Law Environment and DevelopmentJournal - lead …

1 LEADLawEnvironment andDevelopmentJournalVOLUME8/1 REVIEW OF NESREA ACT 2007 AND REGULATIONS 2009-2011: A NEW DAWNIN ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT IN NIGERIAM uhammed Tawfiq LadanCOUNTRY LEGISLATIONLEAD journal (Law, Environment and development journal )is a peer-reviewed academic publication based in New Delhi and London and jointly managed by theSchool of Law, School of Oriental and African Studies (SOAS) - University of Londonand the International Environmental Law Research Centre (IELRC).LEAD is published at 1746-5893 The Managing Editor, LEAD journal , c/o International Environmental Law Research Centre (IELRC), International EnvironmentHouse II, 1F, 7 Chemin de Balexert, 1219 Ch telaine-Geneva, Switzerland, Tel/fax: + 41 (0)22 79 72 623, document can be cited asMuhammed Tawfiq Ladan, Review of NESREA Act 2007 andRegulations 2009-2011: A New Dawn in EnvironmentalCompliance and Enforcement in Nigeria ,8/1 Law, Environment and development journal (2012), p.

2 116,available at Tawfiq Ladan, Professor of Law, Department of Public Law, Faculty of Law, Ahmadu BelloUniversity, Zaria, Nigeria, Email: under a Creative Commons Attribution-NonCommercial-NoDerivs LicenseREVIEW OF NESREA ACT 2007 AND REGULATIONS2009-2011: A NEW DAWN IN ENVIRONMENTALCOMPLIANCE AND ENFORCEMENT IN NIGERIAM uhammed Tawfiq LadanCountry LegislationTABLE OF Overview of the development of Environmental Law in Drawbacks of the Defunct Federal Environmental ProtectionAgency (FEPA) Act and Regulations of NESREA: A New Mandate and Powers of Enforcement Powers of Rationale for the 2009 - 2011 Environmental Regulations127 Conclusion1371 INTRODUCTIONN igeria s formal environmental regime has developedsignificantly from humble beginnings,1 to thepromulgation of twenty-four Nigeria, the most populous nation inAfrica, rich in oil but underdeveloped,3 has its ownshare of environmental problems which justify localand international attention.

3 In terms of Nigeria senvironmental problems,4 the four broad issues beingaccorded highest priority at present are: ensuringsustainable industrial production; preventing andreversing desertification; managing forest, wildlifeand natural resources; combating floods and OVERVIEW OF THEDEVELOPMENT OF ENVIRONMENTALLAW IN NIGERIA6 Environmental law in Nigeria is that branch of publiclaw, which contains rules and regulations, which haveas their object or effect the protection of the the colonial era, protection of theenvironment was not a priority in Nigeria and therewas accordingly no policy aimed at preserving andprotecting it. Matters relating to the environmentwere dealt with as a tort of nuisance because disputesin environmental law were not viewed as publicmatters warranting state intervention. The fewenvironment related laws criminalised activities thatcould degrade the Environment . These laws includedthe Criminal Code Act8 of 1916, which prohibitedwater pollution and air pollution and created theoffence of 1917 the Public Health Act9 was somewhat broad in scope, this Actcontained provisions of relevance to the regulationof land, air and water pollution.

4 Thus it is evidentthat at this time matters relating to the environmentwere dealt with in a rudimentary manner, from theviewpoint of environmental Nigeria s independence in 1960 and thediscovery of oil, it became apparent that existing lawsdealing with the Environment were grosslyinadequate. This was owing to the fact that most ofthe provisions on environmental protection werescattered throughout different laws, resulting in anad hoc response to different needs in During the decade followingindependence, the Government criminalisedpolluting activities, particularly those relating to thedischarge of oil in navigable waters andenvironmental degradation as a result of petroleumactivities. The 1970s saw the further development ofNigeria s environmental regime in response toindustrial growth associated with the oil basin authorities12 were created andenvironmental units were established in somegovernment The laws were, however,typically knee-jerk responses to , Environment and development Journal1181 See Ladan, Materials and Cases on Environmental Lawand Policy 117-244 (Zaria, Nigeria: ECONET Publishers, 2004).

5 2 See Federal Republic of Nigeria, Abuja, Official Gazette,Vol. 96, Nos. 58-68 dated 2-20 October Underdevelopment is universally measured in terms ofstandard of living, gross domestic product, foreignexchange denominator, foreign reserves, political stabilityand the level of fundamental human rights of the generally, the National Policy on the Environment of1999 (Revised edition), at pp. Appendix 1 for a brief discussion on the four broadenvironmental problems/challenges being accordedhighest priority at present in generally, Ajibola, Protection of the environmentthrough the Law , in F. Shyllon ed., The Law and theEnvironment in Nigeria (Ibadan: University of IbadanPress, 1999).7 See generally, Y. Osinbajo, Some Public LawConsiderations in Environmental Law (Lagos: Faculty ofLaw, University of Lagos, 1990).8 LFN LFN F. Shyllon, Present and future institutionalframework for environmental management in Nigeria ,in Shyllon note 6 Appendix 2 of this , Ministries of Agriculture, Water Resources 1980s and 1990s witnessed the most drastic andsystematic development of environmental laws inNigeria, partly owing to Nigeria s ratification of oraccession to a number of international instruments duringthis The main national laws and decreesdeveloped during this period, and which are still inoperation today, are listed in Appendix 2 of this laws and decrees are supported by an array ofnational regulations15 and policies16 ofenvironmental significance.

