An Overview of the Legal Framework for Oil Pollution in Nigeria

AN OVERVIEW OF THE LEGAL FRAMEWORK FOR OIL POLLUTION IN

NIGERIA

Olawale Atanda*

ABSTRACT

Oil pollution is without a doubt a serious issue in Nigeria today. Since Nigeria discovered the

‘black gold’ in Oloibiri, Bayelsa state in 1956 the environment has been wrought with oil spills

which have caused the degradation of farmland and gradual destruction of aquatic life through

the exploration and exploitation of crude oil. This is even more depressing considering that the

general environment where these oil spills occur – the Niger Delta – is an area where the

mainstay of the local environment is farming and fishing. This has caused a halt in the peoples’

occupation and more or less destroyed the local economy. This paper seeks to highlight the

various legislations that have been enacted by the federal government to arrest this unfortunate

reality. It will also look at the effect these laws have had on oil pollution and if they have

succeeded in addressing this burning issue. Lastly, it will highlight cases that have been brought

against oil companies by individuals and communities that have been severely affected by oil

spills in their immediate environment.

1. INTRODUCTION

Oil pollution is an environmental issue that plagued the Nigerian environment since the

exploration and exploitation of crude oil within Nigeria’s borders. Oil pollution can cause

serious consequences for the marine environment which can be dire for the survival of the

fauna and flora therein. It can also cause distress to the ecosystem and the people living near

the contaminated sites, affecting their livelihood and quality of life (ITOPF, 2012).

The Niger Delta, which has borne the brunt of this environmental disaster is a huge fertile

farmland and has a vast mangrove ecological makeup. The Niger Delta region is made up of 9

States of the Nigerian Federation namely Abia, Akwa Ibom, and Bayelsa. Cross River, Delta,

Edo, Imo, Ondo and Rivers States (Ukpeh, 2009). The population of the Niger Delta is

estimated to be 27 million. Of the people residing in the Niger Delta region, 75 per cent rely

on natural endowments for a living. But air, water, soil and forest resources have been

devastated by the exploitation of oil and gas resources (Milieudefensie, 2008). Nigeria is the

largest producer of oil in Africa and the 6th largest producer in the world. However, the people

of the Niger Delta – where the vast majority of oil deposits are found – have benefited little

from this and instead are left to deal with oil spills, gas flares, and significant environmental

pollution that has destroyed farms, streams, and fishing— key resources on which the

indigenous people depend (Konne, 2014). Since the discovery of oil in Nigeria in 1956, the

country has been suffering the negative environmental consequences of oil exploration and

exploitation. Between 1976 and 1996 a total of 4647 incidents resulted in the spill of

approximately 2,369,470 barrels of oil into the environment. In addition, between 1997 and

2001, Nigeria also recorded a total number of 2,097 oil spill incidents (Nwilo & Badejo, 2006).

According to Ogbodo (2010), it took the 1988 Koko toxic waste dump for the country to

fashion a National Policy on the environment with supporting statutory legislations. Yet, the

country has had several legislations concerning oil exploration, exploitation and pollution as

far back as 1963. It could be said that the federal Government did not take the enforcement of

these laws seriously until the incident in 1988. This directly led to the creation of the FEPA

(now NESREA). Since then, several more legislations have been enacted to deal with this

problem. However, oil pollution cannot be said to have been controlled to a satisfactory degree.

2. LEGAL FRAMEWORK

In 1963, the government started creating the legal framework (principal and subsidiary

legislations) for the control and mitigation of oil pollution which include:

a. Mineral Oil Safety Regulation 1963

b. Oil in Navigable Waters Regulation 1968

c. Oil in Navigable Waters Act No 34 of 1968

d. Petroleum Regulations 1967

e. Petroleum Decree 1969

f. Petroleum (Drilling and Production) Regulation 1969

g. Petroleum (Drilling and Production) Regulation 1973

h. Petroleum Refining Regulation 1974

i. Federal Environmental Protection Agency Act - 30th December 1988

j. Mineral Oils (Safety) Regulations 1997

(Source: www.dprnigeria.com)

Amendments:-

a) Petroleum (Drilling and Production) (Amendment) Regulations 1990

b) Petroleum (Amendment) Decree 1996

c) Petroleum (Amendment) Decree No.23, 1998

d) Petroleum (Drilling and Production) (Amendment) Regulation 1996

(Source: www.dprnigeria.com)

