The Legal Aspects Of Environmental Protection And Sustainability In Nigeria [1]
BACKGROUND
Humans by nature release harmful substances into the environment during the course of their daily activities. These harmful substances in turn affect the air breathed, water consumed and land occupied which eventually causes environmental degradation thus making the environment unsafe for humans to use.
DEFINITION OF THE ENVIRONMENT
Section 41 of the Federal Environmental Protection Agency (FEPA) Act defines the environment as including water, air, land and all plants and animals living therein and their interrelationship which exist among these or any of them[2].
Without doubt as to the essence of the environment to man’s existence, environmental laws have continuously been made to address these environmental problems. The earth’s ecosystems have however continued to experience degradation with continuous existence of man. While the law seems to be a tool for containing these environmental issues, humankind is still not as close to an ecologically and socially sustainable relationship with its environment despite several decades of efforts at environmental regulation[3]
ENVIRONMENTAL LAWS AND REGULATIONS IN NIGERIA
Prior to the existence of environmental laws, the environment was protected by the people of each society through their traditional African culture. For instance, in the Yoruba land, adages were used to instill the act of cleanliness in individuals from young age.
The emergence and development of environmental law in Nigeria is majorly traceable to the Koko waste incident. The Koko waste incident of 1988, a major environmental pollution led the government to enact the Federal Environmental Protection Agency (FEPA) Act. The incidence involved the dumping of toxic waste in the tiny port town of Koko, in the Bendel State of Nigeria. There, five shiploads of chemical waste were discovered on the property of one Mr. Sunday Nana. Mr. Nana, a poor farmer, was paid $100 a month by Italian businessman Giafranco Raffaelli to store the highly poisonous waste on his property. Mr. Raffaelli, director of Iruekpen Construction Company based in Nigeria, contracted with several European companies to dispose of various toxic industrial by-products and then forged clearance papers and bribed Nigerian port officials to gain entry for the ships carrying the waste. Over 9,000 chemical drums were offloaded at the port at Koko and then taken by truck to Mr. Nana’s property, one kilometer away. The illegal dumping began in August 1987 and was not discovered until June 1988, when an Italian newspaper uncovered the story and Nigerian students in Italy alerted the authorities. Mr. Raffaelli quickly departed Nigeria, but 15 people, including several Italian nationals, were arrested in Lagos for their involvement in the dumping scheme. The Nigerian government seized an Italian-owned ship not connected to the waste trade in an effort to pressure the Italian government to admit complicity and pay for the cleanup of the dump site[4].
The enactment of the Federal Environmental Protection Agency (FEPA) Act geared the enactment of many other federal and state environmental laws and regulations. Some of these laws and regulations will be treated in this article.
FEDERAL ENVIRONMENTAL LAWS AND REGULATIONS
- CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (as amended)
In its Chapter II, specifically in Section 20, the Constitution of the Federal Republic of Nigeria provides that the Government is charged with the responsibility of protecting the environment. Although the constitution of the federal Republic of Nigeria provides for the right to environment, the right is non-justifiable by virtue of section 6 (6) which make it impossible for the courts to make pronouncements on the provisions of Chapter II of the constitution.[5] However, the emerging needs to protect the environment in order to ensure it sustainability have given rise to provide several ways to enforce the right to a safe environment despite the constitutional restrictions.
These methods include; the enactment of laws by the legislature to enforce environmental rights, judicial activism and holistic approach of linking human rights and environmental rights together and thus making environmental rights protectable. The government through the legislature has given life to the right to environment by making laws and regulations that protects the environment from degradation. Thus, the enactment of laws such as the Harmful Waste (criminal provision Act), Environmental Impact Assessment, National Oil Spill Detection and Response Agency (Establishment Act), National Environmental Standards and Regulations Enforcement Agency (NESREA) Act, sectoral legislations which address specific aspects of the environment and human activities (like the Petroleum Act, Nigerian Mining and Minerals Act, Oil in Navigable Waters Act, etc) and incidental legislations which are not specifically intended to address environmental issues but which contain elements that have an impact on the environment (Criminal Code, Quarantine Act, etc).
- NATIONAL ENVIRONMENTAL STANDARDS REGULATIONS ENFORCEMENT AGENCY ACT[6]
NESREA Act is the major federal legislation on the environment in Nigeria. The Act addresses the preponderance of obsolete environmental regulations, standards and enforcement mechanisms which had previously resulted in high rates of non-compliance with environmental laws.
Section 1 of the Act establishes the NESREA itself while Part II of the Act contains the functions of the agency which includes the enforcement of compliance with laws, guidelines, policies and standards on environmental matters.[7] These environmental matters include water quality, air quality, noise control and atmospheric protection[8] as well as the discharge of hazardous chemicals and wastes.[9]
Section 7(c) of the Act also mandates the agency to enforce compliance with the provisions of existing and subsequent international agreements and protocols on the environmental which Nigerian has ratified.
