EnvironmentalLawsinNigeriaabbey_INRESNREM902.doc

Some international, regional and national regulatory efforts to combat environmental menace.

i. Convention on the prevention of marine pollution by dumping of waste and other matters 1972: Commonly called the “London Convention” or “LC ‘72” and also abbreviated as Marine Dumping. This is an agreement to control pollution of the sea by dumping and to encourage regional agreements supplementary to the Convention. It covers the deliberate disposal at sea of wastes or other matter from vessels, aircraft, and platforms. This came into force in Nigeria on 31 October 2010. The Harmful Waste Act 1988 prohibits the carrying, depositing and dumping of harmful waste on the land and territorial waters of Nigeria.

ii. International Convention for the prevention of pollution of the sea by oil 1954 (as amended in 1962 and 1969). This was implemented in Nigeria by the enactment of the Oil in Navigable Waters Act, 1968.

iii. United Nations Conference on Desertification (UNCOD) 1977: This was ratified by Nigeria in July 1997 and is implemented by the National Action Programme to Combat Desertification (NAP) (as part of the National policy on Environment) which spells out critical activities to be taken in a holistic manner to tackle the menace of desertification in Nigeria.

iv. United Nations Conference on Environment and Development (UNCED)

v. The Basel Convention on the Control of Trans-boundary Movements of Hazardous Waste and their Disposal: The provisions of the Convention centre around the following principal aims:

· The reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever the place of disposal;

· The restriction of trans-boundary movements of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management; and

· A regulatory system applying to cases where trans-boundary movements are permissible.

Nigeria has ratified the Basel Convention on the Trans-boundary Movement of Hazardous Wastes (Special Criminal Provisions Etc.) Act of 1988 (Harmful Waste Act) restricts the export of hazardous wastes for final disposal in Nigeria.

vi. “Dumping of Nuclear and Industrial Wastes in Africa” 1988: Commonly referred to as the Bamako convention which encourages parties to enter into bilateral, multilateral and regional agreements on Hazardous Waste to help achieve the objectives of the convention.

The impetus for the Bamako convention arose also from:

· The failure of the Basel Convention to prohibit trade of hazardous waste to less developed countries (LCDs);

· The realization that many developed nations were exporting toxic wastes to Africa (Koko case in Nigeria)

The purpose of the convention is to:

a) Prohibit the import of all hazardous and radioactive wastes into the African continent for any reason

b) Minimize and control trans-boundary movements of hazardous wastes within the African continent.

c) Prohibit all ocean and inland water dumping or incineration of hazardous wastes.

d) Ensure that disposal of wastes is conducted in an “environmentally sound manner”.

e) Promote cleaner production over the pursuit of a permissible emissions approach based on assimilative capacity assumptions

f) Establish the precautionary principle.

Nigeria has ratified the Bamako Convention on the Trans-boundary Movement of Hazardous Wastes and the Harmful Waste (Special Criminal Provisions Etc.) Act of 1988 (Harmful Waste Act) restricts the export of hazardous wastes and of final disposal in Nigeria

vii. Convention for cooperation in the Petroleum and Development of the Marine and Coast Environments of West and Central Environments of West and Central Africa 1984.

viii. Vienna convention for the protection of the ozone layer 1985: Ratified by Nigeria on 31 Oct 1988. The National Environmental (Ozone Layer Protection) Regulations, 2009 seeks to prohibit the importation, manufacture, sale and the use of ozone-depleting substances.

ix
Rio Declaration on Environment and Development 1992.

The above treaties and conventions are part of the key sources of Nigerian Environmental Law. It is noteworthy that out of about eighty-five international environmental conventions that are applicable to Nigeria, she has signed and ratified about thirty-six, less than half of the number.

1. Constitution of the Federal Republic of Nigeria: Section 20 of the 1999 Nigeria Constitution in consideration of the importance of the environment states that: “The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”

2. State laws: these are laws made by the organ of government whose primary duty is to make laws for the state, i.e. the legislative arm of government.

Some state laws in Nigeria include:

i. Harmful Waste (Special Criminal Provisions) Act 1988 and

ii. The Federal Environmental Protection Agency Act Cap 131 LFN 1990.

iii. The Oil in Navigable Waters Act 1968

iv. Oil Terminal Dues Act Cap 339 LFN 1990

v. The River Basin Development Act

vi. Environmental Impact Assessment Act no 68 1992

vii. Management of Solid and Harmful Waste Regulation

viii. Associated Gas Re-Injection Act Cap 26 LFN 1990

ix. The Environmental Sanitation Edict No 4 of 1987 (Lagos state) No 4 of 1986 (Oyo state)

x. The pollution, Prevention and Control (Miscellaneous Provision) Edict of Imo State, 1985.

