LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA

ABSTRACT

This project deals with the legal and institutional framework for the control of Environmental Pollution in Nigeria.
Pollution of the environment leads to the degradation of the environment, which is a consequence of industrialization. In Nigeria, there are laws that are enacted to safeguard our environment. There are also institutions put in place to enforce these laws.
However, recent experience has shown that despite these laws and the institutions, the environment (air, water and land) is still being polluted by man. Yet, it is this environment that man lives.
This long essay is a contribution to the relationship of man and the environment. This work is important because it relates to life. For life to be protected, the environment must be safeguarded. This is not only for present generation, but also for future generations of Nigerians.
Consequently, the crucial issue is not to halt all domestic, commercial and industrial activities in order to sustain the quality of the environment, rather, the issue is to examine the legal and institutional framework for the control of environmental pollution in Nigeria whether they have been able to attain the objective of their enactment and establishments. If they have done that, then we shall be done but if not, we shall proffer certain recommendations for the effectiveness of the laws and the institutions.
This work shall be limited in scope to Nigerian environmental laws and institutions. For the purpose of an indept analysis and a proper comparative analysis, positions of other countries e.g. Canada and America shall be referred to in passing.
There could arise during the course of this research some intervening variables which might prevent the researcher in presenting a flawless and perfect work on this study. These include: the dearth of cases in respect of environmental issues. Also envisaged is the problem of laying hands on both foreign and local journals in this topic.
Nevertheless, the above intervening variables shall not prevent the researcher from presenting an analytical work based on this topic.
This research work will be based on a critical and analytical study of the topic under discuss, spread across the following chapters:
Chapter One: Introduction
Chapter Two: The Legal Framework for the Control of Environmental Pollution in Nigeria.
Chapter Three: The Institutional Framework for the control of Environmental Pollution in Nigeria.
Chapter Four: Analysis of the Legal and Institutional framework for the control of Environmental Pollution in Nigeria.
Chapter Five: Conclusion and Recommendations.

TABLE OF CONTENTS
CHAPTER ONE: INTRODUCTION
1.0 Introduction 1
1.1 Definition of Environment 8
1.2 Pollution 10
1.3 Types of Pollution and Sources 12
1.3.1 Water Pollution and Sources 12
1.3.2 Noise Pollution and Sources 15
1.3.3 Air Pollution and Sources 17
1.3.4 Land Pollution and Sources 19
CHAPTER TWO: THE LEGAL FRAMEWORK FOR THE
CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA

Common Law 21
The 1999 Constitution 26
National Policy on Environment 31
The Criminal Code 31
Oil in Navigable Waters Act 32
Oil Terminal Due Act 34
Associated Gas Re-Injection Act 35
The Petroleum Act 36
Petroleum (Drilling and Production) Regulations 37
Mineral Oil Safety Regulations 39
The Environmental Impact Assessment Act 39
The Harmful Waste (Special Criminal Provisions) Act 41
The Federal Environmental Protection Agency Act 42
States Pollution Control Laws 43
International Conventions Adopted by Nigeria in
Regulating Pollution 43

CHAPTER THREE: THE INSTITUTIONAL FRAMEWORK FOR
THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA

Federal Institutional Framework 45
National Environmental Standards Regulations
Enforcement Agency 45
The Police 51
The Federal High Court 52
State Environmental Protection Agencies 56
Local Government Level 58
Individual/Private Enforcement 59

CHAPTER FOUR: ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORK FOR THE CONTROL OF ENVIRONMENTAL POLLUTION IN NIGERIA

Legal Framework – Analysis 61
Institutional Framework – Analysis 79

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
Conclusion 81
Recommendations 87
Bibliography 91

