The Court of Appeal intends to apply the merit test to the Environmental Protection Agency’s (EPA) appeal against High Court Judge Sandil Kissoon’s ruling for ExxonMobil (Guyana) to provide unlimited insurance for offshore oil operations it is engaged in with its co-venturers in the Stabroek Block. In light of this, Justice of Appeal Rishi Persaud has fixed May 29 at 10:00h to hear arguments on whether the appeal has a reasonable prospect of success.
In the lead-up to this very important hearing, Justice Persaud held a Case Management Conference (CMC) on Monday during which he fixed strict timelines for when the parties must file and serve written submissions in this regard.
With the deadline for compliance with Justice Kissoon’s orders fastly approaching, EPA’s lawyer Sanjeev Datadin asked for a stay of the May 3 order directing the EPA to issue ExxonMobil’s local affiliate, Esso Exploration and Production (Guyana) Limited (EEPGL), with an Enforcement Notice on or before May 9, for the company to provide, within 30 days, unlimited Parent Company Guarantee Agreement and/or unlimited liability Affiliate Company Guarantee, together with environmental liability insurance, as is customary in the international petroleum industry.
Non-compliance will result in the suspension of the company’s Environmental Permit.
“We’re opposing any order for a stay,” said Senior Counsel Seenath Jairam, one of the lawyers representing the respondents, President of the Transparency Institute of Guyana Inc (TIGI), Fredericks Collins, and Guyanese citizen Godfrey Whyte.
Datadin’s application for the judgement to be suspended pending the hearing and determination of the appeal was, however, refused, with the Judge indicating that he intends to hear arguments on the reasonable prospect of success and render his ruling before June 10—the last day for compliance with Justice Kissoon’s ruling.
This publication understands that the Attorney General and Esso have filed an application to be added to the EPA’s appeal. Esso’s lawyers are Edward Luckhoo, SC, Andrew Pollard, SC, and Eleanor Luckhoo. Meanwhile, last week, the EPA issued a statement in which it noted that it has confidence in winning the appeal.
In September 2022, Collins and Whyte moved to the court to get the EPA to implement the liability clause in the permit issued to ExxonMobil for its operations. They wanted the court to ensure EEPGL takes full financial accountability in the case of harm, loss, and damage to the environment from a well blowout, oil spill, or other failures in the Stabroek Block.
On the issue of whether the EPA acted in breach of its statutory duty and unreasonably permitted Esso to carry out petroleum production operations in the absence of compliance with the terms of the permit, Justice Kissoon ruled that the EPA has committed an illegality, acted unlawfully, ultra vires, unreasonably, in defiance of logic, irrationally, and without any jurisdiction.
He inter alia, found that Esso was engaged in a “disingenuous attempt” which was calculated to deceive when it sought to dilute its liabilities and settled obligations stipulated and expressed in Condition 14 of the permit, while simultaneously optimising production in the Stabroek Block.
“The insurance obtained by the EEPGL from its Affiliate Company AON UK Ltd, both for the Liza Phase 1 and Phase 2 Projects, does not satisfy the stipulation and obligation set out at Condition 14:5 of the Environmental Permit, or even what is considered environmental liability insurance according to international standards of the petroleum industry,” he held.
In the end, EPA and Esso were ordered to pay Whyte and Collins $1.5M in court costs.
Several days after the High Court ruling, EPA filed a Notice of Appeal in which it advanced several grounds on which it is seeking to set aside the ruling, among them being that the lower court’s reasoning was flawed, and that the Environmental Permit was in keeping with the law.
“The trial court erred in law in its interpretation, consideration and application of the combined effect of Clause 14 of the Environmental Permit…and erroneously concluded that the financial assurance to be provided by the third respondent herein, EEPGL, in relation to the said permit was unlimited,” one of the agency’s grounds of appeal outlined.
Another ground states, “The trial court erred in law and misconstrued the Environmental Protection Act and its regulations to determine that the appellant [EPA], a statutory body, had specific statutory powers which in fact it did not have.”
Another contention of the EPA is that the court wrongly ascribed a meaning to the Environmental Protection Act that was contrary to specific provisions in that very Act.
It is also contended that the court “in effect substituted its own discretion as the decision of the appellant when the appellant, at all material times, had exercised its discretion and acted well within its statutory and regulatory powers.”
According to the EPA’s legal documents, the orders granted by Justice Kissoon are coercive, and entirely remove the EPA’s discretion, which would have severe consequences. According to the agency, there would be severe disruption to the national economy if the order is allowed to stand.
EPA has been keen to point out that the very permit at the heart of the case is critically important to Guyana’s economic growth. It argues that should the permit which pertains to the Liza 1 and 2 fields be cancelled, this would have catastrophic consequences on the economy.
“Guyana as a nation now earns billions of dollars annually from the petroleum activities conducted on the Liza 1 and Liza 2 fields, both of which are subject to the permit. The suspension or cancellation will have a catastrophic effect on national funds for development, and also the Private Sector which supports the activities on the said Liza 1 and 2 fields,” EPA averred.
Attorney General and Legal Affairs Minister Anil Nandlall, SC, had pointed out after the ruling that the Environmental Permit imposes no obligation on the permit holder to provide an unlimited Parent Company Guarantee Agreement and/or Affiliate Company Guarantee Agreement.
The AG also pointed out that this ruling can have profound ramifications and grave economic as well as other impacts on the public interest and national development. He noted that the EPA and EEPGL had spent almost a year negotiating a Parent Guarantee and Indemnity Agreement to the tune of US$2B in liability coverage, in compliance with EEPGL’s financial assurance obligations under the Environmental Permit and the Environmental Protection Act.
“These negotiations only concluded [recently]. These negotiations and their material details were placed before the Court for its consideration, but unfortunately to no avail,” a statement from the Attorney General’s Chambers had disclosed.
There are several court cases challenging various aspects of ExxonMobil’s operations offshore Guyana.
