ExxonMobil’s subsidiary, Esso added as party to case challenging emission of greenhouse gases

Esso Exploration and Production (Guyana) Limited (Esso), a subsidiary of ExxonMobil was on Monday added as a party to a case filed by University of Guyana lecturer Dr. Troy Thomas and Quadad De Freitas over ExxonMobil’s emission of greenhouse gases in the Liza Phase 1 Development Project offshore Guyana.

Dr. Thomas and De Freitas are alleging that their constitutional rights to a safe and healthy environment have been contravened by the Government entering into several petroleum agreements with Esso Exploration and Production (Guyana) Limited and its parent company.

The case was initially filed back in May 2021 against ExxonMobil.

Esso – as a party that had a very substantial interest in the subject of the proceedings and its outcome – filed an application to be added to the litigation as a party in order to oppose the making of the orders requested by Dr. Thomas and De Freitas (the applicants).

Through their lawyers, Ronald Burch-Smith and Melinda Janki, Dr. Thomas and De Freitas opposed

Esso’s application as they contended that Esso’s presence before the Court was unnecessary.

The applicants, however, did concede that if Esso was to participate in limited scope the Court had the discretion to allow this.  Justice Franklyn Holder heard arguments in the matter and then ruled that Esso ought properly to be added as it had a material interest in the proceeding and its outcome.

Justice holder then fixed timelines for documents to be filed by the respective parties in support of the case. The matter will be called again in June 2022 for case management at the Demerara High Court.

Attorney-General Anil Nandlall, SC,  and State Counsel Chevy Devonish appeared on behalf of the State, while Andrew Pollard, SC, Edward Luckhoo, SC, and Miss E. Luckhoo appeared for Esso.

Dr. Thomas, Dean of the Faculty of Natural Sciences at the University of Guyana, and De Freitas have taken the State to court over ExxonMobil’s emission of greenhouse gases in the Liza Phase 1 Development Project offshore Guyana. The Attorney General is listed as the lone respondent in the matter.

In their application for redress under the Constitution of Guyana, Dr. Thomas and De Freitas contend that their fundamental rights as guaranteed by Articles 40 and 149(J) have been contravened as a result of the release of such gases into the atmosphere.

In court documents seen by this publication, Dr. Thomas and De Freitas said that Esso Exploration and Production Guyana Ltd., a subsidiary of ExxonMobil, is producing oil in the Liza Phase 1 Development Project approximately 120 miles offshore in Guyana’s Exclusive Economic Zone (EEZ) and is emitting greenhouse gases that would not otherwise have been emitted.

They said that the country’s petroleum reserves will emit billions of tonnes of greenhouse gases in the future if those petroleum resources are extracted and burned for energy.

By authorising, allowing, permitting, and enabling the production of petroleum from projects in the EEZ, Dr. Thomas and De Freitas argue that the State is facilitating the emission of substantial quantities of greenhouse gases, thereby significantly exacerbating and/or contributing to climate change, ocean acidification, and rising sea-levels and making the environment more harmful to health and wellbeing.

Article 149(J) of the Constitution states that:(1) Everyone has the right to an environment that is not harmful to his or her health or well-being. (2) The State shall protect the environment, for the benefit of present and future generations, through reasonable legislative and other measures designed to (a) prevent pollution and ecological degradation; (b) promote conservation, and secure sustainable development and use of natural resources while promoting justifiable economic and social development.

According to them, Article 149J(1) of the Constitution imposes upon the State an obligation to respect the environment, which requires the State to refrain from interfering with or causing damage to the environment; and an obligation to protect or guarantee the health of the environment.

“Where the State directly or indirectly interferes with the right under Article 149J(1), this will entail a violation of its obligation to respect the environment. The State will violate Article 149J(2) where it fails to take action required by law or where it has failed to take reasonable measures to prevent harm to the environment,” the applicants argue.

Added to the foregoing, they submit that the State and all State agencies must be guided by Articles 36 and 38B of the Constitution and applicable principles of international law pursuant to Article 39(2) of the Constitution in carrying out any of their functions.

According to them, Guyana is a signatory to the United Nations Framework Convention on Climate Change which has as an objective to the stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.

Moreover, they said that Guyana is also a signatory to the Paris Agreement which aims to restrict the increase in global temperature to no more than 1.5°C above pre-industrial levels. “The State’s Nationally Determined Contribution of 2015 submitted by the State under the Paris Agreement states that Guyana will pursue a low carbon development path,” the duo added.

Dr. Thomas and De Freitas pointed out that the Government has warned that climate change is an existential threat, that the adverse and potentially catastrophic effects of climate change are already affecting Guyana, that climate change is getting worse, and that Guyana is particularly vulnerable to the impacts of climate change and rising sea-level.

“Climate change, rising sea level, and ocean acidification threaten Guyana’s environment, agriculture, and fisheries, increase the risk of transmission of diseases such as malaria and dengue, and put at risk the capital city and coastal areas. Climate change and ocean acidification are harmful to human health and wellbeing. Existing emissions have long-term impacts that will affect children and future generations disproportionately.”

In light of all the above, Dr. Thomas and De Freitas aver that the State’s acts in facilitating the direct emissions from the projects individually and cumulatively are contrary to the State’s NDC and the Pans Agreement, and make the environment more harmful to human health and/or well-being and violate Article 149(1) of the Constitution.

Among other things, they are asking the High Court for a declaration that the direct emission of 22,030,000 tonnes of greenhouse gases from petroleum operations in the Liza Phase 1 development project would make the environment more harmful to the health and wellbeing of citizens and future generations by significantly exacerbating and/or contributing to climate change, ocean acidification, and rising sea-levels and as such would amount to a violation of Article 149J(1).