Legal And Institutional Framework For The Control Of Oil Pollution In Nigeria

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LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE CONTROL OF OIL POLLUTION IN NIGERIA

ABSTRACT

This project deals with the legal and institutional framework for the control of oil pollution in Nigeria.

Oil Pollution leads to the degradation of the environment, In Nigeria, there are laws that are enacted to safeguard our environment.  There are also institutions put in place to enforce these laws.

However, recent experience has shown that despite these laws and the institutions, the environment (air, water and land) is still being polluted by oil companies through indiscriminate disposal of byproducts of crude oil.

This long essay is a focuses on the framework for the control of oil pollution in nigeria.  This work is important because it relates to the environment.  For environment to be protected, the environment must be safeguarded.  This is not only for present generation, but also for future generations of Nigerians.

Consequently, the crucial issue is not to halt all production activities in the oil industry order to sustain the quality of the environment, rather, the issue is to examine the legal and institutional framework for the control of Oil Pollution in Nigeria whether they have been able to attain the objective of their enactment and establishments.  If they have done that, then we shall be done but if not, we shall proffer certain recommendations for the effectiveness of the laws and the institutions.

This work shall be limited in scope to Nigerian oil pollution and control laws and institutions.  For the purpose of an indept analysis and a proper comparative analysis, positions of other oil countries e.g. United arab emirates and Ghana shall be referred to in passing.

There could arise during the course of this research some intervening variables which might prevent the researcher in presenting a flawless and perfect work on this study.  These include: the dearth of cases in respect of oil pollution related environmental issues.  Also envisaged is the problem of laying hands on both foreign and local journals in this topic.

Nevertheless, the above intervening variables shall not prevent the researcher from presenting an analytical work based on this topic.

This research work will be based on a critical and analytical study of the topic under discuss, spread across the following chapters:

Chapter One:                           Introduction

Chapter Two:                          The Legal Framework for the Control of oil pollution in Nigeria.

Chapter Three:                        The Institutional Framework for the control of oil pollution in Nigeria.

Chapter Four:                          Analysis of the Legal and Institutional framework for the control of oil Pollution in Nigeria.

Chapter Five:                          Conclusion and Recommendations.

 

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Historical Background

Environmental degradation by oil dates back to 1956 when Shell Development Company (SPDC) then, discovered oil in Oloibiri Ogba Kingdom in Rivers state. Exploitation of oil finds in other parts of Niger delta brought with it environmental degradation at a scale hitherto unknown, this called for legislation to regulate the exploitation of oil by companies in the area. Earlier legislative response in this area was directed at oil pollution arising from oil prospecting and explorative activities in the country. The response did not arrest nor reduce environmental degradation. Therefore there was a need for more direct and rapid legislative response. The direct legislative response began with the promulgation of the Petroleum Act1.

The main thrust of the Petroleum Act, is that it provides a frame work for the exploration, production and refining. Subsidiary legislation passed pursuant to the Petroleum Act to deal with oil and gas exploration, production and refining include;

Nigeria National Petroleum Coporation Act2, Oil in Navigable Water Act3, Associated Gas Re-Injection Act4, Oil Pipeline Act5, Oil and Gas Export Free Zone Regulation6, Hydro Carbon Oil Act7, and The West Africa Gas Pipeline Project Act8, National Oil Spill Response Agency Act9,(NOSDRA) etc. All these

  • P10, L.F.N. 2004

 N123 L.F.N. 2004

 1969 No.51 (Now Cap.P10 Laws of the Federation of Nigeria, 2004) The Act repealed the Minerals Oils Act Cap 226 Laws of the Federation of Nigeria, 1990 which was an earlier legislation.

  • 1979, No.99 (Now Cap. A25 L.F.N, 2004

 07 L.F.N,2005

  • Of 2003
  • H5 L.F.N,2004
  • 11,2005

laws aim at regulation of oil and gas exploration, production and refining activities. Outside these statutory provisions, there are Customary Laws and Common Law provisions that may not be directly on oil and gas environmental degradation by oil and gas. Various communities have customary provisions that are against environmental pollution by noxious substances. Oil and gas being noxious substances if spilled into the environment such spillage will contravene such customary legal provisions and as such they may be used to redress the environmental pollution. The Common Rule in Rylands v. Fletcher10 which imposes strict liability on any one who allows a dangerous substance to escape from his premises to damage the property of another may be extended to cover of oil and gas and therefore form part of the legal framework for the prevention of environmental degradation by oil and gas.

