Appellate Court Judge, Justice Rishi Persaud on Thursday issued a stay of execution on a High Court order for ExxonMobil and partners to provide an unlimited parent and/or affiliate company guarantee for oil spills at the Liza Phase One Project in the Stabroek Block.
The order was initially issued by High Court Judge, Justice Sandil Kissoon on May 3,. 2023. He had ordered the Exxon-led consortium in the block to provide an unlimited company guarantee by June 10 or face the suspension of its permit. That decision was handed down following a case filed by two citizens last year September.
The Environmental Protection Agency and ExxonMobil’s subsidiary, Esso Exploration subsequently appealed the case, a portion of which was ruled on today.
Both parties asked for a stay of the order given that it could have devastating economic consequences if left unchecked.
In his preliminary review of the grounds before him, Justice Persaud said the EPA can be considered an expert body on matters of financial assurances which ought to have promoted judicial restraint. Justice Persaud also considered that the EPA Act calls for there to be an estimate to guide any financial assurance provided for a project.
He said therefore that Justice Kissoon’s order for unlimited coverage may have coerced the EPA to perform an act which is not within the parameters of its governing legislation. Justice Persaud said too that the order seems to have dispensed with the carefully crafted procedural requirements and discretion contained in the EPA’s law.
While the Judicial Review Act does gives wide powers to a judge, Justice Persaud said, “I doubt that its intention was to facilitate the substitution of his or her discretion to that of an expert body and to empower that judge to compel an act that falls outside of the spoken ambit of the legislation which is under consideration.”
In the interest of justice, the judge said he considered critical elements of the affidavit deposed by Alistair Routledge, Head of EEPGL which “paints a damning picture” of the economic losses if the stay is not granted.
After granting a stay of execution, Justice Persaud ordered that a US$2B parent guarantee be lodged in 10 days “in an effort to alleviate any anxiety of impending doom”
Failure to do so would see his stay being undone.
The next court date has not been set but Counsel for the EPA, Sanjeev Datadin assured that steps for an urgent hearing before the Full Bench would be initiated.
Datain also expressed his contentment with the interim stay, adding that in his respectful view, an order for unlimited parent guarantee was tantamount to reaching into the realm of the impossible.
