While finding that the decision of the Environmental Protection Agency (EPA) to issue a permit to ExxonMobil for its Gas to Energy (GTE) project was “contrary to law and improper,” High Court Judge Priya Sewnarine-Beharry has nonetheless refused to grant reliefs sought in an action which challenged that decision.
Particularly, the Judge said that the Court had to have regard to public funds already expended and invested in the project.
It seemed primarily against this background that the Judge dismissed the case filed; even as she underscored that no public good could be had from granting the reliefs sought.
The Judge said that a quashing order would disproportionately disadvantage ExxonMobil Guyana and the State by halting significant project development already underway.
She said that moreover, it may also have an unintended consequence of impacting innocent third parties to the project development, all the while proving to be unenforceable in the way of substantive relief for the Applicants.
It seemed primarily against this background that the Judge dismissed the case filed.
Attorney General (AG) Anil Nandlall SC had pegged the project investment valued at a whopping US$1.7 billion, for the construction of a 300 MW power plant to be constructed at Wales.
The challenge to the grant of the permit was filed by activists Vanda Radzik and attorney Elizabeth Deane-Hughes (the Applicants) who had been repeatedly calling on the EPA to revoke its decision.
Their contention was that the permit was issued in breach of regulation 17(2) of the Environmental Protection (Authorisation) Regulation (EPAR).
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 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, were asking for the permit to be revoked.
In her written ruling, Justice Sewnarine-Beharry noted that Regulation 17 of the EPAR directs the project developer/applicant to prove an entitlement, of some sort, to conduct the activity on the lands impacted by the project development.
If the Applicant does not have a legal right of ownership to the property or the consent of the landowner she explained; then the applicant is enjoined to submit information to the EPA which would evince a legal entitlement to conduct the activity without such consent from the landowner or land occupier.
Deferring to the evidence presented before her, the Judge said that at the time of grant of the permit on 25th November 2022, it cannot be said that Exxon’s local affiliate—Esso Exploration and Production Guyana Limited (EEPGL)—had submitted all the relevant documents which could potentially evince a legal right or ability to conduct the proposed project without the consent of the landowner or occupier.
On this point she thus went on to declare, “It can be concluded therefore that the decision by the EPA to grant the permit to Esso Guyana was contrary to law and improper.”
What seemed clearly the point of departure leading to the final conclusion by the Court, however, was the expenditure from the public coffers and what she said was no personal aggrieve to the Applicants.
On this point she said that there was no evidence that Radzik and Deane-Hughes were personally aggrieved by the EPA’s decision to grant a permit to Esso Guyana.
Their action she said, took issue with compliance to the law and sought, in essence, vindication through various orders and declarations, the effect of which would bring the project works to a halt.
The Judge then went on to say that judicial review is not concerned with vindication in the public sphere and that the origins of the prerogative writs envisioned a discretionary remedy for real injustices.
“It was never intended to be a sword for satisfaction but rather a shield against excesses of public functionaries,” she added.
Justice Sewnarine-Beharry went on to say that the Applicants had not cogently articulated what real or substantial public wrong occurred to them or the wide Guyanese populace upon the grant of the environmental permit facility, which would justify quashing EPA’s decision.
Cognisance she said, “must be paid to the fact that significant fiscal expenditure has been injected into the Gas to Energy pipeline.” A quashing order would disproportionately disadvantage Esso Guyana and the State by halting significant project development already underway. More-over, it may also have an unintended consequence of impacting innocent third parties to the project development, all while proving to be a brutum fulmen (a meaningless judgment) in the way of substantive relief for the Applicants.
In conclusion, Justice Sewnarine-Beharry said, “it is upon a delicate balancing exercise, that I am of the view that no good to the public can be done by granting the reliefs sought.”
In their submissions, counsel for the Respondents—Esso, the AG and EPA—had challenged the Applicants’ standing to have brought the case, advancing that they failed to show sufficient ‘proprietary interest’ in the impacted lands.
Counsel for Esso and the AG had asserted that the Applicants were “obstructionists in the vein of meddlesome busybodies.”
The Judge would go on to find, however, that Applicants did have standing to have brought the matter.
These proceedings she said, raise important issues of compliance with the EPA Act and EPAR; and that the Applicants in seeking to vindicate the rule of law “ought to be viewed as public benefactors and not meddlesome busybodies who have instituted these proceedings as obstructionist to the pipeline.”
For those reasons, she said she was of view that the Applicants had sufficient standing as public interest litigants to maintain these proceedings.
Background
In a letter on behalf of her clients to Executive Director of the EPA Kemraj Parsram, Janki 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 the Attorney General, 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.
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.
