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Int. j. adv. multidisc. res. stud. 2021; 1(3):20-28
International Journal of Advanced Multidisciplinary
Research and Studies
Will remediation ever be enough? The overdue compliance conversation for Nigeria
Cleverline T Brown
University of the West of England Bristol, United Kingdom
Corresponding Author: Cleverline T Brown
Abstract
In Nigeria, it has long been accepted that environmental
pollution is an inextricable part of the operations of the
petroleum sector. In the event of this pollution, remediation
processes are usually activated after negotiation or litigation.
It has been found that remediation could not be enough to
completely erase the effect of pollution on the human and
natural environment. While this is conceded, this article
argues that the current situation can be improved. This can
be achieved by drawing a line to close the era of
environmental pollution due to bad environmental practices
and non-compliance with environmental laws and starting a
new chapter of effective petroleum sector regulation by
imbibing and practising effective compliance strategies and
effectively applying enforcement tools already in practice in
Nigeria and other jurisdictions but in a form better suited to
the socio-economic and political construct of Nigeria. This
article finds that innovative compliance strategies and
enforcement tools can be adopted to reduce the need for
remediation options either through negotiation or litigation.
This is mainly because even with remediation, victims of
environmental pollution are not always better off. As such,
environmental best practices and effective compliance with
environmental law should be encouraged to avoid results
that will lead to the need for remediation.
Keywords: Environmental Pollution, Remediation, Compliance, Enforcement
Introduction
The first version of this article concluded that in most incidents of environmental harm, no form of remediation could be
enough to completely reverse the impact of the resulting pollution on the human and natural environment.
1
It promoted the
view that rather than rely on remediation to resolve the harm done to the environment, the actions that can lead to such
environmental harm should be prevented or not taken at all because the economic gains will in no way remedy the losses that
would have been suffered especially if that loss included the loss of human lives.
Environmental pollution
Environmental pollution occurs in diverse ways that affect nearly every aspect of existence. It has been noted that
environmental pollution is not just physical in the earth, water, air, fire and space. It is now at the mental and intellectual
levels, individual, family, community, social organisational and cosmic levels.
2
While environmental pollution can occur from
different sectors of the economy, this article focuses on the environmental pollution arising out of and in the course of the
operations of the petroleum sector in Nigeria.
Before the development of the legal framework for the control of environmental pollution, environmental infractions went on
unabated until reprieve came in the form of interventions such as compensation, injunctions and other forms of remediation.
3
However, it is contended that rather than take precaution, operators often see the remedies as the excuse to continue their
reprehensible actions, which translates to pollution, as long as they can keep funding the remedies. Remediation is not a
remedy because most effects of pollution cannot be reversed to status quo ante. Therefore, the valid question still reverberates,
‘Will remediation ever be enough?’ As noted above, environmental pollution affects every aspect of human existence.
4
Therefore, this article queries; Where is Nigeria’s priority in environmental matters? Is it to protect the human and natural
environment in an actual sense or to protect the ability of the environment to continue to produce the natural resources the
country needs to continue to fund its economy while growing other vices such as corruption and civil and armed conflicts in its
wake and disregarding the health of the human and natural environment?
Over time, acts in furtherance of business or personal agenda that have continually had negative effects on the global
environment, have evolved from mere harmless acts to grave environmental infractions that have gradually taken a toll on the
1
CT Brown, 'Will Remediation Ever Be Enough? The Environmental Pollution Tragedy' (2019) 5(2) International Journal of
Law 28.
2
SR Bhatt, 'Jain Ethics, Environmental Crises and Remedial Measures', Jainism for a New World Order (Springer 2021) 17.
3
H Ijaiya and OT Joseph, 'Rethinking Environmental Law Enforcement in Nigeria' (2014) 5 Beijing Law Review 306, 313.
4
BR Adeuti, 'Analysis of Environmental Pollution in Developing Countries' (2020) 65(1) American Scientific Research
Journal for Engineering, Technology, and Sciences (ASRJETS) 39, 47.
ISSN: 2583-049X
Accepted: 18-10-2021
Received: 24-11-2021
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
21
human and natural environment. The history of
environmental pollution shows how far this gradual but
steady decline in the health and sustenance of the
environment has come and how much further a continuation
on this path is likely to take the human and natural
environment or what will be left of it.
Types of environmental pollution
Environmental pollution occurs due to natural events such
as forest fires, landslides, volcanoes and earthquakes.
Ancient cities were characterised by foul smells from debris,
human and animal wastes. Environmental pollution has
since gone beyond this subsistent level to thrive on a
globally industrial scale with the spread of industrialisation
and population expansion. In Nigeria environmental
pollution occurs in different sectors of the Nigerian
economy such as petroleum and other natural resources
mining, agriculture, manufacturing, medical, local trades
(markets) abattoirs, improper waste disposal methods and
poor environmental sanitation. It was noted that
environmental sanitation strategies, enforcement strategies
and compliance are the most important but neglected
environmental issues in Nigeria.
5
The development of
environmental studies and law has increasingly expanded
the view on the types of pollution that impacts the human
and natural environment. Some of the examples of pollution
are air, water and land pollution. Other more content
specific types of pollutions are noise, thermal, radioactive,
visual, light, dust
6
and plastic pollution which has continued
to gain more prominence in the media and the world in
recent times.
7
Notable instances of environmental pollution
Considering the increased awareness of environmental
pollution, there have been records of acts of environmental
pollution that have attracted global attention. This section
briefly lists some of these occurrences and the consequences
as an indication of how far and how destructive the acts of
environmental pollution are.
1984 Bhopal Gas Leak in India. Toxic gases leaked from a
chemical pesticide plant causing cancer, retarded growth,
dizziness and about 15,000 deaths.
