The environmental groups Waterkeeper Bahamas Ltd. and Coalition to Protect Clifton Bay yesterday filed legal action intended to stop Bahamas Petroleum Company (BPC) from proceeding with its exploratory offshore oil drilling exercise set for later this month.
The applicants are seeking leave to bring judicial review proceedings against the government’s decisions to authorize the drilling of Perseverance #1 well near the Cay Sal Bank in the southwestern waters of The Bahamas.
They submit that the decisions to approve the authorization for drilling were procedurally unfair, irrational, an abuse of power and therefore unlawful.
Environment Minister Romauld Ferreira is named as the first respondent.
Director of Environmental Protection and Planning Rochelle Newbold is named as the second respondent and the attorney general (in a representative capacity of the governor general) is listed as the third respondent.
Waterkeeper Bahamas Ltd. and Coalition to Protect Clifton Bay (also known as Save The Bays) seek to challenge several decisions in relation to this matter, among them the environment minister’s decision in February 2020 to grant BPC environmental authorization; the decision in November 2020 to approve changes to the project and a decision in November 2020 to issue a new environmental authorization.
The applicants also seek to challenge the director’s decision in February 2020 to approve BPC’s environmental impact assessment (EIA) and environmental management plan (EMP); the director’s November 2020 decision to approve the amended and resubmitted EIA and/or the decision in November 2020 to approve the changes to the project without an amended EIA and EMP.
In addition, the applicants seek to challenge the decisions by the governor general (GG) in April 2020 to renew or extend the validity of the licenses of BPC/BOP (Bahamas Offshore Petroleum Limited) to December 2020; the decision in August 2020 to renew or extend the validity of the licenses to April 2021 and the November 2020 decision to renew or re-extend the validity of BPC’s licenses to June 2021.
The applicants, who are represented by Callenders & Co., want the decisions set aside as well as declaratory relief.
They are seeking an extension of the time in which the application should have been made in respect of the February decisions and the GG’s April decision, stating that there is “good reason” for an extension.
The applicants contend they have a “very strong prima facie case” that the February decisions and the April decisions were “procedurally unfair, unlawful, an abuse of power and irrational…”
“There was no consultation when consultation is mandated by law,” they state in court documents filed yesterday.
“The EIA and EMP completely fail to address almost all of the mandatory environmental principles which an EIA and EMP for petroleum drilling must by law address.
“The decisions breach a legitimate expectation induced by the minister’s clear assurance in May 2018 that oil drilling would not be approved.
“There are strong public interest grounds for the challenge to be heard and determined.
“It is therefore in the public interest for the applicants’ application to be heard.”
Grounds
The application comes as the drillship Stena IceMAX makes its way to The Bahamas.
Waterkeeper and the coalition say the company cannot legally drill on December 15 until it obtains an excavation permit required under the Conservation and Protection of the Physical Landscape of The Bahamas Act and site plan approval under the Planning and Subdivision Act.
The applicants contend BPC acted prematurely in contracting with Stena for IceMAX to arrive in The Bahamas.
The applicants say the reason for their delay in bringing this challenge is that they were misled by the minister in May 2018 into thinking the project would not go ahead and so were unprepared when the February decisions were announced.
They added that the COVID-19 lockdown measures introduced in March made organization, fundraising, etc. difficult.
“BPC made it clear they could not go ahead with the drill in April 2020 as planned as they had insufficient resources to do so and no JV partner. Thus, the applicants maintained the hope that the minister’s May 2018 assurance would be honored and the GG would refuse to extend/renew the licences (and wrote to the PM on July 2, 2020 seeking this outcome). The GG’s August decision dashed these hopes,” the applicants state.
“Very significant modifications to the project were announced by BPC in May 2020 (a completely different drilling contractor and drill vessel and equipment which seemed to throw a significant portion of the February approved EIA out the window) and in October 2020 it announced that a modified EIA was being submitted.
“The applicants expected the EPPA (Environmental Planning and Protection Act) and EIA Regulations that came into force in September 2020 would be respected and the EIA process reopened.”
The applicants state that unless a stay of the EIA approval and EA decisions is granted, there is a very real risk that the IceMAX will start to drill in breach of various conventions and laws in circumstances where the decisions are vitiated by unfairness, unlawfulness, abuse and irrationality as set out in the application.
Waterkeeper Bahamas Ltd. and Coalition to Protect Clifton Bay said they are concerned that the drillship is en route to The Bahamas without, to their knowledge, further permits having been applied for or obtained.
To date, an amended EIA and EMP have not been published, they add.
The applicants are seeking several declarations, including that the environment minister’s decisions were in all the circumstances, unfair, an abuse, unlawful, irrational and/or a breach of the applicants’, alternatively, STB’s, legitimate expectations.
Similar declarations are sought in respect of the decisions made by the director and the governor general.
Should the court grant leave to commence judicial review, the applicants also seek an order staying the decisions pending the determination of this action.
Fred Smith, QC, and Garth Phillipe are listed as the applicants’ attorneys.
In a letter to Smith on November 30, Leif G. Farquharson of Graham Thompson, in response to the threatened legal action that was announced last month by the environmental coalition, said the proposed applications were without merit.
Farquharson wrote that to order the suspension of the project at such a late stage, after the project costs have been incurred, would threaten its viability and thereby subvert the public interest.
BPC, whose CEO is Simon Potter, has vowed through its lawyers to “vigorously oppose any application for an injunction and leave to apply for judicial review whether it is joined as a respondent or an interested party”.
The post Legal bid to stop oil drilling appeared first on The Nassau Guardian.
source https://thenassauguardian.com/legal-bid-to-stop-oil-drilling/
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