An Open Letter to the President on the Absence of a Board of Directors for the Environmental Protection Agency, an Environmental Assessment Board, and an Environmental Tribunal
Excellency:
As the Government of Guyana prepares to showcase Guyana at the International Energy Conference and Expo Guyana starting February 14, 2022, we must recognize that systemic weaknesses in public environmental management pose risks not only to the people of Guyana but also “Environmental and Social Governance” (ESG) risks to investors.
The Environmental Protection Agency (EPA) has been operating without a legally constituted Board of Directors for some four months now (Official Gazette number 242/2021 – Legal Supplement – Government Notice, October 28, 2021 – the term of the Board of Directors expired since October 2022). I wrote to the Executive Director, Mr. Khemraj Parsram, on December 20, 2022, to enquire about arrangements for his supervision but he has not acknowledged my initial mail or subsequent reminders.
There is presently no legally constituted Environmental Assessment Board (EAB), to which one may lodge objections against the Environmental Protection Agency’s (EPA)’s decisions regarding Environmental Permits. The term of the EAB expired in December 2022 (Official Gazette number 50/2022 – Legal Supplement B – Government Notice, February 18, 2022). The Environmental Protection Agency continues to make decisions with respect to permits, such as the permit for the proposed natural gas fired powerplant, and publish notices advising the public of their right to appeal to the EAB, when there is, in fact, no appeal remedy in place.
Further, I wish to draw your attention to the unhappy and embarrassing fact that even 26 years after the passage of the Environmental Protection Act in 1996, our country still does not have an Environmental Tribunal to which one may appeal decisions of the Environmental Assessment Board. Part VIII sections 51-57 of the Environmental Protection Act provides for the creation and operation of such a Tribunal, but this has not yet been implemented.
As the Environmental Protection Act comes directly under your authority with functions of the “Minister” identified in the Act, and the Environmental Protection Agency comes under the authority of the Office of the President, I urge you to appoint a Board of Directors for the Environmental Protection Agency and an appropriately qualified and publicly responsible Environmental Assessment Board without delay, and to see to the implementation of the Environmental Tribunal.
Environmental Assessment Board
Regarding the constitution of the EAB, I would like to draw your attention to the Environmental Protection Act (cap. 20:05, 1996, section 18 and Third Schedule) which clearly intends for members of the EAB to function without outside interference and any conflicts of interest. The Act provides for a three-to-five-member body. Section 8 of the Third Schedule specifically requires members to disclose any conflicts of interest.
The previous board, in calendar year 2022, was comprised entirely of public sector employees, including the Permanent Secretary of the Ministry of Natural Resources. This Permanent Secretary carries his Minis-try’s portfolio for promotion and facilitation of the extractive sector, including precious metals and oil and gas. As you are aware, activities in these sectors the world over are chief among those with significant and controversial environmental impacts. Indeed, activities related to the oil and gas sector have comprised the bulk of complaints to the EAB to date.
There is a conflict of interest when a public service employee is tasked with conflicting duties – to promote natural resources developments on the one hand and to adjudicate on environmental matters related to the granting of permits for such exploitation on the other hand. I would go further to say that this is an unfair burden to place on an employee.
The practice of constituting a national environmental appeals body with only public service employees is one that undermines public trust in an impartial process. Conflicts of interest may arise as such employees may be reluctant to make decisions that go against their employer’s perceived interests or policies, given their financial and career dependence on their employer. In some instances, they may be biased towards their agency’s positions. Conflicts of interest are cause for concern especially given that there is presently no instrument for the legal protection of such employees, guidelines, or codes of conduct. This does not mean that public service employees without inherent conflicts of interest cannot be part of such bodies. However, including independent experts and representatives from non-government arenas helps with gaining public confidence not only in the operations of such appeals body but also government’s commitment to functional democracy.
I urge you to constitute a five-member Environmental Assessment Board, which includes independent and suitably qualified representatives drawn from academia and from professional sectors in such areas as the environment, public health, natural sciences, and engineering. I also urge you to ensure that the EAB has adequate resources and operates with an independent secretariat that has no reporting or operating function linked to the EPA as is currently the case.
Environmental Tribunal
The absence of the Environmental Tribunal deprives both citizens and developers of due process for appealing the grounds of the EAB’s decisions on the reasons for granting or refusing environmental permits as well as requirements imposed in permits. This forces parties to engage in costly and lengthy Judicial Review processes as a first recourse.
As you are aware, the Guyana EPA has lost both Judicial Review cases heard against it to date concerning environmental permits. The recent Schlumberger case illustrates the need for your attention in two critical areas. The first critical area is a need for an EPA that has qualified, trained, experienced and well-directed staff capable of understanding the standard of law which it must uphold and that it has the necessary financial and legal capacity to meet those standards. The second critical area is a need for impartial and otherwise properly functioning appeal bodies.
In 2021, the EAB denied the claimants in the Schlumberger case a hearing on the waiver of the EIA for the Houston facility on grounds that the 30-day period for an appeal had expired, even when the EPA had failed to follow clear instructions in the Environmental Protection Act to publish technical reasons in the public notice of the EIA waiver, and therefore the 30-day appeal period had never been triggered! We know how the uneven handling of this case has unfolded. The ensuing costs and complications might have been avoided had the EAB been fair or had there been a functioning Environmental Tribunal.
As you aspire towards building a country with a “world class” landscape, modern economy, and thriving communities, we must recognize those things were not achieved in other countries with poor standards of environmental management. On the contrary, they exist because of stringent standards of management, characterized by: a high value placed on protecting natural resource assets and public health; competent and independent regulatory institutions with properly functioning grievance redress and appeals bodies; appreciation and respect for public participation in assessing the impacts of development projects; a separation of powers within government between those tasked with pushing projects and those responsible for regulating the public impacts of such projects; and adherence to the rule of law.
These things, aside from being the cornerstone of any functional democracy, are in everyone’s interest in the long run. Therefore, I pray that you will give these matters your personal attention and put equal vigour into correcting our lacking state of public environmental management as you do into attracting investments to Guyana.
Thank you for your attention. I wish you the best.
Simone Mangal-Joly
Citizen