TABLE OF CASES
A.C.F. v Commonwealth (1986) 146 CMLR 493
A.G. Lagos State v. AG Federation (2003) 12 NWLR (pt. 833).
Abacha & Ors. V. Gani Fawehinmi (2000)6 NWLR (pt. 660) p. 228
Abiola v. Ijeoma (1970) 2 All NLR 768
Adeniran v. Interland Transport Limited (1986)2 NWLR (pt. 20) p. 78
Allah Irou v. Shell BP. Suit No. W/89/71 (Unreported)
Amos & Others v. Shell BP. (1977) 6 S.C. p. 9
Archbishop Anthony Olubunmi Okojie & Ors. V. Attorney-General of Lagos State (1981) 1 Nigerian Constitutional Law Report 262.
Fawehinmi v. Akilu (1987)4 NWLR (pt. 67) p. 797
Isaiah v. SPDC (2001) 11 NWLR (pt. 723) p. 168.
Mcdonald v. Associated Fuels Ltd (1954 (1954)3 D.L.R. 775
Nigerian National Petroleum Corporation v. Selle (2004) 4 NWLR (pt. 856) p. 379
Obasanjo v. Yusuf (2004)9 NWLR (pt. 877)p. 144.
Onajoke v. Seismograph Services Ltd (Unreported) Suit. No. SHC/28/67
Oronto Douglass v. SPDC & Others (Unreported) Suit No. FHC/L/CS/573/931
Owoniyi Omotosho (1961) NLR 30
R. v. Inspectorate of Pollution Ex Parte Green Peace (1994) 2 CMLR 548, (1994) All E.R. 329
Read v. Lyods and Co. Ltd (1945) KB 216 p. 236.
Ryland v. Fetcher (1886) I.R. EX 265
SP.D.C. v. H.B. Fishermen (2002) 4 N.W.L.R. (pt. 758) p. 205
Seismograph Services v. Mark (1993) 7 NWLR 203
Seismograph Services v. Ogbeni (1976) I.S.C. 85
Shela Zia v Water and Power Development Authority Plc (1994) SCA 16
Total (Nig.) Plc v. I.I.R.A. (2004)7 NWLR (pt. 873) p. 453
Umudje v. Shell BP (1975) 9-11 SC 172

TABLE OF STATUTES
Constitution of The Federal Republic of Nigeria, 1999 –
The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria, 1990
The Criminal Code Cap 77 Laws of the Federation of Nigeria, 1990
The Criminal Procedure Act Cap 80 Laws of the Federation of Nigeria, 1990
The Evidence Act, Cap 1 2 Laws of the Federation of Nigeria, 1990
Associated Gas Re-Injection Act, Cap 26 LFN 1990
Edo State Environmental Sanitation Edict of 1994
Environmental Sanitation Edict of 1994
Environmental Impact Assessment Act 1992 –
National Environmental Standards Regulations Enforcement Agency Act 2007
Harmful Waste (Special Criminal Provisions) Act Cap 165, LFN, 1990
Oil in Navigable Waters Act Cap 337, LFN, 1990
Oil Terminal Due Act Cap 339 LFN, 1990
The Petroleum Act Cap 310 LFN, 1990
Petroleum Drilling and Production Regulations Cap 350 LFN, 1990
Mineral Oil Safety Regulations, Cap 350 LFN, 1990
Oyo State Environmental Sanitation Edict, 1986
The Civil Aviation Act Cap 51 Laws of the Federation of Nigeria 1990
Lagos State Environmental Sanitation Edict No. 3 1998
The Basel Convention of 1987
The Bomako Convention of 1991
The Stockholm Conference of 1972
TABLE OF ABBREVIATION
A.C. Appeal Cases
All ER All England Reports
A.N.L.R. All Nigerian Law Reports
Cr. App. R. Criminal Appeal Reports
E.N.L.R. Eastern Nigerian Law Reports
N.L.R. Nigerian Law Reports
N.M.L.R. Nigerian Monthly Law Report
N.R.N.L.R. Northern Region of Nigeria Law Reports
N.S.C.C. Nigeria Supreme Courts Cases
N.W.L.R. Nigerian Weekly Law Report
Q.B. Queen’s Bench
S.C.N.J. Supreme Court of Nigeria Judgements
W.A.C.A. Selected Judgements of the West African Court of Appeal
W.L.R. Weekly Law Report
W.R.N.L.R. Western Region of Nigeria Law Report
K.B. Law Report of Kings Bench

