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THE IMPACT OF MAKING ENVIRONMENTAL LAW: THE POLITICS OF PROTECTING THE EARTH
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 Act[1] .
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 Act[2] [3] [4] , Oil in Navigable Water Act3,
Associated Gas Re-Injection Act4, Oil Pipeline Act[5] , Oil and Gas Export Free Zone Regulation6, Hydro Carbon Oil Act[6] , and The West Africa Gas Pipeline Project Act[7] , National Oil Spill Response Agency Act9,(NOSDRA) etc. All these 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.
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1.3 Statement of the Problem
Arising from the literature review in 1.2 above are the following problems which this dissertation seek to address.
1.3.1 Ineffective Legislation in Arresting Environmental Degradation.
There are collections of laws which seek to protect the environment from degradation by oil and gas companies. But due to the fact that the laws are ineffective, they are not seen to be living to the yarning of the people. Hence, the environment still suffers degradation in the hands of oil and gas companies. For example, the Oil in Navigable Water Act[8] , aspires to protect the sea waters from oil pollution. In a bid to this, it provides measures such as oil discharge records and oil transfer records as checks. It imposes punishment for violator yet, and these measures proved to be ineffective as oil is being discharged into sea water, resulting to degradation of the sea environment.
Another legislation which aims at protecting the environment is the Hydrocarbon Oil Refineries Act[9] . The Act out rightly prohibits refining of any hydrocarbon oil except in licensed refinery.
This law is not been heeded to, hence hydrocarbon oil is been refined outside refineries as against the spirits of the Act. This law also prove to be ineffective in arresting environmental degradation by oil Companies in Nigeria. In addition to the above mentioned laws, others include, Minerals Oil Safety Regulation Act[10] , Nigerian Oil Pipeline Act[11] , Associated Re – Injection Act71, Environmental
Impact Assessment Act[12] , Harmful Waste (Special Criminal Provisions) Act[13] , Mining Act[14] , and West African Gas Pipeline Project Act[15] . These laws were enacted with the sole aim of protecting the environment from degradation by oil companies. Despite the existence of these laws, environmental degradation by oil companies is still the order of the day. This may not be far from the fact that the laws are in effective. In addition, to the foregoing, there are many regulations that also seek to protect the environment from degradation. They include the Petroleum (Drilling and Production) Regulation[16] , the Petroleum (Refining) Regulation[17] etc. Despite the presence of these laws and regulations environmental, degradation by oil and gas companies in Nigeria still persist. The problem is: these identified laws and regulations are grossly ineffective to arrest environmental, degradation by oil companies in Nigeria.
1.3.2 Inadequate Implementation and Enforcement of the Laws by the
Institutions.
Closely related to the first identified problem above, is the problem of inadequate implementation and enforcement of laws that are meant to protect the environment from degradation by oil and gas companies in Nigeria. The laws are very adequate. In fact, there are not less than 20 laws which seek to protect the environment from degradation, but the wherewithal to enforce these laws are not available.[18] Thus, agencies such as NESREA, and NOSDRA have failed woefully to enforce the laws that are meant to protect the environment. There are adequate punishment provided by the law for any offender .In fact, punishment for any offender is as high as One Million Naira (N1, 000, 000.00), yet the environment is still being polluted by oil and gas companies. If the enforcement agencies perform their duties as expected of them, environmental degradation by oil companies, would have been eradicated, or drastically reduced to a bearable level. The problem is not far from the fact that the agencies are not bold enough to enforce the law as they ought to. In other words, NOSDRA, NESREA NDDC, lack courageous leaders and technical knowhow to enforce the laws that protect the environment from being polluted by oil and gas companies in Nigeria.
1.3.3 Dispel Nature of the Legal Regime of Environmental Degradation by Oil and Gas Companies in Nigeria.
Another problem which this research has identified is the dispel nature of the legal regime of environmental degradation by oil and gas companies in Nigeria. The laws and the regulations in this aspect of environmental law are scattered in different legislation and other legal sources. Most of these laws are limited in scope. They are repetitions here and there, and they also conflict with one another. For example, there are over twenty laws and regulations dealing on environmental protection by oil and gas companies in Nigeria. These laws and regulations, in one way or the other attempt to protect the environment from degradation by oil and gas companies in Nigeria. In their bid to protect the environment, they overlap, conflict, and are limited in scope especially in terms of penalties. The punishment does not go beyond fines.
