The two men who secured an historic judgment from the High Court for ExxonMobil to indemnify Guyana have filed a motion seeking to vary or discharge the stay against the ruling which had been issued by a judge of the Court of Appeal.
In a statement yesterday, Frederick Collins and Godfrey Whyte said that they have filed a motion to vary/discharge the stay granted by Justice of Appeal Rishi Persaud of the High Court judgment of Justice Sandil Kissoon.
They say that they are respectfully asking the Court of Appeal to address these aspects urgently, including the hearing and determination of the substantive appeal which had been filed by ExxonMobil and the Environmental Protection Agency (EPA) against Justice Kissoon’s order.
“We consider that Persaud JA (Justice of Appeal) was completely wrong judicially in granting the stay as requested by Esso (ExxonMobil’s subsidiary) and the EPA. The public interest consists of the interests of the sovereign state of Guyana and the people of Guyana. That public interest overwhelmingly trumps and dwarfs the minuscule interest that any government of the day has in the revenue stream from the Liza 1 operations. The fact that Guyana has suffered economically for several decades because of political malfeasance, does not mean that any government can rush to make every dollar at the expense of the public interest, economy and natural resource base”, the two men stated.
They stated that the order by Justice Kissoon provided for ExxonMobil to indemnify and keep indemnified the EPA and the Government of Guyana.
“We are appalled that any regulatory agency would appeal against a decision in its favour and fight to protect a foreign company instead of protecting Guyana. We are also taken aback by the decision of the Government though the Attorney General to intervene so as to overturn the decision of Kissoon J. No right thinking and caring government would rush in this situation.
“As patriotic citizens, we are concerned for the prosperity and wellbeing of our fellow Guyanese and we welcome all revenue streams in abundance, but foreigners must know that Guyana is run by the laws of the land and not by the whims and fancies of men or women. All we ask is that ExxonMobil Corporation and its subsidiary and co-venturers obey the laws of Guyana just has they are required to obey the laws of the United States.
“Our fight for justice will not end in our national courts. Our matter has huge implications for the Caribbean. If necessary, we are prepared in the interests of Guyana and all Guyanese to pursue this matter for a final decision by our apex court”, the two men stated.
They said that they remain deeply concerned that Guyana is financially exposed to unlimited liability arising from Esso’s petroleum operations – operations which are producing billions of dollars in revenue for Esso’s parent company while Guyana bears the risk of billions of dollars of liability in the event of an oil spill.
In their motion they point out that ExxonMobil earned US$56 billion in 2022 while Guyana’s 2023 budget was US$3 billion in comparison. They argued that as a result of the stay granted by Justice Persaud Guyana is now liable to bear all the losses and costs of an oil spill from Esso’s operations, if Esso does not pay up.
The two men also expressed concern about reports in the press that before the hearing of the application for the stay, President Irfaan Ali purportedly gave American oilman John Hess an assurance that the court would grant the stay. The matter was then at the Court of Appeal stage, the men noted. “At the very least this assurance by the President if it is a fact, undermines the judiciary and the rule of law, and has shaken our confidence in our judiciary as well as the integrity of our courts. We have listened to the recording and are appalled at the arrogance of John Hess. We also deplore his ignorance in seeking to dismiss our action as ‘environmentalist ’when it should be clear to all that the risk to Guyana is financial, and it is a risk that ExxonMobil Corporation does not want to bear”, they said.
Collins is a retired insurance professional and Whyte is a retired teacher.
Background
On June 8 this year, Justice of Appeal Persaud granted ExxonMobil a stay of execution of the order by the High Court that it supply an “unlimited” financial guarantee for its Liza-1 well.
Had ExxonMobil not secured the stay, the EPA permit for the Liza-1 well would have been terminated for non-compliance as of June 10th.
The judge said that he believes that the appeal lodged by the EPA has prospects of succeeding.
Following that finding, Justice Persaud then went on to declare that in the interest of justice, the EPA will be granted a stay of execution of the order of the lower court which had declared that the permit issued to Exxon’s local affiliate—Esso Exploration and Production Guyana Limited (EEPGL)—be suspended by June 10th.
The stay of execution is to last until the full hearing and determination of the appeal, but Justice Persaud did make it clear that Esso in the meantime is to lodge a US$2 billion security deposit within 10 days, failing which the stay would be dismissed. The deposit was subsequently supplied.
The Judge said that this was to allay any anxiety by those who are of the belief that there could be an environmental catastrophe of some sort.
High court Judge Kissoon in delivering his judgment on May 3rd, 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.”
President of the Transparency Institute of Guyana Inc (TIGI) Collins and 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.
