.
Residents—Danuta Radzik, Vanda Radzik and Raphael Singh— filed an action asking the High Court to declare the EPA’s decision waiving the requirement of an EIA as being among other things, unlawful and unreasonable.
During arguments, the EPA said that permission was given for the construction of the facility and not for the operation of a radioactive substances and materials storage and calibration facility.
However, the High Court Judge ruled the operation and construction must not be viewed separately. In the court’s view, he said the EPA cannot treat the operations independent of the construction permit when it is a condition precedent to the functionality of the facility.
“The court is of the view that it could not have been the intention of the party to treat the operation as distinct from construction for the purpose of licensing since operations can only commence after construction,” he said.
Justice Harnanan ruled further that the EPA body further breached its mandate as outlined in the EPA act when it took the decision to waive the EIA requirements. He stated that they failed to do so by failing to provide reasons behind the decision for a waiver.
In this regard, he also quashed the EPA’s decision of the January 2020 award of an environmental authorisation.
The Radziks and Singh (the Applicants), via court filings, had said that they live near the radioactive facility, which is also in proximity to schools and places of worship. They contended that EPA’s decision was made without any consultation with residents.
Against this background, they accused the Agency of having arbitrarily made the decision in breach of its statutory duty and contrary to natural justice. They said, too, that it was made in the absence of evidence, was unfair and asked that the Court so declare.
They deposed in their fixed date application (FDA) against Schlumberger, the EPA and the Environmental Assessment Board (EAB), which were all listed as Respondents, that the waiver granted to Schlumberger was done without notice to the public.
They said there was no inkling that the facility would be used to store radioactive materials or that the request for such a permit was even under consideration. The Applicants said it was not until April 11th that the EPA issued a public notice via the press that Schlumberger wanted to construct a building to house the radioactive materials and that the construction process would not require an environmental impact assessment.
In the newspaper notice, which is an exhibit in the case, the EPA announced that in accordance with Section 11 (2) of the Environmental Protection Act, Schlumberger-Guyana Inc.’s application for an environmental authorisation had been “screened” for “potential environmental impacts.”
According to the EPA, following its assessment, it had determined that the project would “not significantly affect the environment or human health,” and that Schlumberger would therefore be exempt from requiring an EIA.
The applicants, however, questioned the basis on which the EPA arrived at its conclusion that an EIA would not be required. Their main contention was that radioactive materials should not be used and/or located in close proximity to schools, neighbourhoods, a main thoroughfare, or the Demerara River and that an impact assessment was therefore inherently necessary.
Relying on Section 11 of the Environmental Protection Act, the applicants noted that any project that may significantly affect the environment requires an EIA and such an assessment requires publication in the newspapers of the intended project and consultations with the public.
The Applicants said that the EPA at a meeting with them and their attorneys had assured that they would be given an opportunity to speak on the merits and demerits of the facility’s operation.
Subsequent to that meeting, the applicants sought an Order of Certiorari to quash the permit granted to Schlumberger to construct the facility, and an injunction to prevent any further construction.
The Applicants said that in a responding affidavit, however, the EPA in defence of Schlumberger said that construction of the facility was completed and that it had already permitted Schlumberger’s use and storage of the radioactive substances and that the orders sought by the Applicants should therefore be quashed.
Siand Dhurjon—one of the attorneys representing the applicants—has said that his clients had been granted an amendment by Justice Nareshwar Harnanan to seek orders targeting the operation of the facility being used for storage of radioactive materials.
Schlumberger, the lawyer said, had advanced in its affidavit that the reason the public did not need a notice that the EPA was considering its application for permit to store radioactive materials, was because the EPA was satisfied that there would be no substantial impact on the environment.
Schlumberger was represented by law office of Hughes, Fields and Stoby, the EPA was represented by Shareefah Parks and Frances Carryl, and the residents were represented by Dhurjon, Ronald Burch-Smith and Malene Alleyne.