8
1986 Chernobyl nuclear power plant explosion in Ukraine.
A nuclear reactor shut down resulting in a fire and explosion
causing the instant death of about 50 persons, 4,000 cancer
5
MA Nwachukwu, 'Environmental Sanitation Enforcement
and Compliance Best Management Strategies for Nigeria'
(Eighth International Conference on Environmental
Compliance and Enforcement Cameron May, Cape Town,
South Africa, 5 – 11 April 2008) 213, 217.
6
Prevalent in China and Korea.
7
TA Aragaw and BA Mekonnen, 'Current Plastics Pollution
Threats Due to COVID-19 and its Possible Mitigation
Techniques: A Waste-to-Energy Conversion via Pyrolysis'
(2021) 10(1) Environmental Systems Research 1.
8
RS Oh, 'The Claims of Bodies: Practices of Citizenship
After Bhopal in Survivor Testimony and Indra Sinha's
Animal's People AU - Oh, Rebecca S' (2019) 21(1)
Interventions International Journal of Postcolonial Studies
70, 75.
deaths linked with the extensive spread of radioactive
substances.
9
1989 Exxon Valdez oil spill. Approximately 10.8 million
gallons of crude oil covering 11,000 miles of ocean
destroying about 250,000 seabirds, 2,800 sea otters, 300
harbour seals, 247 bald eagles and an unidentified number
of salmon and herring.
10
2010 British Petroleum (BP) oil spill in the Gulf of
Mexico. A Deepwater Horizon oil rig exploded and sank
releasing about 60 million barrels of mixed grade oil into the
sea killing 11 employees.
11
The spill continued for more
than four months, poisoning, suffocating and killing over
34,000 birds, 72 dolphins, hundreds of sea turtles and other
marine animals.
12
In Africa, two notable environmental pollution examples
stand out. First is the environmental pollution incidental to
lead and copper poisoning of the major waterways in
Zambia due to many years of copper mining by companies
reaping major benefits from the operation without taking
precaution to pay compensation or mitigate the effect on the
environment and human and animal life.
13
Second is the
infamous Ogoni oil spill by Shell Petroleum Development
Company limited in the southern part of Nigeria, spanning
five decades of petroleum exploration and exploitation
unabated in the region.
14
Oil spills are quite common in
Nigeria and have been known to occur for some reasons
such as corrosion of pipelines and tankers, oil production
operations, sabotage and inadequate or non-functional
production equipment.
15
Other notable oil spill incidents that
have caused serious environmental harm in Nigeria include
the Escravos spill in 1978 of about 300,000 barrels, SPDC’s
Forcados Terminal tank failure in 1978 of about 580,000
9
M Hatch and others, 'The Chernobyl Disaster: Cancer
Following the Accident at the Chernobyl Nuclear Power
Plant' (2005) 27 (1) Epidemiologic Reviews 56.
10
MR Lindeberg and others, 'Condition of Persistent Oil on
Beaches in Prince Williams Sound: 26 Years after Exxon
Valdez Spill' (2018) 147 Deep-Sea Research Part II 9.
11
JM Shultz and other, 'The 2010 Deepwater Horizon Oil
Spill: The Trauma Signature of an Ecological Disaster'
(2015) 42(1) Journal of Behavioral Health Services and
Research 58, 59.
12
CME Young, PT Schwing and LJ Cotton, 'Benthic
Foraminiferal Morphological Response to the 2010
Deepwater Horizon Oil Spill' (2021) 164 Marine
Micropaleontology 1, 1; The Ocean Portal Team, 'Gulf Oil
Spill' <https://ocean.si.edu/conservation/pollution/gulf-oil-
spill> accessed 2 February 2019.
13
S Das and M Rose, 'Copper Colonialism: British Miner
Vedanta KCM and the Copper Loot of Zambia' (2019)
<http://www.foilvedanta.org/wp-content/uploads/FV-
Zambia-report1.pdf> accessed 1 February 2019 21.
14
AA Kadafa, 'Oil Exploration and Spillage in the Niger
Delta of Nigeria' (2012) 2 (2) Civil and Environmental
Research 2222.
15
AOY Raji and TS Abejide, 'Compliance with Oil and Gas
Regulations in the Niger Delta Region, Nigeria C. 1960s-
2000: An Assessment' (2014) 3(8) Arabian Journal of
Business and Management Review (OMAN Chapter) 48,
54; SO Adelana and others. 'Environmental Pollution and
Remediation: Challenges and Management of Oil Spillage
in the Nigerian Coastal Areas' (2011) 2(6) American Journal
of Scientific and Industrial Research 834, 835.
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
22
barrels and Texaco Funiwa-5 blow-out in 1980 of about
400,000 barrels;
16
Abudu pipeline spill in 1982 of about
18,818 barrels; The Jesse Fire Incident which claimed about
a thousand lives and the Idoho Oil Spill of January 1998, of
about 40,000 barrels.
17
It is imperative to note that in the above examples of some
of the most disastrous environmental infractions, some
things stand out. First, in no case has the remediation or
compensation method solved the resultant environmental
pollution. At best the measures brought temporary reprieve
but could not restore the human and natural environment to
the original state.
18
Second, the actions causing
environmental harm were perpetrated by human actions and
sometimes natural causes.
19
Third, these acts of
environmental pollution have been replicated in many
countries albeit on a smaller scale. It is argued that
environmental pollution occurs in Nigeria for various
reasons, however, more has resulted from poor
environmental decisions and non-compliance with
environmental laws.
It must also be noted that the forms and timing of
interventions practised in developed economies are more
advanced than those practised in developing and third-world
economies like Nigeria. For instance, most clean up options
for crude oil spill on land and sea require mechanical and
tedious methods promptly executed with complex machines
which may not be available in Nigeria.
20
For instance,
Regardless of the advanced remediation methods applied in
the Exxon Valdez oil spill, only 10% of the approximately
11 million gallons of crude oil that was spilt into the sea and
coastline was recovered.
21
Apart from compensation,
injunctions and specific performance, other forms of
remediation especially in oil spill instances include oil
booms, sorbents, burning in-situ, dispensers, skimming,
manual labour and technical aid.