Apart from these, there are relevant National and International Agreements in place such as:

a. Endangered Species Decree Cap 108 LFN 1990.

b. Federal Environmental protection Agency Act Cap 131 LFN 1990.

c. Harmful Waste Cap 165 LFN 1990.

d. International Convention on the Establishment of an International Fund for Compensation

for Oil Pollution Damage, 1971

e. Convention on the Prevention of Marine pollution Damage, 1972

f. African Convention on the Conservation of Nature and Natural Resources, 1968

g. International Convention on the Establishment of an International Fund for the

Compensation for Oil Pollution Damage, 1971

h. Oil Pollution Act (OPC) 1990

i. Environmental Guidelines and Standards for the Petroleum Industry in Nigeria issued by

the Ministry of Petroleum Resources 1991

j. National Environmental Protection Management of Solid and Hazardous Waste Regulation

1991 (FEPA)

k. Establishment of the Federal Environmental Protection Agency (FEPA) Decree No 58 of

1988 and Amended in Decree No 59 of 1992 National Policy of the Environment 1999

(FEPA Revised Edition)

(Ukoli, 2005 quoted in Kadafa, Mohamad, & Othman., 2012).

i. Establishment of National Environmental Standards and Regulations Enforcement Agency

(NESREA). By the NESREA Act, the FEPA Act has been repealed.

2.1. Here, some of the legal/statutory frameworks and their effect in curbing

environmental pollution will be discussed:

I. The Constitution of the Federal Republic of Nigeria, 1999 CAP C20 LFN, 2004

Section 20i states as follows: “The State shall protect and improve the environment and

safeguard the water, air, land, forest and wildlife of Nigeria”. Section 17(2) (d)ii of the

Constitution complements the aforestated provision by stating that:

“Exploitation of human or natural resources in any form whatsoever for reasons other than

the good of the community shall be prevented”.

II. Oil in Navigable Water Act (1968)iii

The Act is in fact the first law that deals specifically and solely with the industrial waste

generated by oil production. It is concerned with the discharge of oil from ships. Nwufo

(2010) argued that the enforcement of this legislation has been watered down by several

loopholes in its provision through which offenders may wriggle through. Igbokwe (2001)

contended that the penaltiesiv prescribed in the act are too lenient on offenders and apart from

ineffective enforcement of the laws contained in the act, they find it cheaper to breach the

laws and pay ridiculously low fines than adhere to them.

III. National Oil Spill Detection and Response Agency Actv

The agency at the forefront of response to oil spill incidents is the National Oil Spill

Detection and Response Agency (NOSDRA). Section 1 (1) states that NOSDRA is the

federal agency with the statutory responsibility for preparedness, detection and response to all

oil spillages in Nigeria. However, in many cases, it is observed that oil spill investigations are

usually led by oil companies’ personnel and NOSDRA does not initiate oil spill

investigations. The agency is thus seen to be dependent on the company involved in an oil

spill incident, whether it involves conveying NOSDRA staff to oil spill sites or supplying

technical data about spills. Furthermore, the process of joint investigation is heavily reliant on

the oil companies (Olaniyan, 2015).

IV. Associated Gas Re-injection Act (1979)vi

The Associated Gas Re-Injection Act deals with the gas flaring activities of oil and gas

companies in Nigeria (ELRI, 2015).

The gas re-injection decree stipulates a fine of 10 US cents per 1,000 cubic feet of gas

flaredvii compared to the $10 fine charged in western countries (Chijioke sited in Andrews,

2015).

V. Federal Environmental Protection Agency Actviii

In 1988, an unforeseen occurrence led to an aggressive environmental policy. This was when

toxic wastes were dumped in koko, a village in Delta State. However, according to Edo

(2012) the action of the Nigerian government in responding to this national embarrassment

was decisive and quick. The creation of the Federal Environmental Protection Agency

(FEPA) by Decree 58 of 1988 set FEPA as the sole body charged with the responsibility of

protecting the environment. The decree gave the agency broad enforcement powers to act,

even without warrants, in bringing violators, to book. They have the power to gain entry,

inspect, seize and arrest with stiff penalties of a fine and or jail term on whoever obstructs the

enforcement officers in the discharge of their duties or make false declaration of compliance

(Adegoroye, 1995 quoted in Edo 2012). The FEPA Decree prohibitsix the ‘discharge in such

harmful quantities of any hazardous substance into the air , or upon land and the waters of

Nigeria or at the joining shorelines except where such discharge is permitted or authorised

under any law in Nigeria. However, an owner or operator is exempted from strict liability

where the oil spillage was as a result of “natural disaster” or an act of war or by sabotage.

