AFC executive, Dr Vincent Adams has voiced strong disagreement with the decision of acting Chief Justice (CJ), Roxane George SC who ruled this week in favour of the Environmental Protection Agency (EPA) and against an action which was filed to put a stop to flaring of gas offshore by ExxonMobil.
Adams, a former Head of the EPA, said that the CJs ruling on the unlimited flaring available to ExxonMobil is “no doubt gravely puzzling and a travesty of justice against the people of Guyana”.
Speaking at press conference yesterday, he noted that the case brought by Sinikka Henry, Sherlina Nageer and Andriska Thorington asked the court to stop the indiscriminate, dangerous flaring of unlimited quantities of toxic produced gas into the atmosphere by finding that the Government’s modification of the EPA permit to allow for such reckless flaring, is illegal.
Adams, who was dismissed by the PPP/C government, said that the APNU+AFC Coalition’s permit guided by an Environmental Impact Assessment (EIA) and international standards enshrined that all produced gas must be re-injected and so prohibited from being flared except for emergency, maintenance and startup.
“Exxon fully understood this and committed to it from day one, but was caught in a bind when their equipment didn’t work, and so conspired with the PPP/C to get out of this bind by changing the rules which they couldn’t do under the coalition”, Adams charged.
According to a release issued by the Alliance For Change, Adams said that upon initial startup under the APNU+AFC coalition in December 2019, when the equipment failed, ExxonMobil begged for a 30-day and then a 60-day time period to fix the problem, but when that period expired without a resolution, they were forced to reduce oil production until it was fixed.
“After the coalition left government, the EPA callously added a clause which was undoubtedly written by Exxon to allow unlimited flaring when the equipment is not working and this is what the judge has gone along with for a fine that is less than 5% of what Exxon makes by not cutting back production to stop the flaring”, Adams said.
He argued that Chief Justice George in her own words seemed to have believed everything proffered by Exxon as facts and everything proffered by the litigants as “opinions”.
He noted that the Judge ruled that the evidence presented by the litigants was “confusingly express-ed” and ultimately “difficult to follow”.
“I don’t think anyone with an unbiased mind, upon reading the evidence provided by the litigants, would ever arrive at such a conclusion. The evidence proffered by Attorney Melinda Janki on behalf of the litigants is crystal clear, and no one else on this planet could have been better positioned to deliver that evidence than Melinda Janki; since she was a key author of the EPA Act and hence, knows the intent of the language better than anyone. Besides, Ms. Janki is an internationally accomplished Attorney, so to suggest that she is incapable of explaining herself clearly on a subject which she knows as good as anyone, is too hard to swallow”, Adams said.
He added that the judge also stated that while EPA did not respond to allegations about the pollution fee, ExxonMobil’s Country Manager produced evidence of comparative flaring fees for other countries including the European Union and Central and South America.
“Though the laws and practices of other countries are worthwhile information, it is inexplicable that the judge would arbitrarily use this information from these particular countries provided by Exxon as the single basis for making it our laws; while at the same time not even inquiring about the laws and practices of the USA, the home country of Exxon, where the standard is a mere 48 hours of flaring startup which was adopted by the EPA under the coalition. The modified permit in question and this judgement have increased this 48-hr limit to an unlimited quantity with a small fee which is a mere 5% of the revenues obtained in lieu of not flaring”, Adams asserted.
Adams also expressed surprise that the CJ said that that there is no evidence that the 20+ billion cubic feet of gas already flared would have any additional adverse effects and the fee based upon the Polluter Pays Principle (PPP) is in recognition of some adverse effects.
He queried whether the judge hadn’t taken cognisance of climate change and the energy policies developed globally to cut back on gas emissions which spur climate change.
“Similarly, doesn’t the honourable Judge know that all of the major oil companies including Exxon have accepted that gas emissions are harmful to the environment and committed to cut back on such emissions?”, Adams asked.
He said that the judge believed ExxonMobil’s local head Alistair Routledge when he said that the flaring fee is a disincentive and doubted the litigants when they said that it is an incentive to flare, though there is numerical evidence to support their averment.
“How could it be a disincentive when the paltry fee is less than 5% of what they would forego by cutting production to eliminate flaring”, he queried.
He said that Justice George showed her lack of knowledge of what the polluter pays principle (PPP) means and the wording of the EPA Act which was explained by Janki, the expert on the EPA Act. He contended that the judge erroneously believes that PPP is the same as Pay to Pollute
Adams, who worked in senior positions in the US government, said that “The PPP is for cleanup after the fact and not to pay for pollution while you operate, for it would be flying in the face of the fundamental principle of environmental protection to pay to pollute. In such as case there won’t be a need for an EPA, for all that would be required is for a unit fee to be set and let the developer pay to pollute as much as they can afford. This could be easily handled by the Ministry of Finance.
“The PPP was developed in the 1970’s in the USA while developing environmental regulations when it was discovered that there were an abundance of abandoned hazardous sites without identified owners for their cleanup; hence the superfund program was born”.
Therefore, he said that the PPP was in all respects developed for cleanup of already damaged sites and not as a pay to pollute programme to have developers pollute as much as they please as long as they can afford to pay the meagre fees and make big profits from it – “a definite incentive to pollute!”
In handing down her ruling, the Chief Justice underscored that during the proceedings, the Applicants abandoned a number of the reliefs they had requested for lack of evidence.
The Court also noted that the Applicants had adduced no evidence to substantiate the remaining reliefs requested.
She said it was not evident from the case for the Applicants, how the regulation was breached; while adding that there was no evidence that the modified Environmental Permit (EP) will cause additional adverse effects outside of the first applicant’s opinion in this regard.
She also noted that there is no evidence that the original EP relied on by the applicants, which permitted flaring placed any restriction on flaring over and above that which is also included in the modified EP.
The Judge went on to note in her written judgment seen by this newspaper, that the fact the Act provides for the polluter pays principle, indicates that there is a recognition that there will be some adverse environmental effects which must be paid for.
Ultimately finding in favour of the Agency, Justice George said the evidence proffered was “confusingly expressed” and consisted of a lot of opinions, either advanced by the applicants or advice given by their lawyers.
