Local anti-corruption body Transparency Institute Guyana Inc (TIGI) has said that going against its own citizens in appealing the ruling requiring the Environmental Protection Agency (EPA) to enforce the liability clause in the permits issued to Exxon-Mobil Guyana, shows a government that doesn’t care and reeks of political opportunistic behaviour.
“The question is why a government would want to appeal such a decision. Would that not be a pyrrhic battle? Would not a government lose more support from the people than it gains even if it won the argument?” TIGI questioned in a statement.
“The Attorney General is quoted as having said that ‘the government will appeal’. There are so many things wrong with this posture, it is difficult to list them all. For one thing, there has perhaps never been a greater alignment between 1. Plain English; 2. The purpose of a regulatory body; 3. The obvious need for protection of the local and bordering environment; 4. And what, in any real democracy, where the perception of the people really matters, would be a political opportunity for self-correction [because the court’s decision is now available as a shelter for government],” it also said.
The local watchdog body said that it believed the case was a really simple and straightforward set of issues to decide on, and that the public should not be distracted by any complexities.
“From our standpoint, the court was asked to examine the straightforward matter as to whether the law and the permit issued to Exxon meant what they said. In our opinion, having been presented with what appeared to be a dispute between citizens and the agency charged with the responsibility of supervising the behaviour of corporations operating in the industry and a major world class corporation asking to join the proceedings, the judge must have been surprised, as the case proceeded, that the matter was nothing more than an unwillingness to comply on the part of the corporation and the astonishing behaviour of the regulator in supporting that recalcitrance,” TIGI stated.
Last Wednesday, Justice Sandil Kissoon, found ExxonMobil in breach of its insurance obligations for its first oil project Liza 1.
In his ruling on the action brought against the EPA to enforce the liability clause in the permits issued to ExxonMobil Guyana for its offshore oil operations, he described the EPA as “submissive”. He said it had abdicated its responsibilities “…thereby putting this nation and its people in grave potential danger of calamitous disaster.”
The judge bluntly said that the circumstances giving rise to the action disclosed the existence of an “egregious state of affairs that has engulfed the Environmental Protection Agency in a quagmire of its own making.
“It has abdicated the exclusive statutory responsibilities entrusted to it by Parliament under the Environmental Protection Act 1996 and the Environ-mental Protection Regula-tions 2000 to ensure due compliance by Esso Explo-ration and Production Guy-ana Limited [EEPGL].”
It was President of TIGI Frederick Collins and another Guyanese citizen, Godfrey Whyte who moved to the court last year to get the EPA to enforce the liability clause in the permits issued to ExxonMobil Guyana for its offshore oil operations.
The litigants had said that the resort to the court was to make sure that the company took full financial responsibility in case of harm, loss and damage to the environment. ExxonMobil’s local affiliate, EEPGL, has agreed in the permit to provide insurance and an unlimited parent company indemnity to cover all environmental loss and damage that might result from a well blowout, oil spill or other failures in the Liza 1 Development Project in Guyana’s Stabroek Block.
TIGI said that for the government to side with ExxonMobil was inconceivable, since it should be championing that laws be abided by. Giving an analogy, Collins said: “The police decide that in accordance with its powers under the Traffic Act, ABC Street is now a one-way street. However, a company operating on that street decides that it is inconvenient to comply and decides that it will continue to let its vehicles go the other way regardless [of the] risk of accidents it poses to other road users. So far so good. Now, a citizen in the street seeing the danger to his family and neighbours from the congestion, decides to take the matter to court. Where the shock comes is that the police authorities decide to support the company instead of the citizen! Against its own laws!”
He said that the judge was accused of going overboard to criticise the EPA’s decision not to provide information. “And yet he was economical. He could have pointed out that the refusal to provide information by the EPA violated the spirit of the Guyana Access to Information Act. For whatever reasons, our team of lawyers did not even attempt to take recourse to its provisions. Everyone knows why,” he said.
“The fact that the existence of the Act did not come in for mention by the judge could indicate the abundance of references in support of his position. It could also indicate that the position of the Commissioner of Information is regarded as nothing more than a lateral arabesque promotion in the words of Dr Laurence Peter of the Peter Principle fame. If the threat of appeal is carried out it will confirm that the EPA has been reduced to worse. In a lateral arabesque promotion, the employee is given a title and kept out of the way. The EPA would have cemented in the public mind its growing nickname ‘the Exxon Protection Agency’,” he added.
To its attorneys and citizens that stood with the litigants in the case, TIGI offered its thanks and said that winning the case was demonstrative that citizens’ rights were being protected.
It lauded “those of our citizens in civil society who have been in the trenches longer than we have been in whatever area of the rule of law. The judge reminded all of us that the Constitution of Guyana was not there merely for the convenience of politicians, but it is available for resort in the protection of the rights of citizens. ‘But for the vigilance of citizens society shall perish.’ May it ring in our ears for a long time to come.”
“Transparency Institute salutes the team of lawyers, Melinda Janki, Abiola Wong-Inniss, and Senior Counsel Seenauth Jairam, who prepared and led arguments and were successful in the just concluded case against the EPA. We are pleased to be associated with this case because of our consistent advocacy with regard to the unfairness of the contract and more recently the lack of insurance against an oil spill with its catastrophic consequences for the country and its neighbours. This advocacy began in 2017, continued in 2019 with a series of articles examining the contract with Exxon and, in 2022, a five-part response to a claim that effecting insurance would harm the country,” it added.