Sources of law

Common law is law that has been developed on the basis of preceding rulings by judges. Nigeria received many laws from England in 1900 that come under this category. The law of Torts is the area of law under the common law that mainly prescribes the control of environmental pollution. There are four torts specifically relevant to the control of environmental pollution. They are Negligence, Nuisance, Trespass and Strict Liability.

Statute/Statutory law is written law as decided by the legislature or other government agency. The main differences are how the laws are created and the basis of challenges.

Overview of key Nigeria environmental legislation

1. HARMFUL WASTES (SPECIAL CRIMINAL PROVISION ETC.) ACT OF 1988 (HARMFUL WASTER ACT): The Harmful Waster Decree 42 of 1988 was the first concise law to protect the environment or referred to as the National Environmental Law in Nigeria. It was enacted following the Koko toxic waste episode in 1987. Before this time, Nigeria was ill equipped to manage serious environmental crisis, as there were no institutional arrangement or mechanisms for environmental protection and enforcement of environmental laws and regulations in the country. The Federal Government promulgated the harmful wastes act and it facilitated the establishment of the then Federal Environmental Protection Agency (FEPA) through Decree 58 of 1988.

The following Regulations were made pursuant to the FEPA Act:

· National Environnemental Protection (Effluent Limitation) Regulations

1) National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulation; and

2) National Environmental Protection (Management of Solid and Hazardous Wastes) Regulation.

FEPA and other relevant Departments in other Ministries were subsequently merged to form the Federal Ministry of Environment in 1999, but without an appropriate enabling law on enforcement issues.

FEPA has now been replaced by NESREA since 2007 for the following reasons:

i. Lack of or weak enforcement of existing environmental law and regulations: Under FEPA, regulatory compliance rate by industries was generally between 20-40%.

ii. Inappropriate enforcement mechanisms.

iii. Increasing industrial pollution incidents with adverse impacts on the environment and human health including.

· 60-70% of surface waters in urban areas being coloured, foul smelling, fishless, and non-potable and non-swimmable.

· Contamination of shallow groundwater aquifers by infiltration of toxic and non-toxic domestic and industrial wastes; petroleum waste product.

· Visual impairment and reduce fish catch in coastal and marine waters.

· Nuisance and health problems from industrial effluents disposed on land or wetlands.

· Worsening public health through exposure to pollutants, thereby putting the lives of millions of Nigerians at risk from water related health diseases such as typhoid fever.

2. ENVIRONMENTAL IMPACT ASSESSEMENT ACT OF 1992 (EIA): This act makes EIA mandatory for development projects likely to have adverse impacts on the environment prior to implementation. Prior to the enactment of the EIA Act in Nigeria, project appraisal were limited predominately to feasibility studies and economic-cost-benefit analysis. Most of these appraisals did not take environmental costs, public opinion, and social environmental impacts of development projects into consideration. The act stipulates that an environmental impact assessment shall be required where a Federal, State or local government council:

a) Is the proponent of the project and does any act or thing which commits the Federal, state or local government authority to carrying out the project in whole or in part;

b) Makes or authorize payment or provides a guarantee for a loan or any form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except when the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty of excise under the Customs Excise Tariff, etc. (Consolidated) Act or any made there under, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the enactment, regulation or that provides the relief to be carried out

c) Has the administration of Federal, state or local government and leases or otherwise disposes of those lands or any tests in those lands or transfers the administration and control of those lands or invest therein in favour of the Federal Government or its agencies for the purpose of enabling the project to be carried out in whole or in part; or

d) Under the provisions of any law or enactment, issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.

Excluded projects under the act are:

1) An environmental assessment of a project shall not be required where-

a) In the opinion of the Agency the projects is in the list of projects which the President or the Council is of the opinion that the environmental effects of the projects are likely to be minimal;

b) The project is to be carried out during national emergency for which temporary measures have been taken by the Government;

c) The project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety.

2) For greater certainty, where the Federal, State or Local government exercise power or performs a duty or function for the purpose of enabling projects to be carried out, an environmental assessment may not be required if-

a) The project has been identified at the time the power is exercised or the duty or function is performed; and

b) The Federal State, or Local government has no power to exercise any duty or perform function relation to the project after they have been identified.

