By Vishani Ragobeer
As the appeal to the landmark High Court ruling ordering ExxonMobil’s Guyana subsidiary to provide an unlimited liability parent guarantee for its operations in the Stabroek Block continues, Attorney General, Anil Nandlall, SC, is arguing that the State should be added to the proceedings.
Nandlall, during a hearing in the Appeal Court on Thursday, argued that the State has a considerable interest in the case since the decision handed down already and future decisions are of national importance.
In fact, the Attorney General contended that his interest – on behalf of the State – is as great as any other party in the proceedings. As such, he said arguments against his application for leave to enter the proceedings were flawed.
As he gave reasons to support his argument, Nandlall pointed out that Guyana’s Environmental Act references the State when addressing the substantive matter of the insurance guarantee.
Because the law says the financial assurances must be made to the State and not the EPA, the Attorney General said this demonstrates, at least in part, the interest the State holds in this case.
Justice Dawn Gregory, however, questioned whether the Attorney General would be able to balance the competing interests emanating out of the case.
The applicants (Frederick Collins and Godfrey Whyte) are interested in the environmental ramifications of the company’s actions without the parent guarantee in place; the company interests are financial and economic in nature.
Nandlall acknowledged that the State is concerned with the protection of the environment and the economic benefits that can be accrued from oil production. He, however, assured the Court that his presence would represent the government’s balanced approach to safeguarding both interests.
“My presence here will only add to assist the Court.
“I am not a contentious litigant. My role is to provide whatever insight the State has as an interested party,” the Attorney General said.
Senior Counsel, Seenauth Jairam, who is representing Collins and Whyte, said the AG should not be added to the proceedings. Doing so, he said, may delay the important proceedings.
He also stated that the arguments that could be advanced by the Attorney General may already be covered by the Environmental Protection Agency (EPA) and the subsidiary.
Esso Exploration and Production Guyana Limited (EEPGL) is the local subsidiary which, since 2019, has been producing oil in the prolific Stabroek Block offshore Guyana.
Guyanese citizens, Collins and Whyte, however, filed proceedings arguing that the EPA failed to enforce the insurance requirements of its own permits issued to the company.
Both the EPA and EEPGL were the respondents in the case before the High Court.
High Court Judge, Sandil Kissoon agreed with the citizens’ arguments and in May, ordered the EPA to issue an Enforcement Notice directing the company to provide an unlimited liability parent guarantee for its subsidiary’s operations in the Stabroek Block within 30 days.
The appeal was filed soon after and in June, Appeal Court Judge Rishi Persaud paused the High Court’s earlier order that ExxonMobil and its partners must provide an unlimited guarantee to cover potential oil spills.
The Appeal Court Judge allowed the stay but also instructed EEPGL to lodge, within 10 days, a US$2 billion guarantee. EEPGL lodged this guarantee the day after the stay was granted.
As the appeal to the High Court ruling is ongoing, the State is seeking to enter the proceedings.
Sanjeev Datadin, who represents the EPA, and Edward Luckhoo, SC, who is representing EEPGL expressed no objections to the Attorney General joining the proceedings.
Both Datadin and Luckhoo pointed out that Guyana’s Judicial Review law states that any party with an interest in a decision that is the subject of a judicial review may apply to the court to be added.
Since the substantive case involves a matter of national importance, Luckhoo reasoned that the Attorney General, as the constitutional representative of the government, clearly has an interest in the case.
