Law as a tool of Environmental Protection in Nigeria: Gaps in extant Law and Policy

The environment is the life support system given by the Creator to mankind. Sometimes in the past, the three components of the environment -air, soil and water - were pure, virgin, undisturbed, uncontaminated and basically most hospitable. The reverse is the case today. Progress in science and technology leads to environmental degradation and serious ecological imbalance, which in the long run, may prove disastrous for mankind. In quest for economic development, which seeks to increase the quantum of economic output without caring about the short- and long-term short-changes of human and material resources arising from the process, the activities of people and nations conquer and wreck the world, rather than sustain it for the present and future generations.

Environmental degradation is the deterioration of the environment through depletion of resources such as air, water and soil (land), the destruction of ecosystems and the extinction of wildlife. Environmental degradation is as a result of the dynamic interplay of socio-economic, institutional and technological activities. Environmental changes maybe driven by many factors including - economic growth, population growth, urbanization, intensification of agriculture, rising energy use, and transportation. Poverty still remains a problem at the root of several environmental problems. In Nigeria, the discovery of oil in the Niger Delta and other mineral resources such as tin in the Jos – Plateau and their exploitation paved way for environmental hazards in Nigeria. Owing to over exploitation of these natural resources, Nigeria is confronted by the following major problems: deforestation, desertification, soil and coastal erosion, oil pollution, gas flaring, water pollution, water hyacinth, loss of biodiversity, urban decay, solid waste management and industrial pollution. 

Progress in agriculture, industry, transportation and technology is usually the barometer of economic development of any nation. Such activities of man have created adverse effects on all living organisms in the biosphere. Rapid industrialization has left with us polluted rivers, contaminated soil, depleted wildlife and exhausted natural resources. As a result, the environment of today has become foul, contaminated and harmful for the health of living organisms, including man. The unlimited rapacious exploitation of the splendid plentifulness of nature by man has disturbed the heritage of ecological balance existing between living and non-living components on the earth planet. This undesirable situation created by man has threatened the survival of man himself and other biota on the earth. Most horrible ecological crises result from urban-industrial technological revolution and speedy exploitation of every bit of natural resources. Globally, man-made pollutants from combustion, construction, mining, agriculture and warfare are increasingly significant in the air pollution equation. Motor vehicle emissions are one of the leading causes of air pollution. Principal stationary pollution sources include chemical plants, coal-fired power plants, oil refineries, petrochemical plants, nuclear waste disposal activities, incinerators, large livestock farms (dairy cows, pigs, poultry, etc.), polyvinyl chloride (PVC) factories, metals production factories, plastics factories and other heavy industries. Agricultural air pollution comes from contemporary practices, which include clear felling and burning of natural vegetation, as well as spraying of pesticides and herbicides.Carbon dioxide, while vital for photosynthesis, is sometimes referred to as pollution, because raised levels of the gas in the atmosphere are affecting the Earth's climate. Long-term rising levels of atmospheric carbon dioxide has the potential to cause slight, but critical, increases in the acidity of ocean waters, with the possible adverse effects on marine ecosystems.

Larger scale environmental damage is not uncommon when coastal oil rigs or refineries are involved. Some sources of pollution, such as nuclear power plants or oil tankers, can produce widespread and potentially hazardous releases when accidents occur. In the case of noise pollution, the dominant source class is the motor vehicle, producing about ninety percent of all unwanted noise worldwide.Some common types of pollution have main health effects on humans. Adverse air quality can kill many organisms, including humans. Ozone pollution can cause respiratory disease, cardiovascular disease, throat inflammation, chest pain and congestion. Water pollution causes approximately 14,000 deaths per day, mostly due to contamination of drinking water by untreated sewage in developing countries. Oil spills can cause skin irritations and rashes. Noise pollution induces hearing loss, high blood pressure, stress and sleep disturbance. Mercury has been linked to developmental deficits in children and neurologic symptoms. Older people are majorly exposed to diseases induced by air pollution. Those with heart or lung disorders are under additional risk. Children and infants are also at serious risk. Lead and other heavy metals have been shown to cause neurological problems. Chemical and radioactive substances can cause cancer and as well as birth defects.

There's also the problem of e-waste disposal methods currently practiced in developing countries create environmental problems. For instance, e-waste disposal in landfills has the potential to cause severe human and environmental health impacts. Plastics in electronics easily leach off in hot weather, especially when left outside. The record levels were 93 times higher than soil without contact with e-wastes. In developing countries, e-wastes containing plastics are commonly littered in collection points for days before they are actually collected. The uncontrolled burning, disassembly and disposal of e-wastes can cause a variety of environmental problems, such as ground water contamination, atmospheric pollution and water pollution either by immediate discharge or due to surface run-off (especially near coastal areas). Recycling of e-wastes is expensive and difficult to carry out, especially in countries like Nigeria that lack the technological wherewithal to handle the process of recycling these toxic substances emitted from e-wastes items.

