Mr. Parsram
Executive Director
The Environmental Protection Agency
Georgetown Guyana
Dear Mr. Parsam:
The EPA’s Media Release: “Clarification on misconceptions on the Yellowtail EIA Process” dated April 3, 2021, and the Agency’s ongoing media campaign provide an ugly example of public deception.
The EPA has systematically and knowingly violated the Environmental Protection Act in its handling of ExxonMobil’s local subsidiary EEPGL’s Yellowtail Project environmental assessment and permit process. Here I outline only four of those violations, which make the Yellowtail Environmental Permit invalid:
1. Failure to Disclose the Terms of Reference (TOR) for the Environmental Impact Assessment EIA): The TOR for a study specifies the obligations consultants are required to fulfill in the conduct of the study. The EPA failed to disclose the TOR for the Yellowtail EIA during the full duration of [the] statutory 60-day comment period; and failed to ensure that ExxonMobil and its consultant, Environmental Resources Management (ERM) [did] the same. The 60-day public scrutiny period started on October 15, 2021. The EPA did not disclose the TOR until December 13, 2021, two days before the close of the comment period, and long after all public meetings were held. This was done only after members of the public complained to the EAB. In his response letter to me on December 13, 2021, Mr. Lochan, the then Chair of the EAB indicated that the EAB had asked the EPA to disclose the TORs, which it subsequently posted on its website. The Agency has since told the public that it is not required under law to disclose the TOR. If it honestly believed this, why didn’t it say so back in December 2021?
Would the EPA have the public believe that after the pains the Environmental Protection Act (EP Act) goes to ensuring public input into the TOR for an EIA, the Act also preserves the Agency’s right not to disclose the TORs as part of consultations on the study?
Section 11(6) of the EPA Act requires that before an impact assessment is begun, the EPA shall publish a notice to the public with a project summary. Section (11)(7) specifically states that: “Members of the public shall have 28 days from the date of publication referred to subsection (6) to make written submissions to the agency setting out those questions and matters which they require to be answered or considered in the environmental impact assessment.” How then did the EPA reach the conclusion in its press statement that “what is important is that section 11(4) and (5) already sets out what every EIA must contain and consider?” Clearly, the mere existence of Section (11)(7) contradicts what the EPA is telling the public. The truth is that the guidance on environmental impact assessments in Sections 11(4) and 11(5) is general. Sections (11)(6) and (7) provide the necessary specificity for assessing each application through the development of Terms of Reference.
In excusing the Agency’s misconduct, the April 3 media release mentions many public meetings held above and beyond the requirements of the EP Act, but to what effect? Even if the Agency had held ten thousand meetings, these would not have negated the sabotage of the public comment period occasioned by depriving the public of the knowledge of the requirements of the TOR. Performing meetings and merely keeping up appearances do not meet legal standards of consultation. When the EPA granted the Yellowtail Permit it knew full well that none of the meetings took place before the public had sight of the TOR.
2. Failure to assess significant impacts before granting the Permit: The EPA illegally deferred the assessment of impacts to the Environmental Permit. For example, Section 1.3 of the permit specifies that: “The Permit Holder shall conduct an updated targeted marine environmental baselines studies program to develop a robust understanding of the marine environment within the area of influence (AOI) of the Yellowtail project.” Among the listed requirement is 1.3.c: “Fisheries stock assessment and impacts.”
It is well established in law that deferring the assessment of impacts defeats the whole purpose of an environmental impact assessment. This deferral is procedurally incorrect, irrational, and illegal. The EPA’s core responsibility is to assess impacts and based on the findings, determine whether a permit should be granted for an activity.
Instead, the EPA has disgracefully reneged on this responsibility to the Guyanese nation by placing the responsibility on ExxonMobil and affiliates to assess their own impacts. The Agency is openly subverting the law with this permit. In so doing, the EPA is further depriving the public of their statutory rights to participate in the development of the TOR, and the right to scrutinize an environmental impact study – activities which, in any case, rationally and by law must be done at key stages before a project is approved and a permit is granted.
3. Failure to Publish Reasons Justifying Grant of the Permit: Contrary to what the EPA has led the Guyanese public and others to believe, it failed to provide reasons justifying the granting of the permit.