22
It is argued that due to
this lacuna in advanced remediation options in Nigeria, there
16
N Ezenwa-Ohaeto, BE Ewulum and E Okaphor, 'An
Appraisal of the Impact of the National Oil Spill Detection
and Response Agency on Environmental Pollution in
Nigeria' (2020) 4 African Journal of Constitutional and
Administrative Law 48, 58.
17
PC Nwilo and OT Badejo, 'Impacts and Management of
Oil Spill Pollution Along the Nigerian Coastal Areas',
Administering Marine Spaces: International
Issues (International Federation of Surveyors 2006) 119,
123.
18
W Sullivan, 'Clean-up Chemical at BP Oil Spill Tied to
Health Problems' (2017)
<https://scienceline.org/2017/11/clean-chemical-bp-oil-spill-
tied-health-problems/> accessed 2 February 2019.
19
SO Adelana and others, 'Environmental Pollution and
Remediation: Challenges and Management of Oil Spillage
in the Nigerian Coastal Areas' (2011) 2(6) American Journal
of Scientific and Industrial Research 834, 844.
20
SJ Varjani, 'Remediation Processes for Petroleum Oil
Polluted Soil' (2017) 16 Indian Journal of Biotechnology
157, 157.
21
Lindeberg and others (n 10) 9.
22
SA Ismail, 'Exxon Valdez Oil Spill: What We Can Learn
to Avoid Second Mistake in Oil Transportation?
Environmental Ethics What We Should Do?' (2019) 1(1)
ILKKM Journal Medical and Health Sciences 1, 3.
is the need for an alternative response to environmental
pollution.
Conceptualising compliance and enforcement
The environmental law scholarship on enforcement
especially in Nigeria has received a lot of attention.
23
For
this reason, this section will concentrate on the concept of
compliance. Compliance has been addressed from four
different perspectives.
24
First, citizen compliance with
national laws and judicial decisions. This is where citizens
voluntarily accept the decisions of regulators and follow the
law because they choose to do so. The theory of this type of
compliance follows the realisation that it is difficult to gain
compliance solely through the threat of the use of force.
25
Second, compliance by the executives, legislatures or
bureaucracies; with laws and national High Court rulings.
This is where political officials respect the limits on their
behaviour by adhering to the foundations of limited
government, democracy and the rule of law.
26
It has been
noted that even in advanced democracies, the possibility of
non-compliance by a branch of government can strongly
shape judicial behaviour and courts decisions in politically
important cases.
27
Third, national states’ compliance with
international law and courts. Under this conception of
compliance, it is assumed that states have the general
propensity to comply with international law and their
obligations thereunder, on the considerations that the laws
are effective and serves the interest of the state.
28
Fourth,
compliance with court decisions by subnational public
authorities such as State Courts. Here compliance is
construed in the light of the response of lower courts to
judicial decisions by higher courts such as the Supreme
Court especially in the exercise of judicial activism to fill a
gap in the law.
29
23
Ijaiya and Joseph (n 3); ED Oruonye and YM Ahmed,
'The Role of Enforcement in Environmental Protection in
Nigeria' (2020) 7(1) World Journal of Advanced Research
and Reviews 48; MGA Murgan and Hakeem Ijaiya,
'International Principles of Sustainable Development and the
Challenges to Environmental Rights Enforcement in
Nigeria' (2020) 7(1) Brawijaya Law Journal 82; ZO Edo,
'The Challenges of Effective Environmental Enforcement
and Compliance in The Niger Delta Region of Nigeria'
(2012) 14(6) Journal of Sustainable Development in Africa
261; A Adegoroye, 'The Challenges of Environmental
Enforcement in Africa: The Nigerian experience'
(Proceedings of the Third International Conference on
Environmental Enforcement Oaxaca, México April 25 1994)
43.
24
D Kapiszewski and MM Taylor, 'Compliance:
Conceptualizing, Measuring, and Explaining Adherence to
Judicial Rulings' (2013) 38(4) Law & Soc Inquiry 803, 806.
25
TR, Tyler, 'Enhancing Police Legitimacy' (2004) 593 The
Annals of the American Academy of Political and Social
Science 84, 85.
26
BR Weingast, 'The Political Foundations of Democracy
and the Rule of Law' (1997) 91(2) The American Political
Science Review 245, 260.
27
Kapiszewski and Taylor (n 24) 803.
28
A Chayes and AH Chayes, 'On Compliance' (1993) 47
International Organization 175, 178.
29
FDS Lima, 'Protecting Political Rights or Interfering in
the Political Arena?' (2020) 2(2) Humanities and Rights
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
23
To comply or not to comply
Compliance with the law has been motivated by the creation
of a credible risk that people will be caught and punished for
wrongdoing, i.e., "by manipulating an individual's calculus
regarding whether crime pays in the particular instance".
30
Winter and May also offer explanations as to what motivates
compliance and enforcement.
31
they noted that compliance
does not just occur but is usually motivated by some factors
which include calculated,
32
normative and social
motivations, knowledge of the rules, ability to comply with
rules and the capacity to comply with the rules. Peterson et
al agree with Winter et al on the motivation for
compliance.
33
In this debate, however, the fact remains that
deterrence still plays a role in the decision to comply or not
to comply. It has been opined that other different factors can
also influence the decision to comply with or violate
environmental laws
34
such as market forces, regulatory
pressure and personal values and beliefs. In some cases, the
decision to comply has been seen as a business decision or
overall business strategy. For example, when government
policy is formulated to allow the participation of companies
that possess certification in certain standards for petroleum
sector operations like offshore oil drilling.
35
Where such
certification is expensive to acquire, only large companies
with a solid finance base can achieve such certifications.
Such government policy will effectively shut out other
financially less fortunate companies from participating in
operations requiring such certification standards.
36
Compliance can be unintentional and occasioned by
technological advancement and innovation adopted in the
business model of the regulated entity.
