The
Concept of Environment
The
environment is the complex of physical, chemical and biological factors and
processes which sustain life as well as an array of ecosystem. In its most
general sense, the environment refers to our surroundings and is often
understood to include not only the land, air, and water but also our built
environment and the condition of our local amenity and neighborhood. The
environment preceded human, technological and scientific development
activities. The environment before the advent of man was pure and unpolluted;
man therefore inherited a perfect environment void of pollution.
Environment
includes water, air, land and all plants and human beings or animals living
therein and the inter-relationships which exist among these or any of them. It
is the totality of physical, economic, cultural, aesthetic and social
circumstances and factors, which surround and affect the desirability and value
of property and which also affect the quality of people’s lives. The term environment describes
all the physical,
biological, social and
cultural factors and conditions which influence the growth and
well-being of an organism, the total surroundings of man.
Man’s
total environment may be classified into three parts, namely; physical, social
and biological. The physical environment constitutes the non-living part of the
environment which includes the air, water, soil, the mountains, rocks, sand,
the minerals, the oceans, rivers, lakes and rainfall, the wind pattern, the
temperature, forest, humidity and so on. The social environment,
broadly
speaking, represents the part of the environment which is entirely man-made,
that is to say objects made by human beings. Lastly, the biological environment
encompasses all the living things in an area: man, the plants, animals and
micro-organisms.
broadly
speaking, represents the part of the environment which is entirely man-made,
that is to say objects made by human beings. Lastly, the biological environment
encompasses all the living things in an area: man, the plants, animals and
micro-organisms.
Meaning
of Environmental Law
Environmental
law is a relatively new area of legal study. It is a growing specialized area
of town and planning law, law relating to the quality of air and water, the
disposal and transport of waste, control of nuclear industry and statutory
nuisances. Much of environmental law concerns the regulation of pollution emissions discharged into the three
environmental media – air, water and land.
Environmental
law represents the body of rules, both from the national and international
perspectives, for the sustainable utilization of resources for the economic and
social development of the society. Although environmental protection proceeded
from a simple premise – a moral and ethical
believe that we should protect
those things we all
share, the air,
water and land –
environmental law is the transformation of those moral principles into legally
enforceable norms.
It
may also be defined as the law governing the control of the effects of human activity
on the physical environment in the overall interest of the public. It embraces
the subject matter of several important international agreements and municipal
laws, regulations, standards and institutional framework for the equitable and
sustainable use of the natural resources. Thus, environmental law is primarily
a mix of primary legislations (Acts of Parliament), secondary legislation
(regulations or statutory instruments), judicial decisions reported in law
reports, common law principles, European Community (EC) legislation (mainly in
the form of directives) which are transposed into national law (usually in the
form of regulations), European treaties and international law (found in
treaties, conventions and protocols).
Environmental law
in Nigeria is
that branch of
public law which
contains rules and regulations which have as their object or
effect the protection of the environment. The primary consideration of
environmental law in Nigeria is the provision of the legal platform upon which
the environment could be protected and natural resources conserved through the
sustainable use of natural resources, pollution control measures and the
integration of environment considerations into the developmental process.
The
study of environmental law is not confined to a study of the law which is
written down in legislation; it is also concerned with how the law is used to
achieve the objectives of the key environmental stakeholders: the
regulators, the regulated
(especially businesses), central government, local government,
industry associations, pressure groups, local amenity societies and the public.
The government and its agencies, issue policy documents to public officials in
the form of official guidance, in a never-ending stream of White Papers, Green
Papers, consultation documents, guidance notes and circulars. Although, this
guidance is not law, it is nevertheless important because it guides how the
regulators (such as the Environment Agency) will use the law to achieve the
regulator’s statutory objectives.
It
may therefore be helpful to conceive environmental law, not as a collection of
separate pieces of legislation and policy documents, but as a ‘toolbox’
containing a range of legal and policy instruments. Only those legal and policy
tools which will achieve the objectives of the specific user will be applied to
the problem at hand.
