Covid-19: Legal Perspective and Lessons for Nigerian Oil and Gas Industries on the Effect of Decarbonization – Ibrahim Oluwadamilola Enifeni

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Introduction

Severe Acute Respiratory Syndrome Coronavirus-2 (SARS-CoV-2) is the name given to the 2019 novel coronavirus. COVID-19 is the name given to the disease associated with the virus. As at April 9 2020, 1.5 million cases have been reported globally, more than 88,500 people have died and nearly 330,000 have recovered. In Africa there are 11,440 confirmed cases and 54 deaths with 1,405 Recoveries.

As  activities of persons across the globe ceases, the effect of human inactions becomes noticeable on the environment, To start with,  in Venice for instance, water in the canals is becoming clearer by the day, offering glimpses of fish swimming against the current., nature is having its way again. Similarly, the same story is playing out in the skies. Across the globe, levels of toxic air pollutants have dropped drastically as industries and humans activities grinds to a halt in an attempt to nip in the bud the spread of the deadly Corona virus pandemic.

The Covid-19 pandemic has clearly proven to us that humans can have a friendly and healthy environment if humans desist from polluting the atmosphere through conscious efforts. 

Climate Change in Nigeria

In recent times the climatic conditions of Nigeria have been a source of worry to environmentalist. The high rise in temperature, variable rainfall, rise in sea level and flooding, drought and desertification, land degradation, more frequent extreme whether event have caused loss of biodiversity.

Climate change also affects the nature and characteristics of freshwater resources, sea level rise and extreme whether will affect the ability to fish. The viability of inland fisheries is also hampered by increased salinity and shrinking rivers and lakes.

Effects of the activities of the Nigerian Oil and Gas industry on climate change

Globally speaking the oil and gas industry operations account for 9 percent of all human-made greenhouse-gas (GHG) emissions. In addition, it produces the fuels that create another 33 percent of global emissions.

Nigeria has the largest proven gas reserve in Africa and the 9th largest in the world as at (2018), with 5,675 billion cubic meters (200.41 trillion cubic feet) of natural gas, while the country’s proven oil reserve is  36, 972 million barrels (207.6 billion cubic feet) natural gas equivalent. This implies that Nigeria’s gas reserve are over 900 times the country’s oil reserves.

  • The percentage of gas flared in Nigeria stood at 10% in 2018. The total gas flared in Nigeria accounted for 6.9% of the top 10 gas flaring countries in 2018.
  • Nigeria, Algeria, Angola, Indonesia, Iran, Iraq, Libya, Russia, the US and Venezuela produce over 80 percent of all the flared gas globally.
  • According to Anna Belova, senior oil and gas analyst at GlobalData: “Gas flaring is not only a pollution issue, but also represents significant forgone revenues and economic loss. Ten countries flared over 9.5 billion cubic feet of gas per day (bcfd) in 2019, which exceeded Germany’s demand for natural gas that year. The value of gas flared by top ten countries exceeds US$9.5bn if priced at the US Henry Hub gas prices and adds to $19bn if priced at the UK National Petroleum Board (NPB) prices.”
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Effect of the activities of the Nigerian Maritime  Industry on Climate Change

The climatic impact of the shipping industry includes air pollutionwater pollutionacoustic, and oil pollution.  Ships are responsible for more than 18 percent of some air pollutants.

It also includes greenhouse gas emissions. The International Maritime Organization (IMO) estimates that carbon dioxide emissions from shipping were equal to 2.2% of the global human-made emissions in 2012 and expects them to rise from 50 to 250 percent by 2050 if no action is taken.

Vessels emit harmful pollutants to the air such as hydrocarbons, nitrogen oxidespollutants may include adverse health effects such as respiratory and cardiovascular diseases, lung damage, learning impairment and even death. Depletion of the ozone layer, damage to agricultural resources and increase in acid rain are other negative consequences, (Nox,Sox). Other sources of air pollution from shipping include the release of oxylene, toluene, xylene and other toxins from fuel vapour during loading and unloading of marine tank vessels.

Nigeria has been recognized globally as a reputable maritime nation with over 8,000 kilometers of navigable inland and coastal channels, as well as its fresh water lakes.

Nigerian economy is dependent on the export of Crude oil and Agricultural produce to earn foreign income, while other industries are dependent to a large extent, on the importation of materials needed for their consumption or production activities. Hence, the importance on Marine Transportation to Nigerian economy.

Nigeria’s response to  prevent the Oil and Gas industry and Shipping Industry from causing climate change

The Constitution of the Federal Republic of Nigeria does not have any direct provision for environmental protection or sustainability. Section 20 of the Constitution of the Federal Republic of Nigeria, 1999 Cap C23, LFN 2004,  provides that ‘[t]he State shall protect and improve the environment and safeguard the water, air, and land, forest and wildlife of Nigeria’. While this section refers to an environmental objective for the Nigerian state, the fact that it is under the notorious section 6 on fundamental objectives and directive principles of state policy under chapter II of the Constitution subjects the provision to the lame duck status of non-justiciable.

