Latest update April 18th, 2024 12:59 AM
Jul 19, 2021 News
Kaieteur News –
By Simone Mangal
The Environmental Impact Assessment (EIA) process for the proposed Esso Exploration and Production Guyana Limited’s (EEPGL) Gas to Energy Project is underway. I recommended in public consultations that the Environmental Protection Agency (EPA) immediately place this EIA on hold until such time that it has addressed matters that are material to its duties to protect the public as well as the Applicants’ interest. There are several unaddressed issues concerning the way the EIA process is being conducted and some issues that cannot be remedied within the unfolding EIA process. I am addressing two of the EPA’s actions, which I believe are irrational and improper. The first is the EPA’s decision to entertain EEPGL’s application and initiate the EIA process for a heavy industrial plant to be located at Wales Estate, even though the Guyana Sugar Corporation (GUYSUCO) does not presently have an environmental permit for an industrial estate at that site. The second, and the one I shall dwell on, is the EPA’s extraordinary decision to withdraw the 2020 New Rules and Procedures for Conducting and Reviewing Environmental Impact Assessments, commonly referred to as EIA guidelines.
The Planned Wales Industrial Estate
An EIA is a geographically specific creature. The results concern a specific activity in a specific location. The EEPGL has applied for an Environmental Permit to route a pipeline and place a natural gas processing plant at Wales Estate. This is currently a Greenfield site zoned for agriculture. We are told that an industrial estate will be located there which will host the planned gas processing facility, a power plant, and associated industries. An industrial estate requires an application for an Environmental Permit in its own right. The development of the proposed Wales industrial estate would most certainly require an EIA. There is no application in sight for this industrial estate, no EIA has been conducted, there is no environmental permit for an industrial estate at that site. Yet the EPA has commenced the EIA process for the gas to energy project, which involves a gas pipeline to the site and establishment of a Natural Gas Plant. I don’t know of any jurisdiction in which an Applicant or the Environmental Authority would move past the application stage for a development, without first ascertaining tenure to the proposed site and whether the type of activity applied for is permitted on that site.
The EPA’s decision to go ahead with the EEPGL’s application signals to the public that either the industrial estate’s Environmental Permit is a foregone conclusion or the EEPGL is happy to undertake a second EIA process and associated studies for a new site if an Environmental Permit is not granted for the Wales site, for one reason or another. One wonders which one of these applies. Should the public expect to be deprived of their democratic right to participate and determine the outcome of the future Wales industrial estate EIA or is EEPGL happy to engage in another EIA process if the Wales estate does not get a permit?
The Withdrawal of 2020 Rules and Procedures for the Conduct of EIAs
In 2020, the World Wildlife Fund (WWF) supported the revision of the Environmental Protection Agency’s (EPA) Environmental Impact Assessment (EIA) guidelines to address deficiencies and bring the country to international best practice standards.
One aim of this exercise was to develop Guyana’s capacity to regulate oil and gas and associated developments. The final 2020 guidelines were produced through a consultative process involving EPA’s staff members, a consultant funded by the World Wildlife Fund, and experts from the Netherlands Commission for Environmental Assessments, which was retained to review the consultant’s output and prepare the oil and gas sector specific guidelines. The EPA adopted the 2020 New Rules and Procedures for Conducting and Reviewing Environmental Impact Assessments, alerted the public that it was withdrawing the outdated 2000 ones, and published copies of the 2020 documents on its website.
Here is what the EPA had to say about the guidelines in April 2021: “the emerging oil and gas sector and potential for introduction of associated downstream industries suggests major economic opportunities…(at) “the same time present(ing) a challenge for pollution control regulators, resource managers, environmental civil society organisations, and those potentially affected by these new types of industries.” The Agency specifically explained the purpose of 2020 guidelines was to fill gaps in the 2000 guidelines: “with these gaps being filled, the EPA should now be able to assess more accurately new and complex projects and monitor and mitigate their social and environmental impacts.” The EPA indicated that the procedures of the International Finance Corporation (IFC-World Bank Group) and the Inter-American Development Bank (IDB) were considered in the preparation of the updated guidelines, which would meet international standards and best practice.