CHAPTER ONE

1.1    INTRODUCTION

    This project deals with the legal and institutional framework for the control of environmental pollution in Nigeria.  Pollution of the environment leads to the degradation of the environment which is a consequence of industrialization.
    The environment (air, water and land) remains nature’s greatest legacy to mankind.  Air, water and land constitute the basic necessities of human existence. In spite of nature’s generous provision of these necessities of life, the environment has been and is still being polluted by man through indiscriminate disposal of domestic, commercial and industrial wastes.
    Environmental pollution leads to the degradation of the environment, which is a consequence of industrialization.  Mankind is now faced with the fact that the current rate of destruction might lead to a very bleak or even a non-existent future for the earth and its inhabitants.  The control and regulation of the use of the environment by all nations is therefore essential, because man’s life is tied to the environment.  Honourable Justice Belgore J.S.C. while expressing gladness at a seminar on environmental law stated thus:    
This gathering will discuss the problem of the survival of this earth in relation to man made destructive things now you are going to discuss the whole legal ramification of the environment in Nigeria.  But you may discover that you are thinking of life on this earth most of the time.
    Also, the Honourable Prince Bola Ajibola stated concerning the importance of the environment to life when he stated that:
It is the policy of the administration to vigorously pursue the protection of the Nigerian environment in order to preserve the quality of life of all citizens and conserve the resources for the benefit of future generations of Nigerians.
    From the above, it stands clear that life depends on the environment.  Contrary to the attitude and belief of most people in developing countries that their life and livelihood depend entirely on their immediate neighbourhood, it is now being realized that environment extends beyond a people’s immediate surrounding sometimes assuming international dimensions.
    Man depends on resources in his immediate vicinity for sustenance.  But these resources are routinely depleted without adequate or any consideration for their conservation or replacements.
    As there is a growth in the number of people who are demanding goods and services, that increasing knowledge and technology make possible, industrial production and trade also grows.  The implication of this is that there will be new factories and chemical plants, new sources of resources depletion and environmental pollution, also, growing in the amount of leisure time that people have.  There is also a fast growing tourist industry.  People have more time and opportunity to encroach upon countryside and beaches, often times polluting land, air and water, as well as jeopardizing plant and animal life in the process.  These selfish exploitations of natural resources make bleak the future of world youth and the unborn generation.
    Indeed, the old view that development must necessarily be accompanied by resources depletion has given way to the modern view of development without destruction.  Mankind has also come to realize that the environment belongs to all generations, present and future; hence the concept of sustainable development.
    The term, sustainable development has been defined as:
Development that meets the needs and aspirations of the current generations; without compromising the ability to meet those of future generation.
    From the above, it stands that all life on earth forms part of a single independent system, which influences and depends on the non-living components of the planetary rock, soils, water and the atmosphere.
    Every human being has equal rights within the limits of the earth to the resources needed for a decent standard of living and no individual or group should deprive another of his (their) means of subsistence.  Each person or society is obligated to the protection of these natural resources for the mutual benefit of all.
    From the above, it can be seen that there is really the need to police and protect the environment from being polluted.
    In every society, competing demands are frequently made on society’s natural resources such as air, water, land and wildlife.  The competition is usually between the forces of deterioration whose dominant objective is to consume or deteriorate natural resources, and the conservationists whose primary concern is how to preserve the society’s natural resources.  But people often lack honesty and objectivity in appraising the facts about pollution.
    While environmental protection may exaggerate negative aspects in support of their argument, their opponents may play up the positive side.  But the truth is that everything is growing, including the problems.
    Environmental damage consists essentially of pollution in all its ramifications.  Some apparently innocuous activities of man also contribute to the problem, domestic refuse carelessly thrown about residential areas, aerosol cans of cosmetics and insecticides in common use, emission of industrial fumes and other effluents into the atmosphere, construction of structures without appropriate authorization.
    To control environmental pollution, laws are put into place in order to safeguard our environment.  There are also institutions put into place to enforce these laws.
    However, recent experience has shown that despite these laws and institutions the environment, (air, water and land) is still being polluted with reckless abandon by man, yet man lives in this environment, man’s survival is also tied to the environment.
    Oil production has been going on in Nigeria for over 52 years together with the flaring of natural gas.  The resultant effect is the unsustainable practice of air, water and land pollution.  Our cities still experience heaps of refuse being dumped indiscriminately, oil spillage in the Niger Delta is still a regular occurrence; this pollutes the environment.
    Consequently, the crucial issue is not to halt all domestic, commercial and industrial activities in order to sustain the quality of the environment, rather, the issue is to examine the legal and institutional framework for the control of environmental pollution in Nigeria whether they have been able to attain the objective of their enactment and establishment.  If they have done that, then we shall be done but if not, we shall proffer certain recommendations so as to meet their effectiveness.
1.1    DEFINITION OF ENVIRONMENT
What is environment?  And why the need to be environment conscious?
    “The word environment means different things to different people.  In its general sense, it may mean the surroundings, that which is encircling, surrounds people and effects their health and the quality of their lives .  Man is seen as the central unit or the measure of all things.   “In the environment a combination of material and social things” which condition the well being of people.
    The environment now has a wider meaning than that which affects the quality of life for people and their physical and mental well being.  In this regard, it has been defined as  “the totality or physical, economic, cultural, aesthetic and social circumstances and factors which surround and affect the desirability and value of property or which also affects the quality of people’s live”.
    On its part the National Environmental Standards and Regulations Enforcement Agency Act 2007, in Section 37 defines environment as:
“Including water, air all plants and human beings or animals living therein and the inter-relationships which exist among these or any of them”.
    It is submitted that this definition is all embracing as it touches every aspect of what constitutes the environment.  It implies that the basic necessities of human existence constitute the environment.
    The above definition has been adopted by the Supreme Court in the case of   A.G. Lagos State v. A.G. Federation where the court defined environment as natural conditions, for example land, air and water in which people, animals and plants live”.
    For the purposes of law therefore, the environment has been defined as:
“The system of abiotic, biotic, and socio-economic components with which man interacts and simultaneously to which he adapts and transforms and uses in order to satisfy his needs”.
    Generally, environment means surroundings in the natural condition in which we live in.  It covers the atmosphere, hydrosphere, lithosphere, the soil, climate and the inter-relationship amongst these factors.