It is therefore settled that while the fundamental objectives and directive principles are not directly justiciable, they can be made justiciable by the National Assembly enacting implementing legislation. This position was restated in Attorney-General of Lagos State v. AGF (2003) 12 NWLR (Pt. 833) p.1 at p. 2103. where the Supreme Court considered and interpreted the Section 20 environmental provision of the Constitution. The court followed the reasoning in Attorney-General of Ondo State v. AGF (2002) FWLR (pt III) p. 1972.and held that:

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“Section 20 of the 1999 Constitution is one of the sections under Chapter II. That is the Chapter confirming the Fundamental Objectives and Directive Principles of State Policy. By virtue of item 60 (a) of the Second Schedule to the Constitution, the subject matter of that section comes under the Exclusive Legislative List. It can be legislated on by the National Assembly on behalf of the Federal Republic of Nigeria”

Kalgo JSC, held in Attorney-General of Lagos State case that the main object and essence of section 20 of the 1999 Constitution is to protect the external surroundings of the people and ensure that they live in a safe and secure atmosphere free from any danger to their health or other conveniences. The Supreme court  further stated that section 20 is meant to support such laws as the Federal Environmental Protection Agency Act, the Harmful Wastes (Special Criminal Provisions) Act, the Environmental Impact Assessment, Act the National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations 1991 etc. and that these laws and regulations are more in tune with section 20 of the 1999 Constitution.

Therefore section 20 of the 1999 Constitution is made Justiciable by the provisions of the following;

  • Associated Gas Re-Injection Act, The Associated Gas Re-injection Act 1979 (as amended) Cap 26 Laws of the Federation of Nigeria 2010 which was the first anti-gas flaring regulatory framework in Nigeria. The primary intent and purpose of the Act was to phase out gas flaring in Nigeria.

The Associated Gas Re-injection Act 1979 (as amended) was the statutory response to the environmental impacts of gas flare. In its recital, it is stated “ to be an Act to compel every

company producing oil and gas in Nigeria to submit preliminary programme for gas re-injections

and detail plans for implementation of gas re-injection”.

  • National Oil Spill Detection and Response Agency (Establishment) Act Cap N157, LFN, 2006

This is a specialized and principal 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 co-ordinating arm of NOSDRA

known as the National Control and Response Centre (NCRC).

  • The Maritime Administration and Safety Agency (NIMASA) Act CAP N161 LFN, Act, The Act granted NIMASA jurisdiction thereto as it provides,inter alia, that the objectives of the Agency shall be to regulate and promote maritime safety, security, marine pollution and maritime labour.
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International Regulations on Environmental Pollution

Kyoto Protocol 1997

The Kyoto Protocol is an international treaty which extends the 1992 United Nations Framework Convention on Climate Change (UNFCCC) that commits state parties to reduce greenhouse gas emissions, based on the scientific consensus that (part one) global warming is occurring and (part two) it is extremely likely that human-made CO2 emissions have predominantly caused it. The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005.

International Maritime Organization (IMO) Regulations 2020

On 1 January 2020, a new global regulation by the IMO on sulphur content in marine fuels came into effect. The new regulations, known as IMO 2020, mandates a maximum sulphur content of 0.5% in marine fuels globally.  The purpose of this change is the need to reduce the air pollution created in the shipping industry by reducing the Sulphur content of the fuels that ships use.

Nigeria is a signatory to the above mentioned international instruments but has not adhered to it’s principles stricto sensu.

Way Forward

For Nigeria to demonstrate the lessons learnt from the COVID-19 Pandemic, the following points are recommended;

  • Government should put in place a regulatory framework that will compel multinational oil companies and shipping companies in the Nigerian territorial waters to be environmentally accountable to the people.
  • Government should ensure that Oil companies and shipping companies set up a funds for the compensation of victims of their unpleasant environmental practices.
  • Government should increase the fines being paid by erring oil and gas companies and shipping companies periodically in order to check their excesses.
  • There should be public awareness in schools and communities on the negative effect of environmental pollution and climate change.
  • Public interest litigation should be done by interested members of the public.
  • Renewal energy should be highly encouraged.
  • IMO regulations should be strictly enforced by the government with stiff penalties.
  • Government should harmonize the environmental protection and pollution laws.
  • Repeal or amendment of the Associated Gas Re-Injection.
  • Government should grant concession to companies whose activities are environmentally friendly.

Ibrahim Oluwadamilola Enifeni, is a 500 level law student at Lagos State University, you can reach him via email on oenifeni63@gmail.com or LinkedIn via Ibrahim Oluwadamilola Enifeni.

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