Also, in accordance with section 34 of the Act which empowers the Minister of Environment to make regulations that give full effect to the functions of the NESREA, various regulations like the National Environmental (Wetlands, River Banks and Lake Shores) Regulations, 2009[10], the National Environmental (Sanitation and Wastes Control) Regulations, 2009[11] and the National Environmental (Ozone Layer Protection) Regulations, 2009[12] have been created.
- ENVRONMENTAL IMPACT ASSESSMENT ACT(EIA)
The Environmental Impact Assessment Act of 1992 was promulgated to enable the prior consideration of the impact of private and public sector projects on the environment.[13] The objective of the Act is to establish before a decision taken by any person, authority corporate body or unincorporated body including the Government of the Federation, State or Local Government intending to undertake or authorise the undertaking of any activity that may likely or to a significant extent affect the environment or have environmental effects on those activities shall first be taken into account
This Act thus aims at infusing environmental considerations into developing project planning and execution.[14] It is also a practicable demonstration of the precautionary principle in environmental management in Nigeria.[15]
However, the provisions of the EIA Act and the procedures for filing an EIA report have inherent shortcomings that limit the effectiveness of Environmental Impact Assessments (EIA) in Nigeria. This has resulted in empirical evidence of negative impacts, including a shortage of clean water, oil pollution in the Niger Delta, and various forms of atmospheric, water, and land pollution.
- NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (ESTABLISHMENT) ACT[16]
This Act establishes the National Oil Spill Detection and Response Agency (NOSDRA), which coordinates and implements the National Oil spill Contingency Plan (NOSCP) for Nigeria[17].The NOSDRA Act, was enacted to address the constant occurrence of oil pollution in Nigeria. NOSDRA is charged with the sole responsibility of detecting and cleaning oil spills in Nigeria.[18]The objectives of the act are listed out in section 5, part III of the act.
- OIL IN NAVIGABLE WATERS ACT[19]
Another law worth considering is the Oil in Navigable Waters Act which is Nigeria’s domestication of the International Convention for the Prevention of Pollution of the Sea by Oil 1954-1962. This Act has a more direct impact on environmental protection by prohibiting the discharge or dumping of oil by ships into Nigeria’s territorial waters or shorelines. It imposes an obligation on ship owners to install anti-pollution equipment and prescribes penalties for violations.[20] The enforcement of this Act is by the Minister of Transport, and while the provisions are wholesome, the penalties attached to a breach of these provisions are too minute compared to the degree of pollution the offenders will cause.
- ASSOCIATED GAS RE-INJECTION ACT[21]
The Associated Gas Re-Injection Act of 1979 was created to mitigate the continuous air pollution by oil companies through the gas flaring. It prohibits unlawful flaring of gas from any oil and gas company in Nigeria and stipulates penalties for breaching its provisions.[22] The Act compels oil and gas companies to submit preliminary programmes for gas re-injection and detailed plans for implementation of gas re-injection.[23] The shortcoming of this Act however is that while it prohibits gas flaring on one hand, it allows companies to still apply to the Minister of Petroleum Resources and be granted licences to flare gas.
STATE AND LOCAL LEGISLATIONS
The legal framework of Environmental law cuts across the 3-tiers of government in Nigeria. There federal laws, regulations and agency in the federal level, state level and local government level. Section 25 of Federal Environmental Protection Agency (FEPA) Act empowered states within the Federation to set up their respective State Environmental Protection Agencies, primarily to maintain good environmental quality in relation to pollutants within the state’s control. In this article, our focus will be on the Lagos state environmental laws and regulations.
