Environmental Justice and Oil Pollution Laws

Comparing Enforcement in the United States and Nigeria

Eloamaka Carol Okonkwo

• Publisher: Taylor & Francis
• Year: 2020
• eBook ISBN: 9781000040685
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This book explores the relationship between oil pollution laws and environmental justice by comparing and contrasting the United States and Nigeria.

Critically, this book not only examines the fluidity of oil pollutions laws but also how effective or ineffective enforcement can be when viewed through the lens of environmental justice. Using Nigeria as a case study and drawing upon examples from the United States, it examines the legal and institutional challenges impacting upon the effective enforcement of laws and provides a contrasting view of developed and developing countries. Focusing on the oil and gas industry, the book discusses the laws and international acceptable standards (IAS) in these industries, the principles behind their application, the existing barriers to their effective implementation, and how to overcome those barriers. Utilising an environmental justice framework, the book demonstrates the synergy between policy-making, human rights, and justice in oil-producing regions as well as addressing the importance of protecting the rights of minorities. Through a comparative analysis of the United States and Nigeria, this book draws out enforcement approaches and mechanisms for tackling oil-related pollution with a view to reducing environmental injustice in developing countries. Examining the role of NGOs in pursuing environmental justice matters, the book showed the regional courts as one avenue of overcoming the enforcement challenges faced by the developing countries.

This book will be of great interest to students and scholars of environmental law, environmental justice, minorities' rights, business and human rights, energy law, and natural resource governance.

Part I

Setting the scene

1 Introduction and background

Introduction

This study is a reform-oriented¹ and comparative analysis seeking to answer the question of whether or how to use Nigerian pollution laws and their enforcements as a tool to reduce environmental injustice (EI) that has arisen² owing to oil pollution in developing countries using a Nigerian case study. Where there is ineffective enforcement, how best to improve enforcement to achieve a greater degree for environmental justice (EJ)? It will analyse and recommend reforms to the Nigerian laws relating to oil exploration and pollution and their enforcement as a necessary contribution to promoting and sustaining EJ in the developing countries using a Nigerian Niger Delta case study.³

The aim of this book is to find a connection between oil pollution and environmental injustice, facilitate identification of situations that may be instances of environmental injustice in the Niger Delta area of Nigeria, and seek a solution to identified environmental injustice using enforcement. It also aims to recommend reforms after a focused examination of the Nigerian laws and enforcement processes relating to oil pollution as a necessary contribution to prompting and sustaining EJ in the Niger Delta. It compares oil pollution abatement laws and their enforcements with those of the US, and evaluates how Nigerian practices measure up to the internationally acceptable standards (IAS) in the industry. It also makes references to some developing countries where oil and gas are explored with a view to highlighting EJ issues and discussing options to avoid the pitfalls of Nigeria.

Focusing on the enforcement sections of relevant laws, it examines the extent to which the provisions of the laws promote effective enforcement and compares the relevant enforcement provisions with that of the US, noting several significant issues, assesses the relative merits of the provisions, and offers some practical recommendations for reform. The book also make proposals regarding how improved enforcement can reduce pollution and invariably reduce environmental injustice, drawing lessons from the US and adapting them to local circumstances, bearing in mind the socio-economic, socio-cultural, socio-legal, and socio-political situations in Nigeria. This is done adhering to five basic principles of EJ which relates to no disproportionate environmental burden by the minority group, equality of environmental protection to all, opportunities for meaningful and transparent public participation in decision-making, access to effective remedies or justice for all including equal enforcement, and adequate environmental protection to sustain human health and well-being for all.

