Legal challenge to halt oil production: High Court grants Esso’s request to join case despite opposition by applicants

A case filed by University of Guyana (UG) lecturer Dr Troy Thomas and Quadad De Freitas to halt ExxonMobil’s emission of millions of tonnes of greenhouse gases in its offshore operations here continued on Monday before Justice Franklin Holder at the Demerara High Court. The case was filed in May.

Esso Exploration and Production (Guyana) Limited (Esso), a subsidiary of ExxonMobil, which has a very substantial interest in the subject of the proceedings and its outcome, applied to be added to the litigation as a party to oppose the making of the orders requested by Dr Thomas and De Freitas (the applicants).
The applicants, through their Counsel Ronald Burch-Smith and Melinda Janki, had opposed Esso’s application on the basis that its presence before the Court was not necessary, but conceded that if the company was to participate in a limited scope, the Court has the discretion to allow it.
Following brief arguments, Justice Holder ruled that Esso ought properly to be added, as it had a material interest in the proceeding and its outcome. The Justice then fixed timelines for the respective parties to file submissions in support of their case. The matter has been adjourned to June 2022 for case management.
Appearing on behalf of the State was Attorney General Anil Nandall, SC and State Counsel Chevy Devonish. Andrew Pollard, SC, Edward Luckhoo, SC, and Eleanor Luckhoo appeared for Esso.

Thomas and De Freitas, two Guyanese, have moved to the High Court over what they claim is the State’s failure to curb climate change.
They are alleging that their constitutional rights to a safe and healthy environment have been contravened by the Government entering into several petroleum agreements with Esso and its parent company.
In the proceedings brought against the Government, represented by its Attorney General, Dr Thomas, the Dean of UG’s Faculty of Natural Sciences, and De Freitas are seeking redress under Article 153 of the Constitution of Guyana.
Together, they have accused the State of violating their constitutional right to an environment that is not harmful to their well-being, as guaranteed by Article 149(J) of the Constitution.
They have taken issue with ExxonMobil’s emission of 22,030,000 tonnes of greenhouse gases in the Liza Phase 1 Development Project and 34,545,000 tonnes of greenhouse gases in the Liza 2 Development Project offshore Guyana.
According to them, ExxonMobil is producing oil in the Liza Phase 1 Development Project approximately 120 miles offshore in Guyana’s Exclusive
Economic Zone (EEZ).

The Development Projects, they added, are emitting greenhouse gases that would not otherwise have been emitted, and the country’s petroleum reserves will emit billions of tonnes of greenhouse gases in the future if those petroleum resources are extracted and burned for energy.
Considering this, the applicants submit, “By authorising, allowing, permitting, and enabling the production of petroleum from projects in the EEZ, the State is facilitating the emission of substantial quantities of greenhouse gases, thereby significantly exacerbating and/or contributing to climate change, ocean acidification, and rising sea levels, and making the environment more harmful to health and wellbeing.”
Pursuant to Article 149(J)(1) and Article 149(J)(2)(a) and (b) of the Constitution, Dr. Thomas and De Freitas contend that the State is obligated to respect the environment, which requires it to refrain from interfering with, or causing damage to, the environment. They contend, too, that the State also has an obligation to protect or guarantee the health of the environment.
According to them, “Where the State directly or indirectly interferes with the right under Article 149 J (1), this will entail a violation of its obligation to respect the environment. The State will violate Article 149 J (2) when it fails to take action required by law or where it has failed to take reasonable measures to prevent harm to the environment.”
Dr. Thomas deposes that he and his family have observed and have been affected by increased flooding in Wakenaam and Georgetown. De Freitas, on the other hand, said his family members are ranchers, ecotourism operators, and conservationists who depend on the environment for their livelihoods.
Moreover, they stated that climate change, rising sea level, and ocean acidification threaten Guyana’s environment, agriculture, and fisheries, increase the risk of transmission of diseases such as malaria and dengue, and put at risk the capital city and coastal areas. On this note, they submitted that climate change and ocean acidification are harmful to human health and wellbeing, and that existing emissions have long-term impacts that will affect children and future generations disproportionately.
Having regard to the foregoing, they argue that the “State’s acts in facilitating the direct emissions from the projects individually and cumulatively are contrary to the State’s NDC and the Pans Agreement, and make the environment more harmful to human health and/or well-being and violate Article 149(1).”
In the circumstances, Dr. Thomas and De Freitas have moved to the High Court seeking several declarations against ExxonMobil, costs, and any such or further orders the court deems just.
Among them is a declaration that the direct emission of 22,030,000 tonnes and 34,545,000 tonnes of greenhouse gases from petroleum operations offshore would make the environment more harmful to the health and wellbeing of citizens and future generations by significantly exacerbating and/or contributing to climate change, ocean acidification, and rising sea-levels, and as such would amount to a violation of Article 149 J (1) of the Constitution.
They are also asking the court to declare that the State’s duty under Article 149 J (2) to take reasonable measures to protect the environment for present and future generations require the State to take into account the direct and indirect greenhouse gas emissions to be emitted by a proposed project before approving, licensing or permitting any proposed project that may have a significant effect on the environment.
Dr Thomas and De Freitas have said they filed the application on their own behalf and in the public interest. (G1)