LAGOS STATE WASTE MANAGEMENT AUTHORITY
The Lagos Waste Management Authority (LAWMA), formerly known as Lagos State Refuse Disposal Board (LSRDB) at inception was established in 1977 vide Edict No. 9 of 1977 to manage the volume of waste generated by Nigeria’s oil boom stimulated economy, and its resultant effect of higher migration into the city. On 13th March, 1979 the Board was officially commissioned and renamed Lagos State Waste Disposal Board (LSWDB) with additional responsibilities for cleaning primary and secondary drains, collection and disposal of industrial-commercial waste and disposal of derelict/scrapped vehicles within the metropolis. In December 1991, the name Lagos State Waste Management Authority was christened vide Edict No 55 which made the agency responsible for the collection, transportation and disposal of municipal and industrial waste as well as the provision of commercial waste services to the state and Local Government Councils. By the provisions of the Environmental Management and Protection Law of 1st March, 2017 the Authority was re-positioned from an Operator/Regulator into a full Regulator in the Waste Management Sector, in line with the Cleaner Lagos Initiative. By this arrangement, Public Waste Operations, Domestic Waste Operations, Waste Management Operations, Landfill Operations and Transfer Loading stations became concessioned to private sector participants, while LAWMA guides models and appraise these practitioners in line with international best practices.[24]
SUSTAINABLE ENVIRONMENT UNDER THE NIGERIAN ENVIRONMENTAL LEGAL FRAMEWORK
Sustainable development and its relative concept of environmental sustainability are international law concepts that have become the bedrock of environmental laws all over the world and Nigeria is not excluded. The National Policy on Environment is a framework guide for the management of the environment and natural resources of Nigeria. It prescribes sectoral and cross sectoral strategic policy statements and actions for the management of the country’s environment for sustainable development. The policy recognizes that environmental degradation “strikes at the very heart of the sustainability of our life, and is compounding human efforts to attain sustainable development”.[25] Thus, the aim of the National Policy on Environment is to “ensure environmental protection and the conservation of natural resources for sustainable development”.[26] The Policy also recognises these sustainable concepts in its subsequent paragraphs on conservation, management of natural resources, waste and environmental pollution, etc
The court in Oronto Douglas v Shell Petroleum Development Company Ltd and Ors[27] per Musdapher JCA also made use of the term ‘sustainable environment’ while describing the plaintiff-appellant as an activist in the protection of the environment, actively involved in the protection of environmental rights and sustainable environment. The NESREA Act in section 2 also acknowledges the concept of environmental sustainability by providing that the Agency has the responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s resources in general.
It is evident from the policy and law referred to that the government has made provision for the sustainability of the Nigerian environment although the realities in Nigeria does not reflect this position as Nigeria has continued to maintain a low ranking in terms of its environment performance.
Hindrances to Environmental sustainability in Nigeria
- The major hindrance to environmental sustainability is ignorance and lack of environmental education by majority of citizens resident in Nigeria especially in rural and less developed settlements and areas.
- Inadequate capacity of environmental agencies to enforce environmental laws and regulations.
- Multiplicity of laws regulating same subject matter.
- Inefficient workers in Government environmental agency.
- Corruption and Poverty.
Recommendations to the issue of environmental sustainability
- Education of the general public.
- Unification of similar laws and repealing redundant laws and regulations.
- Reformation of the government agencies and environmental institutions by removing corrupt officials.
- Establishment of green courts and adoption of ADR methods to resolve environmental disputes.
- Learning and implementing international environmental sustainability standards.
CONCLUSION
Man will continue to need the environment for as long as he exist, it thus a duty upon man to use and protect the environment sustainably in other to preserve the quality of the environment for his use and enjoyment.
[1] By Faidat Balogun, BL, LL.B, Associate Adedunmade Onibokun & Co
[2] Section 41, Federal Environmental Protection Agency (FEPA)Act.
[3] Wood, Stepan and Benjamin J. Richardson. “Environmental Law for Sustainability”, Oxford, UK: Hart Publishing, 2006. ISBN: 1841135445.
[4] Nigeria Accident (Toxic Waste Incident) FY 1988
[5] Chapter II of the 1999 constitution of the Federal Republic of Nigeria (as amended)
[6] NESREA Act No. 25 of 2007, CAP N164 LFN, 2010
[7] Section 7(a) NESREA Act.
[8] Ibid. Section 8(k).
[9] Ibid. Section 27
[10] FRN, Abuja, Regulations No. 26 of 2009, Official Gazette, Vol. 96, No. 58 dated 2nd October, 2009
[11] Regulations No. 28 of 2009, Vol. 96, No. 60
[12] FRN, Abuja, Regulations No. 32 of 2009, Official Gazette, Vol. 96, No. 64 dated 13th October, 2009.
[13] Muhammed Tawfiq Ladan, “Review of NESREA Act 2007 and Regulations 2009-2011: A New Dawn in Environmental Compliance and Enforcement in Nigeria”, 8/1 Law, Environment and Development Journal (2012), p. 116, available at http://www.lead-journal.org/content/12116.pdf
[14] Amokaye Oludayo G., Environmental Law and Practice in Nigeria (University of Lagos Press, Akoka, Lagos, 2004) p. 72.
[15] Section 4 of the EIA Act.
[16] NOSDRA Act, 2007
[17] NOSDRA ACT, sec.5
[18] NOSDRA act, sec.1(1)
[19] CAP O6, LFN 2004.
[20] Sections 1, 3, 5 and 6 of the Act.
[21] CAP A25, LFN 2004
[22] Section 3 and 4 of the Act
[23] Section 2 of the Act
[24] https://www.lawma.gov.ng/aboutus.html
[25] National Policy on Environment (Revised Edition, 2016), Para 2- Situation Analysis
[26] Ibid. Para 3.1- Policy Goal.
[27] (1998) LPELR-6457 (CA)