Legal and Institutional Framework for the Control of Environmental Pollution in Nigeria
Chapter One
PREAMBLE OF THE STUDY
This project deals with the legal and institutional framework for the control of environmental pollution in Nigeria. Pollution of the environment leads to the degradation of the environment which is a consequence of industrialization.
The environment (air, water and land) remains nature’s greatest legacy to mankind. Air, water and land constitute the basic necessities of human existence. In spite of nature’s generous provision of these necessities of life, the environment has been and is still being polluted by man through indiscriminate disposal of domestic, commercial and industrial wastes.
CHAPTER TWO
THE LEGAL FRAMEWORK FOR THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA
In the preceding chapter, we stated that in Nigeria, certain laws are put into place to protect the environment so that the environment may not to be depleted. Laws are enacted to safeguard the environment so that the human race does not go into extinction since man’s life depends on the environment. In this chapter, it is the object of the researcher to state and discuss these laws as they form the legal framework for the control of environmental pollution. As we shall see, the applicable environmental laws in Nigeria are both domestic and international conventions for the protection and preservation of the environment from being polluted.
COMMON LAW
The importance of common law principles with respect to pollution control lie in the fact that it is basically only some of them that one can find some form of civil liability. The law of torts that relates to the control of environmental pollution can be found under the following trespass.
The specie of trespass to land we are interested in here is committed where a person without lawful justification, directly places or projects any material object that pollutes the environment upon land in the possession of another.
Thus, liability for trespass to land was established where noxious gas was blown into a house
It is very necessary for liability in trespass that the placing or projecting of the offending object on to the plaintiff’s land must be direct. If it is direct, there can be no liability in trespass but only in nuisance, for which a plaintiff must prove damages. Therefore, while deliberate dumping of industrial waste on a farmland is direct and will found an action in trespass to land, the dispersal of waste being transported in open trucks on to private property will at least found an action in nuisance.
CHAPTER THREE
THE INSTITUTIONAL FRAMEWORK FOR THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA
We saw in the preceding chapter that there are many laws in Nigeria for the control of environmental pollution. But the fact is that these laws do not just exist for their effectiveness, there must be institutions or bodies charged with the responsibility of enforcing them. This is the crux of this chapter. The writer in this chapter will dwell on the various institutions for the enforcement of these environmental laws.
The role of the individual shall also be considered for the purpose of this project, the enforcement agencies shall be classified as follows:
CHAPTER FOUR
ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA
LEGAL FRAMEWORK – ANALYSIS
The environment remains man’s greatest legacy. Environmental pollution leads to the degradation of the Eco-system. To survive, man must safeguard the environment from being polluted.
We have seen that many laws are brought into place for the control of environmental pollution. There are also institutions established for the enforcement of these laws. Yet, our environment still suffers from pollution. Considering the above, the crucial question is where are the laws and the institutions? Is there a gap somewhere?
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
The environment remains man’s greatest legacy, environmental pollution leads to the degradation of the Eco-system. Man lives in the environment to survive, therefore, man must safeguard the environment from being polluted.
It is in this respect that the Nigerian Government has put in place certain legal and institutional framework for the control of pollution.
It is also instructive to note that Nigeria has signed many international environmental treaties.
We have seen that many laws are brought into place for the control of environmental pollution. There are also institutions established for the enforcement of these laws. Yet, our environment still suffers from pollution resulting from man’s activities.
Oil production has been going on in Nigeria for over 52 years together with the flaring of natural gas. The resultant effect is the unsustainable practice of air, water and land pollution. This situation is nothing to write home about when compared with oil production in the advanced countries. Data collected by the Alberta Energy and Utilities Board in Canada shows that in 1996 about 92 percent of gasses were conserved or used in some manner. Only eight percent was flared. Even with the end of gas flaring, air pollution is likely to remain a problem in Nigeria, as other sources such as automobiles, diesel – fired electrical generators, decomposing dead animals, etc still pollute the air.
Oil spill in the Niger Delta is still a regular occurrence. This pollutes water and land. It destroys marine life.
Considering the above, the crucial question is where are the legal and institutional framework for the control of environmental pollution when our environment is being polluted with reckless abandon?
A critical analysis of the institutional framework for the control of environmental pollution will reveal in luminous clarity that there exists certain defects.
It will be recalled that section 20 of the Constitution of the Federal Republic of Nigeria, 1999 provides that:
“The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”
Pathetically, this provision is non-justifiable. However, despite the failure of our Constitution to provide for environmental right under chapter IV, the birth of the African Charter on Human Peoples Rights and its enactment as part of the Nigerian Law, may also provide a refuge for human right.
In respect of the enforcement of most of the environmental laws, for instance, the EIA Act, it is the government that prosecutes. Recent experience has shown that where the government is the culprit, there will be no way of ensuring that some remedies are advanced unless through civil actions. However, in respect of these civil matters, the individual still lacks locus standi.
Again, recourse to common law tort remedies for liabilities arising from oil pollution does not even help matters. This is because the remedies are insufficient to effectively deal with the hazardous activities of the oil companies.