To protect the environment from the adverse effects of pollution, many nations worldwide have enacted legislation to regulate various types of pollution as well as to mitigate the adverse effects of pollution. Pollution control is a term used in environmental management. It means the control of emissions and effluents into air, water or soil. Without pollution control, the waste products from consumption, heating, agriculture, mining, manufacturing, transportation and other human activities, whether they accumulate or disperse, will degrade the environment. The first major modern environmental legislation was The Clean Air Act of 1956. The Electronic Waste Recycling Act or Senate Bill 50 was signed into law in 2004 by the government of the United States of America (USA). The bill provides for the establishment and funding of a programme for consumers to return, recycle and ensure safe and environmentally sound disposal of covered electronic devices.

It must be noted vehemently that Law or the Legal instrument has been an effective tool for the control and management of Environmental Degradation in Nigeria. For example, events similar to the 1988 Koko Incidence happened in 2010 where there were media reports that a cargo container suspected to be carrying toxic e-waste was shipped onboard MV Maersk Nashville to Lagos from Rotterdam Port, Netherlands. However, this time around because Nigeria now have modern legal and institutional machinery for environmental protection, Nigeria was able to address the situation accordingly. In fact, the DG of NESREA said the agency had prior information and were lying in wait and thus, swiftly ordered the illegal e-waste ship load back to the port of loading in Rotterdam.

Laws regulating the environment in Nigeria are broadly classified into international law, national and municipal laws. These laws should be adequately enacted and enforced to regulate the environmental challenges.  International environmental law developed rules and principles governing multilateral treaties expressing common global concern, as well as those governing transboundary relationships involving two or more neighbouring states. Nigeria has not only acceded to some of these bilateral and multilateral treaties regulating the environment but has a gone a step further to domesticate some of the treaties. Some of the international laws/treaties are:

(i) Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and their Disposal, 1989.

(ii) Convention for Co-operation in the Protection and Development of the Marine and Coastal Environments of West and Central Africa.

(iii) Convention for Long Range Trans-boundary Air Pollution.

(iv) Protocol to the Framework Convention on Climate Change, Kyoto, Japan.

(v) Rio Declaration, 1992.

(vi) Stockholm Declaration, 1972.

(vii) The Convention of the High Sea, 1958.

(viii) Montreal Protocol on Substances that Deplete the Ozone Layer, 1987.

(ix) International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (as amended).

(x) International Convention on Civil and Political Rights, 1966.

Some of theses treaties are not domesticated so that compliance with these laws are merely persuasive since international law recognizes the sovereignty rights of each State.  Nigeria is not dependent on international laws only to regulate its environment. She has promulgated some national environmental laws to check the abuse of the environment. It is an accepted and obvious fact that laws regulating the environmental media were not enacted till about 1987 when the Koko dumping triggered the first legislation – The Harmful Waste (Special Provisions, etc.) Act, but one could say right now that several national laws have been enacted to regulate sectoral aspects of the environment, what however could be said to be lacking is the duely needed enforcement strategies to accomplish the task of sustainable development.

Some of the national laws enacted are:
(i) Federal Environmental Protection Agency Act.
(ii) Environmental Impact Assessment Act.
(iii) Harmful Waste (Special Criminal Provision) Act.
(iv) Oil in Navigable Waters Act
(v) Oil Pipelines Act.
(vi) Petroleum (Drilling and Production) Regulation, 1969.
(vii) African Charter on Human and Peoples’ Right.
(viii) Endangered Species (Control of International Trade Traffic) Act.
(ix) Associated Gas Re-Injection Act.
(x) Petroleum Act.

(xi) National Environmental Standards and Regulations Enforcement Agency           (Establishment) Act 2007

(xii) National Oil Spill Detection and Response Agency Act

Just as it is at the national level, the states have also tried to out do themselves in the promulgation of environmental laws within the limits of the powers conferred on them by the Constitution. Some of these laws are: • Kano State Environmental Protection and Planning Agency Edict of 1990.
• Anambra State Environmental Sanitation Authority Edict No. 5.
• Edo State Environmental Sanitation Edict, 1994.
• Lagos State Environmental Sanitation Edict, 1998.
• Bush Burning (Control) Edict, 1985 (Kaduna State).
• Environmental Sanitation Edict, 1984 (Kaduna State), etc.

As stated earlier, during the colonial era, environmental problems were fewer as the level of industrial and commercial activities were low. There was no clear institutional framework for the protection of the environment and the laws for protection of the environment were found in snippets in laws which were primarily intended for various other sectors. These laws include the Public Health Act 1917; Minerals Act 1958; Water Works Act 1915 amongst others.