Functions
of Environmental Law
The
primary function of environmental law is not to eliminate pollution, except in
the case of a relatively few highly toxic pollutants, but to balance the
polluting emissions generated by economic activity against the demands of
society for a tolerable healthy environment. Pollution emissions must therefore
be set, in most cases, by regulation at levels which are acceptable to its
major stakeholders: regulated business and the public. This balancing task is
performed on behalf of government by
regulatory agencies such
as the Environmental
Agency and the
local authorities. Environmental law also has subsidiary preventive,
remedial (clean-up) and compensatory functions.
Sources
of Environmental Law
The
main sources of environmental law in Nigeria are:
a.
Statutes
or local enactment
b.
International
law
c.
Cases
and judicial precedent
d.
Customs
e.
Common
law
Environmental
Law in the Constitutional Development of Nigeria
The
world has moved far away from the era when it was believed that the only right
which a government is called upon to guaranty and protect is the natural rights
of man. By living in nation-states and in organized communities, man has
acquired new rights which are new regarded, by many civilized countries, just
as inalienable as those rights with which nature endows him at birth. The
rights to education and work are among such rights. Increasingly important in
some countries is the addition of the right to decent and healthy environment
to these newly acquired rights.
The
history of Nigerian constitutional development can be traced thus: Clifford
Constitution of 1922, the Richard Constitution of 1946, the Lytleton
Constitution of 1951, the McPherson Constitution of 1954, the Independence
Constitution of 1960, the 1963 Republican Constitution, the 1979
Constitution of the
Federal Republic of
Nigeria, the aborted
1989 Constitution of the Federal Republic of Nigeria, the 1999
Constitution of the Federal Republic of Nigeria.
Unfortunately,
throughout the history of Nigeria’s Constitutional development, the first time,
though indirect, that constitutional provisions on environment were entrenched
into Nigerian constitution was in 1979. Some sections of the 1979 Constitution
relevant to the preservation and protection of the environment were:
Section 4 of the 1979 constitution vests the power to
make laws for the federation on the National Assembly which shall:
(2)... have power to make lawful
order and good governance of the federation or any part thereof with respect to
any matter include in the Exclusive List set out in Part 1 of the Second
schedule to this constitution.
(4) In addition and without prejudice to the powers
conferred by subsection (2) of this section, the National Assembly shall have
power to make laws with respect to the following matters, that is to say:
(a)
Any matter in the concurrent
Legislative List set out in the first column of Part ii of the second schedule
to the constitution to the extent prescribed in the second column opposite
thereto, and
(b)
Any other matter with respect to which
it is empowered to make law in accordance with the provisions of the
constitution.
Again, items
on the Exclusive
List which are
relevant to the
environment includes aviation,
drugs and poisons, fishing and fisheries in the territorial waters and
exclusive economic zone of Nigeria,
maritime shipping and navigation
on tidal waters and Rivers Niger and its
effluents, meteorology, mines, minerals including oil fields, oil mining,
geological survey and natural gas, national parks, nuclear energy, quarantine
and water from sources deemed by the National Assembly to affect more than one
state.
On
the other hand, items on the concurrent list relevant to the environment are
antiquities, monuments and archives, electrical power, industrial, commercial
and agricultural development and scientific and technological research.
The
foregoing apart, in order not to be left out of the recent global trend on
constitutional entrenchment of the right to a decent and healthy environment,
direct constitutional environmental provision has been made in the 1999
Constitution.
Chapter 2 of the 1999
Constitution on Fundamental Objectives and Directive Principles of State Policy
lays down
policies that should be pursued in order to realise the nation ideals. Of
particular relevance to environmental protection and preservation are section 16(2), section 17(3) and section 20.
