Given the State’s substantial public, economic, and pecuniary interests in the Gas-to-Energy Project at Wales, West Bank Demerara (WBD), Justice Priya Sewnarine-Beharry has granted permission for the Attorney General to be added as a party to the case brought by two civil society activists, who are seeking the revocation of Environmental Permit issued for that project.
Applications were made by ExxonMobil’s local affiliate, Esso Exploration, and Production (Guyana) Limited (EEPGL), and Attorney General Anil Nandlall, SC to be added as parties to the matter filed by Vanda Radzik and Elizabeth Deane-Hughes against the Environmental Protection Agency (EPA).
In allowing Esso to join the matter, the Judge, on Monday, held that by being the holder of the permit and the named operator of the project, the company “undoubtedly has an economic interest in this venture or to borrow the words of their counsel “a real, substantial and direct interest” in the subject matter of the proceedings.
Moreover, she said it has rights accrued or derived from the permit and in all fairness ought to be heard and be able to fully defend its rights to the permit.
In his application, the Attorney General contended inter alia that the State has a substantial interest in the decision under challenge and will be adversely affected by a judgement quashing the permit, that is, any order quashing the permit will directly impact the Government of Guyana in its capacity as a party to several contracts under the Gas-to-Energy Project.
On this issue, he submitted that such a ruling would place the government in a position of breach in relation to contracts already entered into for the construction of the power plant and would likely attract liabilities under those contracts.
According to Nandlall, the public interest and the State’s fiscal interests would be adversely affected; and the State’s developmental trajectory in respect of the generation of low-cost electricity and ultimately the realization of a lower cost of living for Guyanese would be disrupted.
With the State being a party that would be so adversely affected by the outcome of the case, the Senior Counsel argued that the Judicial Review Act and the principles of natural justice aggregate to qualify the State and the Attorney General as its legal representative and the guardian of the public interest, to be added and to fully participate in the proceedings.
“I find that the AG has demonstrated a sufficient interest to intervene in his capacity as guardian of the public interest. I find further that the AG, because of his unique position as the Government’s principal legal advisor, may be privy to relevant facts and information (of which the Respondents/Applicants are in no position to speak) and may be able to offer a different, useful or practical perspective which this Court ought to take into consideration in determining the issue raised,” Justice Sewnarine-Beharry said in her written ruling.
She added, “I find that this in itself counterbalances any delay or prejudice caused to the Respondents/Applicants. I, therefore, find that the AG ought to be given the opportunity to participate fully in the proceedings and place before the Court, for its consideration, evidence which he believes will vindicate the State’s interest.”
The parties were given strict timelines for when they must file written submissions and the Court will deliver its ruling on the substantive matter on September 25.
During the hearing of the applications, Attorney-at-Law Abiola Wong-Inniss appeared for Radzik and Deane-Hughes; Edward Luckhoo, SC, Andrew Pollard, SC, and Attorney-at-Law Eleanor Luckhoo appeared for EEPGL and the Attorney General appeared in person along with Assistant Solicitor General Shoshanna Lall and State Counsel Patricia Shepherd and Laurel Dundas.
On March 27, Radzik and Deane-Hughes filed an application for, inter alia, an Order of Certiorari to quash the decision of the EPA made on November 25, 2022, to award an Environmental Permit to Esso to undertake the Gas-to-Energy Project and related activities.
The project includes but is not limited to the installation and operation of riser tie-ins at two floating Production, Storage, and Offloading (FPSO) vessels for the supply of gas, subsea equipment, offshore pipeline, and onshore pipeline on the grounds that the decision was in breach of the provisions of the Environmental Protection Act.
More particularly, they contended that the EPA’s decision is contrary to the Environmental Protection (Authorisation) Regulations, and in excess of jurisdiction because Esso has failed to satisfy or observe conditions or procedures required by law.
The Applicants contend that the EPA granted Esso an Environmental Permit in connection with the Gas-to-Energy Project although its application did not fulfill the requirements stipulated in Regulation 17(2)(c)(iii) of the Environmental Protection (Authorisation) Regulations.
Regulation 17(2)(c)(iii) of the Environmental Protection (Authorisations) Regulations provides that an application for an environmental authorization must contain: “proof that the applicant 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 or ability to conduct the activity without the consent of the landowner or occupier.”
The scope of Guyana’s Gas-to-Energy project consists of the construction of 225 kilometres of pipeline from the Liza field in the Stabroek Block offshore Guyana, where Exxon and its partners are currently producing oil.
It features approximately 200 kilometres of a subsea pipeline offshore that will run from Liza Destiny and Liza Unity FPSO vessels in the Stabroek Block to the shore.
Upon landing on the West Coast Demerara shore, the pipeline would continue for approximately 25 kilometres to the Natural Gas Liquid (NGL) plant at Wales.
The pipeline would be 12 inches wide, and is expected to transport per day some 50 million standard cubic feet (mscfpd) of dry gas to the NGL plant, but it can push as much as 120 mscfpd.
The pipeline’s route onshore would follow the same path as the fibre optic cables, and will terminate at Hermitage, part of the Wales Development Zone (WDZ) which will house the gas-to-shore project.
In Budget 2023, the gas-to-energy project received a $43.3 billion allocation.
This allocation is in addition to the $24.6 billion injected into the start-up of the transformational project, which includes the construction of an integrated NGL plant and the 300-megawatt (MW) Combined Cycle Power Plant at Wales.
The NGL and 300 MW power plant components of the gas-to-shore project, are meanwhile expected to cost US$759.8 million and will be financed through sources that include budgets and loan financing.
The investment in this project is in the vicinity of US$1,700,000,000 and includes all associated project costs incurred under respective contracts by the Government, its contractors, operators, and coventurers, according to the Attorney General.