37
Regulated entities
Global Network Journal 164, 167; DR Songer and RS
Sheehan, 'Supreme Court Impact on Compliance and
Outcomes: Miranda and New York Times in the United
States Courts of Appeals' (1990) 43(2) The Western
Political Quarterly 297.
30
TL Meares, 'Norms, legitimacy and law enforcement'
(2000) 79(2) Oregan Law Review 391, 396.
31
SC Winter and PJ May, 'Motivation for Compliance with
Environmental Regulations' (2001) 20 (4) Journal for Policy
Analysis and Management 675.
32
ibid at 676, 677, 678, 679, 680.
33
K Peterson and A Diss-Torrance, 'Motivation for
compliance with environmental regulations related to forest
health' (2012) 112 Journal of Environmental Management
104, 106.
34
K Murphy and others, 'Why People Comply with COVID-
19 Social Distancing Restrictions: Self-interest or Duty?'
(2020) Australian & New Zealand Journal of Criminology 1,
3; B Pavlikova, L Freel and JP van Dijk, 'To Comply or Not
to Comply: Roma Approach to Health Laws' (2020) 17(9)
International Journal of Environmental Research and Public
Health 3087, 3090.
35
Oil and gas Pipelines regulations made pursuant to the
Petroleum Act Cap P10 Laws of the Federation of Nigeria
2010.
36
Department of Petroleum Resources, Environmental
Guidelines and Standards for the Petroleum Industry in
Nigeria (EGASPIN) (Department of Petroleum Resources
(DPR) Lagos, Nigeria 1991) 313, 3, 44, 61, 71, 110, 120.
37
WE Oates, PR Portney and AM McGartland, 'The Net
Benefits of Incentive-Based Regulation: A Case Study of
can also comply with environmental regulations to appeal to
environmentally conscious consumers who are willing to
patronise entities who incorporate green practices in their
operations.
38
Other regulated entities that are more mindful
about their reputation, comply with environmental
regulations to pre-empt stricter regulations in future and
gain a competitive advantage over other regulated entities.
Such companies that are mindful of their reputation make
compliance decisions when liability threats and pressure
mounts from environmental activists and other concerned
bodies.
39
For example, companies that are involved in the
downstream petroleum sector with direct contact with
consumers are mindful of the purity of the final petroleum
products sold to the consumers.
40
Animura notes that the
response to the threat of liability and pressure to comply is
different when the violation is likely to attract extensive
media coverage. Therefore, the threat of bad press may deter
the regulated entity from violating environmental
regulations but may not motivate it to comply.
41
Nigeria’s history with compliance.
A look at developed countries shows that compliance with
laid down rules whether they be laws, policies or simply
values of human interactions, is achieved among others,
with strong community pressure on both the operators and
the government agencies.
42
However, in developing
countries such as Nigeria, compliance with laid down rules
has been a struggle for so many reasons. Non-compliance in
petroleum sector operations is more a result of corporate
malfeasance than all the other reasons for non-compliance
put together and has been the main reason for environmental
harm.
43
This corporate malfeasance occurs on the part of the
regulated entities and the regulators. More often than not,
this has been seen to be because there are usually no
consequences for these wrong-doings. Compliance with
court decisions by public authorities is a prerequisite for rule
of law and political stability and creates a positive example
for individuals.
44
It is no news that the disregard for the rule
of law has been on the increase in some African countries
Environmental Standard Setting' (1989) 79(5) American
Economic Review 1233.
38
J Wu, 'Environmental Compliance: The Good, the Bad,
and the Super Green' (2009) 90(11) Journal of
Environmental Management 3363, 3364.
39
WRQ Anton, G Deltas and M Khanna, 'Incentives for
Environmental Self-Regulation and Implications for
Environmental Performance' (2004) 48(1) Journal
Environmental Economics and Management 632, 636.
40
Some of these operators include downstream sector
operators involved in the distribution of petroleum products.
41
TH Arimura, A Hibiki and H Katayama, 'Is a Voluntary
Approach an Effective Environmental Policy Instrument? A
Case for Environmental Management Systems' (2008) 55(3)
Journal of Environmental Economics and Management 281,
282.
42
CM Leyira, U Ironkwe and A Olagunju, 'Corporate Social
Responsibility and Compliance with Regulations in Nigeria'
(2011) 1 International Affairs and Global Strategy 16, 22.
43
MT Ladan, 'Review of NESREA Act 2007 and
Regulations 2009-2011: A New Dawn in Environmental
Compliance and Enforcement in Nigeria' (2012) 8(1) Law
Environment and Development Journal (LEAD) 118, 120.
44
Kapiszewski and Taylor (n 24) 806.
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
24
such as Nigeria. It is argued that if court orders are
disobeyed, actions or omissions of public authorities cannot
be regulated and contributions of the court to policy issues
will be compromised.
45
Remedies to environmental pollution and the attitude of
defaulters to environmental pollution remedies.
Remedy is the means by which the violation of a right is
prevented, redressed or compensated and environmental
litigation is a common vehicle for driving these remedies.
46
The development of environmental law brought with it the
increased awareness of the dangers of environmental
pollution and consequently developed a system of mitigating
the effects of the acts and effect of environmental pollution.
Remedial action in environmental law is intended to bring
about or restore long term environmental quality,
permanently alleviate pollution to prevent or minimise the
risk to the human and natural environment.
47
Some of the
remedies to environmental pollution include compensation,
damages, abatement, injunction, revocation, taxes and
royalties, damages, restitution, clean up, bioremediation and
provision of infrastructure.
48
Most environmental regulation statutes in Nigeria like the
NESREA Act and NOSDRA Act make provisions for
administrative fines for environmental law violations. The
power of these regulatory bodies to apply administrative
fines has been severally contested in the Nigerian courts. In
the case of NOSDRA v Mobil Producing Nigeria Unlimited
(ExxonMobil),
49
the Court of Appeal affirmed the stripping
of NOSDRA’s power and authority to unilaterally impose
fines for contravention of the offences provisions of the
NOSDRA act.
