Abstract
Environmental harm is caused by a host of human activities, each differing in intensity and effect. Pollution by industries is one of the major contributors to environmental degradation and biodiversity loss in Africa, especially the West African sub region.2 The level of development in Africa and insistence of developing countries on complete sovereign right with regards to exploitation of their natural resources, which unhappily is still the norm in international environmental law, clearly suggests that this trend will continue.3 However, two factors make industrial pollution in Africa especially worrisome: first, the meteoric rise in the level of hazardous wastes compared to dwindling mechanization and industrial processes due to downward economic trends, and secondly, the character and legal treatment of the polluters. Major actors in industrial pollution are made up of entities that by implication are either protected from the general theme of environmental laws because of government interest in their activities, or whose real decisionmakers are fairly protected from the consequences of the decisions they make because their entities are persona ficta.
He was a Visiting Scholar at the Environmental Law Institute, Washington, D.C. 2000–2001. This chapter is based partly on an essay submitted to Harvard Law School, Cambridge, USA, in partial fulfillment of the award of degree of LL.M.
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References
See Federal Republic of Nigeria. (1991) Achieving Sustainable Developnent In Nigeria: National Report to UNCED, (hereafter National Report to UNCED). Most of the 2,000 industrial establishments in Lagos State, with a population of over six million, discharge effluents directly into the Lagos lagoon, which is suspected to be one of the worst polluted inland fresh-water bodies in Africa. See “Nigeria Five Others Adopt Pollution Monitoring Manual”, The Guardian, Mar. 15, 1999 (all references to “The Guardian” are to the Nigerian Guardian newspaper). Further, oil producing companies in Nigeria flare about 75 percent of total gas production and about 95 percent of associated gas, a by-product of oil extraction, thereby releasing about 35 million tons of the global warming carbon dioxide. This ranks Nigeria as one of the worstgas-flaring nations in the world.
See World Bank (1990), Towards the Preparation of Nigerian Environmental Action Plan, at 23.
Principle 21 of the Stockholm Declaration on the Human Environment provides: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies...” U.N. Doc. A/CONF. 48/14, at 2–65, and Corr.1(1972), reprinted in 11 I.L.M. 1416 (1972). Commenting on the principle, Professor Louis B. Sohn showed his preference for the Holy See’s proposal on the draft, which had proposed that in the exploitation of national resources, states should follow a”just environmental policy”. He lamented: “While this provision does not go as far as to assert that a state has unlimited sovereignty over its environment, it comes quite close to such an assertion.” Louis Sohn (1973), “The Stockholm Declaration on the Human Environment”,14 Harv. Int’l L. J. 423 at 492. There has not been an improvement in outlook regarding sovereignty and resource exploitation. In reality, the clamor for complete sovereignty got some impetus by stressing that states have sovereign right to exploitation not merely in accordance with theirenvironmental policies however inauspicious, but also their developmental goals. Rio Declaration on Environment and Development (1992) U.N. Doc. A/CONF. 151/26, princ. 2 (vol. I) (1992) reprinted in 31 I.L.M. 874.
National Report to UNCED, (1991) at 14.
These include the 1968 African Convention on the Conservation of Nature and Natural Resources (1968) 1001 U.N.T.S. 3; Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, (1972) 1046 U.N.T.S. 120 Convention on International Trade in Endangered Species of Wild Fauna and Flora, (1973) 993 U.N.T.S. 243, Vienna Convention for the Protection of the Ozone Layer (1985) 26 I.L.M. 1520;Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 I.L.M. 1550.