Any person who fails to comply with the provisions of the act shall be guilty of an offence under the act and liable on conviction in the case of an individual to a fine of N100, 000 or five years’ imprisonment and in the case of a firm or corporation, a fine of not less than N50, 000 and not more than N1, 000,000.

3. THE NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY ACT 2006 (NOSDRA ACT): This is a specialized legislation on environmental protection in the oil and gas sector in Nigeria. It established the National Oil Spill Detection and Response Agency with responsibility for preparedness, detection and response to all oil spillages in Nigeria. It also established the advisory, monitoring, evaluating, mediating and coordinating arm of NOSDRA known as the National Control and Response Center (NCRC).
According to the act, “The Agency shall be responsible for

· Surveillance and ensuring compliance with all existing environmental legislation and detection of oil spills in the petroleum sector.

· Receiving reports of oil spillages and co-ordinate oil spill response activities throughout Nigeria.

· Coordinating the implementation of the Plan for the removal of hazardous substance as may be issued by the Federal Government.

· Performing such other function as may be required to achieve the aims and objectives of the Agency under this Act or any plan as may be formulated by the Federal Government pursuant to this Act.”

4. NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY (ESTABLISHMENT) ACT (NESREA ACT) OF 2007: This act is arguably the most significant in the history of Nigeria environmental law as it established NESREA as the foremost environmental protection agency after the federal environmental protection agency (FEPA). However, the subsidiary legislation under the FEPA Act is still in force. These include:
· The National Environmental Protection (NEP) (Effluent Limitation) Regulations.

· The NEP (Pollution Abatement in Industries and Facilities Generating Waste) regulation.

· The NEP (Management of Solid and Hazardous Waste) Regulations.

NESREA now has responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.

The act empowers NESREA to among other duties,

i. Enforce compliance of the laws, guidelines, polices and standards on environmental matters.

ii. Coordinate and liaise with stakeholders, within and outside Nigeria, on matters of environmental standards, regulations and enforcement.

iii. Enforce compliance with the provision of international agreements, protocols, conventions and treaties on the environment, including climate change, biodiversity conservation, desertification, forestry, oil and gas, chemicals, hazardous wastes, ozone depletion, marine and wild life, pollution, sanitation and such other environmental agreements as may from time to time come into force

iv. Enforce compliance with policies, standards, legislation and guidelines on waste quality, Environmental Health and Sanitations, including pollutions abatement.

v. Enforce compliance with guideline, and legislation on suitable management of the ecosystem, biodiversity conservation and the development of Nigeria’s natural resources

vi. Enforce compliance with any legislation on sound chemical management, safe use of pesticide and disposal of spent packages thereof.

vii. Enforce compliance with regulation on the importation, exportation, production, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste, other than in the oil and gas sector;

viii. Enforce through compliance monitoring, the environmental regulation and standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas sector;

ix. Ensure that environmental projects funded by donor organization and external support agencies adhere to regulations in environmental safety and protection;

x. Enforce environmental control measures through registration, licensing and permitting systems other than in the oil and gas sector;

xi. Conduct environmental audit and establish data bank on regulatory and enforcement mechanisms of environmental standards other than in the oil and gas sector;

xii. Create public awareness and provide environmental education on sustainable environmental management, promote private sector compliance with environmental regulations other than in the oil and gas sector and publish general scientific or other data resulting from the performance of its functions; and

xiii. Carry out such activities for the necessary or expedient for the performance of its functions.

The act also empowers the agency to:

i. Prohibit processes and use of equipment or technology that undermine environmental quality

ii. Conduct field follow-up of compliance with set standards and take procedures prescribed by law against any violator

iii. Subject to the provision of the constitution of the federal Republic of Nigeria, 1999, and in collaboration with relevant judicial authorities, establish mobile courts to expeditiously dispense cases of violation of environmental regulation.

iv. Prohibit without lawful authority, the discharge of hazardous substance into the environment. This offence is punishable under this section, with a fine not exceeding N1, 000, 000 and an imprisonments term of five years. In the case of a company, there is an additional N50, 000 for every day the offence persists.

5. 2009 – 2011 ENVIRONMENTAL REGULATIONS: For the provision of effective enforcement of environmental standards, regulations, rules, laws, policies and guidelines by NESREA, the Minister of Environment is empowered to make regulations for the general purposes of carrying out or giving full effect to the functions of the Agency under the NESREA ACT. Twenty-four new regulations have resulted from this with the aim of ensuring sustainable use of natural resources and adoption of sustainable and environmental friendly practices in both industrial and general sanitation nationwide.