VI. National Enforcement Standards and Regulation Enforcement Agency Act

(NESREA)

The Act establishes the National Environmental Standards and Regulation Enforcement

Agency and it is currently the major federal body charged with the protection of Nigeria’s

environment. NESREA was created to replace the defunct Federal Environmental Protection

Agency (FEPA). Section 7(a) states that the Agency is authorised to enforce compliance

with laws, guidelines, policies and standards of environmental matters. Its authority extends

to the enforcement of environmental guidelines and policies, such as the National Policy on

the Environment, 1999 (Ladan, 2012).

VII. Environmental Guidelines and Standards for the Petroleum Industry in Nigeria

(EGASPIN)

The Nigerian Department of Petroleum Resources (DPR), the department primarily

responsible for regulating the oil industry, expanded these requirements in 1991 by

promulgating the Environmental Guidelines and Standards for the Petroleum Industry

(EGASPIN). “EGASPIN confirms that oil and gas operations are governed by the Nigerian

Petroleum Act and subsequent federal legislation.” Regarding oil spills, EGASPIN requires

that oil companies commence cleanup within twenty-four hours of the occurrence of a spill.

Where a spill is on inland waters or wetlands, the only option for cleanup is complete

containment and removal. Operators must conduct their cleanup efforts in a way that does not

cause additional harm to the environment (Konne, 2014).

VIII. Petroleum (Drilling and Production) Regulations 1969

The Petroleum (Drilling and Production) Regulations 1969, provides in Section 25, that

licenses and lesses should take prompt steps to control oil pollution where it occurs and if

possible, end it. Yalaju (undated) averred that in the context of this section, operators in the

industry do not have an obligation to control nor end pollution.

Apart from statutory enactments regarding liability for environmental pollution, there is

liability for environmental pollution under the Common Law principles of Law of Torts that

is: Trespass; Negligence (res ipso facto); Public and Private Nuisance. The case of Rylands v.

Fletcher which emphasized strict liability against the defendant is also relevant. The court

held in that case that anyone bringing onto lands, in the course of a “non-natural” use of the

land, something “likely to do mischief if it escapes… is prima-facie answerable for all the

damage which is the natural consequence of its escape.” All of these have been used to

recover damages in cases of oil spill litigated through the courts. They are also applicable in

environmental pollution claims.

2.3. Effects of Laws on Environmental Protection

As elucidated in the respective acts above, the effect of these acts on preventing

environmental pollution and degradation is mixed. However, this is not anything to be

enthusiastic about. The Nigerian state, especially the Niger Delta region is heavily polluted.

A refreshed and dedicated approach has to be taken with a holistic view to address the

dreadful situation the environmant is in. Regardless of the plethora of laws concerning

environmental pollution in Nigeria, the pollution of the environment has not ceased.

Ibaba (2010) cited in Edo (2012) observed that the overreaching environmental laws in

Nigeria has not in anyway contributed to sustainable development. It has also not been able to

reduce the rapid rate of environmental degradation especially as the case of the Niger Delta

has shown. This he adduced to the lack of enforcement of the laws which is the most

fundamental cause of inability of the legislation to protect the environment. The palpable

inability of FEPA to enforce environmental laws and compliance in the country was a major

reason for the creation of the National Environmental Standards and Regulations

Enforcement Agency (NESREA) in 2007 (Edo, 2012). The NESREA Act repealed the

Federal Environmental Protection Agency Act and became the primary law on environmental

protection. It is hoped that the newly established agency will live up to the expectations

contained in its establishment act and vigorously enforce its charge to protect the

environment.

