Mainstreaming Enforcement for the Victims of Environmental Pollution: Towards Effective Allocation of Legislative Competence under a Federal Constitution

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Keywords: environmental enforcement, environmental regulation, oil pollution, Niger Delta, India, Federal constitution, environmental justice, legislative competence

Abstract: One of the key features which characterise the severe pollution and degradation of the Niger Delta environment from oil industry activities has been the absence of justice for the victims. The failure on the part of the regulatory agencies to hold perpetrators accountable for environmental pollution is linked to weak and ineffective legislative and institutional frameworks. To this end, a lot of attention has been paid to the need for review of specific laws. However, while conceding the need for review of various laws, this paper argues that the challenge to enforcement transcends merely 'fixing' individual laws, to the Federal Constitution upon which the overall framework for regulation and enforcement is based. Specifically, the paper analyses the allocation of legislative competence between various levels of government under the Federal Constitution and the implications of this for effective environmental enforcement. The analysis draws from experiences in other countries - the US and India - with similar legal systems and Federal Constitution.

INTRODUCTION

One of the key challenges in the Niger Delta region is the severe pollution and degradation of the environment from several decades of oil industry activities. Although the region suffers from naturally occurring environmental challenges, pollution from such sources as oil spills, gas flares, pipeline fires, discharge of effluents and other waste materials, have contributed to the devastation of land, water and air resources. While some level of pollution is unavoidable in the oil industry, the Niger Delta experience is peculiar by reason of its sheer scale; the fact that it is attributable mainly to both poor environmental management practices and a poor spills response by the operators of the industry; and other avoidable sources such as gas flaring.' Over several decades, evidence from various sources attributes as much as 90 per cent of spills to avoidable causes such as pipeline corrosion. This places responsibility for these issues squarely on the oil companies.2

In 1999, the Minister for the Environment attributed the'pathetic environmental' situation in the Niger Delta to 'breach of good environmental management'.

Over the past decades, the Niger Delta terrain has been overrun through deliberate over-exploitation carried out in total disregard of the basic principles of sustainable environmental management ... From available information, close to 4,000 oil wells have so far been drilled in the Niger Delta and offshore areas since 1937 ... that constitute potentially polluted sites at which drilling wastes, drill cuttings, oily sludges and various toxic hazardous chemicals have been disposed.3

In 2002, Rilwanu Lukman, the then presidential adviser on petroleum and energy noted that 'operators seemed to have paid little or no attention to the environment', as the impact of spills that occurred about 30 years ago were still evident, with more recent spills creating further concern.4 Since the mid-1990s, the oil industry has blamed sabotage for a significantly high proportion of oil spill incidents5 (ranging from 70-98 per cent). These figures are unsubstantiated, sometimes inconsistent and both misleading and questionable. While sabotage has been a real problem in recent years, a study of the official spill records of eastern region operations from 1989-2001 found that spills from other causes remained higher than those attributed to sabotage.6 The veracity of oil industry claims have become the subject of a recent complaint filed against Royal Dutch Shell by Amnesty International and Friends of the Earth under the Specific Instance Procedure of the Organisation for Economic Co-operation and Development's (OECD's) Guidelines for Multinational Enterprises in both the UK and Dutch National Contact Points.7

Although the first policy towards the eradication of gas flaring was adopted in the 1960s, huge volumes continue to be flared. Between 1961 and 1998, this was estimated at 82 per cent of total gas production.8 A UNDP/World Bank estimate puts the volume flared at about 70 MCM (2.5 BCFD) daily.9 While there now appears to be some reduction, satellite image data from The World Bank's Global Gas Flaring Reduction Partnership (n.d) shows that Nigeria still flares the second highest volume of gas after Russia.10 This is an unnecessary and a wasteful source of pollution that can be harnessed to provide energy needs for Nigeria and exported to generate significant revenue.'

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