Section 16 (2) provides as follows:
The
state shall direct its policy towards ensuring:
(a)
The
promotion of a planned and balanced economic development;
(b)
That
the material resources of the nation are harnessed and distributed as best as
possible to serve the common good;
(c)
That
suitable and adequate shelter, suitable and adequate food, reasonable minimum
living wage, old age care and pensions, and unemployment, sick benefit and
welfare of the disabled are provided for all citizens.
Section 17 (3) provides as follows:
The
state shall direct its policy towards ensuring that:
(a)
All
citizens, without discrimination on any group whatsoever, have the opportunity for
security adequate means of livelihood as well as adequate opportunity to secure
suitable employment;
(b)
Conditions
of work are just and humane, and that there are adequate facilities for leisure
and for social, religions and cultural life;
(c)
The
health and safety and welfare of all persons in employment are safeguarded and
not endangered or abused;
(d)
Children,
young persons and the aged are protected against any exploitation whatsoever,
and against moral and material neglect;
(e)
The
evolution and promotion of family life is encouraged.
Section 20 of the 1999 Constitution directly provides that
the State shall protect and improve the environment and safeguard the water,
air and land, forest and wildlife of Nigeria.
Furthermore,
in order to enhance the effectiveness and observance of above provisions by all
organs of government, authorities and persons, section 13 of the 1999 constitution provides that it shall be the
duty and responsibility of all organs of government and of all Authorities and
person, exercising legislative, executive or judicial power to conform to
observe and apply the provision of this chapter of the constitution.
Evolution
of Environmental Law in Nigeria
During
the colonial era, protection of the environment was not a priority in Nigeria
and there was accordingly no policy aimed at preserving and protecting it.
Matters relating to the environment were dealt with as a tort of nuisance
because disputes in environmental law were not viewed as public matters
warranting state intervention. The few environmentally related laws that were
applicable criminalized activities that could degrade the environment. These
laws include the Criminal Code Act of 1916, which prohibited water pollution
and air pollution; and created the offence of nuisance.
In
1917, the Public Health Act was enacted. Although somewhat broad in scope, this
Act did contain provisions of relevance to the regulation of land, air and
water pollution. Thus it is evident that at this time, matters relating to the
environment were dealt with in a rudimentary manner, from the view point of
environmental sanitation.
Following
Nigeria’s independence in 1960 and the discovery of oil in commercial
quantities, it became apparent that existing laws dealing with the environment
were grossly inadequate. This was owing to the fact that most of the provision
on environmental protection were scattered throughout different laws, resulting
in an ad hoc response to different
needs in different situations. During the decade following independence, the Government
criminalized polluting activities, particularly those relating to the discharge
of oil in navigable waters and environmental degradation as a result of
petroleum activities.
The
1970s saw the further development of the Nigeria’s environmental regime in
response to the industrial growth associated with the oil boom. River Basin
authorities were created
and environmental units
were established in
some government ministries. The laws were, however, typically
‘knee-jerk’ responses to emergency situations. The 1980 and 1990s witnessed the
most drastic and systematic development of environmental laws in Nigeria,
partly owing to Nigeria’s subscription to a number of international instruments
during this period. The main national laws and decrees developed during this
period, and which are still in operation today, are listed below:
Animal Disease (Control) Act;
Bee (Import Control and Management) Act;
The Endangered Species Act;
Hides and Skins Act; Live Fish (Control of
importation) Act;
National Crop Varieties and Livestock
Breeds Act;
Agricultural (Control of Implementation) Act;
Agricultural and Rural Management Training
Institute Act;
Pest (Control of Produce) Act;
Quarantine Act;
Associated Gas Re-injection Act;
Civil Aviation Act;
Oil and Navigable waters Act;
River Basin Development Authority Act;
Sea Fisheries Act;
Territorial Waters Act;
Exclusive Economic Zone Act;
National water resources Institute Act;
Kainji Lake National Park Act;
Harmful waste Act;
Land Use Act;
Minerals Act;
Petroleum Act;
Criminal Code Act;
Energy Commission of Nigeria Act;
Federal Environmental Protection Agency
Act;
Natural Resources Conservation Council Act;
Environmental Impact Assessment Decree
National Environmental Standards
Regulation, Enforcement Agency; and
The Nuclear Safety and Radiation Protection
Act.