With the increasing need to address some of the environmental issues that came with civilisation and the crave for industrialisation, some sectorial laws were enacted to address environmental issues in respective sectors were environmental abuse was becoming apparent. These laws include the Oil in Navigable Waters Act 1968; the Petroleum Act; Associated Gas Re-Injection Act 1979; Minerals Act. Despite these laws, there was still no firm institution in place to coordinate and supervise the enforcement of the provisions. Thus, the power to enforce the Oil in Navigable Waters Act was vested in the Minister of Transport; the Directorate of Petroleum Resources was to enforce regulations under the Petroleum Act and Minerals Act was to be enforced by the Minister of Mines and Minerals. Similarly, the Criminal Code under sections 245 and 247 contains provisions which protect the atmosphere and the water bodies from pollution.

Although the development of environmental law in Nigeria is often traced to the Koko incident, the existence of laws for protection of the environment as seen above cannot be disputed. What is apparent is that despite these laws, there was no regulatory framework for the implementation and enforcement of these laws, and there was no specific umbrella body saddled with the core responsibility of protecting and developing the environment. Hence, most of the numerous laws enacted were merely in existence but largely unenforced and these laws were observed more in their breach than in their observance.

Perhaps the only notable programme implemented in the post-independence era to tackle the sole environmental problem which was identified and prevalent, was the War Against Indiscipline Programme (WAI) initiated by the Buhari/Idiagbon Regime between 1983 and 1985 which was aimed at creating a strong awareness on the need for people to clean the environment regularly and to ensure proper waste disposal and management. This Programme led to the enactment of various Sanitation Edicts in almost all the States of the Federation.

This widely accepted conception of 1988 as the beginning of recognition being given to Environmental law in Nigeria cannot be farfetched from the fact that this was the first time when an umbrella body was established to monitor enforcement and implementation of these teeming laws. After the 1987 Koko incident, proper attention was given to the protection of the environment and policies and regulatory frameworks were put in place at various times to ensure due protection of the environment in specific areas and sectors where environmental problems were becoming notably obvious.

Thus, some of the gaps in the extant law and policy on environmental protection are,

- Insincerity of government in implementation of the policies: government do not seem interested in environmental issues as it can be inferred from the ongoing gas flaring in the Niger Delta region despite the cries, yearnings and agitations of the people in that area for the government to intervene and stop the international companies from the continued flaring. Also the issue of the Ogoni land clean up where the Government and it's agencies have kept silent about.

- Corruption: corruption is one of the major problems of enforcement of environmental policy and law in Nigeria. Many people who are guilty of breaching environmental laws bribe the institutions and agencies and they get away with their offence.

- Funding issues: as stated above that government do not see the environment as a problem, thus, the institutions and agencies are poorly funded. These agencies and institutions will not be able to function properly due to the insufficient funds.

- The provisions of the National Policy are not stable owing to the fact that there have been different policy documents for instance, The 1988 Policy, 1999 Policy, 2016 Policy

- The policy does not stipulate the implementation of the objectives

It must be noted that the most important reason for gaps in our extant law and policy on environmental protection is related to section 20 of the constitution of the Federal Republic of Nigeria 1999 which states that;

           "The state shall protect and improve the environment and safeguard the
             water, air and land, forest and wildlife of Nigeria".

This provision is the section that provides for environmental protection in the constitution. However, the provision is contained in Chapter 2( fundamental objectives and directive principles of state policy) which by virtue of section 6(6)(C) of the same constitution is non-justiciable i.e cannot be enforced in court. The direct implication of this was felt in the case of Oronto Douglas v Shell Petroleum Dev. Comp ltd & ors, where the plaintiff seeking enforcement of his environmental right instituted an action in court against the defendant oil company for failing to comply with the mandatory provisions of the Environmental Impact Assessment Act. The plaintiff sought an injunction restraining the defendants from commissioning the project or carrying out any activity until a proper environmental impact assessment of the project, fully certified by the Federal Environmental Protection Agency has been undertaken in accordance with the environmental impact assessment statute. The Federal High Court in Port Harcourt struck out the plaintiff's case on the ground that he lacked standing for failure to establish a prima facie evidence that his right was affected or any direct injury was caused to him or that he suffered any injury more than the generality of the people.

In another lawsuit in September 2000, a United States court passed judgement in a civil claim instituted by certain Nigerians against Shell. The plaintiffs alleged that Shell Nigeria coercively appropriated land for oil development without adequate compensation and caused substantial pollution of the air and water in the homeland of Ogoni people. The suit was filed at the Federal Court in New York under laws that allow action in the US against firms accused of human rights abuses anywhere in the world. The questions to be asked are, why did the plaintiffs take their matter to the US Court? Why could they not seek redress of their claims in a Nigerian Court? The answers are that our legal system is seemingly hostile to a rights-based approach to environmental protection as it is buttressed by the Port Harcourt Federal Court decision in the Oronto Douglas case.