Enviro Law: Environmental law and policy: Missing links – Prof Fagbohun


A keynote address delivered by the Vice Chancellor, Lagos State University (LASU), Prof Olanrewaju Fagbohun, at the National Summit on Legislative Framework for Environmental Law and Policy

Mr. Speaker sir, the environmentalists, scientists and medical doctors know that the “gods are not to blame”, rather, the environment that has been polluted and violated is what is fighting back. The sad reality of the despondency of the majority, however, is that at the end of the day, only few are left to continue to grapple with how to move forward and build a more effective environmental regime.

Coming home to Nigeria: Prevailing realities

While it can be said that modern environmentalism dates back to the Earth Day in 1970, for Nigeria, the year 1988 marked the watershed in the history of environmental policy development. Prior to 1988, environmental concerns were dealt with by different tiers of government in line with their respective constitutional responsibilities.  However, in 1988, the Harmful Waste (Special Criminal Provisions etc.) Act was passed in direct response to the Koko toxic waste dump incident.  This was followed by the enactment of the Federal Environmental Protection Agency Act (FEPA Act) in 1988.  The broad functions of FEPA were the protection and development of the Nigerian environment in general, including institution of policy in relation to environmental research and technology.  The Act itself was a framework legislation and it was meant to serve as a comprehensive system for environmental management.

In 1991, Nigeria formulated and presented to the public its National Policy on the Environment.  One of its many goals is to secure for all Nigerians a quality of environment adequate for their health and well-being. This was the major step that gave Nigeria the focus and pathway to proceed in meeting the environmental challenge facing the country. The policy was first revised in 1999, and very recently in 2017.  There were several other legislations that were enacted to build a common context for Nigeria’s environmental policy actions and form the nexus for all her environmental activities.

In 2007, and following series of criticisms, the FEPA Act was repealed by the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007.  The objectives of NESREA were similar to that of FEPA and included a broad set of responsibilities.  Significantly, beyond guiding federal agencies in assessing the impacts of their actions and co-ordinating anti-pollution research activities, NESREA has also been responsible for the development and enforcement of national standards, and for the development of national programmes in conjunction with the Federal Ministry of Environment.

Granted that on paper, environmental regulation would appear to have received considerable attention, the fundamental question to ask is how well this has resonated to effective environmental protection? In the 2012 Environmental Performance Index which assessed 132 countries globally on 22 performance indicators in 10 policy categories ranging from environmental burden of disease to water and air pollution, forestry, biodiversity, fisheries, agriculture and climate change among others, Nigeria was ranked 130th on environmental burden of disease, 26th on agriculture, 81st on biodiversity and 41st on climate change.  Overall, with a score of 40.1 percent, Nigeria was ranked 119th.  Nigeria was also ranked 19th out of 21 sub-Saharan African countries.  In 2016, Nigeria ranked 133rd of 180 countries surveyed on the Environmental Performance Index.

In 2011, there was also an assessment of oil pollution in Ogoniland by the United Nations Development Programme (UNEP).  The assessment report revealed widespread and severely impacting degradation of swampland surface water, mangroves, intertidal creeks, wetlands, outdoor air and drinking water arising from oil spills and oil contamination.  The report noted that oil spills continue to occur with alarming regularity despite the fact that the oil industry is no longer active in Ogoniland.  Communities are drinking water from wells that are contaminated with benzene, a known carcinogen at levels over 900 times above the World Health Organisation (WHO) guideline. As at June, 2017, it was noted that well over 365 days since the Federal Government inaugurated the Hydrocarbon Pollution Remediation Project, comprising the Board of Trustees, the Governing Council and Project Coordination team, no visible work has been done.  Grave past damage remains unremedied while the gap between political will and constitutional/legal capacity would appear to be increasing.

In another recent report of the United Nations (Common Country Analysis – CCA), it was noted that despite the fact that Nigeria is a signatory to a number of protocols on sustainable and renewable environment, the country had, over the decades, failed to protect the environment, ecosystem and natural resources.  Overexploitation of natural resources, pollution of the environment and desertification are exposing the population to vulnerability and risks caused by climate change, among others.