Then suddenly on June 22, 2021, just days before the EPA announced and commenced EEPGL’s EIA process, the Agency issued a notice alerting the public that the 2020 guidelines were repealed to “facilitate broader consultation on these documents” it further advised that “in the interim, the Environmental Protection Agency’s EIA Guidelines (2000)” would apply. The Agency also removed sight of the 2020 guidelines from its website rather than leaving them up in accordance with transparency best practice.
I expressed concern about the withdrawal and its timing in a virtual consultation held on July 8th but did not receive an explanation. Having noticed an interesting inclusion in EEPGL’s Project in which the company stated that it would be complying with the Environmental Protection Act of 1996 (Amended 2005), I asked representatives of EEPGL during a virtual consultation on July 15th, if they had seen the 2020 EIA guidelines and for the company’s position on their withdrawal. EEPGL’s representatives did not answer my question. EPA’s representative offered to answer stating that the guidelines were not required by law or necessary for the conduct of an EIA, and that the process being followed was adequately provided for by the 1996 Act alone.
The Environmental Protection Act 1996 (Amended 2005) Chapter 20:05 deals with projects affecting the environment. The Act did not contemplate oil and gas, as the national context was different. The Fourth Schedule of the Act, which lists projects that may require an EIA, identified hotels, guest houses, hydroelectric facilities etc. Under a 2006 Environmental Guidance for the Development, Implementation and Operation of Projects, recognizing the changing landscape, the EPA expanded the list to include ports and harbours, construction of bridges, development of industrial estates, roads and highways, petroleum processing and petrochemical plant, chemical processing plants and more.
Clearly the Agency has the authority under the 1996 Act (Amended 2005) to develop rules and procedures to animate the Act. In 2000 Per Bertilson, the then Executive Director of the EPA, commenced the development of the 2000 Rules and Procedures for the Conduct of EIAs.
These were later updated in 2004/2006. Public consultations were never held on the 2000 guidelines or their updates, nor were they deemed necessary. I am not aware of any stakeholder lodging any legitimate complaints about these rules and procedures, including the 2020 guidelines which have been in the public domain for two months.
For some twenty years, the Agency has relied on EIA guidelines and seen it fit to update them as time went by without public consultation. One wonders what was so offensive to the public interest in the 2020 EIA guidelines that the EPA felt moved to withdraw them and take the extraordinary measure to require consultations to protect the public interest. Would it not have been proper to ensure the consultations were completed and the 2020 guidelines were in place before considering the EEPGL application, which is the largest onshore energy industry investment ever in Guyana’s history? After all, is it not the very EPA that said that the 2000 had gaps that were filled by the 2020 guidelines to enable a proper EIA process according to best practice standards? In its most recent explanation of its actions, the EPA excuses its conduct by saying that guidelines do not form part of the legal requirement for an EIA. So, they had been irrelevant all along? The EPA contradicts itself at every turn and its explanations grow feebler by the day.
We cannot pretend that the EPA’s conduct with respect to the 2020 EIA Rules and Procedures is a small thing. The Agency has relied on EIA guidelines for twenty years to meet its duty to protect the public interest by ensuring a shared understanding of the EIA assessment process and criteria for decision making.
These are the only instruments in play that ensure the Agency is consistent, fair in how it treats with all EIA applications, transparent, and accountable. They protect the rights of developers and the public, including the right to appeal an EPA decision. Arbitrary decision making can only flourish in their absence.
Who wins from EPA’s withdrawal of the 2020 rules and procedures?
It cannot be the public at large.
It cannot be other private developers, as there is no longer a common set of rules to play by.
It cannot be the EPA, because its actions seriously damage its credibility in the eyes of the public, despite how dedicated or hard working its staff members may be.
It cannot be the President of the country, because the EPA reports to the Office of the President directly, and the “Minister” referred to in the EPA Act 1996 is currently none other than our President himself.
The problem he faces goes beyond questions of how the EPA functions, or his personal reputation, as democracy has two pillars, electoral and participatory.
A country and its government cannot claim to be democratic with one pillar in place but not the other. Yet, the participatory democratic process enshrined in our Constitution (Article 13), and intended in the Environmental Protection Act 1996, is being undermined by an EIA process, which appears as being rigged in plain sight.
President Ali may wish to take his eyes off celebrating electoral democracy and pay personal attention to delivering participatory democracy.
Public consultation on national industrial development plans, as well as the duty of the EPA to conduct its business in a manner that protects the public interest, desperately need his attention.
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