DEC 20, 2022 6:00 AM
The Quest to Defuse Guyana’s Carbon Bomb
A former BP lawyer is going up against Exxon—and her own country—in a bid to stop offshore oil drilling before disaster strikes.
View of Georgetown, Guyana.PHOTOGRAPH: TOM VIERUS
IN LATE JUNE, inside a squat concrete building in Georgetown, Guyana, on a noisy street flanked by telephone repair shops and beauty supply stores, two lawyers were waging one of the most significant legal battles in the global fight against climate change. Melinda Janki and Ronald Burch-Smith sat in a ground-floor office staring intently at a computer screen, ignoring the sounds of macaws, monkeys, tree frogs, and traffic packing the streets, waiting to connect to the country’s Supreme Court via Zoom. The internet is unreliable at best in Guyana’s capital city, and the fear that it would choose today to conk out was palpable.
The two lawyers were a bit of an odd couple. Burch-Smith is tall and meticulous. Ask him if he knows the time and he’s likely to answer “yes” rather than divulge the hour. Janki is a petite woman with warm eyes and a sharp wit, quickly moved to rigorous denouncements of injustice, from the war in Ukraine to the plight of the planet to the litter on the street. Burch-Smith has a framed Phantom of the Opera playbill above his desk. The art in Janki’s office is a little more confrontational: a life-size painting of a fierce yellow jaguar that appears poised to step out of a blackened forest and straight through the picture frame. Together, the two attorneys have mounted a novel and audacious attack on Exxon Mobil, one of the world’s largest corporations with the legal muscle to match.
In 2015, Exxon, which is known in Guyana as Esso, struck oil off the coast, the first significant find in the country’s history. The scale of the discovery, 11 billion barrels so far, landed Guyana on the list of the world’s top “carbon bombs”— fossil fuel projects capable of releasing more than a gigaton of carbon dioxide. Exxon ultimately plans to produce more than 1 million barrels of oil a day. That would transform Guyana—currently a carbon sink thanks to its dense blanket of rain forests and minimal emissions—into one of the world’s top 20 oil producers by 2030. An Exxon Mobil spokesperson says that during the world’s transition to cleaner energy, “we need two things at the same time: reduced emissions and a reliable source of energy. Exxon Mobil has a role to play in both.” By 2027, Exxon expects its Guyana operations to have “about 30 percent lower greenhouse gas intensity” than its average oil or gas production. Climate experts estimate that 2030 is also the year by which much of Georgetown and coastal Guyana will be underwater as a result of unchecked global warming. Those living in the interior of the country will face the devastating impacts of worsening droughts and floods, from intensifying food insecurity to loss of land and homes. In 2021, Janki and Burch-Smith sued the Guyanese government for giving Exxon the green light. Exxon later joined the government as a codefendant in the case.
Georgetown’s lush beauty—its neighborhoods teem with tropical flowers in scarlet reds, peacock blues, sun-kissed yellows, and turquoise greens—is made possible by its abundant sources of water: Rivers and canals carve paths through the streets, carrying water from the Amazon to the Atlantic, along whose coast most of the city—and 90 percent of the nation’s population—resides. Viewed differently, though, the abundance of water is a sign of Georgetown’s particular vulnerability to climate change. All around is the evidence of an impoverished city that is rapidly industrializing. Newly traffic-clogged streets strain to make room for horse-drawn carts; cows graze on street corners near Popeye’s and KFC. Many homes and buildings have that beaten-down look common to places of either war or extreme weather.
Guyana is a carbon sink. Exxon’s project stands to make it a carbon bomb. PHOTOGRAPH: TOM VIERUS
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To call the Exxon lawsuit a David-versus-Goliath endeavor would be an understatement. When several US state attorneys general sued Exxon about five years ago for misleading investors and the public about the risks of climate change, a judge joked about the oil company, “Y’all have 300 lawyers on your side.” Exxon then submitted more than 2 million pages of records to just one New York court. By contrast, Janki and Burch-Smith had one legal assistant. Janki has been known to stand in long lines at the court to file pleadings. She has also carted around enormous files filled with thousands of pages of material, which she reads without the assistance of a litigation team.