Reference to FEPA necessarily incorporates the newly established Federal Ministry of Environment, especially its Enforcement Department. The Ministry has effectively taken over the activities of FEPA. It may be observed that there are more than fifty federal laws enacted to ensure protection of the environment. These include: Associated Gas Re-Injection Act, 26 Laws of the Federation of Nigeria (LFN) (1990), Energy Commission of Nigeria Act, 109 LFN (1990);Factories Act, 126 LFN (1990), Federal Environmental Protection Act, 131 LFN (1990),Harmful Waste (Special Criminal Provision, etc.) Act, 165 LFN (1990), Hydrocarbon Oil Refineries Act, 170 LFN (1990), Minerals Act, 226 LFN (1990), Mines and Quarries (Control of Buildings Act) 227 LFN (1990), Oil in Navigable Water Act, 337 LFN (1990), Petroleum Act, 350 LFN (1990), Petroleum (Drilling and Production) Regulations 350 LFN (1990), and Environmental Impact Assessment Decree No. 86 (1992).
In an editorial, The Guardian chronicles the brazen disregard for law and environmental standards by oil corporations. It rightly stated that the 1969Petroleum (Drilling and Production) Regulations, directed oil corporations to commence use of the associated gas from their operations within 5 years. Then the Associate Gas Re-Injection Act (1979) went further to provide sanctions that included forfeiture of oil concessions for non-compliance. The laws were ignored. Thereafter, government introduced a fine of 2 kobo or 0.02 cents, and later 10 Naira or 10 cents per 1,000 standard cubic feet of gas flared. The companies willingly pay the nominal fine and continue with the gas flaring. See The Guardian, (Dec. 30, 1999).
It is to be noted that the paper reflects the pre-August 1999 posture of enforcement, when FEPA was transformed to form the nucleus of a larger, full-fledged Federal Ministry of Environment. See Emmanuel Onwumbiko (1999), “Government Scraps FEPA, Creates Departments Agencies,” The Guardian, Aug. 4, 1999. The structure of the Ministry is still being workd out but it is believed that a new unit of the Ministry, the Compliance and Enforcement Department, will carry out FEPA’s functions. Recently, international conventions have strengthened the role of the public in the development, implementation, and enforcement of international obligations. The most notable declaration crystallising public involvement norms is Principle 10 of the 1992 Rio Declaration: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
See also UNDP (1995) United Nations Development Programme on Sustainable Human Development, The United Nations System-Wide Special Initiative on Africa Booklet available at http://www.undp.org/news/unsia00.htm, seeking to stimulate social and economic development in Africa by placing reliance on public participation.
Nigeria Federal Ministry of Mines, Power and Steel (1991), Report on Market Survey for Rolled and Flat Steel Products in Nigeria Federal Ministry of Mines, Power and Steel.
World Bank (1995) Nigeria: Strategic Options for Redressing Industrial Pollution 3. (World Bank: Washington, D.C.). (hereinafter, Strategic Options). The deposits were done with abandon and were not unusual occurrences. Lead from the pellet plant was about 7.5 times above the acceptable background level. Metal concentrations of nearby cultivated crops were also elevated and nickel concentrations were over the background level.
Ibid.
Ibid. at 6.
FEPA (1991), Guidelines and Standards for Environmental Pollution Control in Nigeria 37 (hereinafter FEPA Guidelines)).
Biochemical Oxygen Demand is a measure of the amount of oxygen consumed in the biological processes that break down organic matter in water. The greater the BOD, the greater the degree of pollution. On the other hand, Chemical Oxygen Demand (COD) is a measure of the oxygen required to oxidise all compounds in water, both organic and inorganic. Due to the discharges by the juice company in Ibadan, the BOD levels of the nearby stream were approximately 60 times the limit of 15 milligrams per litre. FEPA Guidelines, (1991) at 87.
Strategic Options(1995) at 8.
Ibid. p 7.
World Bank (1993), Nigerian Industry: An Assessment, (World Bank Country Operations Division: Washington, D.C.).
Strategic Options, (1995) at 9.
Ibid.
Suspended solids, for instance, were measured to be 1,930 milligrams per liter instead of 5mpl. BOD levels were 27 times and COD 63 times higher. Although effluents must be colourless, FEPA inspections have always found them to be yellow, green or deep purple depending on the factory. The effluents also exceed their limit of manganese, turbidity, and alkalinity. FEPA Guidelines (1995) at 88.