In the face of the above facts and prevailing realities, it cannot be denied that Nigeria’s efforts at ensuring sound environmental governance have led neither to effective transformation nor to a better quality of life to her citizens.  While it can be argued that the number of instruments that have been churned out have contributed to slowing down environmental degradation, a stronger argument can be made premised on the above facts that they have not led to an improvement in the overall situation.  A number of scholarly works have been produced in relation to Nigeria’s environmental challenges.  Several of these scholarly contributors have tried to underscore the raison d’etre for the dysfunction in Nigeria’s environmental governance.

Among the many reasons that have been given are corruption within regulatory agencies; preference for social affiliations than merit in the appointment of officials; irrational support for organs/parastatals of the state; irresponsible exercise of discretion by some public functionaries; irrelevant controversies and unending face-offs; conflict and unhealthy competition between regulatory agencies; lax enforcement; reluctance in the use of criminal sanction; unrealistic nature of some laws; and absence of procedural and implementation mechanisms.  Reference have also been made to other reasons such as lack of financial resources; lack of technical and administrative resources; lack of political will; overlap and inconsistence in laws; regulatory capture by powerful interest groups; non-involvement of non-governmental organisations and civil society group, poverty and problems of access to justice.

A host of valuable suggestions have also been proffered to meet the above referred challenges.  Among others, the following have been suggested: more rigorous and innovative use of enforcement; greater degree of public participation; domestication of all relevant and requisite treaties; adoption of integrated strategies; restructuring of implementing institutions; closing of gap between policy-making and law-making; the need for more environmental cooperation; improving the environmental education system; improving access to environmental information; effective monitoring of environmental impact assessment of both public and private projects; reduction of rampant consumerism; development  of more epistemic communities; enactment of smart laws and regulations that are coherent and cohesive; improvement of access to environmental justice; and regular updating of Nigeria’s environmental laws to ensure that they are attuned with reality.

Laudable and comprehensive as the above extensive “shopping list” would appear to be, the contention in some quarters have been that government cannot implement everything at once.  Consequently, advocates of this position insist on incremental gains and prioritisation of solutions.  Rt. Honourable Speaker, sir, very distinguished ladies and gentlemen, there is the need to appreciate that many of the above proffered suggestions are complementary solutions and are not just options or alternatives in respect to which choices are to be made.  They are also not solutions to be kept on the shelf for implementation only “when able”. They all must work together if we are to achieve the desired transformation.  Consequently, what is required is to build a system of governance that creates a public space for fostering the above solutions in a self-reliant manner.  Governance should be envisioned in terms of all stakeholders and joint actors being motivated to act right.

The advantage of the above approach is that rather than rummaging through the several complementary solutions on what to implement from time to time, the emphasis of law reform would be more on identifying the underlying factors [missing links] that are not allowing them to self-implement.  Anchored on environmental pragmatism, this presentation will briefly consider those fundamentals that will engender self-reliance and self-responsibility.

Identifying the Missing Links

The objective of the Summit as succinctly captured in the concept note is to bring strategic stakeholders on environment together to afford them the opportunity to interrogate relevant issues of concern and to contribute to the development of an appropriate legislative framework for Environmental Law and Policy.  The expectation is that at the end of the 3-day Summit, we will have a clear pathway to formulating effective environmental laws that will enable all role-players to adequately perform their functions and bring about tangible environmental improvement.

A relevant question to identifying the missing link is what are those roles that the law must be able to play in the protection of the environment?  In my view, environmental law must be able to achieve the following:

(i) clearly delineate the rights and responsibilities of government and other stakeholders; (ii)  facilitate social change and build momentum for reform; (iii)  set standards and safeguards which individual persons, corporate bodies and government must strictly observe and adhere to; (iv)  create processes that serve to enhance participation, understanding and dialogue (particularly as it concerns vulnerable groups); (v)   give unfettered rights to private citizens to challenge and review decisions by public bodies as it affects the environment; (vi)  achieve a balance of environment and economic considerations; (vii) provide mechanisms for the identification/preservation of endangered species and protected areas; and  (viii) provide for meaningful remedies and restoration mechanism.