50
This decision was made while there was a
subsisting court decision affirming that regulatory bodies
can impose penalties against offenders who contravene the
provisions of its laws in the case of Moses Ediru v Federal
Road Safety Commission and 2 Others.
51
The two decisions
were reached by the Court of Appeal and it is the practice
and law that the later decision in time remains the law until
it is upturned at the Supreme Court or the Court of Appeal
overrules itself.
52
45
Kapiszewski and Taylor (n 24) 803.
46
BR Akinbola and TT Onifade, 'Legal and Administrative
Remedies in Environmental Law in Nigeria: Reform
Proposition' (2013) 1(1) Afe Babalola University Ado-Ekiti
Law Journal 320, 324.
47
ibid.
48
KR Sharma, 'Soil Pollution-Various Causes and Their
Remedies' in P Kumar, BR Gurjar and S Tomar (eds),
Environmental Pollution: Biodegradation and
Bioremediation (Stadium Press Limited 2017) 214, 231.
49
(2018) Law Pavilion Electronic Law Report-44210
(LPELR (CA)
50
S 6 (2) and (3) NOSDRA Act; NOSDRA v Mobil
Producing Nigeria Unlimited (ExxonMobil) (2018) Law
Pavilion Electronic Law Report-44210 (LPELR (CA) in
paragraph C of page 9 of the judgement.
51
(2016) 4 NWLR Part 1502, 209
52
It is the practice that when there two conflicting decisions
on the same subject matter before the Court of Appeal, the
Court can elect which one to follow when confronted with a
similar case, however, a lower court is bound to follow the
decision which is later in time. In this instance the 2018
However, in the case of Shell Nigeria Exploration and
Production Company Limited (Shell) v National Oil Spill
Detection and Response Agency (NOSDRA)
53
before a
Federal High Court, the Court departed from the decision of
the Court of appeal in NOSDRA v Mobil Producing Nigeria
Unlimited (ExxonMobil) and held that NOSDRA can impose
sanctions without recourse to the Court. It is argued that this
is an anomaly as the Federal High Court is a Court that is
lower than the Court of Appeal in hierarchy and ought to
follow the latest decision of the Court of Appeal on this
subject. It is further argued that this position is sending the
wrong signal to both the regulatory bodies and the
petroleum sector operators about the ability of a regulatory
body to enforce compliance in line with its enabling laws
without going through the rigours of environmental
litigation.
54
This is because there are now two subsisting and
conflicting decisions on the unilateral enforcement powers
of regulatory agencies.
Environmental pollution has continued to ravage the human
and natural environment but as much as this trend is
criticised, those responsible for environmental pollution
have not slowed down in their acts of environmental
infraction.
55
A study of the BP oil spill tragedy revealed that
BP’s conduct before and after the disaster failed to meet
even the list demanding ethical standards including its own
operational standards.
56
Nigeria as a country has severally
attempted to legislate on gas flaring.
57
However, it does
appear that the companies responsible for flaring the
associated gas, found it more convenient to flare the gas and
pay the fine rather than comply with the law and reinject it
into the earth.
58
In some cases, while refusing to pay
decision in NOSDRA v Mobil Producing Nigeria Unlimited
(ExxonMobil) is the later in time and the position of the law.
53
Shell Nigeria Exploration and Production Company
Limited (Shell) v National Oil Spill Detection and Response
Agency (NOSDRA) Unreported. G Ukwuoma, 'Nigeria:
Litigation Update - JUne 2018: Do Administrative Agencies
Lack Powers to Impose Fines and Penalties without
Recourse to the Courts? Matters Arising: Shell Petroleum
Exploration and Production Company Ltd (SHELL) v
National Oil Spill Detection and Response Agency
(NOSDRA)' (2020) <https://www.advocaat-
law.com/assets/resources/341e36a14b167a82e12df3ff9e6c4
e3b.pdf> accessed 10 July 2020.
54
This stance is further confirmed where the judiciary
reached two conflicting decisions on the subject matter of
the import of s 20 of the Constitution of the Federal
Republic of Nigeria in the cases of Abacha v Fawehinmi No
2 and Jonah Gbemre v SPDC.
55
This can be seen in the Ogoni land oil spill perpetrated by
Shell Petroleum Development Company limited until the
UNEP indicted the company in its report and recommended
a clean-up of the impacted site.
56
MS Schwartz, 'Beyond Petroleum or Bottom-Line Profits
Only? An Ethical Analysis of BP and the Gulf Oil Spill'
(2020) 125(1) Business and Society Review 71, 79.
57
Associated Gas-Reinjection Act Cap A25 Laws of the
Federation of Nigeria 2010. The first attempt was in 1979
then 1984, 2003, 2008, 2009, and 2010.
58
U Udok and EB Akpan, 'Gas-Flaring in Nigeria: Problems
and Prospects' (2017) 5(1) Global Journal of Politics and
Law Research 16, 20. Some loopholes in the law and the
plan to terminate gas flaring enabled operators of the oil and
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
25
compensation and terminate or mitigate the acts of pollution,
the defaulting parties prefer to tie up the indigent host
communities in ceaseless legal battles that the host
communities cannot afford while the assault on the
environment persists.
59
This happened in the case of Jonah
Gbemre v Shell Petroleum Development Ltd.
60
From the
foregoing, it is argued that the remedies have now become a
haven for defaulting parties in environmental pollution
cases.
Proceeding with reinventing environmental regulation
Judging from the standpoint of the existing environmental
regulatory regime in Nigeria, it is undeniable that there is no
quick fix to the environmental exigencies in reality.
Therefore, the best way to resolve this impasse is to make
cautious and incremental changes by the introduction of
novel compliance and enforcement mechanism to address
the current regulatory problems in Nigeria. This is because,
swift improvements to environmental regulations, rarely
deliver the systemic change that the improvements imply.
