Liza 1 Project “flaring” case Evidence was “confusingly expressed”; applicants cherry-picked clauses – CJ

…ordered to pay EPA $150,000 in costs

Acting Chief Justice Roxane George, SC, on Tuesday dismissed the case brought by Sinikka Henry, Sherlina Nageer and Andriska Thorington (the applicants) in which they claimed the Environmental Protection Agency (EPA) broke the law when it decided to change the environmental permit issued for the Liza 1 Petroleum Development Project.
That permit was issued on May 15, 2021 to ExxonMobil (Guyana) Limited.
Additionally, they claimed the EPA’s decision to impose a fee of US$30 per tonne of carbon dioxide equivalents released as specified in the amended permit violated the polluter pays principle.
In responding to the claims, the EPA had 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, EPA submitted. Recognising this gap, the EPA said, it decided 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) 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).
The applicants, however, argued that the EPA’s decision was out of step with the Act, and would effectively “give rise to 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.

Lack of evidence
In dismissing the applicants’ case, Justice George, among other things, said the evidence they presented was “confusingly expressed”, and consisted of a lot of opinions either advanced by them or stated to have been advised by their lawyers, Melinda Janki, Seenath Jairam SC, and Ronald Burch-Smith.
According to her, the applicants cherry-picked 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,” noted the Chief Justice in her ruling.
In reviewing the facts and the evidence before her, Justice George recalled that during the course of the proceedings, the applicants abandoned several requested reliefs for lack of evidential bases. The Chief Justice also took note of the fact that, for the remaining reliefs requested, the applicants had adduced no evidence to substantiate same.
For instance, in paragraph 27 of her judgement, she noted, “There is no evidence that the modified EP [Environmental Permit] will cause additional adverse effects outside of the first applicant’s opinion in this regard”.
Moreover, at paragraph 48, the court clarified that “[t]he fact is that the EP [Environmental Protection] 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…”
Consequently, the Chief Justice made the following conclusions: That the EPA’s act of issuing the modified environmental permit has not breached the Environmental Protection Act and the Regulations, nor has it been proven that the issuance of the said permit gave rise to, or has given rise to, an additional adverse effect on the environment.
That there is nothing in the law that prevents the issuance of a modified environmental permit; and that in this case, nothing on the facts rendered the issuance of the modified permit unlawful.
She also held that EPA’s implementation of the polluter pays principle in the modified environmental permit is in compliance with Section 4 (4) (a) of the Environmental Protection Act.
As such, the application was dismissed, and the applicants have been ordered to pay $150,000 in costs to the EPA on or before November 3. No order as to costs was made in favour of ExxonMobil (Guyana), in keeping with the terms of the order that permitted the company to be added as a party.
Given her findings, the Chief Justice noted that this application should have been dismissed when it became clear that the applicants were not pursuing most of their claims, and/or had no evidential basis to support them all in relation to a purely academic point.
The EPA’s in-house attorneys, Frances Carryl, Shareefah Parks, and Niomi Alsopp, represented the EPA.
Edward Luckhoo, SC; Andrew Pollard, SC, and Gina Macedo-Singh represented the oil company.

EPA commits
Reacting to the court’s ruling, the EPA expressed, “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.”
The Liza Phase 1 development is approximately 190 kilometres offshore Guyana in water depths of 1,500 – 1,900 metres. The project includes a floating, production, storage and offloading (FPSO) vessel, which is currently producing more than 120,000 barrels of oil per day, with a storage capacity of up to 1.6 million barrels.
There are four drill centres, with 17 wells in total; eight oil-producing wells, six water injection wells, and three gas reinjection wells. (G1)