Section 12(1) of the EP Act (a)(b) and (c) directs the EPA to consider: (i) Recommendations of the EAB; (ii) Views expressed during consultation under section 11(9), and (iii) The environmental impact assessment and statement in deciding on a permit. Notably, Section 12(2) compels the EPA to account for its decision: “The Agency shall publish its decision and the grounds on which it is made”.
The Agency’s published Notice of Decision on April Fool’s Day, April 1, 2022, merely parrots back the instructions of the EP Act. It says that the EAB found the environmental impact study acceptable, and: “The EPA has taken all relevant considerations into account, including the views expressed by members of the public during consultations done in accordance with section 11(9) of the Environmental Protection Act, Cap. 20:05.” These descriptions of the Agency’s perceived steps of action are not justifications for the granting of a permit as required by the Act. The EPA is required by law to identify and account for how significant impacts and public concerns were satisfactorily addressed before it granted a permit. The EPA did not comply with this requirement.
If, as the Agency’s media release of April 3 says, the EPA is “the competent authority to grant environmental permits,” the EPA must know that it is in breach of Section 12(1) of the EP Act. Surely knowledge of the law that prescribes how the Agency must conduct the public’s business is an essential criterion for competence. Perhaps the EPA [can] shed some light on its curious statement, is there another body granting environment permits in Guyana?
4. Selection of Consultants: The EPA knowingly failed to select the consultants (in this case, ERM and affiliates) according to the procedures specified in the EP Act. In its April 3 media release, the Agency appears to accord itself the right to cheat by invoking the selection of consultants on a “case by case” basis as separate and apart from the requirement of Section 3(a) of the EP Act. However, there is nothing in the Act that speaks to an alternative means through which the EPA may select qualified persons to conduct EIAs. Whether one does it on a case-by-case basis or from a pool, or whether it is a local or foreign individual or company, Section 3(a) of the Act is clear that the Agency cannot select the consultants by itself; the selection must be done “with the assistance of internationally recognized environmental groups.” This is specifically to avoid bias and underhandedness.
The EPA was aware of this requirement before selecting and short listing ERM. The Stabroek News has publicly ventilated concerns about this violation raised by professionals in the field since May 2016, and most recently as September 19, 2021 (Stabroek News: EPA in breach of Act over denial of impact surveys, list of consultants -Engineer Charles Ceres).
The EPA also received complaints about this violation during the Yellowtail public comment period and mindfully broke the law by ignoring those complaints. The Agency claims that it is in a process of shortlisting consultants according to the requirements of the Act. However, this is no remedy for the Yellowtail permit process, future efforts cannot nullify the Yellowtail illegality.
In a letter to the EAB dated December 10, 2021, I, and others, submitted that the entire statutory public comment period was miscarried, as the EPA had breached basic legal standards of an EIA consultation process. The public also orally and in writing made the Agency fully aware that: (i) ExxonMobil’s consultant, ERM, was not selected in accordance with the EP Act, and their independence as required by the Act was questionable; (ii) ERM was unable and/or unwilling to provide answers to basic questions relevant to assessing the impact of the proposed project; and (iii) there were glaring deficiencies in the study. The EAB responded to our letter on December 13, 2021, stating that it would review concerns raised and provide an update on its decision. The EAB never did this. Instead, we read in the news on April 1, 2022, that the EPA had issued the Yellowtail Permit.
Given the circumstance, the public had a legitimate expectation that both the EPA and the EAB would have addressed outstanding concerns within the statutory public consultative framework before approving the permit. The matter of whether the revised EIA meets the basic requirements of the impact study as set out in Sections 11(4) and (5) and the Terms of Reference remains moot. Further, despite all the EPA’s claims to transparency and good governance, the public still has no sight of the so-called independent review that was conducted of the EIA. This is a relevant document that ought to have been placed on the National Register as per the EP Act.
There can be no question that the environmental permit issued to EEPGL for the Yellowtail development is illegal and invalid. Considering the blatant illegalities in the process, I request that the EPA cancels the Permit and restart the environmental impact assessment process in line with the Environmental Protection Act.
Yours sincerely,
Simone Mangal-Joly
cc. Environmental Assessment Board
