The Guyana Court of Appeal has reserved its ruling regarding whether it will grant an application by the Attorney General to be added as a party in the appeal filed by the Environmental Protection Agency (EPA) in its challenge to the High Court order that it enforce the liability clause in permits for ExxonMobil’s offshore oil operations here.
The appellate court heard arguments on the AG’s application on Thursday morning, which was vigorously objected to by Senior Counsel Seenath Jairam, who represents the Applicants by whom the initial action was brought against the EPA.
Jairam’s position is that the AG ought not to be allowed to join the proceedings, as he has no real interest in the matter; and that it is only the state agency EPA which should be made to answer.
Senior Counsel Jairam said that there is no provision in the Judicial Review Act, which allows for the AG to intervene in such proceedings, since the AG—as chief representative of the Government—has to be the enforcer of judicial review breaches committed by public bodies.
The lawyer said that as a matter of principle, the AG cannot therefore be allowed to join judicial review proceedings; and in fact should be playing his role in judicial review, by ensuring that the EPA is in compliance.
Jairam went on to contend that there is no evidentiary basis which the AG can advance for being allowed to join the proceedings; as he can bring “nothing fresh” to the case.
The lawyer’s contention is that the points regarding “so-called” economic consequences and circumstances which the AG is attempting to raise, have already been raised by the EPA. The AG joining the case, Jairam said, cannot embellish or make those arguments advanced by the EPA and ExxonMobil more convincing.
“The Attorney General cannot be a busybody in judicial review proceedings,” Jairam said, adding that judicial review is a whole different regime.
To the argument of Attorney General Anil Nandlall SC that the case is one of public interest, and warrants him intervening, Jairam said that while that is true—because the petroleum extraction is aimed at the development of Guyana as whole—this must be done in a lawful manner.
He said that it is to this extent that the AG should be interested publicly in ensuring that the necessary parent guarantee is provided to indemnify the government and the EPA from any possible environmental catastrophe.
Jairam said that it is not the intention of his clients to stymie the development of Guyana in anyway, but rather to ensure that ExxonMobil complies with the laws in executing its operations.
It is Nandlall’s position that notwithstanding he was not a party to the proceedings in the court below, or did not seek to join at that time, those are not factors that ought to be considered by the appellate court in its determination of whether he is allowed to join or not.
Arguing that he has sufficient interest in the matter, Nandlall said that that is what the Court ought to consider, in accordance with the Judicial Review Act.
Against this background, too, he said that the State has contractual rights, revenue/propriety interest as a party to the petroleum agreement with Exxon; and those have to be protected by its Attorney General before the court.
Following the presentation of arguments, acting Chancellor Yonette Cummings-Edwards said that the Court will reserve its ruling for a date to be announced.
After the court rules on Nandlall’s motion, it will then proceed to hear the substantive appeal.
Stay
Finding prospects of success in the appeal filed by the EPA, Justice of Appeal Rishi Persaud earlier this month granted EPA and the oil company a stay of that order which also provided for the suspension of the permit.
The judge said that the interest of justice warranted the grant of a stay; but he ordered Exxon’s local affiliate—Esso Exploration and Production Guyana Limited (Esso/EEPGL)— to lodge US$2 billion in a guarantee failing which the stay order would be dismissed.
The judge said that the US$2 billion guarantee is aimed at allaying any anxiety as to impending doom as conceived by some, but was keen in pointing out that the justice of the case “clearly mandates a stay of execution.” The guarantee has since been lodged.
High Court ruling
In a ruling last month, High Court judge Sandil Kissoon declared the EPA to be in breach of its statutory duty in failing to enforce compliance by Esso of its financial assurance obligations, and keep indemnified the agency and the Government of Guyana against all environmental obligations of the permit holder and co-venturers within the Stabroek Block.
Among other things, he specifically cited Esso’s failure to comply with Condition 14 of its permit which he said imposed on it “unlimited and uncapped liability for all costs associated with clean up, restoration and compensation for all damages caused by any discharge of any contaminant arising from its exploration, development and petroleum production activities within the Stabroek Block.”
Justice Kissoon had made it clear that if the unlimited liability to fully indemnify Guyana was not put up by the deadline set, then the Esso’s permits would be suspended.
It is this that then formed the basis of an appeal filed by Esso, which came on the heels of one filed by the EPA which argued among other things that Justice Kissoon’s finding that the financial assurances set out in the permit were “unlimited; “was a flawed line of reasoning.
Background
President of the Transparency Institute of Guyana Inc (TIGI) Frederick Collins, had 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 take full financial responsibility for possible resulting harm, loss and/or damage to the environment.
Esso had 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.
Justice Kissoon in delivering his judgment had 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.
He said of the EPA, “It has abdicated the exclusive statutory responsibilities entrusted to it by Parliament under the Environ-mental Protection Act 1996 and the Environmental Protection Regulations 2000 to ensure due compliance by Esso Exploration and Production Guyana Limited.”
Collins and Whyte are being represented by 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.
The EPA was represented by a battery of attorneys led by Sanjeev Datadin.