61
This article promotes the view that first, compliance should
be emphasised, compliance strategies and mechanisms be
improved to encourage compliance and enforcement should
be applied only in persistent cases. Second, rather than rely
on compensation and other forms of remediation for the
harm done to the environment, the harmful actions that
result in environmental pollution or harm should be
prevented or not done at all. This is because the economic
gains will in no way alleviate the damage or remedy the
losses that would have been suffered from the passage of
time especially if that loss includes the loss of human lives
and biodiversity extinction.
62
Third, the precautionary
principle rule in international environmental law should
cascade to national laws so that any interaction with the
environment that is likely to cause any form of harm to the
environment is severely scrutinised or discontinued.
Fourth, governments through the regulatory agencies should
focus on strengthening compliance strategies and
mechanisms by investing more in compliance models,
gas sector to continue flaring gas. The excessive reliance on
the sector for economic reasons, the low taxes for
continuous flaring of gas that did not possess any deterrent
effect and the silence of the law on who to bear the cost of
gas reinjection.
59
Vedanta Resources PLC and Anor (Appellants) v
Lungowe and Ors (Respondents) [2019] UKSC 20 On
appeal from: [2017] EWCA Civ 1528. See also S Varvastian
and F Kalunga, 'Transnational Corporate Liability for
Environmental Damage and Climate Change: Reassessing
Access to Justice after Vedanta v Lungowe' (2020) 9(2)
Transnational Environmental Law 323; TV Ho, 'Vedanta
Resources Plc and Another v Lungowe and Others' (2020)
114(1) The American Journal of International Law 110.
60
Jonah Gbemre v SPDC Ltd & Ors (2005) 6 African
Human Rights Law Report 152.
61
DJ Fiorino, 'Rethinking Environmental Regulation:
Perspectives on Law and Governance' (1999) 23 Harvard
Environmental Law Review 441, 442.
62
O Yakubu, 'Addressing Environmental Health Problems
in Ogoniland Through Implementation of United Nations
Environment Program Recommendations: Environmental
Management Strategies' (2017) 4(2) Environments 28, 47
exhibiting the political will to effectively implement
environmental laws and applying inclusive and informed
governance approaches. Some of the compliance and
enforcement strategies include monitoring and auditing
regulated entities, capacity building and training,
enforcement cooperation, and analytical work, adopting and
adapting other compliance and enforcement strategies
tailored to suit the social, economic and political construct
of the jurisdiction. Fifth, arising from the audit process,
comprehensive legislative and policy reviews should follow
where necessary to allow for adjustments, to stay abreast
with global best practices where necessary as this will
improve compliance with environmental regulation and
consequently improve environmental protection.
Compliance management in environmental regulation
This article argues that reducing the need for environmental
remediation either by negotiation or litigation can be
improved by ensuring compliance with environmental
regulation ab initio. This can be achieved by establishing a
compliance management strategy. Environmental regulatory
efforts will be meaningless if it does not improve
compliance.
63
It has been opined that compliance
management (which includes compliance measurement or
assessment of the effect of different regulatory strategies on
regulatory compliance) faces some challenges such as
gauging compliance, measuring inspection or monitoring
regulatory interactions applied at any time and the ability to
predict the outcome of an alternative regulatory strategy.
64
The typical approach for compliance management is
reliance on the regulated entity’s report of its compliance
behaviour or the inspectors’ perception of compliance.
However, that has proved unreliable as the tendency to
tender reports that favour the regulated entity contrary to the
facts, always presented itself. This challenge has confronted
regulators and the search for compliance management
approaches persists.
65
The European Union (EU) proposed a
solution to its member states to tackle this challenge such as
compliance assurance, compliance promotion, compliance
monitoring and assessment, and follow-up and
enforcement.
66
It is important to note that these examples of
compliance management strategies from the EU are not
intended to be copied and transplanted into the compliance
and enforcement regime in Nigeria but may be adopted and
63
A Iannuzzi Jr, Industry Self-Regulation and Voluntary
Environmental Compliance (Lewis Publishers 2016) 200, 4.
64
PJ May and SC Winter, 'Regulatory Enforcement Styles
and Compliance' in C Parker and VL Nielsen (eds),
Explaining Compliance: Business Response to Regulation
(Edward Elgar 2011) 222, 233.
65
European Commission, 'Communication from the
Commission to the European Parliament, The Council, The
European Economic and Social Committee and the
Committee of the Regions: European Union Actions to
Improve Environmental Compliance and Governance'
(2018)
<http://ec.europa.eu/environment/legal/pdf/COM_2018_10_
F1_COMMUNICATION_FROM_COMMISSION_TO_IN
ST_EN_V8_P1_959219.pdf> accessed 1 September 2018 1.
66
In the EU communication however, compliance
promotion and compliance monitoring are subsumed in
compliance assurance.
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
26
modified to suit the environmental regulatory needs of
Nigeria.
Compliance assurance - In Nigeria the DPR under the
EGASPIN guidelines
67
requires sector operatives to file
annual returns and reports of audit of their operations,
health, safety and environment standards and other activities
exhibiting compliance with environmental regulatory laws,
standards and permits and also requires them to apply to
renew these licences, leases and permits when due. This
position can be strengthened by adopting the European
Commission’s actions to ensure compliance assurance like
improving transparency and accountability of the regulatory
agencies and taking credible follow-up actions to ensure an
effective system of financial security for environmental
liabilities.
68
Compliance promotion - Compliance promotion strategies
already existing in Nigeria through the DPR
69
and NESREA
Act
70
through environmental education on sustainable
environmental management and the creation of public
awareness, can be strengthened by follow-up actions. Such
strategies include awareness campaigns and use of guidance
documents and online information tools such as frequently-
asked-questions (FAQs), follow-up to breaches and
liabilities which can include administrative action (e.g.
withdrawal of a permit), use of criminal law and action
under civil law (remediation after damage from an accident
using liability rules) and contractual law (e.g. measures to
require compliance with nature conservation contracts).