Nigeria (1988) Nigeria National Petroleum Corporation, the Department of Petroleum Resources: The Regulatory Arm of the Oil Industry at 10 (hereafter Department of Petroleum Resources). There were in 1987, 27,520 of petroleum product storage and sale, out of which 4,710 are petrol filling stations.
Joseph Sesebo (1999) “N470b Budget to Relieve Poverty”, The Guardian, 25 Nov., 1999.
Most prominently are the Shell-BP Bomu 11 blowout of 1970 and the Satrap (now Elf) Obagi 21 blowout of 1972. The Funiwa 5 oil well blowout of January 17th, 1980 released 400,000 barrels of crude oil into the marine environment, with N12m of compensation provided. See B.A. Osuno, (1982) “Impact of Oil Industry on the Environment”, in Environmental Awareness Seminar for National Policy Makers, (Federal Ministry of Housing and Environment) at 53.
Equipment failure accounted for 92% of the net volume of crude oil spills in Nigeria between 1976 and 1979; oil spills as a result of natural causes are almost non existent: A. Guobadia (1991), “Defining Corporate Social Responsibility forNigeria’s Oil and Gas Section”, 13 Af J. Int’l. & Comp L. 472, at 478 quoting Awotayo, (1980) An Analysis of Oil Spills in Nigeria 19791980.
Strategic Options, (1993) at 10.
Other refineries have not operated differently. The Warri refinery was also non-compliant with environmental standards. Concentrations of chromium was three times higher, lead was four times higher than the normal standard. Zinc was also four times above the background while copper was six times above its normal measure. See Strategic Options (1993) at 11.
Other major polluting industries are pharmaceuticals, industrial chemicals, paint, pulp and paper, breweries, cement and fertiliser. All of them disposed their wastes without much regard to the environmental rules and standards.
See The Guardian (1999) at 5.
A. Okediran, (1989) “An Appraisal of Environmental Sanitation Edicts in Nigeria” in F. Shylon, The Law and the Environment in Nigeria, 23.
The Allar Irou v. Shell B. P. (Nigeria) Ltd. Suit No.W/89/71, Warri High Court 11/26/1973(unreported) cited in M.A. Ajomo and O Adewale (eds.) (1994),Environmental Law and Sustainable Development in Nigeria (Lagos: Nigerian Institute of Advanced Legal Studies: British Council).
Victims of environmental pollution were often caught up between the wedge of the apparent damage they have suffered and the inadequacy of common law relief, which was not easy to obtain in Court. For instance, the Supreme Court refused to find for plaintiff in Seismograph Services Ltd. y Akpruovo because he failed to prove damages in an action alleging nuisance. The plaintiff had asserted that defendant’s operation caused damage to his building and household (6 S.C. 119 (1974). See also Amos v. Shell B. P. Nigeria Ltd. (1974) 4 E.C.S.L.R. 486, where a representative action alleging damage to a creek through flooding from a large earth dam was dismissed because the creek was held to be a public water way and a representative action for special damages was improper as plaintiffs’ losses were distinct. But see Umudje v. Shell B. P. Nigeria Ltd.(1975) 11 S.C. 155, where defendant was held to be strictly liable for allowing escape of oil from its fields.
Sylvia F. Liu, “The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste,” 8 J. Nat. Resources & Envt’l L. 121 at 131.
Ihid at 124.
“Each Party shall strive to adopt and implement the preventive, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm.” Organization Of African Unity: Bamako Convention On The Ban Of The Import Into Africa And The Control Of Transboundary Movement And Management Of Hazardous Wastes Within Africa, (1991) 30 I.L.M. 775.
Art. 4.
Cap. 131 LFN (1990) as amended by Decree No. 59 (1992). The Agency first operated under the Federal Ministry of Works and Housing but was later transferred to the Presidency, specifically under the Office of the Secretary to the Government. Presently, it is part of the Ministry of Environment.
