Environmental Law

Environmental protection and liability in the Oil and Gas industry in Guyana

Disclaimer

The following is not intended to be a comprehensive review of criminal and civil liability under the act neither is it intended to be relied upon for the purpose of rendering legal advice.
It is not intended as a substitute for consultation with your Attorneys at law.

Environmental Protection

The regime which governs protection of the environment in the Oil and Gas industry is set out under the Environmental Protection Act 1996 also described as Chapter 20:05 of the Laws of Guyana.
Environmental Protection Act chapter 20:05 (1996) of the laws of Guyana created and established the EPA.
Section 3. (1)” There is hereby established the Environmental Protection Agency which shall be a body corporate governed by a Board of Directors.

Functions of the EPA

(1) The functions of the Agency are—

(a) to take such steps as are necessary for the effective management of the natural environment so as to ensure conservation, protection, and sustainable use of its natural resources;
(b) to promote the participation of members of the public in the process of integrating environmental concerns in planning for developmenton a sustainable basis;
(c) to co-ordinate the environmental management activities of all persons, organisations and agencies;
(d) to establish, monitor and enforce environmental regulations;
(e) to prevent or c(g) to ensure that any developmental activity which may cause an adverse effect on the natural environment be assessed before such activity is commenced and that such adverse effect be taken into account in deciding whether or not such activity should be authorised;
(h) to co-ordinate and maintain a programme for the conservation of biological diversity and its sustainable use;
ontrol environmental pollution;
(f) to co-ordinate an integrated coastal zone management programme;
(i) to co-ordinate the establishment and maintenance of a national parks and protected area system and a wildlife protection management programme;

Functions of the EPA

(j) to promote and encourage a better understanding and appreciation of the natural environment and its role in social and economic development;
(k) to establish and co-ordinate institutional linkages locally, nationally, regionally and internationally;
(l) to play a co-ordinating role in the preparation and implementation of cross-sectoralprogrammes of environmental contents;
(m) to advise the Minister on the criteria and thresholds of activity for specifying what may amount to a significant effect on the environment;
(n) to advise the Minister on matters of general policy relating to the protection, conservation and care of the environment
(o) to perform such other functions pertaining to the protection of the environment as may be assigned to it by the Minister by or under this Act or any other law.

Prevention and control of pollution.Criminal liability

(1) A person shall not—
(a) undertake an activity that causes or is likely to cause pollution of the environment unless the person takes all reasonable and practicable measures to prevent or minimise any resulting adverse effect;
(b) discharge or cause or permit the entry into the environment, of any contaminant in any amount, concentration or level in excess of that prescribed by the regulations or stipulated by any environmental authorisation.
19 (2) (a) Any person who contravenes subsection (l)(a) shall be guilty of an offence and shall be liable to the penalties prescribed under paragraph (f) of the Fifth Schedule,
(b) Any person who contravenes subsection (l)(b) shall be guilty of an offence and shall be liable to the penalties prescribed under paragraph (e) of the Fifth Schedule.

Prevention and control of pollution

19 (3) Where subsection (1) is contravened the person responsible for the contaminant or for the process involving the contaminant or who causes or permits a discharge in contravention of subsection (1) shall—
(a) immediately notify the Agency of—
(i) the discharge;
(ii) the concentration and amount of contaminant;
(iii) the circumstances of the Discharge; (iv) what action the person has taken or intends to take to restore the natural environment; and
19 (3) (b) subject to the conditions of any order issued under subsection (4), restore the natural environment by—
(i) rescuing and restoring all plants, animals and other organisms;
(ii) cleaning up, removing or neutralising the contaminant;
(iii) restoring the air, land and water to the condition they were in before the discharge;
(c) be liable to pay for the cost of an independent investigation into the discharge;
19 (3) (c) be liable to pay for the cost of an independent investigation into the discharge;
(d) deposit with the Agency a sum of money equal to the estimated costs of restoration and investigation;
(e) be liable to compensate any person who suffers any loss or damage as a result of any contravention of subsection (1);

Prevention and control of pollution

19 (3) (f) do everything practicable to preserve, for investigation, evidence of the effects of the discharge.

Principles to be applied by EPA in a pollution event

Section 4 (4) In performing its functions the Agency shall make use of current principles of environmental management, namely—
(a) the “polluter pays” principle: the polluter should bear the cost of measures to reduce pollution decided upon by public authorities, to ensure that the environment is in an acceptable state, and should compensate citizens for the harmthey suffer from pollution;
4 (b) the “precautionary” principle: where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation;
4 (c) the “strict liability’’ legal principle: any person who contravenes this Act or regulations shall be liable to the penalties prescribed therefor;
4 (d) the “avoidance” principle: it is preferable to avoid environmental damage as it can be impossible or more expensive to repair rather than prevent damage;
4 (e) the “state of technology” principle: measures protecting the environment are restricted by what is technologically feasible and as technology improves, the improved technology should be used to prevent and repair environmental damage.

Defintions under the act

“contaminant’’ means any solid, liquid, gas, odour, sound, vibration, radiation, heat or combination of any of them resulting directly or indirectly from human activities that may cause an adverse effect;
“loss or damage” includes personal injury, loss of life, loss of use or enjoyment of property and pecuniary loss, including loss of income;
“pollution of the environment” and “environmental
pollution’’ mean pollution of the environment by the release into the natural environment of any contaminant;
“person responsible”, in relation to any project, enterprise, construction or development, includes any person who owns, operates, or exercises economic power or control over or at whose order or on whose behalf the project, enterprise, construction or development will be or, as the case may be, is being undertaken;

Who may sue

48. (1) Any person who has suffered loss or damage as a result of the commission by any other person of any offence under this Act or any conduct that is contrary to this Act or the regulations may, in the High Court, sue for the recovery from the person who committed the offence or engaged in the conduct an amount equal to the loss or damage proved to have been suffered by the person and an amount to compensate for the costs of any investigation in connection with the matter and of proceedings under this section.

Preventative relief

49 (2) Any person who suffers or is about to suffer loss or damage as a result of conduct that is contrary to any provision of this Act or the regulations may seek an injunction from the High Court ordering the person engaged in the conduct—
(a) to refrain from doing any act or thing that it appears to the Court causes or will cause the loss or damage; or
(b) to do any act or thing that it appears to the Court prevents or will prevent the loss or damage.

Other civil and criminal remedies unaffected

(1) Nothing in this Act shall prevent the prosecution of any person for an offence under any other law.
(2) No civil remedy for an act or omission is suspended or affected by reason only that the act or omission is an offence under this Act and nothing in this Act shall be construed so as to repeal, remove, or reduce any remedy available to any person under any other law.

Treaties

The International Convention for the Prevention of Pollution from Ships (“MARPOL”) . Ratified.
Convention on Oil Pollution Preparedness, Response and Co-Operation (“OPRC”) Ratified
International Convention on Civil Liability for Oil Pollution Damage . 1969 convention ratfied. 1992 protocol not yet ratified.
The Convention on Limitation of Liability for Maritime Claims . Ratified
The treaties which have been ratified buy Guyana have not been incorporated into domestic law

Territorial disputes

Guyana has a territorial dispute with Venezuela in which Venezuela claims 5/8 of Guyana in the west of the country
The dispute arose out of the 1899 treaty which settled and perfected the boundaries between Guyana and Venezuela.
The current good officers process at the UN will expire at the end of 2017 when dispute will be submitted to the ICJ.

Environmental Law

Practice Area