NASSAU, BAHAMAS — Environmental groups Waterkeeper Bahamas Limited and Coalition to Protect Clifton Bay have filed an application in the Supreme Court for leave to bring judicial review proceedings against the decision to approve exploratory oil drilling in The Bahamas.
The application names Minister of the Environment Romauld Ferreira, Environmental Protection and Planning Director Rochelle Newbold and Attorney General Carl Bethel as respondents.
Fred Smith, QC, represents the applicants.
The applicants seek to challenge and have quashed Ferreira’s decision to grant environmental approvals in February; approved changes to the project and a new environmental impact assessment (EIA) in November; Newbold’s alleged approval of Bahamas Petroleum Company’s (BPC) EIA in February; approval of the amendment and resubmitted EIA in November; as well as the decision to approve changes to the project without “an amended EIA and EMP”.
The applicants also seek to challenge and have quashed the government’s decision in April to renew the validity of BPC’s licenses to December; the decision in August to renew those licenses to April 2021; and the decision in November to renew or re-extend the validity of the company’s licenses to June 2021.
In respect of the respective decisions made in February, the applicants also requested leave to bring the application out of time on the ground that there is “good reason for extending the period within which the applications shall be made”.
The applicants alleged that they were misled by the minister in May 2018 into thinking the project would not go ahead, and were unprepared when the February decision was announced; the lockdown measures in mid-March due to the pandemic intervened to make organization and fundraising difficult; BPC made it clear they would not move forward in April as planned due to insufficient resources; and very significant modifications to the project were announced a month later.
“Firstly, the applicants have a very strong prima facie case that the February decisions and the April decision were procedurally unfair, unlawful, an abuse of power and irrational as set out in the remainder of this application,” read the document.
“There was no consultation when consultation is mandated by law.
“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.”
According to the document, there is no prejudice caused to Bahamas Offshore Petroleum Limited (BOP), a wholly-owned Bahamian subsidiary of BPC, as a result of the delay “because even without a challenge to the February decision or the April decision, BOP may not legally drill in December 2020”.
It said the company has acted prematurely in contracting with Stena for IceMax to arrive in The Bahamas on December 15, noting that unless the company obtains an excavation permit and site plan approval, it would be an offence to proceed with the drill as planned this month.
The applicants argued that BPC’s stated intention in its EIA for an estimated 6,000 gallons of treated sewage and 900 pounds of comminuted food waste to be discharged into or within three nautical miles of Bahamian waters daily breach MARPOL (Convention for Prevention of Marine Pollution) and represents offences to the law.
The applicants also claim the drill site is on the edge of the Bahamian archipelagic waters and “therefore certainly well within three nautical miles of ‘nearest land’ for the purposes of MARPOL, it is likely less than a mile”.
“The EIA therefore proposes food waste discharges in breach of MARPOL and which would in each instance of discharge constitute an offence under Section 7 of the First Schedule to the Merchant Shipping (Oil Pollution) Act punishable on summary conviction to a fine of $5,000 and on conviction on indictment to a fine of $120,000,” read the applications.
The applicants wrote to BPC last month asking the company to hold off until a public consultation process had taken place and until a final determination was made on any judicial review.
However, BPC refused and indicated its opposition to any application for an injunction or leave to apply for judicial review, according to the application.
The applicants said while BPC is not a named respondent, and should not be allowed to “be heard on this application or at all in this action” until the trial of the motion of leave is granted, the company has allegedly “already begun to harry, beleaguer, oppress, harass and attempt to frustrate the applicants with demands that they are not entitled to make”.
According to the application, an amended EIA and EMP have not been published.
According to the application, BPC announced in its November 17, 2020 update to shareholders that it had notified the DEPP as to the precise well location, as well as specific details and technical specifications in respect of the Stena IceMax drillship and had “obtained the DEPP’s consent to the same”.
It reads: “It appears that the November decisions may have been taken without the amended EIA referred to by BPC’s media representative on October 14, 2020, having been submitted (as required by law) and without a fresh EIA application having been submitted (as required by law) and in any event without any consultation on an amended EIA, and amended EMP or fresh EIA application (as required by law).”
The applicants also argue there is no adequate spill response plan; a lack of discussion on protecting vulnerable, threatened or endangered species; the design of the well does not demonstrate compliance with international best practices; and the EIA and EMP rely on the use of “standard operating procedures and training, and good fortune to minimize the potential risks and impacts”.
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