1.3.4 Lack of Specialized, Dedicated and Courageous Enforcement Officers
It is very clear that there are significant laws and regulations accompanied by penalties. It is, however, sad to note that there are no specialized, dedicated and courageous officers to enforce these laws on the violators. For example on the 13th
January, 2010[19] NOSDRA ordered Pipelines and Products Marketing Company (PPMC) to pay a sum of N 1 million as a fine for failure to respond quickly to an oil spill incident which occurred in Ugbodede community in Okere, Warri, Delta State. It is very unfortunate that PPMC failed, refused and or neglected to comply with the order. If the agency has courageous enforcement officers they would not take no for an answer.
1.3.5 Procedural Obstacles in Environmental Litigation against Oil and Gas Companies in Environmental Degradation Matters
When an aggrieved party wants to access the court to seek redress as a result of environmental degradation caused by oil and gas companies, they are usually faced with some difficulties. Some of these difficulties include issue such as, pre-action notice, jurisdiction, limitations of time, proof of environmental harm and standard of proof. As regards proof of environmental harm,the rule implies that an individual or group of persons instituting an action must show that there is harm to the environment this may be difficult because when there is an oil spill harm to the environment does not manifest immediately. If a litigation rush to court immediately after an oil spill, he will find it difficult to proof any harm to the environment. Here lies a problem.
A pre – action notice is a notice that an aggrieved party or an intending plaintiff is expected to formally serve on the other party before the commencement of his action[20] . A plaintiff who wants to seek for an injunction against a defendant will be precluded because of the requirement of pre – action notice. Here lies yet another problem.
Jurisdiction is yet another problem which occurs in procedural issues in environmental litigation for environmental degradation by oil and gas company. It is only the Federal High Courts that has original jurisdiction to entertain matters of this nature. If an action is instituted in a State High Court, even if the plaintiff has good cause, he will not be heard because of lack of jurisdiction. This was the position in Shell Petroleum Development Co. (Nig) Ltd. v Maxon[21] . In this case, the respondents filed an action in the Rivers State High Court against the appellant claiming compensation for damages and loss of income for oil spillage from the appellant‟s oil pipeline at Buguma Rivers State. They admitted the spill but claimed nonetheless that a timely containment measures was put in place to limit the extent of the consequent pollution and damage.
Upon being served with the writ of summons and the statement of claims, the appellant filed a statement of defence wherein it gave a notice of preliminary objection to the suit on the ground, inter alia, that, having regard to certain statutory and constitutional provisions specified, the High Court lacked the jurisdiction to entertain it. Arguments on both sides centered on the provisions of section 1(i) (e) of the Admiralty Jurisdiction Decree No.59 of 1991, section 7 of the Federal High Court Act as amended by Decree No.60 of 1991 and section 230 of the 1979 Constitution as amended by Decree 107 of 1993. While it was the appellant‟s contention that the respondents‟ action involved a cause or matter which, by those statutory and constitutional provisions, were within the exclusive original jurisdiction of the Federal High Court, the respondents maintained that it did not.
The appellant urged the court to follow the decision of the Court of Appeal in Barry v. Eric[22] where it was held that the seismic activities of oil prospecting defendant caused the migration of bees in the plaintiff‟s bee farm, could only be entertained by the Federal High Court. The respondents urged the court instead to follow the earlier decision of the Court of Appeal in Shell Petroleum Development Co. Ltd v Isaiah[23] . Where it was held that the Federal High Court had no jurisdiction to entertain the case, which arose from claim of pollution caused to the plaintiff‟s land by oil spillage.
After taking arguments from counsel to the parties, the trial court overruled the preliminary objection and held that it was competent to hear the case. Being dissatisfied with the ruling, the appellant appealed to the Court of Appeal.