These
laws and decrees are supported by an array of additional regulations and
policies of environmental significance. The most recent and important addition
to Nigeria’s environmental regime is the National
Environmental Standards and Regulations Enforcement Agency (Establishment) Act,
which came into force in 2007. The Act establishes the National environmental
Standards and Regulations Enforcement Agency, Nigeria’s lead environmental
protection agency.
As
should be evident from above, Nigeria’s formal environmental regime has
developed significantly from humble beginnings. Having been initiated in the
colonial period, during which environmental issues were generally couched
within public health regulation; and having developed in a rather ad hoc manner in the early days of
independence, during which heavy reliance
was placed on
the law of
nuisance; Nigeria now
has a relatively
comprehensive environmental regime. This regime is administered by an
array of institutions.
The
Federal Ministry Environment, Housing and Urban Development and the National
Environmental Standards and Regulations Enforcement Agency are the main
institutions responsible for the formulation of environmental policy and
enforcement respectively. Their
functions are supported by the following additional government institutions;
the Federal Ministry of Solid Minerals Development; Federal Ministry of
Agriculture and Natural Resources; Federal Ministry of Water Resources; Federal
Ministry of Science and Technology; and Ministry of Energy, Oil and Gas
Resources.
The
National Environmental Standards and Regulations Enforcement Agency
(Establishment) Act came into force in 2007. The Act establishes the National
Environmental Standards and Regulations Enforcement Agency (NESREA), Nigeria’s
lead environmental protection agency. NESREA was created to replace the defunct
Federal Environmental Protection Agency (FEPA).
In
examining the enforcement of the preventive principle in Nigeria, it is
necessary to take a look at the establishment, mandate and powers of the
NESREA. NESREA was established on July 30, 2007 as a body corporate with
perpetual succession and a common seal. It may sue and be sued in its corporate
name. It is responsible for the enforcement of environmental standards,
regulations, rules, laws, policies, guidelines and policies, such as the
National Policy on the Environment, 1999.
The National policy
is indicative of
the importance and
relevance of standards, rules,
policies and guidelines on the environment. Although they may not have the
force of law, they are a vital and necessary element in the protection and
preservation of the environment.
The
Agency is charged with responsibility for the protection and development of the
environment, biodiversity conservation and sustainable development of Nigeria’s
natural resources as well as environmental technology. The Agency is authorized
to enforce compliance with laws, guidelines, policies and standards of
environmental matters. Such standards include the federal water quality
standards and air quality standards. In carrying out its functions, NESREA is
to coordinate and liaise with stakeholders within and outside Nigeria, on
matters of environmental standards, regulations and enforcement. Relevant stakeholders include the organized
private sector, environmental groups at both national and international levels,
and other Ministries and Parastatals.
The
agency is mandated to enforce compliance with policies, standards, legislation
and guidelines on water quality, environmental health and sanitation including
pollution abatement. The establishment of such policies and laws are primarily
directed at the prevention of pollution and environmental degradation. It can
therefore be implied that the functions of the NESREA are directed primarily at
the prevention of pollution and environmental harm rather than remedying harm
that has already occurred to the environment.
NESREA
is also concerned with the enforcement of the guidelines and legislations on
sustainable management of the ecosystem, biodiversity conservation and the development
of Nigeria’s natural resources. Guidelines and legislations on the sustainable
management of the ecosystem and biodiversity conservation include the Sea
Fisheries Act and the Regulations made pursuant to it, the Endangered Species
(Control of International Trade and Traffic) Act, the National Park Act.