In exploring the missing links in Nigeria’s environmental regulation, it is not my goal to engage in analysis of gaps as may exist in the different sectors where Nigeria has environmental challenges.  Rather, it will suffice to look at four core areas that are critical to environmental regulation, but, where what currently exist can best be described as regulation deficits.These four areas are:  (i) Foundation of Nigeria’s framework Law;  (ii)  Environmental governance structure; (iii) Environmental remedies; and (iv)             Environmental democracy.

Foundation of Nigeria’s Framework Law

A critical point that has been made from time to time as necessary for effective regulation is the need for legal certainty in the legal system.  As noted by Joseph Pokrovsky:

One of the first and most essential requirements that apply to the individual rights developments is legal certainty.  If everyone must obey the law and adapt behaviour to certain requirements, the first condition of orderly social life is the certainty of those requirements.

Following from above, legal uncertainty is viewed as a characteristic of a poorly designed regulatory system.  Before proceeding further, it is important to differentiate between legal uncertainty and related terms like factual uncertainty and law-fact uncertainty. Legal uncertainty relates to uncertainty about the content of the law.  Factual uncertainty is uncertainty about facts in the world, while law-fact uncertainty is uncertainty about how a decision-maker (a regulatory agency or judicial officer) will apply law to fact.  Factual uncertainty is an inherent element of the human experience, thus, it cannot be eliminated in regulation. Law-fact uncertainty on the other hand can be increased or decreased to some degree depending on the extent to which the law maker has been able to narrow legal uncertainty.  Lobbying efforts and rules of interpretation target legal uncertainty.

Of what relevance is the above analysis of legal uncertainty to our discourse? Prior to the 1970s, the philosophy and goal of environmental law was “conservation”.  By the 1970s, the goal shifted to protection of environmental quality as relate to land, air and water.  By the time the Brundtland Report was released in 1987, and particularly since the 1992 Rio Conference, the concept of sustainable development became the focus of environmental goal.  Several other concepts such as “sustainability”, “environmentally sustainable innovation”, “biodiversity focused perspectives(rewilding)”, “resilience thinking (which translates to reconnecting people with nature)”, and “environmentally ethics” have come to the fore, but, most of them have been received more as espousing aspects of the concept of sustainable development as the goal of environmental law.

The problem that has been identified with sustainable development has been how to appropriately reconcile economic, environmental and social objectives.  How are decision-makers to manage the trade-offs that inevitably arises in the course of economic, environmental and social values.  In a number of situations, there are significant scientific uncertainty about possible outcome of the activity in question, thus, making it more difficult for decision-makers to appreciate The lack of a clearly articulated foundational societal goal and proper delineation of specific focused objects that reflects directive principles is in the context of new generation of environmental laws a missing link.  The framework law should also provide for a general environmental duty to repair and restore.  These can be reinforced by mechanisms of enforcement such as bonds or other forms of security to be posted when undertaking potentially dangerous activities.  Such a framework law must also capture design principle such as responsive and flexible environmental governance, and concept of non-regression.

(ii)  The Governance Structure

One of the thorniest issues affecting environmental regulation in Nigeria relates to the regulatory issues associated with the federal system of government.  There is often considerable tension between the various spheres of government, while the potential for regulatory overlap between the various jurisdictional requirements is immense.  In defining the scope of law-making  between the different tiers, environmentalists sometime argue in favour of a stronger Federal Government overriding  state autonomy, while at other times the support is for the authority of states to impose more environmentally protective requirements.  Some of the federalism engendered legal issues can be outlined as follows:

(a)  Deep disagreements over what equity and fairness should prevail in the management and use of natural resources; (b) Divergent values of states at different levels of development within the Federation which makes it difficult to agree on burden sharing; (c) Challenges of reconciling states bearing burdens and costs of developmental transactions without corresponding benefits; (d)   Challenges of ensuring the effectiveness of cooperation at the different tiers of government;  (e)  Challenges of developing mechanisms and strategies to promote compliance and enforcement of environmental laws across the board; and  (f) Challenges of addressing the tension between the different tiers in situation where economic development imposes risk on ecological protection.