Section 4.
Section 17(1)(d).
Sections 25 and 26.
2 FEPA (1992)Monograph 13, at 1818,
Ibid. Other alternatives involving use of economic instruments such as emission charges or the use of permit-based system may be highly complex to operate in the absence of adequate technical and information database.
Decree No. 50 (1989).
See Decree No 5 (1992) s. 11 (1992) as amended. The former Natural Resources Conservation Council (NARESCON), the Remote Sensing and Cartography Unit, the Wildlife Management Unit, the Drought and Desertification Control Unit of the Federal Ministry of Agriculture, the Soil Erosion and Flood Control Division and the environmental schools of the Federal Ministry of Water Resources were to operate under FEPA. See further, (1994) 6 The Nigerian Environment, Mar./June.
Petroleum (Amendment Decree) N0. 33 (1977). Enforcement of petroleum laws used to be the responsibility of The Petroleum Inspectorate Division of the Nigerian National Petroleum Corporation (NNPC), a wholly owned government company that sets policy on petroleum and also took part in commercial oil activities. In 1985 the policy arm was separated and named the Ministry of Petroleum Resources. But the Petroleum Inspectorate still remained with the NNPC until 1988 when the Inspectorate was transferred to the Ministry and renamed Department of Petroleum Resources. See Department of Petroleum Resources (1988)at 11.
S. 9(1)(b)(iii) Petroleum Act 1969, 350 LFN (1990).
S. 23 FEPA Act, 131 LFN (1990).
The Guardian, May 4, 1996.
In 1989, FEPA granted a five-year moratorium to all industries in the country with a view to allowing them time to comply with various regulations, especially the installation of pollution abatement facilities. See 6 The Nigerian Environment, Sept./Dec. (1994).
For instance, selective corporate amnesty by the antitrust division of the Department of Justice allowing complete corporate amnesty in certain circumstances has been highly successful in eliciting compliance and preventing violation. To qualify for amnesty, a corporation must terminate its involvement in the regulated activity promptly, report its violation before investigation begins, cooperate completely with the investigation, repay any injured parties, and not be the leader or instigator of the activity. See “Growing the Carrot: Encouraging Effective Corporate Compliance” (1996) 109 Harvard L. Rev 1783, at 1795.
The New Nigerian (1996) Jan. 24.
Section 7, FEPA Act (as amended by Decree No. 59 1992). It has been a policy of the Federal Government since 1981 to set aside 1% of the Federation Account for the amelioration of ecological problems. Before FEPA was made the adviser on its disbursement, 7 ministries performed this function. From 1985–1992 about N1.48 billion ($180 million) was disbursed to Federal, state and local government agencies for control of environmental degradation. By 1992, the Federal Government had reportedly spent about $500 million a year on environmental protection and resource management programs. This represented roughly 1.5% of the country’s GDP. See National Report to UNCED, (1991) at 17 and 44.
In China, enforcement is based on fees for discharges up to the concentration limit and fines for any amount above the limit. 20% of the revenues fund the agencies while 80% is put into a revolving fund, which is loaned out to corporations to partially subsidise the financing of pollution abatement facilities. In India, the environmental boards are financed mainly by fines and penalties. See Strategic Options, (1995) at 27.
Lagos State Environmental Pollution Edict No. 13 (1989). In Kano, the second most polluted city in the country, the highest fines for unlawful discharges were N 1, 000 or $10. Refuse Disposal Agency Edict No. 1, s. 16 (1994).
“As mentioned earlier, quantitative estimates of the long-term losses to Nigeria from environmental degradation have been calculated to be in the region of US $5 billion annually in the absence of nearterm mitigative measures.” World Bank (1990), Towards the Preparation of Nigerian Environmental Action Plan, xiii. (World Bank: Washington, D.C.).
Hassan Adamu, in FEPA Monograph (1992) at 7.