In the June hearing, Exxon was attempting to throw out virtually the entire testimony of one of Janki and Burch-Smith’s clients on the grounds that he was not a climate scientist. When the judge appeared on the screen, he gave the pair more time to present their argument to keep the affidavit, which rests on key facts regarding fossil fuels and climate change, before the court.
Halting the project would deal Exxon a crippling blow; within eight years, Guyana is on track to become the company’s single largest site of daily oil production. But it could also have implications for the global industry. Whereas climate lawsuits against fossil fuel companies have typically attempted to hold those corporations accountable for the harms of past operations, this one in Guyana seeks to force the company and the government to accept responsibility for the damage they will cause in the future. The case argues that oil development is fundamentally incompatible with human health and a sustainable environment. If successful, it could set an example for climate activists in other countries.
To call the groundbreaking lawsuit against Exxon a David-vs.-Goliath endeavor would be an understatement.
Kneecapping a global energy giant might sound like an impossible feat for two attorneys in a Global South nation with a population of less than 780,000 people. But they are wielding some powerful tools. Guyana happens to have some of the most robust environmental protections in the world. Its constitution contains provisions that explicitly protect the rights of citizens—present and future—to a healthy environment. “Virtually every aspect of this operation is in violation of Guyana’s constitution, and the right to a healthy environment, and the right of sustainable development, and the rights of future generations,” explains Carroll Muffett, the president and CEO of the Center for International Environmental Law. “And from that arise serious consequences in terms of how the government must respond.”
“The provisions are groundbreaking,” Janki says. She should know—30 years ago, she helped author them. Plus, Janki’s knowledge on the matter has still another layer: Early in her career she spent four years working for the oil giant British Petroleum, now known as BP.
JANKI GREW UP in Georgetown, in a house close enough to the Atlantic Ocean for the sounds of waves to lull her to sleep each night. Much of her childhood was spent outdoors, where she developed an affinity for the water and the forest. When she was 5, a small brown dog appeared on the front porch in the bright rays of the early morning sun. Janki was reading a book of Christian fables at the time, so she named her first beloved pet Lucifer, Son of the Morning. “The story ends very badly,” she recalled. “He must have gotten out and been on the road outside the house, and someone knocked him down and killed him.” Janki was crushed—and furious. “It taught me the lesson that life is tenuous,” she says, and also “to fight for the little underdogs.” She would go on to care for dozens of stray animals, including dogs, donkeys, cats, horses, wild birds, and a baby giant otter.
Janki’s family left Guyana in the 1970s, when she was 12 years old and the country was in a period of intense political instability. After living in Zambia and Trinidad, Janki eventually settled in London. She studied law at Oxford and University College London, focusing on human rights, environmental and economic law, and intellectual property. She began her career at one of Britain’s premier corporate law firms, Lovell, White, & King—“otherwise known as ‘Lovely, White, and Clean,’” Janki quips—where she recalled being one of the first non-white trainees. She left the firm in 1989 to become an in-house lawyer at BP’s world headquarters. Janki doesn’t speak negatively about her experiences working there, but over time her growing condemnation of the industry has come to dominate both her life and work.
It didn’t take long for the shine of London to wear off. On the 30th floor of a skyscraper, Janki felt entirely cut off from nature. Her life started to seem all too comfortable. “You know, comfort is a form of suicide,” she says. After four years absorbing the inner workings of the oil industry, she decided to leave. Janki returned to Georgetown in 1994, a time when her homeland seemed brimming with promise. “Your heart tells you what you should be doing, and it just tugged me back to Guyana,” she says.
Melinda Janki’s visionary work introduced the concept of natural capital to Guyanese law—and challenged the dominance of gross domestic product.