Compliance monitoring and assessment - Compliance
monitoring identifies and characterises duty-holder conduct
and detects and assesses any non-compliance, using
environmental inspections and other checks. Compliance
monitoring includes all the activities to gather information
to determine the compliance status of a regulated entity. For
example, inspections for permitted activities, surveillance
for possible illegal activities, investigations for crimes and
audits for systemic weaknesses.
71
The United States EPA
employs the compliance mechanism of self-policing
otherwise known as the Audit Policy which is a ‘systematic
67
The Environmental Guidelines and Standards for the
Petroleum Industry in Nigeria (EGASPIN) issued in 1991
and revised in 2002, 2016 and 2018. See DS Olawuyi and Z
Tubodenyefa, Review of the Environmental Guidelines and
Standards for the Petroleum Industry in Nigeria (EGASPIN)
(Institute for Oil, Gas, Energy, Environment and Sustainable
Development (OGEES Institute), Afe Babalola University,
Ado Ekiti, Nigeria MFP-04-014, 2018) 1.
68
European Commission, 'Communication from the
Commission to the European Parliament, the Council, the
European Economic and Social Committee and the
Committee of the Regions: The European Union
Environmental Implementation Review: Common
Challenges and How to Combine Efforts to Deliver Better
Results' (2017)
<http://ec.europa.eu/environment/eir/pdf/full_report_en.pdf
> accessed 2 September 2018 1, 24.
69
Petroleum Act Cap P10 Laws of the Federation of Nigeria
2010, See s 2 (1) (a), (b), (c), (2) and (3). By virtue of the
powers of the Minister for petroleum to make regulations
70
National Environmental Standards Regulatory and
Enforcement Agency (NESREA) Act S 7 (l).
71
European Commission 2018 (n 68).
and objective reviews of an entity’s operations and
[environmental] practices focusing on their environmental
performance.’
72
The audit policy confirms compliance with
environmental regulations, evaluates environmental
management systems effectiveness and or risk assessment
from regulated and unregulated materials and practices.
73
Proponents of the policy believe it is effective to encourage
compliance while opponents consider it detrimental because
it removes the apprehension of financial penalty for non-
compliance and the incentives for compliance.
74
Other
countries practising the Audit Policy include Norway and
Mexico.
The International Network for Environmental Compliance
and Enforcement (INECE) has noted that most countries
employ traditional environmental regulatory voluntary
programmes and non-regulatory voluntary programmes as
well as compliance promotions programmes to encourage
compliance culture.
75
This is achieved through education
and promotional activities and compliance-incentive
activities such as policies and programmes which provide
benefits to entities that can achieve certain environmental
compliance objectives.
76
This can be done through training
and on-site technical assistance. Financial assistance is also
a vital factor in environmental regulations compliance as the
cost implication of compliance can be a hindrance to
compliance ability. In this case, some international
organisations and national development aid agencies
provide the needed funds to assist entities to achieve
compliance.
77
Compliance incentives such as auditing
policies (as discussed above),
78
recognition programs and
public information all encourage compliance.
79
This can be
seen in the monitoring powers of DPR. NOSDRA also
carries the special function of surveillance, reporting and
alerting regarding oil spills as provided by the NOSDRA
Act.
80
These activities provide evidence and data for measuring
environmental improvements. Compliance monitoring
thrives on the principle that first, self-awareness and self-
monitoring will guide regulated entities to take preventive
measures to ensure compliance and second, a credible
likelihood of detection by regulators is necessary for
deterrence.
81
The purpose of compliance assessment is first,
to check compliance of regulated entities with relevant
environmental legal requirements, including with directly
applied regulations, conditions in permits or any other legal
72
S Stafford, 'Voluntary self-policing and the US Audit
Policy' in L Paddock, DL Markell and NS Bryner (eds),
Compliance and Enforcement of International Law (5th edn,
Edward Elgar Publishing 2016) 21.
73
ibid.
74
ibid 22.
75
International Network for Environmental Compliance and
Enforcement, Principles of environmental compliance and
enforcement handbook (C Wasserman and J Gerardu eds,
International Network for Environmental Compliance and
Enforcement 2009) 134, 5.
76
ibid.
77
Ibid 37.
78
ibid 38.
79
ibid 39.
80
National Oil Spill Detection Response Agency
(NOSDRA) Act S 7 (b).
81
Iannuzzi (n 63) 5.
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
27
obligations that are applicable. Second, to monitor the
impact of regulated entities on the environment to determine
whether further regulatory effort is required (including more
inspections, notices or permit variations) to secure
compliance with environmental legal requirements.
82
Regulatory agencies and Non-compliance
Non-compliance includes a failure to implement substantive
obligations such as reduction of Green House Gases, or a
failure to fulfil procedural requirements such as carrying out
an environmental impact assessment preparatory to a project
or to fulfil institutional obligation such as filing a report
with an international organisation. Non-compliance occurs
when a regulated entity fails to meet one or more of these
obligations.
83
Generally, non-compliance occurs for
different reasons including lack of institutional, financial or
human resources and knowledge of how obligations are
construed.
84
On the part of the regulated entity, however, non-
compliance may happen for different reasons such as
confusion as to the level of existing intergovernmental
relationship, poor understanding of the rules and lack of
receptibility and investment, opportunism, criminality and
corruption, weak enforcement of environmental laws and
lack of awareness of existing environmental laws.
85
Even
when funding is available, local authorities sometimes lack
human resources and know-how for compliance. Inadequate
knowledge and access to data or unreliable data cause
implementation problems in many regulated entities. This is
further complicated by weak compliance assurance
mechanisms such as enforcement mechanisms and
compliance monitoring through effective and proportionate
sanctions. Non-compliance raises challenges of
implementation, enforcement and conflict resolution.
