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International Oil and Gas Environmental Legal Framework and the Precautionary Principle: The Implications for the Niger Delta

Document Cited authorities 5 Cited in Related
Vincent
DOI10.3366/ajicl.2014.0078
AuthorSylvester Oscar Nliam
Published date01 February 2014
Pages22-39
Date01 February 2014
INTRODUCTION AND THE ENVIRONMENTAL IMPACT OF OIL AND GAS IN THE NIGER DELTA REGION Introduction

The precautionary principle originated as an environmental principle and has developed over the years as a widely and increasingly accepted general principle of environmental policy, law and management.1

R. Cooney, The Precautionary Principle in Biodiversity Conservation and Natural Resources Management: An Issues Paper for Policy-Makers, Researchers and Practitioners, IUCN (2004), p. ix.

While it is an increasingly important and acceptable principle of law and policy, especially in the area of new processes or products, usually the result of technological development,2

For instance industrial chemicals, pesticides, insecticides, hormone-treated livestock, or nanotechnology, nuclear power plants, mobile phones, electro-magnetic fields and genetically modified organisms.

 the precautionary principle has yet to be focused on in oil and gas exploration and production in Nigeria. This article examines the precautionary principle and international upstream oil and gas environmental laws and the implication for better environmental protection in the Niger Delta region (NDR) in the specific field of upstream oil and gas development activities.3

For the purpose of this article, oil and gas exploration and production is limited to upstream oil and gas development activities which includes exploration, prospecting and production.

 The purpose of this article is to answer the following questions: what is the value of the precautionary principle to oil and gas exploration and production in the NDR? What are the uncertainties associated with upstream oil and gas development activities? How is the precautionary principle relevant to upstream oil and gas development activities in the NDR? Can the international oil and gas environmental laws offer better environmental protection in the NDR through the application of the precautionary principle Environmental impact of oil and gas in the Niger Delta region

Oil is the mainstay of Nigeria's economy, accounting for over 97 per cent of her foreign exchange earnings4

Report of the Technical Committee on the Niger Delta, November 2008, available at http://www.stakeholderdemocracy.org/uploads/Other%20publications/Nigeriareport.pdf (accessed 7 May 2012), p. 102. The Nigeria Ministry of Petroleum Resources (MPR) notes that that petroleum industry accounts for 98 per cent of Nigeria's foreign exchange earnings. See http://www.mpr.gov.ng/index.php?option=com_content&view=article&id=19&Itemid=2 (accessed 7 May 2012).

and over 85 per cent of her gross domestic product (GDP),5

M. O. Ameh, ‘Too Much Hype about Nigeria's Oil’, available at http://www.hollerafrica.com/showArticle.php?artId=157&catId=2&page=3 (accessed 4 January 2011).

 and the NDR holds the vast concentration of the country's oil and gas resources.6

Although oil in Nigeria is found in the NDR, ownership of the oil and gas lies with the Federal Government. Constitution of the Federal Republic of Nigeria 1999 section 44(3); Petroleum Decree section 1, now Petroleum Act Cap P10 Laws of the Federation of Nigeria 2004 (Petroleum Act); Exclusive Economic Zone Act Cap E17 Laws of the Federation of Nigeria 2004; Attorney General of the Federation v Attorney General of Abia State & 35 Others (2002) 6 NWLR Pt 764, p. 542; K. S. A. Ebeku, ‘Nigerian Supreme Court and Ownership of Offshore Oil’, 27(4) Natural Resources Forum (2003): 291–9, at 291; E. Egede, ‘Who Owns the Nigerian Offshore Seabed: Federal or States? An Examination of the Attorney General of the Federation v. Attorney General of Abia State & 35 Ors Case’, 49(1) Journal of African Law (2005): 73–93, at 73; Y. Omorogbe and P. Oniemola, ‘Property Rights in Oil and Gas under Domanial Regimes’, in A. McHarg, B. Barton, A. Bradbrook and L. Godden (eds), Property and the Law in Energy and Natural Resources, Oxford University Press (2010), pp. 116, 121.

 An estimated US$600 billion is said to have been generated through oil and gas in Nigeria since the commercial discovery of oil and gas in the NDR.7

G. Wurthmann, ‘Ways of Using the African Oil Boom for Sustainable Development’, African Development Bank, Economic Research Working Paper Series, No. 84, March 2006.

 It has been reported that in 2002, 99.6 per cent of Nigeria's export income came from oil.8

E. O. Ekperigin, ‘Environmental Human Rights and the Petroleum Industry: The Nigerian Perspective’, 7 Oil, Gas & Energy Law Intelligence (2009): 9.

