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The Honorable Chief Justice’s Ruling on this unlimited flaring infliction upon Guyana by Exxon and the Govt is no doubt gravely puzzling and a travesty of justice against the people of Guyana. Exxon once again, has been given the green light to ruthlessly exploit our god given wealth, while filling its pockets at the unmerciful expence of the health, safety, environment and wellbeing of our people and future generations.
I am sure I speak for most in saying that I am always very respectful of the judiciary and its decisions, but not to the extent when such consequential decisions as this one clearly defies science, logic and common sense.
I can go on all day about the flaws in the honorable judge’s decision, but limited by time to do so; so, will address a few of the highly questionable bases of her decision.
- This case is about the litigants asking the court to stop the indiscriminate dangerous flaring of unlimited quantities of toxic produced gas into the atmosphere by adjudicating that the Government’s modification of the EPA permit to allow for such reckless flaring, is illegal.
- Coalition’s permit guided by the EIA and international standards enshrined that all produced gas must be re-injected and so prohibited from being flared except for emergency, maintenance and startup.
- Exxon fully understood this and committed to it from day one, but was caught in a bind when their equipment didn’t work, and so conspired with the PPPC to get out of this bind by changing the rules which they couldn’t do under the coalition.
- Upon initial startup under the coalition in December 2019, when the equipment failed, they begged for a 30-day and then a 60-day time period to fix the problem, but when that period expired without a resolution, was forced to reduce production until it was fixed.
- After the coalition left government, the EPA callously added a clause which was undoubtedly written by Exxon to allow unlimited flaring when the equipment is not working and this is what the judge has gone along with for a fine that is less than 5% of what Exxon makes by not cutting back production to stop the flaring – absolutely senceless and injudicious!
- This is like having sand trucks owners paying a small fee to drive around without brakes, lights and proper tires endangering the public.
- In her own words, the Judge seems to have believed everything proffered by Exxon as facts and everything proffered by the litigants as “opinions”.
- The Judge acclaims that the evidence proffered by the litigants was “confusingly expressed” and ultimately “difficult to follow”. I don’t think anyone with an unbiased mind, upon reading the evidence provided by the litigants, would ever arrive at such a conclusion. The evidence proffered by Attorney Melinda Janki on behalf of the litigants is crystal clear, and no one else on this planet could have been better positioned to deliver that evidence than Melinda Janki; since she was a key author of the EPA Act and hence, knows the intent of the language better than anyone. Besides, Ms. Janki is an internationally accomplished Attorney, so to suggest that she is incapable of explaining herself clearly on a subject which she knows as good as anyone, is too hard to swallow.
- The Judge states that while EPA did not respond to allegations about pollution fee, ExxonMobil’s country Manager produced evidence of comparative flaring fee for other countries including the European Union and Central and South America.
- Though the laws and practices of other countries are worthwhile information, it is inexplicable that the judge would arbitrarily use this information from these particular countries provided by Exxon as the single basis for making it our laws; while at the same time not even inquiring about the laws and practices of the USA, the home country of Exxon, where the standard is a mere 48 hours of flaring startup which was adopted by the EPA under the coalition. The modified permit in question and this judgement have increased this 48-hr limit to an unlimited quantity with a small fee which is a mere 5% of the revenues obtained in lieu of not flaring.
- Besides, according to the judge, if someone brings a case about legalizing marijuana arguing that other countries such as the Netherlands and states in the US have legalized marijuana, would she use that as the only basis for informing her decision?
- How about someone bringing a case that women should cover their faces because the law allows it in certain middle east countries? will she rule in their favor?
- The Judge unbelievably says that there is no evidence that the 20+ billion cubic feet of gas already flared would have any additional adverse effects and the fee based upon the PPP is in recognition of some adverse effects.
- Besides defying the established science, one has to be hiding under a rock to say that 20+ bscf is not harmful to the environment.
- Haven’t the Judge heard about climate change and the energy policies developed globally to cut back on gas emissions that effects climate change?
- Similarly, doesn’t the honorable Judge know that all of the major oil companies including Exxon have accepted that gas emissions are harmful to the environment and committed to cut back on such emissions?
- The judge believes Mr. Routledge when he says that the fee is a disincentive and doubts the litigants when they say that it is an incentive to flare, though there is numerical evidence to support their aver. How could it be a disincentive when the paltry fee is less than 5% of what they would forego by cutting production to eliminate flaring.
- The Judge clearly shows her total lack of knowledge of what polluter pays principle (PPP) means and the wording of the EPA Act which was explained by Ms. Janki, the expert on the EPA Act. She erroneously believes that PPP is the same as Pay to Pollute
- The PPP is for cleanup after the fact and not to pay for pollution while you operate, for it would be flying in the face of the fundamental principle of environmental protection to pay to pollute. In such as case there won’t be a need for an EPA, for all that would be required is for a unit fee to be set and let the developer pay to pollute as much as they can afford. This could be easily handled by the Ministry of Finance.
- The PPP was developed in the 1970’s in the USA while developing environmental regulations when it was discovered that there were an abundance of abandoned hazardous sites without identified owners for their cleanup; hence the superfund program was born.
Therefore, again, the PPP was in all respect developed for cleanup of already damaged sites and not as a pay to pollute program to have developers pollute as much as they please as long as they can afford to pay the meager fees and make big profits from it – a definite incentive to pollute!
Additionally: EPA Nefarious Secret changing Payara Permit on 6/30/23 without public notification:
- Payara Permit was prepared under the coalition but now being changed in secret to eliminate some major environmental guardrails including:
- Reversing the stopping the dumping of toxic produced water into our ocean
- Tripling the Coalition’s mobilization time from 3 days to 9 days for the capping stack to get to the FPSO in the case of a well blow-out
- Increased flaring at start-up from 48 hours to 60 days – 30-fold increase
Call upon the media to ask the question why this major decision of such grave consequences to modify the Permit was done on June 30, 2023, without adhering to the normal process of notification in the newspapers seeking inputs from the public.
END