Section 230(1) (o) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 (now section 251(1) (n) of the 1999 Constitution) which the Court of Appeal considered in determining the appeal, states as follows:-
230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from mines and minerals (including oil fields, mining, geological surveys and natural gas)
The court in allowing the appeal held inter alia pollution caused by oil spillage comes within the exclusive jurisdiction of the Federal High Court. In Shell Petroleum
Development Co. v H.B. Fishermen[24] , the respondent sued the appellant in the High Court of Rivers State, claiming the sum of N162,800,000.00 One hundred sixty two million, eight hundred thousand naira being and representing special and general damages suffered by the respondent as a result of crude oil spillage from the appellant‟s crude oil well and or other oil installation which extensively polluted the respondent‟s fish ponds, fishing nets and the creeks and rivers wherein the respondent carried on its large scale commercial and modern fishing and fish farming.
During the course of trial the appellant objected to the jurisdiction of the trial court on the ground that the Constitution (Suspension and Modification) Decree No. 107 of 1993 amended section 230(1) of the 1979 Constitution and vested exclusive jurisdiction in civil causes and matters arising from mines and minerals
(including oil fields, oil mining, geological surveys and natural gas) in the Federal High Court. The State High Court ruled that it had jurisdiction. The parties gave evidence and the trial court in its judgment found the appellant liable and award to the respondent a total sum N21,995,000.00 special and general damages.
Being dissatisfied with the judgment of the trial court, the appellant appealed against it to the Court of Appeal. The respondent was also not satisfied with the question of damages awarded and it therefore cross-appealed.
In determining the appeal, the Court of Appeal considered the following enactments:
Section230 (1) (o) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) (now Section 251(1) (n) of 1999 Constitution), the relevant provisions of Section 7 of the Federal High Court Act as amended by Federal High Court (Amendment) Decree No.60 of 1991, and held that the State High Court has no jurisdiction to hear and determine any civil cause or matter arising from or pertaining to oil spillage or pollution. Here lies a problem that need to be addressed and solution proffered in the cause of the study.
1.3.6 Corruption
Nigeria is a country with good records of bribery and corruption. In fact, in many institutions and places, laws are hardly implemented or enforced due to activities of some people who claim to be above the law. Thus in the oil and gas industry, people and institutions involved are well to do people or institution. There is likelihood that none application of these laws may be as results of corruption and bribery that is very rampant in Nigeria.
Based on the above statement, the violators i.e. the operators of the oil and gas companies perhaps have bought over the officials of the institutions such as NESERA, NOS DRA, PDR, NDDC, and PPMC, thereby unable to effectively discharge their duties as they ought to have. This may not be unconnected with the reason why PPMC refused to pay a fine of N1million as ordered by NOSDRA for failure to respond quickly to an oil spill incident which occurred in Okere, Warri, in Delta State[25] . If the officials have not been perhaps bribed, they would have discharged their duties
diligently.
1.3.7 Lack of Expertise and Equipment.
The institutions lack both expertise and sophisticated equipment to meet the modern challenges of oil spill. NOSDRA is an agency that is established to survey, ensure compliance with environmental legislation, and to detect oil spill[26] . The institution fell short of this expectation because of lack of experts to handle the few equipment to detect oil spill, to worsen the situation, the Agency is ill equipped to effectively detect oil spill. This is a problem.
1.4 Objectives of the Research
The objective of this research is to find solutions to the problems of research raised by the statement of the problem with a view to proffering solutions to them.
Accordingly, this work seeks to deal with the Assessment of the Legal and Institutional Framework for the Prevention of Environmental Degradation by Oil and Gas Companies in Nigeria. To archive this, this research will critically analyze the laws and the functions the Institutions which seek to protect the environment from degradation by oil and gas companies to see where, how and why they fell short of the expectations.
In addition, the work also examines environmental litigation in environmental degradation by oil and gas companies in Nigeria. In doing justice to this area, the research examines critically those procedural issues that are involved in environmental litigation such as pre-action notice, locus standi, jurisdiction, etc. which will be fully discussed with sole aim of finding solution to them in the areas of their challenges to litigants.
1.5 Scope of the Research.
Geographically, the study covers the whole of Nigeria for the purpose of uncovering how effective or ineffective the laws and the institutions have been in the prevention of environmental degradation by oil and gas companies in Nigeria.
However, emphasis was focused on states in the Niger Delta. This is because empirical research was carried out in some of these States. In addition, the study is primarily located within the confines of the Nigerian laws and institutions.
Similarly, the study examined the laws, regulations, and policies that are geared towards environmental protection and prevention of environmental degradation by oil and gas companies in Nigeria. Hand in hand with the foregoing, the study also critically discusses the various institutions that are charged with responsibilities of implementing these laws so that the aims of the research are achieved.
