The hearing on the merits of the appeal filed by the Environmental Protection Agency (EPA) in its challenge to the High Court order that it is to enforce the liability clause in permits for ExxonMobil’s offshore oil operations here, has been adjourned to tomorrow.
The oral arguments should have commenced yesterday morning, but this was postponed owing to the absence of counsel for the EPA, Sanjeev Datadin who was not in the country at the time.
When the matter was called, Justice of Appeal Rishi Persaud said that he was in receipt of an email from Datadin who explained that while he was expected back in Guyana on Sunday night, he was not able to, because of flight difficulties.
Justice Persaud said Datadin explained that because of adverse weather conditions, his flight into Guyana had to be diverted to Puerto Rico, but that he would have been expected to arrive back in Guyana during the course of yesterday afternoon and would have been prepared to present his arguments.
The Judge, however, said that he understood that circumstances over which he said Datadin had no control, and against that background informed that the matter would be adjourned to tomorrow instead.
The other attorneys in the matter, agreed with the court that indeed the adjournment should be facilitated to give their colleague at the Bar an opportunity to first get settled after he would have arrived, before being made to address the court.
On Wednesday, the Full Bench of the Court of Appeal will be hearing an application by the Attorney General, Anil Nandlall SC to join the proceedings. Justice Persaud said that since the matters are connected, he will hear arguments on the merits issue immediately after.
Yesterday too, Darshan Ramdhani KC asked to be struck from the record as co-counsel for the EPA; stating that while instructions were to be forthcoming from the agency regarding his representation, that never materialized.
Not having been properly briefed regarding his representation, he asked the Court that he be officially removed from the record as legal representative of the EPA.
Justice Persaud granted his request.
The EPA is contesting the High Court ruling, arguing among other things that the judge’s finding that the financial assurances set out in the permit were “unlimited; “was a flawed line of reasoning.
It also describes the order made by the court that the permit stands suspended for breach of the Environmental Protection Act as “coercive.”
ExxonMobil’s local affiliate—Esso Exploration and Production Guyana Limited (EEPGL)—has since filed its own appeal, also contesting the ruling. Arguments in that application, too, will be heard before Justice Persaud on Wednesday.
Like the EPA, the oil extraction company says that the order, which further states that failure to enforce would result in the permit being suspended, is “coercive.”
Describing its appeal as a “very arguable” one, Esso advances that the trial judge erred in law when he determined that Esso was required by the permit to provide an unlimited parent company guarantee and indemnity agreement or affiliate company guarantee.
Background
President of Transparency Institute of Guyana Inc (TIGI) Frederick Collins, has said that the EPA’s appeal has no merit.
Collins, together with another concerned citizen—Godfrey Whyte—had moved to the court last year to get the EPA to enforce the liability clause in the permits it had issued to ExxonMobil.
The litigants have said that the resort to the court was their bid to ensure that the company takes full financial responsibility for possible resulting harm, loss and/or damage to the environment.
Esso 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.
High court Judge Sandil Kissoon in delivering his judgment earlier this month, said that in the course of the proceedings, the Court found on the evidence that EEPGL was engaged in a “disingenuous attempt which was calculated to deceive, when it sought to dilute its liabilities,” while simultaneously optimising production.
In his ruling, Justice Kissoon said of the EPA, “It has abdicated the exclusive statutory responsibilities entrusted to it by Parliament under the Environmental Protection Act 1996 and the Environmental Protection Regulations 2000 to ensure due compliance by Esso Exploration and Production Guyana Limited.”
Failure to comply with the order, the judge said, will result in the permit being suspended.
The orders made by Justice Kissoon are to be carried out no later than June 10th failing which the permit will be suspended.
The EPA has since asked for a stay of the High Court judgment; but Justice Persaud has said that a stay will not be dealt with at this time, as he intends to conclude the matter before him before June 10th.
Collins and Whyte are being represented by Senior Counsel Seenath Jairam, along with attorneys Melinda Janki and Abiola Wong-Inniss.
Meanwhile, Esso/EEPGL is being represented by Senior Counsel Edward Luckhoo and Andrew Pollard along with Eleanor Luckhoo.
