Oil and the Environment
The title of this week’s column is borrowed from a presentation by Annette Arjoon-Martins, Mr. Anand Goolsarran and Ms. Melinda Janki held at Moray House last evening. Annette is of course particularly known for her work with the community in Region One at Shell Beach in protecting marine turtles. Goolsarran is a former Auditor General of Guyana who also served the United Nations in Sierra Leone and Afghanistan, which probably required as much of a skill in auditing as in dodging bullets. Melinda Janki is an attorney-at-law specialising in international environmental law and indigenous and human rights who has also worked for a number of international oil companies.
Not surprisingly, there was much discussion on the environmental permit issued by the Environmental Protection Agency to Esso Exploration & Production Guyana Limited (ExxonMobil) which should see the oil giant and its two JV partners begin to pump oil in 2020. Melinda Janki was adamant that given the weaknesses identified in the documents submitted by ExxonMobil for the issue of an Environmental Permit, the permit that has been issued should be revoked. The documentation comprises an Environmental Impact Assessment, Technical Appendices, Environmental and Socio-Economic Management Plan and Oil Spill Response Plan. Citing statistics and information contained in the documents, Ms. Janki is convinced that a case can be made for the Environmental Permit to be set aside by the Court!
The challenge for all Guyanese is that there has not been enough meaningful consultation with the fault lying with the Government, the oil companies and members of the public, including those who are expected to be better informed. Ever since ExxonMobil announced the first oil find in 2015, it was always a race to 2020, which coincidentally is the year when elections are next due. The documentation runs to nearly two thousand pages and clearly requires experts to break it down for the lay person. How else can their rights and that of their organisations to participate in the management and decision-making processes of the State that directly affect their well-being have any meaning?
Constitutional protection of the environment
As the following extracts show, the Constitution of Guyana places great store on the environment, from Preamble to fundamental rights. The Preamble, which is the equivalent to a company’s vision statement, acknowledges the aspirations of our young people to live in a safe society which ensures a healthy environment while in Chapter II, Article 25 imposes a duty on every citizen to participate in activities designed to improve the environment and protect the health of the nation. And Article 36 recognises that the well-being of the nation depends upon preserving clean air, fertile soils, pure water and the rich diversity of plants, animals and eco-systems.
It get more interesting however as there can be no doubt that the Fundamental Rights and Freedoms Article 40 provides that “Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, ignorance and want. That right includes the fundamental rights and freedoms of the individual.”
The lacuna that Article 25 imposed on every citizen to participate in activities to improve the environment but no similar duty on the State was doubly fixed by the insertion of Article 149J not only unambiguously recognising the right of everyone to an environment that is not harmful to his or her health or well-being, but also the imposition of a duty on the State to “protect the environment, for the benefit of present and future generations, through reasonable legislative and other measures designed, among other things, to:
prevent pollution and ecological degradation;
promote conservation; and
secure sustainable development and use of natural resources while promoting justifiable economic and social development….”
There does however seem to be some anomaly as only citizens and the State have duties in respect of the environment while every person has a right to a proper environment. In so far as oil exploration and production is concerned, Article 28 of the Model Petroleum Contract which deals with the protection of the Environment offers some measure of balance, albeit indirectly. Here are some extracts from the Article:
28.1 … the Contractor is required to obtain an environmental authorisation from the Environmental Protection Agency and comply with the provisions of that EPA Act 1996;
28.2 … precludes the Contractor from initiating any … activity on those areas outside (that) which the EPA determines to be sensitive or protected.
28.3 … requires the Contractor to take necessary and adequate precautions … against pollution and for the protection of the environment and the living resources of the sea.
Oddly, Article 28.4 requires a Contractor who fails to comply with 28.1 to take all reasonable measures … to remedy environmental failures and their effects and to treat or disperse pollution in an environmentally acceptable manner. The suggestion here is that such a duty only applies where there is a failure to comply with 28.1. That seems crazy!
28.5 requires the contractor to notify the Minister forthwith in the event of any emergency or accident … and to take such action as may be prudent and necessary … in such circumstances.
Another piece of craziness is contained in 28.6 which provides that if the Contractor fails to act to control or clean up any pollution under 28.3 within a reasonable period specified by the Minister, the Minister may take any actions which are in accordance with good international petroleum industry practice. Now, can someone say where the Minister is going to have or to find such resources?
Like in so many areas in the regulatory framework for the sector, the environmental protection clauses of the petroleum regime are woefully lacking. Is first oil in 2020 worth such risk?