EPA issues enforcement notice to Esso as lawyers argue to reverse High Court judgement
By Kurt Campbell
Guyana’s Environmental Protection Agency (EPA) has issued an Enforcement Notice directing ExxonMobil’s local subsidiary to provide unlimited liability parent guarantee for its operations in the Stabroek Block.
The notice is in keeping with a recent landmark ruling by High Court Judge Sandil Kissoon against EEPGL (Esso Exploration and Production Guyana Limited) which is the local subsidiary of ExxonMobil.
The issuance of the notice was confirmed by attorney Sanjeev Datadin who is representing the EPA in the ongoing appeal proceedings.
But even though the notice was issued in keeping with the 30 days stipulation, the EPA and EEPGL are both seeking to have the decision overturned.
During oral arguments before Appeal Court Judge Rishi Persaud on Wednesday, Datadin and attorney Edward Luckhoo, SC, who is representing Esso, advanced feisty arguments and were sure of success in the appeal.
“It is inevitable that this appeal will succeed, I wouldn’t even go to good prospects,” Luckhoo said.
And in a similar energetic manner, Senior Counsel Seenauth Jairam, who is representing the respondents, said the Appeal Court should refuse to hear the EPA and EEPGL in the proceedings.
“They have not shown by evidence that in complying with the order they will be ruined… not that I’m conceding at all but let us set aside the insurance… this permit should have already been cancelled, there is a self-contained formula for cancellation,” Jairam said in response to arguments put forward by Datadin.
Datadin said the matter amounted to a simple issue of interpretation, noting that both the environmental permit and the Act make reference to a fixed sum and as such, the ruling was in conflict by imposing unlimited insurance on Exxon, its parents and affiliates.
“The Court is in error when it arrived at the term of unlimited… nowhere in the permit or the Act the word unlimited exist.
“It came about from a misunderstanding and misinterpretation and now the Court is saying unlimited,” Datadin argued.
She also rejected the court’s instruction that the permit should be cancelled if the order is not complied with, noting that there are already established procedures for noncompliance.
“The court has usurped the functions of the EPA under the Act… the court is overreaching… by applying incorrect interpretation in a manner it seeks to replace the EPA with a court and is now performing the functions of a statutory body,” Datadin said, calling it a breach of public law principles.
Datadin was for the most part supported in his arguments by Luckoo who went further to demonstrate the merit in the appeal and prospects of success.
And in so doing, Luckhoo maintained that the ruling offered a flawed interpretation of the permit and the law.
“The judge made an interpretation in the face and contrary to the clear wording of the permit,” Luckhoo said with a strong focus on section 14.3 of the permit which reads: “The forms of financial assurance shall be guided by an estimate of the sum of reasonably credible cost expenses and liabilities so an estimate should be used.”
Jairam, on behalf of the respondents, was concerned that the EPA and Esso had not applied for an extension of time to enforce the judgement but rather were seeking a stay and ultimately an appeal.
He accused them of cherry-picking section 14 of the permit with 17 sub-sections.
“We say with respect that Esso is carrying on oil exploration without complying with 14 as a whole… they have to read the entirety of condition 14,” he told the court.
Jairam questioned the refusal to comply, noting that the unlimited parent insurance guarantee does not cost a penny just is only in place to show that the operations can if called upon to clean up and restore the environment to its pristine form after any incidents.
“They (EPA) should not be heard at al… I don’t make the point lightly… they are in contempt and ought not to be heard,” he said, proffering that the notice was not issued.
He called the appeal an attempt to deprive the successful litigant of the fruits of the judgement.
“They have not shown that a refusal to grant the stay will cause ruin…. It is the cost of doing business,” he said.
The Court of Appeal goes into recess for one week from tomorrow but Justice Persaud has promised to provide a date for his ruling by next week.