GUYANA’S NAME IS said to derive from an Indigenous word for “land of many waters.” The largest of the country’s rivers, the Essequibo, begins at the Acarai Mountains near the Brazilian border and flows north through forest and savanna, cutting a straight line for 630 miles across the length of the country. As the Essequibo makes its way to the coast, it’s joined by tributaries of the Amazon, Rupununi, Mazaruni, and Cuyuni rivers, all carrying a rich bounty of sediment filled with nutrients. Guyana’s ocean contains some of the highest recorded levels of chlorophyll biomass in the world. In turn, the waters are home to more than 900 species of fish, essential to both local subsistence and the Guyanese economy. There are also dolphins, manta rays, sperm whales, and six kinds of marine turtles, some of which are endangered.
In the interior, nestled between forests, picturesque mountains, tributaries of the Amazon, and the headwaters of the Rupununi river, rests the virtually untouched savanna that the Wapishana and Macushi call home. They are among the nine tribes collectively referred to as Amerindians, who have lived in and around present-day Guyana for millennia. Most live subsistence lifestyles based on hunting, fishing, and farming, not all that different from those of their ancestors.
For centuries, a rotating list of foreign powers extracted Guyana’s natural resources and returned the products and profits to their home ports. In 1667, to secure their claim on Guyana, the Dutch traded parts of modern-day New York and New Jersey to the British. The Dutch enslaved Africans to work the sugarcane fields and pushed many Indigenous peoples into the interior to give themselves easy access to the sea. Almost two centuries later, Britain took Guyana by force. It became one of the empire’s most lucrative colonies, powered first by slavery and then the indentured servitude of people from India, China, and Portugal. An 1823 rebellion led by enslaved people in Guyana is credited with contributing to the eventual abolition of slavery across the entire British Empire; in 1917, people in indentured servitude in Guyana successfully organized to force an end to that practice as well. In the 20th century, American corporations came to Guyana, mining for bauxite and gold. By the 1950s, they also hunted for oil, but decades of effort proved largely futile.
In 1992, Guyana held its first free and fair democratic election in decades. The new government, led by the leftist People’s Progressive Party, was eager to protect the country’s natural resources after centuries of colonial exploitation, and it saw environmental protection as part of a broader mission to secure social justice. At the time, Janki had just returned and been admitted to the national bar. She had no party affiliation or political connections. She was, she says, a “nobody.” But, in 1995, when Janki learned that the nation’s first-ever environmental laws were going to be drafted at an invitation-only conference, she knew she had to be there. A partner at the law firm where she worked was also the owner of one of Guyana’s two national newspapers, and he helped Janki finagle a press pass.
The conference was held at the Pegasus Hotel, a seven-story cylinder of blue glass and white steel that towers above Georgetown. No press accounts of the event can be found, and many of the participants have since died, but Janki recalls that there were about 100 attendees, most of them men, who droned through a series of forgettable presentations. What did catch her attention was the draft Environmental Protection Act. “When I got a look at what they were writing, I was absolutely horrified,” she says. In her view, the legislation was far too weak.
During a coffee break, Janki spied a special adviser to the president, Lakeram Chatarpaul, standing alone outside of the conference room. Janki was a lot shier then, she says, but in her recollection she “lobbied like mad and made quite a nuisance of myself.” Chatarpaul invited her to write to him. What she wrote worked: After he read her ideas, Janki was hired by the Inter-American Development Bank to draft the new law for the government.
Over many months, Janki adapted what she felt were the most robust environmental laws from around the world and “put in a raft of new provisions,” she says. She included the “polluter pays” and “precautionary” principles, which hold companies liable for the costs of cleaning up pollution and the government responsible for implementing measures to prevent environmental harm, even in the absence of “full scientific certainty.” Importantly, Janki defined the “environment” to include, among other things, the atmosphere and climate. “This was in 1995, when people were relatively unconcerned about greenhouse gas pollution, and the carbon majors were misleading people,” she says. She imbued the Environmental Protection Agency with significant authority, including the requirement that any proposed project, from mining to construction, had to include a detailed environmental impact assessment. If the assessments were found to be lacking, the EPA would have the power to reject projects outright, as well as the ability to put conditions into permits to ensure that the company’s operations did not conflict with Guyana’s international human-rights and environmental obligations. She also included far-reaching provisions for public access to information, participation, oversight, and compensation for harm, plus some other “visionary stuff in the act that nobody noticed.”
