EPA disclosure of insurance case: State has a right to be added to legal proceedings – High Court rules

 … applicant ordered to pay $600,000 in costs to AG, ExxonMobil

In another significant ruling, the High Court has ruled that Attorney General Anil Nandlall and oil giant ExxonMobil, must be added as parties in a case where a citizen, Sherlina Nageer, is attempting to force the Environmental Protection Agency (EPA) to disclose the insurance policy and parent/affiliate company guarantee lodged by Exxon in case of an oil spill.
The case was filed by Nageer, who is being represented by international lawyer Melinda Janki and local Attorneys-at-Law Tim Prudhoe and Anna-Kay Brown. In it, she is seeking copies of the policy and guarantee documents. In lieu of, that should the EPA not produce the documents, she’s seeking a declaration to cancel Exxon’s permit for the Liza Phase 2 project and an order prohibiting EPA from issuing a replacement or one with weaker provisions.

“EMGL and the AG had filed applications to the Court ordering that they be joined as parties to the litigation. EMGL contended that if its Permit was cancelled as the Applicant is seeking, they would suffer serious financial loss and damage as they would be unable to carry out their petroleum project,” a statement explained.
“They also contended that this would be a deprivation of their property rights which would be unlawful unless they are allowed to defend their rights. The AG claimed that the State’s budgets enjoyed substantial revenue flows from the Project and that Government’s developmental agenda would be seriously interfered with if the Project was halted as the Applicant sought.”
In the court’s ruling, delivered by Justice Simone Ramlall, it was pointed out that both Exxon and the Attorney General, as a representative of the state, had clear and definite interest in the outcome of the case. Added to this is the fact that the Petroleum Activities Act that was passed in August 2023, mandates for the state and licensee to be added to cases that can have an adverse effect on them, which the applicant failed to do.
“EMGL had a clear interest in the outcome of the matter, as it would be very adversely affected if the Applicant were to succeed as it would lose its Permit making it unable to carry out its Project, which could cause it to suffer substantial loss and damage.”
“The Court ruled further that the AG also had a definite interest in the outcome of the case given Government’s reliance on substantial petroleum revenues from the Project for its development agenda,” the statement said.
Among the court’s judgements are, that Nageer has to pay both the AG and EMGL, $300,000 each. Additionally, both of them are to be added as parties to defend the claim. The matter will also be continuing.

It was only in January of this year that Frederick Collins and Godfrey Whyte, two other citizens, had also moved to the Court of Appeal to order the EPA/ExxonMobil to produce the US$2B unlimited parent company guarantee.
No jurisdiction
During a hearing in the Appeal Court, Sanjeev Datadin, attorney for the EPA, had argued that Justice of Appeal Rishi Persaud lacks jurisdiction to hear the summons. But Senior Counsel Seenath Jairam, representing the applicants, had countered with a rebuttal, and threatened to bring contempt of court proceedings against ExxonMobil (Guyana). The court of appeal subsequently ruled that it did not, in fact, have the jurisdiction to compel the EPA to produce evidence of the guarantee.
On May 3, 2023, High Court Judge Sandil Kissoon issued an order, inter alia, directing the EPA to issue ExxonMobil (Guyana) with an Enforcement Notice on or before May 9, 2023 for the company to provide, within 30 days thereof, an 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. Failing to do so, the Environmental Permit granted to the company for its operations stands suspended.
The EPA complied with that court order, but, shortly after, filed with the Court of Appeal an appeal against Justice Kissoon’s ruling, and later went to that court to request a stay of the said order, pending the hearing and determination of the appeal filed by the agency.
Then, on June 8, 2023, Appeal Court Justice Rishi Persaud stayed the order issued by Justice Kissoon for the oil company to provide an unlimited parent company guarantee. In the interim, Justice Persaud ordered ExxonMobil to lodge a US$2B guarantee in “an effort to allay any anxiety as to any impending doom”. The company has already lodged that guarantee, as required.
The High Court order has its origin in a case filed in September 2022 by Collins and Whyte, who had moved to the court to get the EPA to enforce the liability clause in the environmental permit.