The twenty-four regulations are:

1) National environmental (Wetlands, River Banks and Lake Shores​) Regulations, 2009: Structure and content wise, these Regulations have been divided into three parts and five schedules. Part one deals with regulations of wetlands and wetland resources in Nigeria. The various regulations under this part address matters relating to the application, objectives and principles of this part of the Regulations, an inventory of wetlands, the furnishing of particulars by state Government, the role of local governments, the declaration of a specifically protected area, control of use of wetlands, the wetland resource use permit system, and implied covenant and duty of land owners and users.

Part two deals with regulation of river banks and lake shores in Nigeria and provides for the following matters, the application, objectives and Principles of this Regulation; identification of river banks and lake shores, the permit system for river banks or lake shore use, duties of the Agency and private landowners as well as the users, and protection zones for river banks and lake shores (whether or not used for purposes of tourism in Nigeria). Part three covers miscellaneous provisions relating to EIA, environmental restoration s, offences and penalties, appeals and interpretation as well as citation. The schedules provide the parameters for conservation status of wetland, application forms for permits to carry out a regulated activity in a wetland, river bank and lake shore, and a register of river banks and lake shores in Nigeria.

2) National Environmental (Watershed, Mountainous, Hilly and Catchment Areas) Regulations, 2009: The stated objectives of regulations are:

· Every land owner or occupier, while utilizing land in a watershed, mountainous, hilly or catchment area shall:

· Observe and respect the carrying capacity of the land; carry out measures for soil conservation and for the protection of water catchment areas;

· Use the best available environmentally friendly technologies to minimize significant risks and damage to ecological and landscape aspects.

· The agency shall, with respect to watersheds, mountainous, hilly and catchment areas in a particular environment, control activities, which are inconsistent with good land management practices especially in areas prone to landslides, floods, drought, desertification, situation, heavy sediment loads, falling rocks, fires and damage by wind.

3) National Environmental (Sanitation and Wastes Control) Regulations, 2009: The purpose of this regulation is to provide the legal framework for the adoption of sustainable and environmentally friendly practices in environmental sanitation and waste management to minimize pollution.

The act provides that:

· No person is to engage in any activity like to generate Hazardous waste without permit by the Agency

· A generator of waste shall ensure a secured means of storing such wastes

· Every person who generates hazardous waste shall cause such waste to be treated using acceptable methods

· No person shall export or transit hazardous waste without permit by the Agency

· No person shall transit toxic waste destined for another country through the territory of Nigeria without prior informed consent of such movement by the Agency.

· Any person who fails to comply with the above obligations shall be guilty of an offence punishable with a fine of N5,000,000 or imprisonment for five years or both.

4) National Environmental (Permitting and Licensing System) Regulations, 2009: The provisions of this Regulation enable consistent application of environmental laws, regulations and standards in all sectors of the economy and geographical region. The regulation contains procedures for applicants operating any facility that needs a permit must comply with the application procedure laid down in therein. Other provisions include that:

· An application for a permit shall contain all the information specified in the appropriate form relating to the specific permit being applied for.

· The agency shall fix various fees which include fees for application, processing, permits, amendment, renewal, rehearing and appeal.

· The agency may, upon assessment of an application require the applicant to furnish within a specified period, any additional information.

· After due consideration of the application, the agency may grant or refuse the issuance of a permit.

· Where an application is approved, the agency shall inform the applicant of the approval and the conditions of such permit.

· If the agency refuses the grant of a permit, it shall notify the applicant in writing stating the reasons for the decision.

· The applicant shall have an opportunity to appeal to the agency within twenty one working days from the date of the receipt of the notification by the agency.

· The agency may on its own initiative or upon receiving complaint or information from any person, initiate an inquiry into the conduct or activities of the permit holder.

· The agency, if satisfied in her own opinion that enough grounds exist which may warrant the suspension of a permit, may suspend a permit on the grounds that:

a) The permit holder is unable to fully discharge the functions or perform the duties imposed on it by the terms and conditions of the permit and other applicable legislations, rules and regulations.

b) The permit holder has defaulted in complying with any or direction issued by the agency.

c) The permit holder is carrying out it permit business in a form and manner which constitutes an immediate threat to the public health and safety or ecosystem integrity.

d) Any other circumstance exists which renders it necessary in the public interest to suspend the permit.