One striking example of “visionary stuff” was the introduction of the concept of natural capital into Guyanese law. Each year, the EPA is required to take a full accounting of the nation’s ecosystem—from wildlife to vegetation—and make it publicly available. This creates a baseline from which to measure both ecosystem value and potential harm. Natural capital is a direct challenge to gross domestic product, or how much a country produces, consumes, and exports—the prevailing measure for assessing a nation’s economic health. A rising GDP is often considered inherently positive, regardless of the human or environmental costs. When a forest is clear-cut, for instance, GDP increases due to the labor and machinery used and the timber sold. Natural capital, by contrast, considers the value of the trees to the climate, the animal species, and the people who call the forest home. Under this model, the forest’s destruction is a cost and its protection a benefit. While Janki’s law doesn’t require this entire calculation, simply introducing the concept was a significant step, which several other nations, including Botswana, Colombia, and Egypt, have since embraced.
Each year, Guyana’s EPA is required to take a full accounting of the nation’s ecosystem—from wildlife to vegetation—and make it publicly available. PHOTOGRAPH: TOM VIERUSI
N 1995, CYANIDE-FILLED mining waste spilled into the Essequibo River, killing fish and other animals and polluting the cropland on which Amerindian communities relied. The spill and others like it were attributed to a lack of meaningful environmental regulation, and they galvanized the nation to support the Environmental Protection Act, which was signed into law on June 5, 1996.
Two years later, the government turned to rewriting its constitution and solicited public submissions. Seizing the opportunity to embed strong environmental protections within the constitution itself, Janki wrote what she has described as “a statement of the obvious” that was ultimately included in the preamble: “The well-being for the nation depends upon preserving clean air, fertile soils, pure water, and the rich diversity of plants, animals, and ecosystems.”
But it was the provisions that Janki lobbied to be included in the text of the constitution that were the most significant. Drawn largely from South Africa’s new postapartheid constitution, they conferred upon every Guyanese citizen “the right to an environment that is not harmful to his or her health or well-being” and would hold the state responsible for protecting the environment for the benefit of present and future generations. They also required the courts to “pay due regard to international law, international conventions, covenants, and charters bearing on human rights.” These include human-rights obligations to clean air and water, life, and livelihoods. Taken together, these constitutional provisions are far stronger than the environmental protections found in most northern nations, including the US. “I don’t want to sound as if I am showing off,” says Janki, “but, really, it is all there.”
A few years later, an Arecuna tribal leader from the Upper Mazaruni area came to Janki’s law office seeking help to confront continued abuse from the mining industry. Janki turned her attention to building and securing the rights of these communities. She also worked as a consultant in drafting the 2006 Amerindian Act, providing for collective rights to land, natural resources, and self-determination. In academic and legal journals, she made the case that failing to fulfill human-rights obligations to life, health, water, food, nondiscrimination, and self-determination, including the rights of local communities to consent to policies and programs that directly affect them, “can be a trigger for environmental destruction.” She also contributed to the drafting of the Escazu Agreement, the first regional environmental treaty of Latin America and the Caribbean (ratified by 14 nations but open to all 33), “contributing to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development.”
Janki had expected that when the time came, Guyana’s government and citizenry would make use of the strong legal foundation she had helped build. She would soon learn that, at least when it came to oil, she was wrong.
Guyana’s waters sustain over 900 species of fish, essential to local subsistence and the economy. PHOTOGRAPH: TOM VIERUS
IN MARCH 2015, the Deepwater Champion rig was at work for Exxon Mobil, exploring for oil in the Atlantic Ocean 120 miles off the coast of Guyana, drilling below 6,000 feet of water and through 12,000 feet of earth. Ultra-deepwater drilling is so complex that experts liken it to space travel, and the dangers are well known. Five years earlier, the Deepwater Horizon rig was at work for BP when it exploded in the Gulf of Mexico, killing 11 workers and setting off the worst offshore oil spill in history. (The rig in Guyana was owned and operated by the same company, Transocean, that ran the rig in the Gulf.)