The case of W.S. Kirkpatrick & Co. Inc. et al. v. Environmental Tectonics Corp. International,110 S. Ct. 701 (1990), demonstrates the prevalence of corruption in Nigeria. In that case, the United States Supreme Court unanimously held that act of state doctrine was not available as a defense for an American corporation that was involved in bribing officials of the Nigerian government. The corporation had agreed with Akindele that in the event Akindele secured a contract for the corporation, a commission equal to 20% of the contract price would be paid to him and he would in turn give the money as a bribe to officials of the government.
Newswatch (1988), Jul. 4, at 16.
Most pollution caused by oil industry are clearly preventable: K. O. Oyefolu, & O. A. Awobajo (1979), “Environmental Aspect of the Petroleum Industry in the Niger Delta: Problems and Solutions” in Proceedings of Petroleum Industry and the Environment of the Niger Delta 145.
In an interesting case study of an asbestos company that willfully neglected to comply with environmental regulations, secrete correspondence between the management revealed that “the modifications which had been suggested on the basis of those counts were of such an expensive nature that might require closure of the mine.” N. Gunningham (1987), “Negotiated Non-Compliance: A Case Study of Regulatory Failure”, 9 L & Pol’y 69. The corporation, therefore, decided against installing the necessary dust-control technology, which resulted in loss ofrnany lives as a result of the asbestosis.
(1996), 23:2 Newswatch (Jan. 8).
Ibid.
Shell Producing Development Company, for example, has some of its installations closer than one kilometer to residential areas, contrary to environmental regulations. Indeed one of such is located 10 meters from a residential bungalow in Erhoike, Delta State and it produced 18,000 bpd. Resolution of this lies in relocation of the residents or the oil installations, whomever came later. Shell claims earlier settlement. In any event, it has been estimated that relocation of either of them would cost Shell at least N2 billion (US$25million), a cost reportedly considered by a Shell official to be “prohibitive”. Ibid.
“National authorities should endeavor to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.” Rio Declaration on Environment and Development, (1992),principle 16.
EEC’s Recommendation 75/436, cited in J. Mcloughlin and E. Bellinger (1993)Environmental Pollution Control: An Introduction to Principles and Practice of Administration(Boston: Graham & Trotman).
FEPA Mongraph (1992) at 18.
Judicial awards of damages or fines in the United States are substantial enough to deter potential polluters. For instance, knowing violations of the provisions of theResource Conservation and Recovery Act (42 U.S.C.S. § 6928 (e) and (g) (1994)) could attract a criminal penalty of $50,000 for each day of violation, $1 million where the offender is an organisation, and $25,000 per day for a civil penalty. Liability under the statute is strict and the court narrowly construes it to give effect to the legislative intent. Thus, a penalty of $1,000 per day was appropriate for operation of land disposal facility for 194 days without interim status or permit, where owner/operator had already paid penalty of $19,500 to state and was proceeding to close that facility. U.S. v. T & S Brass and Bronze Works, Inc., 865 F.2d 1261 (1988).
However, directors or officers are increasingly losing their common law protection in modern statutory frameworks. The Harmful Waste Act (1990) 165 LFN s. 7 provides that where a criminal act has been committed by a body corporate and it is proved that it was committed with the consent or connivance or neglect of an officer, he as well as the body corporate, shall be guilty of the crime and shall be liable to be proceeded against and punished accordingly.
Gunningham (1987) at 30.
R. A. Kagan, (1984) “On Regulatory Inspectorates and Police”, at 37 in K. Hawkins and J. M. Thomas, eds., Enforcing Regulation (Boston: Kluwer-Nijhoff Hingham) at 37.
C.D. Stone (1991) , Where the Law Ends: The Social Control of Corporate Behaviour (Illinois: Waveland) at 35.
R.B. Mitchell (1996), “Compliance Theory: An Overview”in J. Cameron, J. Werksman et al. (eds), Improving Compliance with International Law 22 (London: Earthscan).