Finally, the study relied principally on local laws (statutory and case laws).
1.7 Justification
The justification for embarking upon this research is primarily based on the importance of environment. It is a means of substance for human life, Animals, and plants. It provides lively hood for human, Animals, plants and its inhabitants generally. Environment would be of little or no comfort, if it is left in its natural form. To drive comfort from the environment, labour has to be mixed with the environment. It is as a result of the mixture of labour with the environment that we have houses, roads, Airports, Seaports, chairs, tables, beds, cars.
The environment contains precious properties for the comfort of man, such as gold, tin, water, oil. For man to drive maximum benefit of these precious properties, the environment will suffer one form of injury or the other such as drilling, digging, boring, etc.
Oil being one of the most precious property, is the major source of revenue for the country. Its exploration, exploitations, refining, transportation, has brought about huge damage to the environment, and its inhabitants. It brought about degradation, such as Air pollution, Water pollution, Soil pollution, Acid rain, Coastal and marine environment also suffer similar degradation. There were cry out from individuals, communities, none
Governmental organizations (NGOS) and likewise international communities. In response to this, Laws, Regulations, were made and Institution established to prevent the degradation. Some of these Laws and Regulations includes: Oil in
Navigable Water Act[27] , Associated Gas Re-Injection Act87, Oil Pipe Line Act88,
Oil and Gas Export Free Zone Regulation[28] , Hydro Carbon Oil Act[29] , The West Africa Gas Pipe Line Project[30] , National Oil Spill Detection and Response Agency, (NOSDRA), Department of Petroleum Resource (DPR), Niger Delta
Development Commission (NDDC), Niger Delta Ministry, and National Environmental Standard and Regulations Enforcement Agency (NESREA).
Despite the existence of these Laws and Institutions, environmental degradation by Oil and Gas companies continues on a very large scale. What would have gone wrong? It is based on these facts that this research was carried out. This research is also justified by the fact that previous writers in one way or the other, did not discuss some laws and institutions such as NESREA, NOSDRA and the Fundamental Rights (Enforcement Procedure) Rules92, because they were not in existence at the time of publication of this work.
This research is further justified by its relevance to law students; law lecturers, practicing lawyers, judges, non-governmental organizations in the field of environmental protection and oil producing communities. It will be a reference material to institutions such as NDDC, NNPC, PPMC, NOSDRA, DPR & NESREA, which are engaged in the enforcement and prevention of environmental degradation in
Nigeria.
[1] Cap. P10, L.F.N. 2004
[2] Cap. N123 L.F.N. 2004
[3] 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.
[4] , No.99 (Now Cap. A25 L.F.N, 2004
[5] Cap. 07 L.F.N,20056 Of 2003
[6] Cap.H5 L.F.N,2004
[7] No.11,2005
[8] Op. cit
[9] Op. cit
[10] Op. cit
[11] Cap.p10 LFN, 200471Cap.m10LFN, 2004
[12] Cap.A25 LFN, 2004
[13] Cap.E10 LFN, 2004
[14] Cap Hi LFN, 2004
[15] Cap. M12 LFN, 2004
[16] No.11 2005
[17] Of 2001
[18] See p. 13 of this work
[19] Onyebuchi Ezigbo “NOSDRA Sanctions PPMC Over Warn Oil Spill” in: This Day News papers, page. 2, Wednesday, January 13, 2010.
[20] Ibid p.615
[21] (2001)9 N.W.L.R (pt.719) 541 at 554
[22] . (1998) 8 NWLR(pt.562) 404
[23] (1997) 6 NWLR (pt.508) 236
[24] (2002)4 N.W.L.R (pt.758) 505
[25] Op.cit.
[26] Op.cit.
[27] . 1969 No.51 (Now Cap.P10 Laws of the Federationof Nigeria,2004) The Act repealed the Minerals Oils Act Cap 226 Laws of the Federation of Nigeria, 1990 which was an earlier legislation. 87. 1979, No.99 (Now Cap. A25 L.F.N, 2004 88Cap. 07 L.F.N,2005 .
[28] .Of 2003
[29] .Cap.H5 L.F.N,2004
[30] .No.11,2005