The above legal framework for the prevention of environmental degradation by oil and gas particularly its statutory aspect has generated an institutional framework for the prevention of oil and gas environmental degradation. These institutions include; the Nigeria National Petroleum Corporation (NNPC), Department of Petroleum Resource (DPR), National Oil Spill Detection and Response Agency, (NOSDRA), Niger Delta Development Commission (NDDC), Niger Delta Ministry, and National Environmental Standard and Regulations Enforcement Agency (NESREA), Ministry of environment.

  • 2006
  • (1886) L.R. 1Exch.265

1.2.     Literature Review

The area of this research is largely an emerging field. Consequently not much intellectual activity in the form of text books and journal publication has taken place on the subject matter of the research. Among the few publications that exist on the area of the research are as follows: Nigerian Law on Oil Pollution11, this book gives a critical analysis of Nigerian laws on oil pollution. However, the authors did not avert their minds to institutions such as Department of Petroleum Resources (DRP), Niger Delta Development Commission (NDDC), National Environmental Standards and Regulations Enforcement Agency (NESREA)12, National Oil Spill Detection and Response Agency (NOSDRA)13. These institutional frame works are the key enforcers of the laws relating to oil pollution in Nigeria. Further still, there are laws in this area, to prevent environmental degradation such as Nation Oil Spill Detection andResponse Agency Act14 and National Environmental Standards and Regulations Enforcement Agency Act15, which were not discussed in that work

 

In the work of Chika O. and Ugo Chukwu P.C.16, an article titledEnvironmental Degradation: An Assessment of the Legal Control of Oil Pollution in the Niger-Delta States. The authors were very unmindful of the current laws such as NESREA17 and NOSDRA18 and therefore did not examine these laws. This work critically examines these two laws in addition to other laws to show the effectiveness

  • Ebirim O, and Ndukile Charles N. Spectrum Books limited Ibadan, 2008.
  • National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007
  • ibid
  • 2006
  • 2007
  • Chika O. in Issues and Responses in Contemporary Law and Practice (ed.) Chika O. and Ugochukwu P.C Hudso-Jude Nigeria No.24 Royce Owerri,2009
  • cit. p.25
  • cit

or otherwise of the laws to prevent environmental degradation by oil and gas companies in Nigeria.

Another literature on this subject matter is a text book written by Margret Fubara T.O.19 The book extensively discussed environmental issues generally and extended its discussion to Federal Environmental Protection Agency (FEPA)20 now defunct. This was an Institution for enforcement of environmental laws and policies. FEPA has been abolished and replaced by National Environmental Standards and Regulations Enforcement Agency21 (NESREA). Curently NESREA, still oversees the enforcement of laws on the environment in general and to some extent, oil and gas pollution. Issues and observations raised by the author had shifted a bit because of the enactment of NESREA. This work examines the contradiction raised by NESREA in relation to oil and gas companies especially in sections 7 and 8 of the Act22.

Professor Ladan M.T.‟s work23 examines extensively inter alia environmental litigation. However, he did not narrow it down to environmental litigations on environmental degradation by oil and gas companies in Nigeria as it is done by this work. This work specifically, examined the challenges in seeking judicial remedy of oil pollution by oil and gas companies in Nigeria.

Another book co-authored by Lawrence A., Vincent A.,24 gave a detailed discussion on environmental law. The book attempted to examine various types of environmental pollution. But unfortunately did not dwell on oil environmental

  • Law of Environmental Protection: Materials and Text Caltop Publications (Nigeria) Limited,1998
  • cit
  • cit
  • cit p.25
  • Biodiversity, Environmental Litigation Human Rights and Access to Environmental Justice. Faith Printers and Publishers Zaria, Nigeria( 2007).
  • Environmental Law in Nigeria: Theory and practice, Ababa Press Ltd. Surulere, Lagos, 2003.

pollution. The book however gave a detail examination of institutions that enforce environmental laws, but did not examine NESREA, DPR, NDDC and NOSDRA as it is done in this work. The book Nigerian Petroleum Laws25 is relevant to this research, x-rayed the relevant laws in the Nigerian petroleum industry. The book however, is founded on old laws for the prevention of environmental degradation by oil and gas and reflects little of the current laws on the subject, an omission this work addressed.

Nigerian Petroleum Law and Practice26, is another book that is closely related to the subject of this work. The book discussed the Nigerian petroleum law and practice and institutions that enforce the petroleum laws. The book however did not take into account, recently created institutions and laws, because as at the time the book was written, these new laws and agencies were not in existence. This work takes into cognizance the new laws and agencies that are relevant to this research.