Against the above background, it is of importance that we understand the different arguments that have been put forward in support of the centralised model of environmental federalism vis-à-vis the decentralised model.  In respect of the former, it is viewed as the most appropriate for collective action problems with externalities; it guards against the “race to the bottom theory”; it helps to achieve uniformity; and that it helps to meet the challenge of “not in my backyard” (NIMBY).  In respect of the latter, it is believed that the decentralised model engender policy solutions that are tailored to meet local concerns; enhances more effective participation (legitimacy argument); ensure that innovative environmental initiatives are not constrained by federal standards; and encourage efficiency in the absence of duplication and unnecessary overlap.

Under the Constitution of the Federal Republic of Nigeria, 1999, there is no express provision or specific reference to the power of the Federal government or any lower level of government to make laws with respect to the environment.

This notwithstanding, there are several heads of power in the Constitution pursuant to which the Federal government can legislate on environmental matter.  There is also the power of the Federal government to invalidate a State law on a pre-emption basis.  In relation to States, Section 4 (7) of the Constitution confers a general power on the State Assembly to make laws for the peace, order and good governance of the State or any part thereof.

The implication of the existing arrangement is that the different tiers of government can regulate the environment and enforce pollution standards.  It should be clearly understood that environmental regulation, the sole aim of which is to prevent environmental harm is without doubt a collective action problem.  My conclusion in this circumstance therefore, is that Nigeria should continue to devolve responsibility for strategic leadership i.e. development of national standards/strategies on the centre, while implementation of those standards and planning controls should continue to be de-centralized.

What I see a missing link is insufficient intergovernmental cooperation.  For as long as this exists, Nigeria will neither be able to achieve policy and action coherence within government agencies nor ensure synergy.  The focus of law reform in this regard is to consider how to deepen activities of intergovernmental forums, mainstream intergovernmental agreements and put in place well-structured targeted programme of financial assistance by the Federal government to States.  Related to this is that there is weak connection between science and environmental policy-making in Nigeria.  The fact of fragmented links between science and existing decision-making structures, coupled with knowledge gaps in our understanding of the interactions between environmental impacts and processes is not peculiar to Nigeria. What has deepened the deficit in this area for Nigeria, and indeed made the situation worse is the lack of synthesis of the information that is even available.  The goal of law reform should be to consider how the regulatory institutions and inter-governmental forums can identify from time to time key areas where research is desirable.  This can be made the focus of award of research grants for our tertiary institutions through bodies like the Tertiary Education Trust Fund (TETFUND). Home grown solutions that will be the deliverables of such research work will be more in sync with the local environment, and more likely to have legitimacy.

Further, the constitutional right to environment as currently reflected under Section 20 of the 1999 Constitution should be formulated in a more robust manner and expressly made justiciable.  This is a missing link that has remained unattended to for too long. Finally under this head, NESREA’s scope of operation should be the regulation as relevant ofevery sector of Nigeria’s environment including the oil and gas sector.

(iii)            Environmental Remedies

The administration and enforcement of environmental remedies is governed by a mix of public law (administrative and criminal), and civil law regimes.  The objective of environmental remedies is that the combined and collective operation of these regimes should serve to deliver three key environmental benefits, namely, deterrence, repair/restoration of environmental damage, and compensation for harm done.  The shortcoming of public law is that environmental protection is viewed as primarily the responsibility of the government, its agents and other public bodies.  The result of this traditional approach is that it overlooks the tremendous contribution and increasing involvement of civil society actors and the private sector in policy-making, capacity building, implementation and monitoring.  While they are by no means a panacea or replacement for government institutions and programs, they play a key role as catalysts and partners.  In the case of civil regime, there are a number of institutional impediments hampering effectiveness.