NESREA
likewise possesses oversight functions over hazardous chemicals and waste other
than in the oil and gas sector, it is to enforce compliance with regulations on
the importation, exportation, production, distribution, storage, sale, use,
handling and disposal of hazardous chemical and waste. It is also to enforce
compliance with legislation on sound chemical management, safer use of
pesticide and disposal of spent packages.
The
agency possesses supervisory functions over environmental projects funded by
donor organizations and support agencies. It is to ensure that such projects
adhere to regulations in environmental safety and protections. With the
exception of the oil and gas sector, it is the body responsible for the
enforcement of environmental control measures through registration, licensing
and permitting systems. The use of licenses and permits is a useful tool for
the prevention of environmental harm, this system enables NESREA to set and
enforce limits on the concentration of particular pollutants which are
permitted to enter the environment, it regulates for instances the amount of
substances released into the air and thus prevent water pollution.
The
use of licenses and permit means that no one may discharge polluting substances
to any of the environmental media without holding a permit or licence to do so.
In this way, the quality of the environment is preserved and safeguarded. All
industrial facilities generating waste would be required to register with the
agency and to obtain permits and licenses. For example, the National
Environmental Pollution Abatement in industries and Facilities Generating
Wastes Regulations require industries and other facilities to possess a permit
issued by the Agency for the discharge of effluent with constituents beyond
permissible limits into public drains and other waters.
Furthermore,
no person can engage in the storage treatment and /or transport of hazardous
wastes within Nigeria, without a permit issued by NESREA. The conduct of
environmental audit is also the responsibility of NESREA. The agency, as part
of its enforcement mechanisms, is also mandated to establish data bank on
regulatory and enforcement mechanisms of environmental standards. This is
necessary to enable the Agency carry out its functions. The bank would include
current information on the number and state of industrial facilities operating
in Nigeria, detailing persons (natural or artificial) engaging in activities
that could impact adversely on the environment, for example, the storage,
treatment and transport of harmful or toxic waste.
In addition
to the foregoing,
NESREA is to
create public awareness
and provide environmental education
on sustainable environmental
management, promote private
sector compliance with environmental regulations and publish general
scientific or other data resulting from the performance of its functions.
NESREA
is to undertake and promote research by public or private bodies on causes,
effects, extent prevention, reduction and elimination
of pollution and other matters
related to environmental
protection and natural resources conservation, enter into agreements with
public or private organizations and
individuals to develop
and share environmental monitoring programmes, research effects and
data on the effect of various activities on the environment.
It
is empowered further to collaborate with other relevant agencies and with the
approval of the minister, established programmes for setting standards and
regulations for the prevention and control of pollution and environmental
degradation in the environment and for restoration and enhancement of the
environment and natural resources of Nigeria.
NESREA
is expected to collaborate with the State Environmental Protection agencies and
other bodies whose functions relate to the environment, in the exercise of its
power this would be especially necessary in a situation where there is an
overlapping of functions or roles.
NESREA
is empowered to collect and make available basic scientific data and other
information pertaining to environmental standards. This is in furtherance of
the national policy on environment which in its strategies for implementation
makes provisions for the acquisition and publication of up to date
environmental information. This is an
obvious necessity if public participation in environmental protection is to
become a reality. Furthermore the National Policy on the Environment (NPE) provides
that actions shall be taken to grant the citizenry access to environmental
information and data thereby promoting the quality of environmental management
and compliance monitoring.
The
Concept of Pollution
The
most pressing issue on environmental studies is pollution. Pollution can be
defined in various ways. Firstly, it
may be defined as
the addition to
the natural environment of any substance or energy form at a rate
that results in higher rather than natural concentrations of that substance or
energy form. It is the addition of any substance or form of energy (example
heat, light, sound, radiation, and so on) at a rate faster than the environment
can accommodate by dispersion, breakdown, recycling or storage in some harmless
form. In other words, pollution is the
contamination of the
environment by a
variety of sources including
but not limited
to hazardous substances, organic waste and toxic chemicals.