The research also examines the factors that hinder EJ according to Rasmussen.⁴ It explores the protection given to the Niger Deltans before the Harmful Waste Act, 1988⁵ and the subsequent laws,⁶ and considers how to review these laws in line with related US laws and IASs. It goes further to explore how the regulatory authorities, the judiciary, and even the NGOs can play roles in achieving EJ even in the absence of well-couched oil pollution laws. Drawing upon both regulatory and judicial decisions from the US, the research makes recommendations towards achieving EJ for the Niger Deltans, suggesting that the laws need to be improved as well as other factors outside the laws to achieve greater levels of EJ. Based on this, the hypothesis of this study is that despite efforts made in recent times to enact several pollution abatement laws, Nigeria still needs to do more to achieve and sustain EJ.

This book adds to the growing literature on oil-related activities, and oil pollution and injustices caused by them in Nigeria, by providing one of the first detailed comparisons of the oil pollution abatement and redress laws in the US and Nigeria with reference to IAS and some other developing countries. The study also provides one of the first instructive views on the development of oil pollution abatement laws in Nigeria in a manner that will enhance enforcement. It shows that Nigerian legislation and regulation are neither proactive nor reactive. Still examining the problems, the author identifies the importance of the African regional courts, which are the ECOWAS Court of Justice and the African Court of Human Rights (ACHR), and provides narratives on the importance of using the two courts as alternate ways to justice for the Niger Deltans. This narrative distinguishes this book from others in the sense that it compares these two regional courts with a view to finding which of the two courts is easier and better to seek justice at the regional level. It also offers the first best enforcement model in the face of oil pollution law enforcement in Nigeria. In addition, the book adds to the literature on the role of the non-governmental organisations (NGOs) in justice delivery, and provides a detailed discussion of citizen suits and its usefulness in achieving EJ for the Niger Deltans (ND). It shows the involvement of the NGOs from the early days of EJ movement in the USA and their role in securing the 1994 Executive Order 12898 that requires federal agencies to address EJ as part of their overall mission. From then, not only did NGOs’ involvement influence legislation and policies, it also increased their participation in EJ conflicts. It also helped in its development through legal actions, conferences, protests, and academic research.⁷ The discussion proceeds in a progressive manner, showing the linkage between effective laws and effective enforcement, and between ineffective enforcement and environmental injustice.

To measure the effectiveness of regulation, the author has highlighted fundamentals of effective regulatory regimes, which include playing a significant role in solving or at least managing the problem that led to its creation. The author aligns with Young’s research⁸ and Fulton and Gilberg’s⁹ characteristics of an effective enforcement programme. Young’s research generally found that some regimes make a difference in outcomes and solving the problems motivating its creation.¹⁰ The significant thing in Young’s findings is the explanation that better designation of regime makes it easier to solve the problems and that an arrangement that works perfectly well in one setting may fail in another because of the context. For Fulton and Gilberg, an effective environmental enforcement programme ensures the achievement of the goals of environmental protection and, to do so, an enforcement programme should be strong, efficient, creative, and fair.¹¹ Applying Young’s and Fulton and Gilberg’s findings, the author looked at the penalty provided by the Nigerian laws, the regulators, and even the judiciary (discussed in chapters 5 and 7), and found that such penalties cannot provide effective enforcement for not being strong, efficient, creative, and fair. The regulatory agencies do not pose a credible threat of enforcement, as civil judicial remedies are limited, and criminal remedies are almost non-existent. It also looked at the time spent in resolving issues through both regulatory and judicial process and found it ineffective because there is no feeling of fairness and therefore no confidence in the system. The research found not that much difference in outcomes and solving oil pollution problems in the Niger Delta despite the creation of the National Oil Spill Detection and Response Agency (NOSDRA) and the enactment of the NOSDRA Act, 2006. This is because the designations of the laws are not to solve these problems; environmental regimes are not particularly dynamic: although the contextual factors exist there is still ineffectiveness, and the current hybrid system is not strong enough to achieve effectiveness.

This book also emphasises the importance of the application of the economic theory of enforcement¹² as one way to overcome various enforcement impediments causing en...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• List of cases
• Acknowledgements
• List of acronyms
• Foreword
• PART I: Setting the scene
• PART II: Key issues and players
• PART III: Moving on
• Bibliography
• Index