The reality is that there is gross dissatisfaction with the remedies offered by the mix of regimes arising from a lack of access to fair, efficient and responsive legal remedies.  Under this head, the missing link in relation to which the momentum for reform is urgent can be briefly outlined as follow:

  1. a) Requirement of standing

There is a significant improvement in relation to “standing” requirement by virtue of the Fundamental Rights (Enforcement Procedure) Rules, 2009. However, since human rights does not protect the environment perse, a declaration of the broadening of locus standi in a framework law will effectively serve in the right direction (See Art. 52 (3) (a) of the Portuguese Constitution and the mandatory provision in Art. 9 (2) subsection 3 of the Aarhus Convention);

  1. b) Pre-action notice requirement

The requirement of Pre-action Notice should not be made applicable to environmental matters.  If for any reason it should be retained, non-compliance with it should be viewed as a procedural defect such that courts can stay offensive action while pre-action notice is served;

  1. c) Special limitation period in environmental matters

For environmental matters, there is a need for special limitation period structured to run from the date of knowledge of the person injured.  This approach is what obtains under the United States Comprehensive Environmental Response Compensation and Liability Act (CERCLA) which provides that time does not start ticking for statute of limitation purposes for all claims related to personal injury or property damage until the plaintiff knew or had reason to know his injuries was the result of a particular hazardous containment.  This is in recognition of the fact that environmental contamination may have a long latency period.

  1. d) Problem of causation

There is a significant difficulty in proving causation in environmental matters.  The trend now is to leverage on the principle of precautionary approach to shift the burden of proof to the party who is involved in or is seeking to undertake a potentially harmful activity.  In this regard, we will be giving the benefit of doubt to protection of human health and environment as against contaminants. There is a need to push less for the requirement of “mens rea” while leveraging more on the principle of strict liability;

  1. e) Compensation regimes

There is a need for urgent review of the compensation regimes of laws such as the Oil Pipeline Act (Cap. 338, LFN, 1990) and section 29 (4) of the Land Use Act.

(iv)            Environmental Democracy

Environmental democracy is the increasing recognition that environmental issues must be addressed by all those affected by their outcome, and not just by governments.  It connotes:

  1. a) right to a safe and healthy environment;
  2. b) right to information that guarantees free, prior and informed consent;
  3. c) effective public participation;
  4. d) access to justice in environmental matters; and
  5. e) procedure for monitoring and compliance.

Environmental democracy is what will entrench in institutions practices of public integrity such as accountability, monitoring and transparency in environmental performance, decision-making and conduct.  Under this head, the missing link that should be the focus of a reform agenda can be outlined as follows:

  1. a) An urgent need to expressly infuse the procedural right of environmental democracy into Nigeria’s framework law. This will greatly enhance the expanded and increased role that is being envisioned for private individuals and non-governmental actors in the enforcement and administration of environmental law;
  2. b) It is recommended that Section 251 (1) of the 1999 Constitution should be amended to also give jurisdiction to the State High Court over items listed under Section 251 (1) (n) in respect of environmental claims. This will ensure easier access to justice;
  3. c) The Environmental Impact Assessment Act should be overhauled to not only reflect meaningful and effective participation by all stakeholders, but, to also involve local communities in decision-making concerning management of resources.

Concluding Remarks

What we have done in this presentation is to identify those fundamentals the lack of which have consistently undermined the effectiveness of environmental regulations in Nigeria.  Nigeria’s laws have largely remained dysfunctional while relevant regulatory institutions including the judiciary (which should keep a check on proper implementation) are struggling with how to manage the challenges. We argue that if roles and responsibilities are well-defined, and there are clear rules and guidance principles in the general framework, the trickle-down effect will be greatly beneficial across sectors.

To further push the consciousness of public officials, the time is ripe for all government ministries to be required to put in place a Statement of Environmental Values to record their commitment to the environment in their decisions.

The challenges of environmental regulation which we have identified in this presentation, notwithstanding, Nigeria must remain undaunted in her quest for effective environmental governance.  The truth is that environmental governance globally is inherently a complex, difficult and expensive process.   It is only by continuously interrogating the issues that the nation will be able to bring about tangible environmental improvement.

Source: The Nation

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