Only two months after it began exploring, Exxon struck oil. The first significant find in Guyana’s history came as a shock. Exxon Mobil’s then CEO, Rex Tillerson, told shareholders it was the largest oil find anywhere in the world that year. The Guyanese government, led by President David Granger of the People’s National Congress Reform, quickly signed a contract with Exxon and awarded the company a series of 23-year permits—which were at the time withheld from the public. When production began four years later (“a fraction of the time it usually takes,” according to Exxon spokesperson Meghan MacDonald), Guyana was officially ushered into the exclusive club of oil-producing nations. President Granger proclaimed it National Petroleum Day and said the discovery would transform the country’s economic development and ensure a “good life” for all.
The People’s Progressive Party, led by Bharrat Jagdeo, accused Granger of signing a one-sided deal with Exxon in exchange “for peanuts.” Industry analysts have found that the government is receiving a below-average return on Exxon’s projects. Exxon will recoup all of its expenses, including all development and operating expenses, out of the oil it extracts, leaving the government and public to largely absorb the company’s costs. For every barrel of oil produced, until it recovers its costs, Exxon receives 85.5 percent of the value of the oil compared to Guyana’s 14.5 percent, according to the Institute for Energy Economics and Financial Analysis.
Janki expected Guyana to make use of the environmental protections she instituted. When it came to oil, she was wrong.
Exxon maintains that the contract terms are competitive and that it “provides a structure and terms that are equitable to both the government and investing companies, commensurate with the risk associated with each project.”
Janki, meanwhile, set her sights on scuttling the entire Exxon operation in Guyana. “At that moment nobody else was willing to challenge what the oil sector was doing,” Janki says. In 2018, she realized she would have to go to court.
Janki filed a suit, based on the Environmental Protection Act, arguing that the government had acted illegally by granting production licenses to the two companies that Exxon is partnering with, as they had not filed their own environmental impact assessments. The judge ruled that the license granted to Exxon was sufficient, but Janki was not dissuaded. She began giving talks and lectures, arguing that there were grounds to challenge Exxon’s operations, and she soon found a kindred spirit in Troy Thomas, who was then president of the Transparency Institute, the nation’s leading anti-corruption organization. In time, he would become one of her most important collaborators.
When Exxon started operating in Guyana, Thomas, like Janki, worried that the corrupting force of oil money would threaten the country’s meager political gains of the past few years—the dreaded “oil curse.” Countries that depend on exporting oil are among the most economically troubled, authoritarian, and conflict-ridden nations in the world. Terry Lynn Karl, a professor at Stanford University, documents how, in the past 40 years, the consequences of becoming oil-rich—far from the promise it offers—have tended to be more destructive than positive. Thomas was well aware of this, as well as of the growing efforts worldwide to shift away from fossil fuels altogether. “We know that petroleum is a dead end,” he says.
Globally, as of 2015, the fossil fuel industry and its products accounted for 91 percent of all industrial greenhouse gas emissions, and about 70 percent of all anthropogenic greenhouse emissions. Since 1988, more than half of all global industrial greenhouse emissions can be traced to just 25 fossil fuel companies. Exxon Mobil is number five on the list compiled by the CDP Carbon Majors Database.
Heavy rainfall in Guyana is nothing new. But now the rainy seasons are longer and wetter, and the dry seasons are hotter, with intensifying drought. PHOTOGRAPH: TOM VIERUS
Thomas grew up on Wakenaam, an island with a distinctly Caribbean feel that’s just a short boat ride from Georgetown. His father was a small farmer like most of the island’s inhabitants, growing crops like plantains, cassava, and tubers. Wakenaam is surrounded by a seawall built by the Dutch to keep the water out. But “wall” seems too generous a word for the roughly 4-foot-high crumbling ledge. It worked for a time, but the sea has been rising, and the storms are now worse, regularly inundating the island’s homes and fields. “The ocean just has to decide one day: ‘I’m going to be disruptive.’ And that’s it for the island of Wakenaam,” Thomas says. “It’s not a theoretical, conceptual argument. It’s right now.” It didn’t make any sense to him that the government actively welcomed a project whose massive emissions contributed to the sea-level rise that threatened his own family’s very survival. “I don’t see how we can agree to kill ourselves,” he says.