6 The most recent andimportant addition to Nigeria s environmentalregime is the National Environmental Standards andRegulations Enforcement Agency (Establishment)Act (NESREA Act),17 which came into force in2007. The Act establishes the NationalEnvironmental Standards and RegulationsEnforcement Agency (NESREA or Agency),Nigeria s lead environmental protection should be evident from the above, Nigeria sformal environmental regime has developedsignificantly from humble beginnings. Having beeninitiated in the colonial period during whichenvironmental issues where generally couchedwithin public health regulation;,18 and havingdeveloped in a rather ad hoc manner in the earlydays of independence during which heavy reliancewas placed the law of nuisance, Nigeria now has arelatively comprehensive environmental regime is administered by an array ofinstitutions. The Federal Ministry of Environment ,Housing and Urban development and the NationalEnvironmental Standards and RegulationsEnforcement Agency are then main institutionsresponsible for the formulation of environmentalpolicy, monitoring compliance and enforcementrespectively.

7 Their functions are supported by thefollowing government institutions: Federal Ministryof Solid Minerals development ; Federal Ministryof Agriculture and Natural Resources; FederalMinistry of Water Resources; Federal Ministry ofScience and Technology; and Ministry of Energy,Oil and Gas DRAWBACKS OF THEDEFUNCT FEDERAL ENVIRONMENTALPROTECTION AGENCY (FEPA) ACTAND REGULATIONS 1991-2006 The Federal Environmental Protection Agency(FEPA) was defunct and its Act and Regulationswere repealed in 2007 by the NESREA Act. Themajor drawbacks of FEPA were:19 Nigeria Review of NESREA11914 These include: Convention on Biological Diversity (1992)31 ILM 818; United Nations Convention to CombatDesertification in Countries Experiencing SeriousDrought and/or Desertification (1994) 33 ILM 1328;Convention on International Trade in EndangeredSpecies of Wild Fauna and Flora (1973) 46 ILM 1178;Convention on the Conservation of Migratory Speciesof Wild Animals (1980) 19 ILM 11; Vienna Conventionon the Protection of the Ozone Layer (1987) 26 ILM 1516;Montreal Protocol on Substances that Deplete the OzoneLayer; Stockholm Convention on Persistent OrganicPollutants (2001) 40 ILM 532; and Basel Convention onthe Control of Transboundary Movements of HazardousWastes and their Disposal (1989) 28 ILM 567.

8 For acomprehensive discussion of the international andregional environmental instruments which Nigeria isparty to, see S. Simpson and O. Fagbohun eds,Environmental Law and Policy 10-49 (Lagos: Law Centre,Faculty of Law, Lagos State University, 1998); Ayuaand O. Ajai, Implementing the Biodiversity Convention:Nigerian and African Perspectives (Lagos: NigerianInstitute of Advanced Legal Studies, University of Lagos,1997); and Worika, Environmental Law and Policyof Petroleum development : Strategies and Mechanisms forSustainable Management in Africa 62-80 and 311-328(Portharcourt, Nigeria: Anpez Centre for Environmentand development , 2002).15 Relevant regulations include: National EnvironmentalProtection (Effluent Limitations) Regulation, 1991;National Environmental in Protection (PollutionAbatement in Industries and Facilities Generating Wastes)Regulations, 1991; and Management of Solid andHazardous Waste Regulations, Relevant policies include: National Policy on theEnvironment of November 1989 (revised in 1999); andthe draft National Policy on Environmental Sanitationand its Guidelines (2004).

9 17 Act 57 of O. Okediran, An appraisal of Environmental SanitationEdicts in Nigeria , in Shyllon, note 6 above, at Ajomo and O. Adewale eds, Environmental Lawand Sustainable development in Nigeria 1-11 (Lagos:Nigerian Institute of Advanced Legal Studies, 1994). of or weak enforcement of existingenvironmental laws and regulations. FEPA gave industries five years moratorium in 1990for industrial compliance with theinstallation of pollution abatement facilities,which expired in 1994. Nonethelesscompliance rate by industries was generallylow (between 20-40 per cent). Even then theefficiency of many of the pollutionabatement facilities was suspect. Many hadbroken down, or were grossly inadequate orwere just operationally cosmetic to givesemblance of The enforcement mechanism was throughvisits to facilities for compliance monitoring,facilities work through, find out challengesfor non-compliance, examine monitoringrecords where they exist, undertake in situenvironmental monitoring of someparameters and discuss findings with thefacility manager; and proffer appropriateadvice that could promote compliance orissue warning where non-compliance resultant consequence of the abovementioned poor environmental complianceor weak enforcement regime were thefollowing industrial pollution problems andtheir impact on the Environment and humanhealth in Nigeria: - 22 Surface waters (60-70 per cent) in urbanareas coloured, foul smelling, fishless,and were non-potable and non-swimmable.

10 23 Shallow groundwater acquiferscontaminated by infiltration of domesticand industrial wastes; petroleum wasteproducts, toxic and non-toxic;24 Visual impairment and reduced fishcatch in costal and marine waters;25 Nuisance and health problems fromindustrial effluents disposed on land orwetlands;26 Worsening public health throughexposure to pollutants, thereby puttingthe lives of millions of Nigerians at riskfrom water related health diseases suchas typhoid fever LEARNTH ence the major lessons learnt from the aboveinclude the following: It is counter-productive andunsustainable for a lead environmentalprotection agency to pursue a weak oroutdated compliance monitoring andenforcement It is retrogressive to lack focus onpollution prevention strategies, life cycleanalysis approach and non-integration ofenvironmental treaties obligations intonational environmental compliance andenforcement framework on industrial,wastes and chemicals pollution controlfor the benefit of present and , Environment and development Journal12020 See A.