Oluwole Akanle27, in his book examined laws for the prevention of environmental degradation in Nigeria. However most of the book is that most of the laws referred to in the work have either been amended or repealed and replaced by other laws. This work examines both the old and the current laws for prevention of environmental degradation by oil and gas companies.

Olarewaju Fagbohun in his book28 extensively discussed environmental pollution and the remedies available to victims of oil pollution. The learned author however narrowed his discussion in his work basically to environmental restoration.

  • Etikerentse, Macmillian Publishers Ltd. London 1985.
  • Martin Olisa M. Fountain Books Limited, Lagos, Nigeria, 1987
  • Pollution Control Regulation in the Nigerian Oil Industry Nigerian Institute of Advanced Legal Studies, Lagos Nigeria 1991.
  • The Law of Oil Pollution and Environmental Restoration: A Comparative Review, Odade Publishers, Yaba, Lagos, Nigeria, 2010)

This work goes beyond environmental restoration to environmental rehabilitation principles in the event of oil and gas environmental damage.

A recent book written by Adamu Kyuka Usman,29 discussed to a large extends environmental protection law generally. However the book did not narrow its discussion to areas of oil and gas as it is done in this work. The book also examined an important environmental legislation, i.e., National Environmental Standards andRegulations Enforcement Agency (Establishment) Act, 2007. However, the author did not avert his mind to the National Oil Spill and Detection Agency(Establishment) Act30 which deals exclusively on protection and prevention of environmental degradation by oil companies in Nigeria.

Another book31 authored by M. T. Ladan examined extensively current trends in environmental law. It reviewed the NESREA ACT32 and Regulations of 2007. It was done in a very unique way. The book also discussed the institutions that enforce environmental protection laws. The book however did not discussed the Ministry of Niger Delta, Niger Delta Development Commission, Earth Watch as this research work attempted. This research in its bid to discuss the legal regime on prevention of environmental pollution, examined the laws from the angle of preventive, precautionary, remedial and polluter pays principle of environmental protection.

These works mentioned above, certainly serve as source of reference for the purposes of elaboration, expansion and assistance in analyzing the statutory provisions

  • Environmental Protection Law and Practice, Ababa Press Ltd. Ibadan, Nigeria. 2012.
  • Opcit
  • Trend in Environmental Law and Access to Justice in Nigeria, Lambert Academic Publish, Germany, 2012
  • Opcit

of the laws that relates to this works. The books also go a long way to enrich the work with decided cases relevant to the work.

There are a lot of articles written by learned scholars in the area of this work. While some articles are on the legal frame work the first arm of this research while others are on the second arm of the research i.e on the institutions that implement and enforce the laws in the area of this research.

Adewale O. (Mrs.)33 in her work carefully discussed an important Federal Government Agency, i.e., FEPA (now defunct) that is charged with the full responsibility of protecting the environment from being degradated. Because FEPA is defunct this article provides little material for this work. Lawrence Atsegbua in his article34 examined Federal Environmental Protection Agency35 (FEPA), PetroleumAct36 and Petroleum (Drilling and Production) Regulation37, dwelling little on environmental degradation by oil and gas companies the subject of this research. Chukwucheta Emejuru T. in his article38, focused on the need for Multinational Corporation in Nigeria to comply with municipal and international environmental standards, same thing also done by this research. However the research is more comprehensive in its discussion of environmental degradation by oil and gas companies in Nigeria. Akaakar, F.O, in her article39 discussed the laws that seek to

 

  • An Overview Of State Environmental Laws in Ajomo M.A.,and Adewale O. (eds.) Environmental Law and Sustainable Development in Nigeria. Nigerian Institute of Advanced Legal Studies, Lagos. 1994.
  • . Oil pollution and the Protection of the Environment in Nigeria; What Hope for an Economic Analysis?Justice a Journal of Contemporary Problems Vol.3 1992.
  • 131 laws of the federation of Nigeria, 1990
  • 550 laws of the federation of Nigeria, 1990
  • Of 1969
  • Oil Multi-national Corporation in Nigeria: Compliance with Municipal and International Environmental Standard: Property and Contemporary Journal, The official of the Department of Private Law University of Ado-Ekiti Vol.6 2009
  • Natural Gas Development in Nigeria, Rivers State University Journal of Public Law Vol.1, 2003. regulate   gas   flaring   in   Nigeria.   The   author   examined    Petroleum   Act40.    The

Associated Gas Re-Injection (Continued Flaring of Gas) Regulation and Associated Gas Re-Injection (Amendment) Act. Unlike the article under reference, this work discussed the laws from perspectives of preventive, and polluter pays principles etc.

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