On June 16, the High Court will rule on whether the government and ExxonMobil will be allowed to join the litigation challenging a decision made by the Environmental Protection Agency (EPA) to issue a permit to ExxonMobil for its Gas to Energy (GTE) project.
A few weeks ago, Justice Priya Sewnarine-Beharry heard submissions from Attorney General Anil Nandlall SC and Senior Counsel Edward Luckhoo for Exxon’s local affiliate—Esso Exploration and Production Guyana Limited (EEPGL)—who argued that they ought to be able to intervene in the proceedings as they have interests therein.
With the project investment valued at a whopping US$1.7 billion, the AG argued, the government has more than a mere interest as it had entered into an engineering, procurement and construction (EPC) contract for the construction of a 300 MW power plant to be constructed at Wales.
“This power plant will be owned and operated by the Government of Guyana and is part of the said Gas to Energy project conceptualised by the government since 2020,” Nandlall said in his notice application to join the proceedings.
He said that the investment includes “all associated project costs incurred under respective contracts by the Government of Guyana, its contractors, operators and co-ventures.”
He went on to state that the generation costs of the power plant are expected to be less than half of the current cost derived from imported fuel oil, and will therefore enable the government to provide “low cost reliable” electricity to the public.
Because of what he described as the obvious interest and its involvement as a key player in the project, the AG said the government ought to be able to be heard in the litigation as “it has a substantial public, economic and pecuniary interest… and will be adversely affected by any judgement” in favour of the litigants.
Activists Vanda Radzik and attorney Elizabeth Deane-Hughes have mounted the legal challenge against the EPA, calling for the revocation of its decision to issue a permit to ExxonMobil for the development of a natural gas transport pipeline, materials offloading facility and natural gas liquids plant.
Their contention is that the permit was issued in breach of regulation 17(2) of the Environmental Protection (Authorisation) Regulation.
The regulation they noted, states that a developer must provide proof that it “either owns the facility or has a lease or other agreement with the landowner or occupier to enable the applicant to conduct the activity on the facility or has the legal right of way to conduct the activity without the consent of the landowner or occupier.”
Several Guyanese and not ExxonMobil own several tracts of land under transport and lease along the proposed pipeline route, and it is on this basis that Radzik and Deane-Hughes through their attorney Melinda Janki, are asking for the permit to be revoked. In a letter on behalf of her clients to Executive Director of the EPA Khemraj Parsram, Janki, who is an environmental lawyer, had said it was incontrovertible that the route for the proposed pipeline will run on land that is not owned by EEPGL, not held by EEPGL under any lease, and not subject to an agreement which would allow EEPGL to construct the onshore pipeline along the route.
“It follows logically and simply that the permit was issued in breach of regulation 17. The agency did not have the legal power to authorise EEPGL to construct a pipeline in the absence of the proof required by regulation 17,” she had said in her letter.
The government, through its Attorney General, in its application to be added to the case before the court, has said, however, that it “acquired the lands…and has entered into agreements for compensation with most of the affected property owners.”
In their fixed date application seeking an order of certiorari quashing EPA’s decision, Radzik and Deane-Hughes said that it was not only unlawful, but, among other things, “unreasonable” and exercised beyond the agency’s powers.
Against this background they want the court to specifically declare that the EPA acted in breach of regulations and for the permit to be rendered null, void and of no legal effect.
The applicants are also seeking costs and any other order the court deems just to grant. They have said that they are not opposed to the gas to energy project, but that the process must be in strict compliance with the law; stressing that “the only lawful path” available to EPA is for Esso to submit proof that it either owns or has a lease or other agreement with the landowners or occupiers of the lands which will be affected by the project, prior to the issue of the environmental permit.
It is against this background that they are seeking the court’s assistance in reviewing the exercise of EPA’s discretion so as to ensure “the proper regulation of environmental enforcement…and by extension safeguarding the health, welfare and sustainable existence of the people of Guyana.”
Apart from Janki, Radzik and Deane-Hughes are also being represented by attorneys Abiola Wong-Inniss and Joel Ross.
Background
ExxonMobil’s gas-to-shore project, which the government hopes will lead to vastly lower energy costs that would enable a spurt in manufacturing, expects its pipeline to land at Crane/Nouvelle Flanders, West Coast Demerara and make its way to Wales,West Bank Demerara.
The project will involve capturing associated gas produced from crude oil production operations on the Liza Phase 1 (Destiny) and Liza Phase 2 (Unity) Floating Production, Storage and Offloading (FPSO) vessels, transporting approximately 50 million standard cubic feet per day (MMscfd; 1.4 million standard cubic metres per day [MMsm3/d]) of gas via a subsea pipeline and then an onshore pipeline to a natural gas liquids (NGL) processing plant, treating the gas to remove NGLs for sale to third parties, and ultimately delivering dry gas meeting government specifications for use at the power plant.
The project includes the construction and operation of a natural gas pipeline from the Liza Phase 1 (Destiny) and Liza Phase 2 (Unity) FPSO vessels via a subsea line and then an onshore natural gas pipeline to an onshore NGL plant.
The pipeline will transport up to approximately 50 MMscfd of dry gas to the NGL plant. The NGL plant will drop the pressure of the gas; dehydrate the gas; separate out the NGLs (ie propane, butane, and pentanes+) for sale to third parties; and treat the remaining “dry” gas to the specifications appropriate for use as fuel or raw materials by third parties.
