Chief Justice Roxane George yesterday ruled in favour of the Environmental Protection Agency (EPA) in a case filed by Sinikka Henry, Sherlina Nageer and Andriska Thorington.
In their application for Judicial Review dated January 24, 2022, the three alleged that the EPA acted in breach of the law when it decided to modify the Environmental Permit issued for the Liza 1 Petroleum Development Project (Environmental Permit 20160705-EEDPF) on May 15, 2021.
They also purported that the EPA’s decision to charge $30.00 USD per tonne of carbon dioxide equivalents emitted as set out in the modified Permit was in breach of the polluter pays principle.
In responding to the claims, the EPA maintained that its decision to modify the Permit was made because the unmodified Liza 1 Permit had only prohibited routine flaring. In that form, it did not go further to consider or regulate ‘flaring which was not routine’.
Recognising this gap, the EPA made a decision to modify the Permit in order to clearly set out the conditions that would govern flaring that was ‘not routine’.
Further to this, the EPA put forward that it had moved to apply the polluter pays principle in order to require ExxonMobil Guyana Limited (then Esso Exploration and Production Guyana Limited ) to bear the cost of ensuring that the environment remained in an acceptable state in keeping with section 4(4)(a) of the Environmental Protection Act Cap 20:05 (EP Act).
For the Applicants however, the EPA’s decision was out of step with the EP Act, and would effectively “give rise to an additional adverse effects”. They therefore asked that the EPA’s decision to issue the modified Permit be quashed, and that the modified Permit be replaced with its previous version.
The Applicants were represented by Melinda Janki, Seenath Jairam SC, and Ronald Burch-Smith.
In reviewing the facts and the evidence before it, the Court recalled that during the course of the proceedings, the Applicants abandoned a number of requested reliefs for lack of evidential bases.
The Court also took note of the fact that, for the remaining reliefs requested, the Applicants had adduced no evidence to substantiate same.
For one, at paragraph 27 the Court noted that “there is no evidence that the modified EP will cause additional adverse effects outside of the first applicant’s opinion in this regard”. At paragraph 48, the Court clarified that “[t]he fact is that the EP Act provides for the polluter pays principle. This indicates that there is a recognition that there will be some adverse environmental effects which must be paid for”, although the Court will not go on to say how much and when (see paragraphs 56,57 and 59).
Ultimately, finding for the EPA and deciding that none of the Orders requested by the Applicants would be granted, the Chief Justice observed that, “[t]he evidence proffered.. was confusingly expressed…it consisted of a lot of opinions, either advanced by the applicants, or as stated to have been advised by their lawyers…the applicants were cherry-picking what they wanted to rely on to support their case, identifying and relying on clauses or parts in isolation. The documents have to be read holistically and not by focusing on paragraphs that either modified or explained what was meant to be the standard..”
The EPA was represented by Frances Carryl, Shareefah Parks and Niomi Alsopp.
As the EPA commits to continue lawfully carrying out its functions, members of the public are encouraged to participate by making meaningful and intelligent contributions, in good faith, to its decision-making processes. In this way, the EPA is able to judiciously meet its mandate of ensuring the effective management of Guyana’s environment as well as the sustainable use of its natural resources.