Thomas, who often wears a dress shirt and blazer, with his hair in a loose ponytail of shoulder-length dreadlocks, is a professor of natural sciences at the University of Guyana. As a father of two young children, balancing family, work, and a political activism that is rare in this small nation, Thomas usually gets no more than a few hours of sleep each night. He understands why many, if not most, people in Guyana find it difficult to speak out against the government and its major partners. Guyana’s political history has a violent side, including the assassinations of famed anti-colonial scholar and political activist Walter Rodney and one of the nation’s agricultural ministers. Political and economic retribution can also be vicious, instilling fear and limiting action, Thomas explains.
Thomas’ organization succeeded in making Exxon’s contract with the government public in late 2017, an effort that brought him into conversation with Janki. Thomas felt he had reached the limitations of traditional advocacy to stop Exxon, and he was intrigued by Janki’s novel, but potent, legal approach. He decided to join forces with her.
In May 2020, Janki filed a new suit against the government on Thomas’ behalf. She argued that the 23-year permits violated the Environmental Protection Act, which stipulates that the government may grant only five-year leases for oil drilling. In a settlement, the EPA agreed to reduce the terms to five years, after which Exxon would need to reapply for new permits. This was a major victory, but it didn’t address the roots of Thomas’ deeper concerns: the increasingly existential threat of climate change.
And so, emboldened by their success, Thomas and Janki began to lay the groundwork for an even more ambitious case against Exxon, which others would soon join.
“I don’t see how we can agree to kill ourselves,” Troy Thomas says about Guyana’s decision to drill for oil.
QUADAD DEFREITAS IS JANKI’S second client in the pending case against Exxon. The 23-year-old with boy-band good looks is Wapishana and grew up in the Rupununi region in southwest Guyana, near the border with Brazil. As a child, he split his time between the village of Katoonerib, where he attended primary school, and the cattle ranch where his family worked. Among its limited modern attributes, the ranch has used solar panels for decades. DeFreitas works on conservation efforts in the region. “There are so many animals!” he says effusively. “Birds, otters, monkeys, caiman, jaguars—you cannot list them all!”
Today, his family has a small cattle ranch and a budding ecotourism business of its own. But DeFreitas worries that the already devastating effects of climate change threaten not only his family’s businesses but the future of his 4-year-old brother—and his ability to call the Rupununi home.
Heavy rainfall in Guyana is nothing new. “People live on the land, they know where the water usually comes, and they plan their farms and houses because of that knowledge,” DeFreitas explains. But now the rainy seasons are longer and wetter, and the dry seasons are hotter, with intensifying drought. All year round, the weather is unpredictable, and it’s getting worse. Wells and ponds are running dry, leaving families without drinking water or fish to eat; the river both swells and dries out well beyond the norm; and floods increasingly destroy crops and villages.
One rainy day, I visited a small plot of land in Katoonerib near DeFreitas’ primary school. Huts made of brown earth and thatched roofs hand-stitched from tree fronds dotted the horizon. A farmer removed an ear of corn from the stalk and, with the deft precision that comes from decades of repetition, swiftly pulled back on the skin to reveal its rotting insides. A waterlogged crop is unable to bear fruit. And it wasn’t only the corn that was ruined, but the cassava, papaya, yams, pineapple, peanuts, and pumpkins—all of the food grown on the farm.
As Janki built her third case against Exxon, DeFreitas became an eager participant. Pointing to the benefits of solar power and the minimal use of fossil fuels in his community, he knows that other, less harmful ways of producing energy are possible. Beyond this he looks at the implications of exacerbating the climate crisis and considers Exxon’s operations not only crazy but wrong. “I just don’t see the point,” he says.