N. Gunninham (1974), Pollution, Social Interest and the Law (London: Robertson)
R. Cranston (1979), Regulating Business: Law and Consumer Agencies (London: Macmillan, Social Science Research Council)
J. Scholz, (1984), “Voluntary Compliance and Regulatory Enforcement”, 6L & Pol’y 385
C. S. Russel (1990) Monitoring and Enforcement, at 243 in P. Portney (ed.), Public Policies for Environmental Protection (Washington D.C.; Resources for the Future).
E. Bardach & R. A. Kagan (1982), Going by the Book.: The Problem of Regulatory Unreasonableness (Philadelphia: Temple University Press)at 123.
K. Hawkins (1983), “Bargain and Bluff: Compliance Strategy and Deterrence in the Enforcement of Regulation”, 5 L. & Pol’y. Q. 35.
See The Guardian (1999) at 6.
Multinational corporations are better defined by their attributes and functions. The attributes include size and the kinds of business activities in which the corporations have specialised; another is the pattern of their management and control. See R. Vernon, (1977), Storm Over the Multinationals: The Real Issues, (London: Mac-Millan) at 19.
Y. Omorogbe (1987) “The Legal Framework for the Production of Petroleum in Nigeria”, 5 of Energy and Natural Resources L. 273 at 278.
Strategic Options (1995).
For instance, multinational corporations dominated FEPA’s list of honour for ten corporations that were adjudged environmentally friendly in Nigeria. No oil corporation or other corporations where government holds equity or any other interests however made the list. FEPA used five criteria which were: effective effluent treatment; emission pollution control systems; environmental auditing,; self monitoring and reporting system,; effective solid waste management systems,; and good house keeping and sound contingency plans. See6 The Nigerian Environment (1995) Jul./Oct.
A representative case on the issue of utilizing lower standards in developing countries is the ongoing case of Maria Aguinda v. Texaco, Inc. 175 F.R.D. 50 (1997). In that case certain citizens of Ecuador brought an action in the U.S. against Texaco, Inc., the parent corporation of Petroecuador. The claim was that for the past twenty years ending in 1990, Texaco, Inc., through Petroecuador, owned and operated a number of oilfields in Ecuador and allegedly abused the environment through careless disposal of inadequately treated oil wastes, contrary to prevailing standards. The case is mired in complex procedural issues, the latest of which was inadequate waiver of immunity by one of the parties, the government of Ecuador. Likewise, Shell Petroleum has been widely accused of setting substantially lower operating standards in Nigeria than in developing countries. It is stated that Shell operates in 100 countries but that 40 % of its oil spills have occurred in Nigeria. Accordingly, in its 1997 annual shareholders’ meeting, Shell defeated a resolution, filed by a group of its minority shareholders, which called for heightened environmental standards regarding the company’s operations in Nigeria. See David Weinraub (1997), “Shell Defeats the Pirc Group Resolution”, Colo J.Int’l Envt’l L&&Pol’y 136.
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” Rio Declaration (1992), Principle 10. In the U.S. a number of legislative instruments have created enforceable rights of access even to governmentally held documents, e.g. Freedom of Information Act, 5 U.S.C.S. § 552 (1988); Emergency Planning and Community Right-to-know Act, 42 U.S.C.S. §§ 1100111050 (1988).
The United States Clean Air Act (1970) 42 U U.S.C.S. § 7604 (1988) (as amended) is one of the first statutory instruments to provide that any person may commence a civil action against any person including the United States government that is alleged to be in violation of emission standards as stipulated by the law. There is yet no clear authority for citizens’ suits in Nigeria remotely comparable to the Clean Air Act.
See texts accompanying supra note 8..
See Nigerian Environment (1995).
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Ahmad, A. (2003). Policing Industrial Pollution in Nigeria. In: International Environmental Law and Policy in Africa. Environment & Policy, vol 36. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0135-8_7
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