Environmentalist Simone Mangal-Joly has written the head of the body adjudicating appeals against Environmental Protection Agency (EPA) decisions stressing the need for fair and prejudice-free hearings of matters pertaining to the new proposed bridge over the Demerara River and an ExxonMobil oil exploration programme.
The Environmental Assessment Board (EAB), which presides over the appeals, has come under severe pressure from civil society activists over perceived bias in the conduct of its hearings and flaws in the process.
Last week, after mounting public pressure, which included correspondence from Mangal-Joly, the EAB suddenly announced that hearings of the appeals of the EPA decisions not to require Environmental Impact Assessments (EIAs) for the bridge project and a 12-well exploration and drilling in the offshore Canje Block by Exxon’s subsidiary Esso Exploration and Production Guyana Limited (EEPGL) had been put on hold until further notice. The EAB said that this was done for the EPA to provide more answers.
Following receipt of correspondence from the EAB’s Head, Omkar Lochan on October 11 notifying of the postponement of the hearing of the two appeals, Mangal-Joly wrote again to the EAB on October 16 expressing concern that the appeals board not allow the bootstrapping of the EPA’s case as it should have been available at the point that it had announced that the EIAs were not required.
Mangal-Joly pointed out that Section 11 of the EPA Act required the EPA to have already published its reasons why the EIA was not necessary and which information would then enable appellants to make their case before the EAB.
The environmentalist said that the “open-ended” extension of time to the EPA should not be taken as an opening for the EPA to “bootstrap” its case as according to law that case should have already been composed and presented to the public.
The appeals against the EPA decisions by environmentalists and other stakeholders have been seen as a key test of the functioning of the EAB and the postponement of the process has raised the stakes.
On October 11, Lochan sent two pieces of correspondence to Mangal-Joly. The first said that it was the view of the EAB that the alleged regulatory breaches by the EPA on the matter of the EIA for the Demerara River bridge could not be appealed to the EAB but via judicial review proceedings in court. Lochan also said that the hearing was intended for the appellant to present specifically how they would be affected the project and to give justifications for requiring an Environmental and Social Impact Assessment. In the second letter on the same day to Mangal-Joly, Lochan advised that the hearings in relation to the Bridge and the EEPGL programme had been put off until further notice after the EPA requested a postponement. Lochan said that the EAB deliberated on the request and “unanimously agreed to accede to the EPA’s request for postponement due to the National importance of these projects”.
Merits
Mangal-Joly in her reply of October 16 said that she fully expected the EAB to hold the hearings regarding the merits of the EPA’s decisions and not to adjudicate on whether the EPA was in breach of statutory requirements.
“However, the EPA’s breaches are consequential for the credibility of any hearing the EAB holds on the merits of the Agency’s decision, as such breaches serve to deprive Appellants and the public at large of relevant information we need to participate on a fair and equitable basis in any discussion on the merits of the EPA’s decision.
“Whereas the EPA and Applicant(s) are both in full possession of relevant information from the date of an application for an Environmental Permit, the public are entirely dependent on the EPA to provide the relevant information and its reasons when it publishes a notice indicating whether an EIA is required. It would be prejudicial if the EAB were to proceed with a hearing in any circumstance where such information is not yet forthcoming from the EPA. Fortunately, for the public and the EAB, one does not need to go to a Court of Law to establish the absence of a publication containing the information set out in plain English in Section 11 of the Environmental Protection Act”, Mangal-Joly wrote. She added, however, that both the public and the professionals who serve on the EAB have reasons to be concerned about prejudice in the EAB’s public hearings. She said that this matter has been brought the EAB’s attention on numerous occasions and cited several examples among which were: “-On September 9, 2021, at the EAB’s hearing on the waiver of an EIA requirement for Non-Destructive Testers Guyana Limited, Coverden, East Bank Demerara, Appellant Trotz drew the EAB’s attention to the fact that the EPA had not met the statutory requirements of Section 11 of the Environmental Protection Act prior to the hearing and provided reasons for its decision.
Appellant Howell specifically stated that it was unprofessional and unethical that the EAB was selecting whom to let into and keep out of the Zoom meeting. I, in fact, was not permitted in, and waited for 23 minutes only to be let in after multiple requests from the Appellants and others. At that hearing the Appellants also told the EAB that hosting a meeting at 2:00 p.m. on a workday at the EPA’s office was prejudiced against the residents of the communities affected, many of whom could not leave work to attend or participate by Zoom. This practice is particularly prejudiced against poorest members of communities who are least able to take time off wage-labour employment to attend public hearings”.
Short notice
On the postponement of the hearings of the appeals, Mangal-Joly cited a Stabroek News report of October 13 wherein the Executive Director of the EPA, Kemraj Parsram had been reported as saying that the EAB had submitted to it at very short notice questions that the appellants wanted answered.
Mangal-Joly wrote: “I find it extraordinary that the EPA was unaware of the contents of Appellants’ objection letters sent to the EAB, as these are received and processed by the EPA. Equally extraordinary, is that the EAB did not share the contents of such objections prior to setting and publishing a time for the public hearings, especially given that the EAB has deemed both projects of such `National importance’ as to grant a postponement of the hearings to give the EPA more time to prepare.
“Even if the EPA had no idea what information was contained in the Appellants’ letters, that should not be a cause for requiring more time to provide information. Section 11 of the Environmental Protection Act makes clear that the EPA’s reasons should exist at the time it renders its decision. Surely the EPA
has this information readily at its disposal and should require little time to provide it. The EAB’s very generous and open-ended extension of time to the EPA should not be taken as an opportunity for the EPA to bootstrap its case. It has already had a full two months since publishing its decisions.
I trust that the EAB will take into consideration all matters concerning fair and equitable hearings raised here and by appellants in other cases and strive for public hearings free of any form of prejudice against the public, specific appellants, and the EPA”.
She added that public hearings should afford unfettered public access and should not in principle limit any member of the public from contributing to the proceedings. She also contended that an EAB public hearing must be based on the information that was available to the EPA at the time that it made its decision.
“Permitting the EPA to bootstrap its case in between the time of its decisions and the time of the EAB’s hearings is a clear violation of the law and professional code of ethics and would make the EAB complicit in reckless and dangerous conduct when it comes to the sacred duty of safeguarding our health and country’s natural assets”, she said.
It remains unclear how much time the EPA has been given by the EAB and what exactly is to be provided by the EPA to the EAB.