In May 2021, with Thomas and DeFreitas as plaintiffs, Janki, joined by Burch-Smith, filed the landmark suit against the government and Exxon. “The earth’s atmosphere and oceans have been and continue to be polluted by the release and accumulation of greenhouse gases,” the lawyers state, resulting from “the production, transportation, refining and use of fossil fuels.” Therefore, the government’s approval of Exxon’s operations, they argue, violates the constitutional right of current and future Guyanese citizens to an environment that is not harmful to their health or well-being. It is the first case in which this provision has been litigated.
Thomas’ affidavit, which says that the “existential threat” caused by greenhouse gas emissions is already harming the health and well-being of the Guyanese people, is the one Exxon is trying to get thrown out. “The intensity of that harm will increase as fossil fuels continue to be burned,” Thomas writes, placing responsibility on the government and Exxon by noting that combustion is “the intended and foreseeable consequence of producing that oil and gas.” Thomas quotes extensively from Exxon’s own 1982 research, which concluded that “mitigation of the ‘greenhouse effect’ would require major reductions in fossil fuel combustion.” But because Thomas isn’t a climate scientist, Exxon argues that his statements reflect opinion rather than agreed-upon facts.
They’re “not going to concede anything about climate change unless they have a gun to their head, metaphorically,” Burch-Smith said about Exxon.
Scholars agree that Janki’s lawsuits are creating innovative precedents for challenging the major contributors to climate change. Joana Setzer, an assistant professor at the Grantham Research Institute on Climate Change and the Environment at the London School of Economics, credits the case for advancing human-rights-based climate litigation, uniquely challenging the permitting of new oil reserves based on the harms of the resulting emissions. “If the case is successful, it could inspire similar lawsuits in other countries,” she says. “It’s a real human rights case.”
Exxon contends that it “has complied with all applicable laws at every step of the exploration, appraisal, development and production stages” in response to questions about the suit.
In September 2021, Exxon joined the government as a codefendant, which suggests it wasn’t content to let the case play out without its influence. The multinational argues that the plaintiffs have “misconceived” the Environmental Protection Act, noting that the government approved the environmental impact assessments necessary for drilling to proceed. Exxon also says the plaintiffs “mischaracterized” the constitutional provision on which Janki and Burch-Smith have built their case. Although that provision requires the state to “secure sustainable development and use of natural resources,” it goes on to say that it must do this “while promoting justifiable economic and social development.”
The government’s response follows a similar argument. It affirms that it approved Exxon’s environmental impact assessment and cites the same constitutional provision noted by Exxon. Preventing Guyana from developing its petroleum resources, the government argues, would bring “unwarranted economic and social costs.” Bharrat Jagdeo, once the country’s president and now its vice president, has argued that Guyana should pump its oil quickly, while it still has the chance. (He has emerged as a leader of a group of government officials in places like Suriname and Ghana who are making the same case.) Jagdeo, President Irfaan Ali, and other government officials declined repeated requests for interviews.
The government and Exxon’s economic prosperity argument was dealt a blow in October 2021. The Biden administration, following a new US directive to “promote ending international financing of
carbon-intensive fossil fuel-based energy,” blocked a $180 million loan from the Inter-American Development Bank to a private Guyanese company that was meant to support the expansion of Exxon’s onshore facilities.
If economic prosperity is the goal, the oil project is not off to a good start. Despite three years of production, Guyana remains a struggling nation with one of the highest poverty rates in Latin America and the Caribbean. The lure of a windfall from oil is understandably tempting. And money from oil has flowed into the country, but measuring its impact is difficult. The World Bank says that “extraordinary economic growth of 20–40 percent over the last two years brought GDP per capita to over $9,300 in 2021, from about $6,600 in 2019.” But GDP remains a questionable metric, in that it entirely ignores very real environmental costs, and those per capita figures merely divide a national value by the population—with no consideration for unequal distribution of the gains.
Part of the sea wall that was built to protect the areas east of Georgetown, Guyana. PHOTOGRAPH: TOM VIERUS
Exxon spokesperson Meghan MacDonald emphasized the company’s efforts to add to Guyana’s workforce, noting that there are more than 4,400 Guyanese workers supporting Exxon Mobil’s activities there. “In frontier countries around the world, it takes some time to develop the workforce to handle the operations in a complex, highly volatile work environment,” MacDonald said. It’s widely known, though, that the oil and gas industry is increasingly automated and less reliant on workers—something that Exxon itself acknowledged in a statement on its website that has since been deleted.