 Successive governments in the country have continued to maintain this reliance on oil and gas such that the economy has been turned into a mono-cultural one9

N. E. Ojukwu-Ogba, ‘Legislating Development in Nigeria's Oil-Producing Region: The NDDC Act Seven Years On’, 17 African Journal of International and Comparative Law (2009): 136–49, at 136.

 inflicted with the ‘Dutch disease’.10

T. L. Karl, The Paradox of Plenty: Oil Booms and Petro-States, University of California Press (1997), p. 5. Where Dutch disease is defined as ‘a process whereby new discoveries or favourable price changes in one sector of the economy – for example, petroleum – cause distress in other areas – for example agriculture or manufacturing’. It is noteworthy that prior to the discovery of oil in Nigeria, agriculture was the mainstay of the economy with the following prominent products: cocoa, groundnuts and palm oil. K. S. A. Ebeku, ‘Oil, Niger Delta and the New Development Initiative: Some Reflections from a Socio-Legal Perspective’, 4 Oil, Gas & Energy Law Intelligence (2006): 2.

More than four decades of oil exploration and production activities have left a severely degraded environment in Nigeria's NDR.11

Amnesty International, Nigeria: Petroleum, Pollution and Poverty in the Niger Delta (Report) (June 2009), AI-Index AFR 44/017/2009, pp. 6–7; C. Nakhle, ‘Black Gold – Still a Man's World?’, 3 Oil, Gas & Energy Law Intelligence (2005); V. T. Jike, ‘Environmental Degradation, Social Disequilibrium, and the Dilemma of Sustainable Development in the Niger-Delta of Nigeria’, 34(5) Journal of Black Studies (2004): 686–701, at 688.

It is reported that the NDR is among the five most polluted spots on the planet.12

J. Brown, ‘Niger Delta Bears Brunt after 50 Years of Oil Spills’, The Independent, 26 October 2006.

 Spills13

See for instance United Nations Environment Programme (UNEP), Environmental Assessment of Ogoniland, (Report) (July 2011), DEP/1337/GE (hereafter ‘UNEP Report’).

 and gas flaring have been identified as the main sources of environmental pollution in the region over time.14

E. Duruigbo, O. Wozniak and M. Leighton, ‘Oil Development in Nigeria: A Critical Look at Chevron's Environmental and Social Responsibility’, 2(2) Environmental and Planning Law Review (2005): 123, 132–4.

 Other sources of environmental crisis in the NDR include blowouts, seismic activities, and direct discharge of oil, gas and waste into the environment. The social side of this environmental problem manifests itself in conflict escalation, poverty and exposure to health hazards resulting from oil and gas activities.15

A. Babatunde, ‘Environmental Conflict and the Politics of Oil in the Oil-Bearing Areas of Nigeria's Niger Delta’, 5(1) Peace and Conflict Review (2010): 1–13, at 1.

 These environmental impacts of oil and gas exploration and production in the NDR are associated with significant uncertainties.16

Ukoli notes that the impacts of oil pollution on organisms and ecosystems will never be fully estimated or completely understood. M. K. Ukoli, ‘Environmental Factors in the Management of the Oil and Gas Industry in Nigeria’, available at http://www.cenbank.org/out/Publications/occasionalpapers/rd/2001/Owe-01-2.PDF (accessed 25 May 2012).

 Oil spill

Oil spill in the NDR creates uncertain environmental risks. There is uncertainty as to the probability and magnitude of spill. There is uncertainty as to the nature and chemical component of oil that may be spilled at a given time. Furthermore, there is uncertainty as to the nature and behaviour of the environment that is impacted by the oil spill. Also the complex, interconnected and vulnerable nature of biodiversity in the NDR that is impacted by the oil spill creates uncertain environmental risks. The recent UNEP Report on the impact of oil spills in Ogoniland shows that heavy contamination is still present in Ogoniland forty years after an oil spill occurred at Ejama-Ebubu in the Eleme local government area despite several attempts to clean up the spill site.17

UNEP Report, supra note 13, pp. 9, 110.

The UNEP Report also highlights the fact that the impact of oil pollution is far beyond what was originally thought. The uncertainties surrounding environmental impacts of oil spills can only be addressed through the application of the precautionary principle Loss of biodiversity

The NDR has the third largest mangrove forest in the world, the largest in Africa, one of the world's largest wetlands, and the site of most of Nigeria's biodiversity.18

S. Omotola, The Next Gulf? Oil Politics, Environmental Apocalypse and Rising Tension in the Niger Delta, African Centre for the Constructive Resolution of Disputes occasional Paper Series 1(3) (2006).

Mangrove forests are important for sustaining local communities because of the ecological functions they perform and the many essential resources they provide including soil stability, medicine, healthy fisheries, wood for fuel and shelter, tannins and dyes, and critical wildlife habitats. The laying of oil and gas pipelines in the NDR fragments its rich ecosystems such as rainforests and mangroves.19

C. N. Ugochukwu and J. Ertel, ‘Negative Impacts of Oil Exploration on Biodiversity Management in the Niger Delta Area of Nigeria’, 26(2) Impact Assessment and Project Appraisal (2008): 139–47, at 143.

 The clearing of pipeline tracks also reduces habitat area and segregates natural populations thereby distorting breeding behaviour.20

Ibid...

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