1.2    POLLUTION
 “Pollution has been defined as man made or man aided alteration of chemical, physical or biological quality of the environment to the extent that is detrimental to the environment beyond acceptable limits”
    Pollution also involves the making of any feature of the environment offensive, harmful or less suitable for human, animal or plant life and the effectiveness of the legal regimes on pollution control which is the focus of this project.
    Pollution is the release into any environmental medium any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.  It is the introduction by man directly or indirectly of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, farm, living resources and ecosystems.
    The 1972 United Nations Conference at Stockholm defines pollution as:
“The discharge of toxic substances and the release of heat in such qualities or concentrations as to exceed the capacity of the environment”.
1.3    TYPES OF POLLUTION AND SOURCES
    There are different types of pollution, they shall be treated based on how they affect human’s life.
1.3.1    WATER POLLUTION AND SOURCES
    Apart from the production energy, water is needed for human and animal consumption, production of food, fibre and industrial goods.  Water provides a completely cheap means of transportation compared to other means. Varieties of recreational activities can also be carried out on water.  As a result of all the above mentioned uses of water, it thus becomes imperative that the marine environment should be kept clean and safe from pollution of any kind.  Industrial effluents and indiscriminate domestic waste disposal have ruined the environment, especially the coastal waters.
    The oil industry is a potentially dangerous industry to the environment.  This industry is the main source of revenue for Nigeria.  The oil industry impacts on water in the Niger Delta in two main ways.
    First, it affects the hydrological patterns of rivers, particularly seasonally flooded plains and disturbs marine life.  Secondly, the oil industry is a huge source of pollution to the marine environment.  Oil spills and blow outs are major source of water pollution in the Niger Delta.  In its over 47 years operation, the sheer volume of spills into the Niger Delta environment including its waters has been enormous in the exploration stage.  The industry uses drilling mud, this drilling mud in very high quantities, could be harmful to the marine environment if it is introduced into it.
    When fish ingest these pollutions, it becomes poisoned and could become dangerous for human consumption.  All these have significant impact on human health particularly because of the reliance of people on these waters for their domestic needs and also as a source of subsistence.
    Water is made up of hydrogen and oxygen – a chemical association that is chemically represented as H2O.
    Water pollution therefore could be defined as the introduction by man, directly or indirectly of substances or energy into the marine environment resulting in such deleterious effects as are harmful to the marine activities like fishing and which may cause impairment of quality of use of water and reduction of amenities.
    Water pollution occurs in oceans, lakes, rivers and streams and affects life directly through toxicity, killing most water plants and animals, and causing reproductive failures in others.
    The principal sources of water pollution are oil spills, industrial refuse and agricultural fertilizers.  Water pollution comes in many forms such as:
a.    De oxygenating materials e.g. sewage and other organic waters like spillage, farm wastes and wastes from a number of heavily industrial processing units.
b.    Nutrients enriching materials such as fertilizers may cause an acceleration of plant growth and lead to a decline in water quality.
c.    Soil waste:  This may impede the flow of water or block out light for the growth of plants that live in the water.
d.    Toxic materials:  Some materials such as heavy metals and pesticides are toxic to aquatic life, depending on the dosage received.
e.    Discharge of waste from the sewage system also affects the quality of inland and coastal waters.
1.3.2    NOISE POLLUTION AND SOURCES
    Noise may be defined as unwanted or excessive sound. Economic growth has led to an increase in the source of noise pollution which seems to have been accepted by people in the society.  This general acceptance may be due to the ignorance of the health hazards created by noise pollution C.S. Ola has affirmed this position when he stated thus:
The average urban dweller is open to health problems as a result of long continuous exposure to noise sometimes at high intensities.
    Worker in some industries are exposed to high levels of noise over a long period of time.  Other sources of noise pollution include:
    Domestic noise, amplified music, vehicles and motorcycles aeroplanes, railway noise, voices beat engines, road traffic, noise construction sites.  Factories, industries and air-guns used to detect the presence of hydrocarbons.
    On the effect of noise pollution, it is instructive to note that long exposure to noise of a high intensity may cause hearing impairment, decreased efficiency, emotional disturbances, psychological disorder and disturbance of sleep.  The negative effect of noise on fish, schools causing them to be dispersed and also on calls between fish’s destruction of eggs and larva are not exempted.