Despite finding that the Environmental Protection Agency’s (EPA’s) decision to grant ExxonMobil (Guyana) a permit for the multi-billion-dollar Gas-to-Energy (GtE) Project was “contrary to law and improper”, a Judge has dismissed the case filed by two citizens seeking to have the licence revoked.
In a 24-page written judgement, Justice Priya Sewnarine-Beharry outlined her reasons for dismissing the application for judicial review filed by Vanda Radzik and Elizabeth Deane-Hughes (the applicants) against the EPA, ExxonMobil (Guyana), and the Attorney General. The latter two were added respondents.
On June 24, 2021, ExxonMobil filed an application with the EPA, seeking leave to be granted an environmental permit facility. The permit was granted on November 25, 2022, and in unornamented terms, the oil company was allowed to develop a Gas-to-Energy Project pipeline from Nouvelle Flanders, West Coast Demerara (WCD) to Wales Estate, West Bank Demerara (WBD). That pipeline is intended to produce a reliable source of electricity for the people of Guyana.
The project involves significant public expenditure.
Deane-Hughes and Radzik, both citizens of Guyana, sought to have the decision by the EPA: to grant the environmental permit to ExxonMobil, judicially reviewed on the basis that the company’s application failed to conform with the requirements set out in Regulation 17(2)(c)(ii) of the Environmental Protection (Authorisations) Regulations (EPAR).
Regulation 17(2)(c)(ii) of the EPAR provides that an application for an environmental authorisation 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.”
In upholding the respondents’ submissions, Justice Sewnarine-Beharry, in a nutshell, refused all reliefs and orders claimed, concluding that no public good can come from granting them.
“Contrary to law, and improper”
In her decision, however, she highlighted that orders relating to the proposed gas pipeline route clearly established that as at January 23, the lands described therein were privately owned, hence the need to compulsory acquire them.
“It therefore cannot be said that at the time of the grant of the permit, on November 25, 2022, [ExxonMobil (Guyana)] 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. It can be concluded therefore that the decision by the EPA to grant the permit to [ExxonMobil (Guyana)] was contrary to law and improper,” added the Judge.
Despite this determination, Justice Sewnarine-Beharry remarked that there is no proof that the applicants were personally wronged by the EPA’s choice to grant the permit.
This application, she added, took issue with compliance with the law, and sought in essence vindication through various orders and declarations that would bring the project to a halt. On this note, she made it clear that judicial review is not concerned with vindication in the public sphere, and added, “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 the excesses of public functionaries.”
Significant fiscal expenditure
Among other things, the Judge held that the applicants have not cogently articulated what real or substantial public wrong occurred to them or the wider Guyanese populace upon the grant of the environmental permit facility, which would justify quashing the decision of the EPA.
According to her, cognisance must be paid to the fact that significant fiscal expenditure has been injected into the Gas-to-Energy pipeline. She thus held, “A quashing order would disproportionately disadvantage [ExxonMobil] and the State by halting significant project development already underway. Moreover, it may also have an unintended consequence of impacting innocent third parties to the project development.”
The High Court Judge has ruled that stopping the project may also have an unintended consequence of impacting innocent third parties to the project development, all while proving to be a “brutum fulmen” in the way of substantive relief for the applicants.
No order has been made as to costs.
Attorneys-at-Law Abiola Wong-Innis and Melinda Janki appeared for the applicants, while Attorney Francis Carryl appeared for the EPA. Andrew Pollard, SC, and Edward Luckhoo, SC, represented ExxonMobil (Guyana).
Submissions
During the trial, ExxonMobil had argued that the applicants’ interpretation of Regulation 17(2)(c)(ii) of the Environmental Protection (Authorisations) Regulations ignores its clear language. The oil giant averred that as part of its application process for the environmental permit, it was enjoined to provide proof to the EPA that it has the legal right or ability to conduct the activity without the consent of the landowner or occupier, which it did.
The company submitted that, on June 24, 2021, it submitted an updated application to EPA which, inter alia, indicated that the Government would be acquiring the lands necessary for the project.
Head of the Gas-to-Energy Task Force, Winston Brassington, has asserted that landowners of the compulsorily acquired lands for the project were informed of the project and the requirements associated with it during every phase of the project’s development. He had also testified that all the lands associated with the project had been acquired by the Government.
Attorney General Anil Nandlall, SC, who appeared in person, had advanced that the applicants are neither landowners, occupiers, nor possessors of any legal title or equitable interest in respect of any of the relevant lands; and further, that they are meddlesome busybodies in the vein of “obstructionists” to a project of high national import.
He had also submitted that the proceedings placed the public’s interest in jeopardy, as the project is intended to produce a reliable source of electricity, and involves significant public expenditure.
Description
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 ExxonMobil and its partners are currently producing oil.
It features approximately 200 kilometres of a subsea pipeline offshore that would 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 would terminate at Hermitage, part of the Wales Development Zone (WDZ) which would house the gas-to-shore project.
In Budget 2023, the gas-to-energy project received a $43.3 billion allocation, which 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 300MW power plant components of the gas-to-shore project are meanwhile expected to cost US$759.8 million, and would be financed through sources that include budgets and loan financing.
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.