· The agency shall cancel a permit if it satisfied that the permit

a) Was issued through fraud or the misrepresentation or non-disclosure of a material fact.

b) The holder has willfully or unreasonably contravened any provision of the act that is applicable to the permit holder.

c) Holder has failed to comply with any term or condition of the permit the breach of which is expressly declared to render it liable to cancellation.

d) Holder has become insolvent or adjudged bankrupt.

e) Holder is unable to fully and efficiently discharge the duties and obligations imposed by the permit.

f) Holder has altered or transferred the permit.

The agency may instead of cancelling the permit, make an imposing further terms and conditions subject to which the permit holder is allowed to operate thereafter.

Any person who is dissatisfied with any decision of the agency may apply to the director general for a review, rehearing or appeal on such decision.

Although the regulation, does not provide a list of activities that require a permit, NESREA states elsewhere that its “environmental permit(s) enable businesses an industrial facilities whose operations may have potential impact on the environment to be environment-friendly in their operations and to also comply effectively with the relevant environmental standards and regulations”. Also, “For the purpose of clarity, and to guard against unnecessary duplication of Permits, NESREA has categorized her Environmental Permits into the following four (4) main groups:

· Air Quality Permit relating to issues on Atmospheric Emissions, Vehicular Emissions, Open Burning, Refrigeration and Air Conditioning equipment (RAC), and Noise;

· Waste and Toxic Substances Permit relating to issues on Waste Generation, Restricted Chemicals, Sludge Disposal and Effluent Discharge;

· Used Electrical and Electronic Equipment (UEEE) Permit relating handling, import and export of UEEE; and

· Biodiversity Conservation Permit relating to issues on Assess to Genetic Resources”.

5) National Environmental (Access to Genetic Resources and Benefit Sharing) Regulations, 2009: The overall purpose of this Regulation is to regulate the access to and use of genetic resources and ensure sharing of the benefits from their utilization.

6) National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, 2009: This Regulation seeks to minimize pollution from mining and processing of coal, ores and industrial minerals and encourage the application of up-to-date efficient cleaner production technologies.

7) National Environmental (Ozone Layer Protection) Regulations 2009: The provisions of this Regulation seek to prohibit the importation, manufacture, sale and The use of ozone-depleting substance.

8) National Environmental (Food, Beverages and Tobacco Sector) Regulation 2009: The purpose of this Regulation is to prevent and curtail pollution from all operation and ancillary activities of food, beverages and tobacco sector to the Nigeria environment.

9) National Environmental (Textile, Wearing Apparel, leather and Footwear Industry) Regulations, 2009: The main thrust of this regulation is to ensure that all operations and ancillary activities from this sector do not have significant negative impact on the Nigeria environment.
10) National environmental (Noise Standard and Control) Regulations, 2009: The main objective of the provisions of this regulation is to ensure tranquility of the human environment or surrounding and their psychological well-being by regulating noise levels. The regulation provides.
11) National environmental (Chemical, Pharmaceutical, Soap and Detergent Manufacturing Industries) Regulation, 2009: This Regulation seeks to ensure the safe use of chemicals in line with best practice including the adaptation of the principles of reuse, recover and recycle.

12) National Environmental (Standards for Telecommunications and Broadcasting Facilities) Regulation, 2011: The main objective of this regulation is to ensure that activities of the telecom industry do not negatively impact on the environment and human health.
13) National Environmental (Desertification Control and Drought Mitigation) Regulations, 2011: This Regulation seeks to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable lands.
14) National Environmental (Soil Erosion and Flood Control) Regulations, 2011: This Regulation seeks to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable land.
15) National Environmental (Base Metals, Iron and Steel Manufacturing/Recycling Industries Sector) Regulations, 2011. The principal thrust of this Regulation is to control all operations and ancillary activities of this sector in to safeguard the Nigeria Environment from their negative impact.
16) National Environmental (Control of Bush/forest Fire and Open Burning) Regulations, 2001: The principal thrust of this Regulation is to prevent and minimize the destruction of ecosystem through fire outbreak and burning of any material that may affect the health of the ecosystem through the emission of hazardous air pollution.
17) National Environmental (Protection of Endangered Species in International Trade) Regulations, 2011. The major objective of this Regulation is to protect species of endangered wildlife from extinction through the prohibition of trade, importation, etc.
18) National Environmental (Domestic and Industrial Plastic, Rubber and Foam Sector) Regulation, S. I. No. 17 of 2011: The principal thrust of this Regulation is to prevent and curtail pollution of the Nigeria environment from all operations and ancillary activities of this sector.
19) National Environmental (Coastal and Marine Area Protection) …