By the end of 2021, Exxon and its partners had taken in six times more revenue from its oil operations in Guyana than the government had—$3.6 billion to the government’s $607 million—according to the Institute for Energy Economics and Financial Analysis. Due to the lopsided contract, the group estimates that by 2027, Guyana will carry a liability of more than $34 billion owed to Exxon and its partners to cover their development and related costs. “There isn’t going to be a vast amount of wealth,” Janki says. “There is going to be, most likely, an enormous bill that the Guyanese people will be saddled with.”
If the court agrees with Janki that this oil operation is incompatible with the right to a healthy environment, then the government has to decide whether to stop the activity or somehow find a way to make it not violate the constitution. That may be an impossible feat, as the government might have to prove that oil production would not result in a worsening of global warming. The government may also be obliged to forgo any new authorizations for oil operations or revoke Exxon’s existing licenses. Oil drilling in Guyana could even be ended entirely if it is impossible for the government to issue permits without violating the law.
“Were the court to agree that this development is in violation of the Guyanese constitution, that is obviously an extraordinarily significant finding, and it would have enormous impacts on any future development of oil in Guyana,” says Muffett of the Center for International Environmental Law. “Losing access to Guyana as a result of the groundbreaking legal action there would be yet another signal that the company’s core business model is fundamentally incompatible with confronting the climate crisis. Given the huge prominence of Guyana in Exxon’s portfolio, investors are likely to listen.”
Seated at a table at the Marriott Hotel in June, Burch-Smith talked about the case with me. The American hotel chain, where rooms cost upwards of $300 a night, has recently supplanted the Pegasus as the “place to be” in Georgetown. Burch-Smith spoke quietly, careful not to be overheard by the people at nearby tables and frolicking loudly in the pool. Many of them had Texas accents. He surmised that more Americans will be coming to the country as Exxon’s operations continue to expand.
“The fundamental problem is that the only way you’re going to slow climate change is to stop burning oil.” Exxon can’t challenge that, Burch-Smith almost whispers.
“This isn’t a story of powerlessness; it’s a story of power,” Janki says.
WIN OR LOSE, Janki’s efforts and the case are already having an impact. Under a blazing midday sun in June, on the eve of the court hearing, roughly 25 men and women gathered outside of Exxon’s onshore base in Georgetown to protest the company’s operations—a rare, but increasingly frequent, occurrence. The protesters fanned out along the edge of the congested four-lane highway, holding white placards with handwritten messages: “Slavery was abolished centuries ago.” “Stop raping our country.” “Exxon make mo money than God & Guyana gets nothing.”
In July, 23 years after Janki wrote it into Guyana’s constitution, the United Nations General Assembly recognized the right to a clean, healthy, and sustainable environment as a fundamental human right guaranteed to all. That has expanded the opportunity for people in any UN member nation to follow Janki’s lead and challenge fossil fuel operations in court by making the case that they are incompatible with these newly enshrined rights.
In September, Exxon reported a 42-gallon oil spill from a production rig, stretching 13 miles across the Atlantic. It was minor and, the company says, was isolated the following day. But such spills are common in offshore oil production, and fears of a spill large enough to have a catastrophic effect on the marine ecosystem loom large here. “If something should go wrong out there, it definitely would affect not just livelihoods but the entire economy,” warns Sopheia Edghill, a marine conservationist at the University of Guyana.
During the hearing, the judge announced his retirement from the court, and he has yet to be replaced. Janki was also recently faced with another challenge. Burch-Smith withdrew as her co-counsel, citing “some differences in certain technical aspects.” But for Janki, there is no withdrawal. She will continue arguing the case on behalf of Thomas and DeFreitas, and she has a new legal partner to help her. The case will move forward when a new judge is assigned. And if it fails to stop Exxon, she has filed three other cases against the government and Exxon. “This isn’t a story of powerlessness; it’s a story of power,” Janki says. “This is the biggest climate change case in the world.”
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