Furthermore, the concentration of oil pollution cases in one court does not also help matters. One of the reasons why trials of environmental pollution cases are not often pursued is that jurisdiction is exclusively vested in the Federal High Court. This court is already over-burdened with other cases in which it also has exclusive jurisdiction, and so the additional responsibility of environmental pollution cases on it has stretched it to a breaking point resulting in extreme congestion and delay in trials. Consequently, federal environmental authorities and even individuals are not enthused to take environmental pollution cases to court.
It is also to be noted that the federal government has interests in all the oil companies. It is doubtful whether the Federal Government Agencies will impose penalties on the Federal Government as it will amount to imposing penalties on itself. It is instructive to note that NNPC holds 60 percent shares in the joint venture with other oil companies.
Although Section 37 of the NESREA Act provides for the setting-up of States and Local Governments Protection Agencies, there still remains much to be done to create an awareness on rural dwellers on the need for sustaining the environment. More of these people are totally oblivious of the danger until the calamity actually strikes.
In respect to State Environmental Protection Laws, certain problems arise which of course tend to whittle down their relevance. More often, emphasis is laid on merely ensuring clean and healthy sanitary environment as against more complex environmental problems like pollution and environmental degradation.
At the various levels, there is the problem of conflict of powers amongst the agencies usually established to tackle the problem of pollution.
Other problems confronting the agencies are lack of trained technical manpower, inappropriate technology, quick money philosophy, absence of, or existence of ill-equipped institutional framework and absence of information.
Moreso, in respect of the economic approach, though it seems to have proffered solution to the problem of pollution, it leaves us with the question of sustainable development. The imposition of tax on the externality does not stop the polluting effect of the waste products on our environment. The issue of preservation of natural resource for generations yet unborn cannot be compromised for monetary compensations.
RECOMMENDATIONS
Having recognized the existence of thee laws and institutions for the control of environmental pollution, it can be seen that the major problem lies in the enforcement of these laws. It is on this ground that the following recommendations are proffered.
- We make recommendation for judicial activitism, we recognize that though the laws are not really adequate, our judiciary has to be vibrant. Decisions like that of Allan Irou v Shell BP,wherein the court refused to grant injunction because “nothing should be done to disturb the operations of a trade (i.e. petroleum) which is the main source of revenue of the nation’s economy”, should be rejected.
- Application of strict liability is recommended. Countries like Norway and Germany have adopted strict liability for environmental hazardous activities.The adoption of strict liability will relieve individuals of the heavy burden of proving negligence on the part of the company, which caused the pollution.
- Creation of economic incentives for companies engaged in pollution control or abatement should be encouraged.
- Like in the U.S. and England, the law should allow individuals to sue directly any polluter particularly when such an individual is a victim directly affected by pollution.
- The agencies, both Federal, State and Local Government should carry out a large number of case studies to evaluate various problems of the environment.
- An annual “state of the environment” report should be issued by appropriate agencies.
- At all times, the march towards an era of social justice, self reliance and sustainable development should be monitored and evaluated to ensure that all sectors are involved in the implementation of pollution control laws.
- Government should consider putting environmental matter in the Exclusive Legislative list in order to centralize the institutional infrastructure for environmental legislation and avoid an unsystematic approach. This is because under the present institutional structure, legislative and administrative authorities are carried out by the Federal, State and Local Government.
- Government should monitor on a regular basis the environmental impact of certain operations of companies e.g. oil mining operations.
- NESREA should strengthen its training programmes for the management staff generally and inspectorate staff in particular.
- Specialized courts, solely for environmental pollution matters should be established. Judges in these courts should be trained scientifically and technically so that they can be able to handle scientific and technical pollution matters.
- While the 8threcommendation above awaits implementation, State and Local Governments should set aside more funds for environmental cleanliness and pollution control in their areas of jurisdiction.
- The provision of Section 20 of the 1999 Constitution should be removed from chapter II and inserted in Chapter IV so as to make it justiciable.
BIBLIOGRAPHY
- Adedipe, N.O. Policy, Ibadan: University Press, 1991
- Atsegbua, L. (ed.) Selected Essays on Petroleum and Environmental Laws, Benin City: New Era Publications, 2000.
- Ajomo, M.A. and Odewale O., Environmental Law and Sustainable Development in Nigeria, N.I.A.L.S. and the British Counsel, 1994
- Atsegbua L.A. et al, Environmental Law in Nigeria: Theory and Practice, Ababa Press Ltd, Lagos, 2003.
- Okorodudu-Fubara M.T., Law of Environmental Protection, Materials and Text Caltop Publications (Nig.) Ltd., Ibadan, 1998.
- Omoruyi I.O., The Legal Process and Environmental Protection in Nigeria, Ambik Press, Benin, 2002.
- Omotola, J.A., Environmental Law in Nigeria, including Compensation, University of Lagos, 1999 Lagos.
- Osunbor, A.O. et al, Environmental Law and Policy Edited by Simpson and Fagbohun, Law Centre, Faculty of Law, LASU, Lagos.