3. Cases on Environmental Pollution in Nigeria

Friday Alfred Akpan (Ikot Ada Udo) v Shell – A Netherlands court held in January

2013 that SPDC was liable to pay compensation to the plaintiff because it had

breached its duty of care and had committed the tort of negligence by failing to take

sufficient measures to prevent a sabotage by third persons to Shell Nigeria’s

submerged pipelines near Ikot Ada Udo in 2006 and 2007 (CEPMLP, 2013).x

Fidelis A. Oguru (Oruma) v Shellxi

Barizaa Tete Dooh (Goi) v Shellxii

Efanga v Shellxiii

Bodo Community & Ors v The Shell Petroleum Development Company – The

community sought compensation from SPDC over two oil spills that occurred in 2008

which devastated the local environment. A settlement was reached between SDPC

and the Bodo Community which will see Shell pay-out 55 million pounds to the

community (35 million to be paid directly to affected individuals and 20 million

pounds to the community at large).xiv

Sam Ikpede v. The Shell – BP Petroleum Development Company Nigeria Limitedxv-

the plaintiffs claimed damages as a result of the escape of crude oil and or chemicals

from oil pipelines of the defendant on to the land of the plaintiffs. They claimed

reasonable and adequate compensation; and in the alternative relied on the rule in

Rylands v. Fletcher. It was held by Ovie – Whiskey, J. (as he then was) that “to lay

crude oil carrying pipes through swamp forest land is … a non-natural user of the

land” and that “it is common knowledge that crude oil causes great havoc to fishes

and crops if allowed to escape from the pipeline in which it is being carried.”

Notwithstanding, the above finding, the rule was held not to apply because the acts of

the defendants fell under the exception of statutory authority, since they had a license

to lay the oil pipes. Nevertheless, they were held liable to pay reasonable and

adequate compensation under section 11 (5) (c) of the Oil Pipelines Act53 on the

basis of statutory strict liability (Ayodele, undated).

Umudje and Another v. Shell-B.P. Development Company Nigeria Limited xvi - 6,000

pounds (N12,000) was awarded to the respondents for damages to their ponds in

Unenurhie Land.

SPDC v Chief Tigbara Edamkue & Orsxvii- The trial court granted a claim for

damages instituted by the respondents against the appellants for damages suffered as a

result of a serious explosion and spillage of crude oil from the appellants Yorla Oil

Field in Khana Local Government Area of Ogoniland in Rivers State which occurred

in 1994. The damages was to the tune of N225,806,601 million. The appellants

appealed to the Appeal Court and subsequently to The Supreme Court. The court per

Ogbuagu JSC dismissed the appeal for lack of substance and being unmeritorious.

4. CONCLUSION

It can be said that the various legislations bordering on oil pollution in Nigeria have had

both negative and positive effects. However, the negative effects – prime among these

which is the continued oil spills being recorded in the environment – are threatening to

overshadow the positive ones. What is needed is for the Federal Government to take a

firm stand against oil pollution by sanctioning both the oil companies who are negligent

with their pipelines and other installations and other third party players such as vandals

who contribute to this grave environmental problem. The government also needs to

strengthen the existing bodies/agencies concerned with oil pollution management and

prevention to ensure the adherence and enforcement of the existing laws. Lack of

enforcement of which is the most fundamental cause of the inability of these laws to

protect the environment from oil pollution.

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*Olawale Atanda is a student of law at the University of Lagos. i The Constitution of the Federal Republic of Nigeria, 1999 CAP C20 LFN, 2004 ii Ibid. iii Cap. 06, Laws of the Federation of Nigeria, 2004. iv Section 6 of the Oil in Navigable Waters Act, CAP 06, LFN 2004 makes punishable such discharge with a fine of N2,000 v The National Oil Spill Detection and Response Agency (Establishment) Act No.15, 2006 vi Cap. A25, Laws of the Federation of Nigeria, 2004. vii Section 4 of the Associated Gas Re-Injection Act, CAP 20, LFN 2004 stipulates the penalty for breach of the permit conditions. viii Cap. F10 Laws of the Federation of Nigeria, 2004. ix s.20(1) FEPA Decree 1988 No.58 x Milieudefensie (friends of the earth) a Netherlands-based environmental group, along with four Nigerian farmers, brought a lawsuit against SPDC due to oil pollution in three Nigerian villages. xi The court held that the oil spills were not the result of poor maintenance by SPDC but were caused by sabotage of the pipelines by third parties. Based on Nigerian law (which the court used – FEPA Act), an oil company is not liable for oil spills caused by sabotage. Based on this, the case was dismissed. xii Ibid. xiii Ibid. xiv Accessed at guardian.com/environment/2015/jan/07/shell-announces-55m-payout-for-nigeria-oil-spills xv (1973) M. W. S. J. 61 xvi (1975) 9-11 S.C. 115 at pp. 158, 175-176 xvii Decided on Friday, 10/7/2009 in the SC of Nigeria. Suit No: SC.60/2003. Accessed on lawaspire.com.ng