Pollution
is caused when a change in physical, chemical or biological conditions in the
environment harmfully affects the quality of human life, including effects on
other animals and plants, industries and cultural and aesthetic assets.
Pollution caused by oil or its derivatives may be occasioned
by activities beginning
at the exploration
stage during which
for example, explosive or the
drilling method may be employed. It may also occur at the production stage
during which discovered oil is tapped and as a consequence of which unused
derivatives such as gas may be flared into the atmosphere. Pollution is also
common at the stage of transporting crude or refined oil through pipelines
and its carriage by oil tankers and
other vessels; finally the refining stage during which wastes and affluent are
discharged into authorized and unauthorized places brings about its own
pollution.
Pollution
could affect human health and environment in many ways of which four types of
damage are recognizable: damage to human health caused by specific chemical
substances present in the air,
food, water, and
radioactivity; damage to
the natural environment which
affects vegetation, animal, crops, soil and water; damage to the
aesthetic quality of the environment caused by smoke, fume, noise, dust and
dereliction; and long term pollution which effect is not immediate and
apparent.
Indeed,
the cumulative effect of pollution on the environment has been of monumental
proportion. It constitutes a grave danger to all natural resources, both flora,
fauna and human beings. It also hinders marine activities particularly fishing.
Environmental
contaminants have been identified to include products of combustion, human
excreta, expired air, dusts, pathogenic organisms, vapours, gases, industrial
solvents, extremes of temperature, agricultural fertilizers, infrared, ultraviolet and
even visible light,
ionizing radiations, radioisotopes, noise, ultra-high frequency sound
and certain micro-wave electromagnetic radiations.
By
way of summary, it is clear that pollution is a word is a word whose meaning in
law is incapable of precise interpretation. It has been used in a variety of
context to describe different levels and kinds of induced changes in the
natural environment. Thus, state practice has created uncertainty with regards
to pollution.
Basic
Principles of Environmental Law
There
are certain basic principles that underpin the context of environmental law.
These principles are: (a) the polluter pays principle; (b) preventive
principle; and (c) the precautionary principle.
a.
The Polluter Pay Principle: This
principle has its roots in Organization for Economic Cooperation and
Development (OECD) and European Community law. The polluter pays principle is a
modern innovation in fixing liability on the polluter of the environment. In
essence this is a principle of economic policy wherein the person responsible
for causing pollution should ultimately be held responsible for bearing the
cost of pollution abatement or remedying the harm caused. The principle is a
measure devised by the OECD countries as an effective and efficient way of
allocating costs of pollution prevention and control measures by the public
authorities in order to encourage rational management of environmental
resources.
b.
The Preventive Principle: The
concept of prevention is a common obligation found in most national
environmental legislations. The duty of prevention involves minimizing the
environmental damage as a chief objective. It must be remembered that the
principle of prevention is not a ‘post
facto’ situation wherein liability is involved, as it involves an
obligation by a State to prevent damage to the environment within its own
jurisdiction and beyond. The notion of the obligation of prevention has its
genesis not in
environmental considerations but
from the obligation
to respect the territorial integrity and political
independence of States. Therefore,
the preventive principle
of environmental law is
founded on the
maxim that prevention is better than cure. This principle requires
industrialists, manufacturers, producers and potential polluters to take
necessary steps to prevent or minimize the effects of pollution before the
polluting process begins. Simply put, it means that pollution must be prevented
from the source.
c.
The Precautionary
Principle: The principle of
precaution states that where there are threats of serious or irreversible harm,
a lack of full scientific certainty about the causes and effects of
environmental harm shall not be used as a reason for postponing measures to
prevent environmental degradation. It presupposes that scientific certainty may
take too long a time to arrive at a definite understanding of the harmful
effects of a hazardous substance. In such cases there should not be any delay
in stopping the occurrence of harm, which could lead to an irreversible state
or damage, examples could include extinction of species or massive pollution of
the oceans.
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