86
While it has been noted that regulatory excellence is
attainable, where appropriate regulatory strategies are
applied by excellent regulators, it is argued that regulatory
excellence in itself has no uniform definition.
87
Therefore,
scholars have had to look at the attributes of an excellent
regulator to distil the definition of regulatory excellence. For
example, Metzenbaum and Vasisht noted that an excellent
regulator is an adequately funded regulator that wisely
manages its resources and effectively navigates its external
82
C Theron, Sustainability in Practice: Managing
Compliance with Environmental and Human Rights Law in
Organisations Sustainability in Practice (Institute of
Environmental Management and Assessment 2018) 222, 41.
83
T Higdon and D Zaelke, 'The Role of Compliance in the
Rule of Law, Good Governance, and Sustainable
Development' (2006) 3(5) Journal for European
Environmental & Planning Law 376, 378.
84
P Sands and others, Principles of International
Environmental Law (Third Edition edn, Cambridge
University Press 2012) 926, 135.
85
PA Ogar and others, 'An Assessment of the Role of
Enforcement in Promotion of Compliance to Environmental
Standards in Ibadan Metropolis, Oyo State, Nigeria' (2020)
8(7) Global Scientific Journals 1741, 1743.
86
Sands and others (n 84) 172.
87
C Nwapi, 'The Achievement of Regulatory Excellence in
the Oil and Gas Industry in Nigeria: The 2017 National Oil
and Gas Policy' (2019) Journal of Energy and Natural
Resources Law 91, 99.
relationships to act even under difficult circumstances to
further its mission.
88
Regulatory agencies especially in Nigeria, appear to be
powerless in the face of non-compliance for diverse reasons
such as ineffective coordination among local, regional and
national authorities, lack of administrative and human
resources capacity and insufficient funding.
89
These prevent
the agencies from preparing and implementing investment
projects and can be an obstacle to the proper implementation
of environmental laws. The realisation that most
environmental pollution acts are irreversible and the laws
regulating such acts have not successfully catered to the
total elimination of inimical operational practices, should
underpin the contemporary tilt of environmental studies and
environmental law towards a stronger insistence on
compliance with environmental regulations and global best
practices in any activity that is likely to impact the human
and natural environment.
The rapid development that characterised the industrial
revolution brought about the awareness of the global impact
of environmental pollution. This awareness necessitated the
national, regional, international and global quest for a more
environmentally friendly existence by the enactment of
laws, bilateral and multilateral agreements, conventions
which culminated in declarations.
90
Remedies that were
developed along the lines of common law and equity,
unfortunately, only helped the polluting parties to persist as
long as they met their legal obligations. However,
experience has shown that even in the event of a successful
negotiation or litigation, obeyed court orders and
implemented remedies, the damage to the environment
cannot be easily reversed if at all.
91
Consequently, the
underlying problems faced by claimants in developing
countries like Nigeria remains unresolved.
92
Conclusion
While it is conceded that environmental pollution is now a
global concern, it is also a fact that the problem is worse in
some nations than in others.
93
Nothing can be truer than
Barry Commoner’s assertion that “Environmental pollution
88
SH Metzenbaum and G Vasisht, 'What Makes a Regulator
Excellent? Mission, Funding, Information, and Judgment' in
C Coglianese (ed), Achieving Regulatory Excellence
(Brookings Institution Press 2017) 145, 145.
89
AO Noah and others, 'Corporate Environmental
Accountability in Nigeria: An Example of Regulatory
Failure and Regulatory Capture' (2020) 11(1) Journal of
Accounting in Emerging Economies 70, 85.
90
Some of such declarations are binding and some are not.
91
Example of this is the Ogoni land clean-up in Nigeria.
while the clean-up exercise is yet to commence, the
environmental degradation is still on-going because the
delay in the commencement of the process further worsens
the condition of the polluted sites.
92
S Varvastian and F Kalunga, 'Transnational Corporate
Liability for Environmental Damage and Climate Change:
Reassessing Access to Justice after Vedanta v Lungowe'
(2020) 9(2) Transnational Environmental Law 323, 345.
93
AO Fayiga, MO Ipinmoroti and T Chirenje,
'Environmental Pollution in Africa' (2018) 20 (1)
Environmental Development and Sustainability 41, 42.
International Journal of Advanced Multidisciplinary Research and Studies www.multiresearchjournal.com
28
is an incurable disease; it can only be prevented.”
94
In a
developing country such as Nigeria, while the various
economic sectors are still developing, the resulting
environmental damage has progressed rapidly. However,
Nigeria appears to be running behind on environmental
compliance and enforcement. The compliance conversation
in this article is long overdue in Nigeria and deserves urgent
action because when the appropriate compliance actions are
taken, it would improve the environmental practices of the
operators of the petroleum sector. For instance, operational
practices not practised in the operator’s home country
should not be allowed in its host countries because
remediation may never be enough to cure the ills of
environmental pollution.
In holding this overdue compliance conversation in Nigeria,
petroleum sector operators should also not be left on their
own in the drive for compliance, such operators should be
encouraged to comply by highlighting alternative
compliance strategies and incorporating same into
compliance plans. Environmental pollution such as that
resulting from petroleum sector activities can be avoided if
all stakeholders play their role in understanding the need to
respect nature and the environment.
95
Furthermore,
regulations will not work if they are not adequately
enforced. Even the best-fashioned regulations are only as
good as the enforcement programmes established to
implement them.
96
Therefore, while enforcement is vital, it
should not be the immediate response to non-compliance,
rather it should be the last resort when the defaulter becomes
recalcitrant.
94
B Commoner, 'What is yet to be done' (1998) 8(1) Journal
of Environmental and Occupational Health 75.
95
Ismail (n 22) 5.
96
A Heyes, 'Implementing Environmental Regulation:
Enforcement and Compliance' (2000) 17(2) Journal of
Regulatory Economics 107, 125.
