ABIA STATE UNIVERSITY

COLLEGE OF POSTGRADUATE STUDIES

FACULTY OF LAW

TOPIC:ANEVALUATION OF THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY (ESTABLISHMENT) ACT.

PRESENTER: OTU, NNACHI EGWU

REG. NO.: 09/PG/LL.M/6920

COURSE TITLE AND CODE: INTERNATIONAL ENVIRONMENTAL LAW (LAW 732)

LECTURER: S. ERUGO, Ph.D

SEMESTER/SESSION: 2ND SEMESTER, 2009/2010.

IN PARTIAL FULFILMENT OF THE AWARD OF A MASTERS

DEGREE IN LAW (LL.M)

MAY, 2011

A REVIEW OF THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY ACT.

1.0INTRODUCTION:

The present environmental regime of Nigeria is the culmination or product of a haphazard approach towards addressing environmental challenges in the country. From the colonial period through independence, our environmental issues were intertwined with public health regulations and the law of nuisance. Today, Nigeria can boast of a robust environmental regime with specific and specialized institutions to administer the law on environmental issues.

The most recent and important addition to Nigeria’s environmental regime is the National Environmental Standards and Regulations Enforcement Agency
(Establishment) Act[1] which came into force in 2007. The Act establishes the
National Environmental Standards and Regulations Enforcement Agency, which is, today,Nigeria’s leading environmental protection agency.

My humble effort in this seminar paper will be geared towardsa constructive overview and analysis of this piece of legislation, which aims at an effective protection of the Nigerian environment for sustainable development. It is worthy of note that the Nigerian authorities have not relented in their resolve to provide a comprehensive environmental regime as the Act was subsequently followed by the coming into force of eleven Environmental Regulations[2] made by the FederalMinister of Environment on 30th September 2009.

2.0 THE HISTORICAL PERSPECTIVE OF THE DEVELOPMENT OF NIGERIA’S ENVIRONMENTAL REGIME.

The issue of environmental protection in Nigeria received little or no attention during the colonial era. As earlier stated, environmental issues were then subsumed under public health regulations and the tort of nuisance. An example is the Criminal Code Act[3] of 1916 which prohibited water pollution and air pollution and created the offence of nuisance.

The Public Health Act[4]sprang up in 1917 and provided for the regulation of land, air and water pollution[5]. With the attainment of independence in 1960 by Nigeria and the discovery of oil in commercial quantities, it became obvious that existing laws on environmental regulation were grossly inadequate. The decade following independence witnessed the criminalization of polluting activities, especially those relating to the discharge of oil in navigable waters[6].

The 1970s saw more improvement in environmental regulation[7] in response to the marked industrial growth associated with the oil boom[8]. The1980s and 1990s witnessed the emergence of yet several environmental regulations, including the Federal Environmental Protection Agency Decree[9] as a result of Nigeria’s subscription to several international conventions and treaties. This situation could be accounted for, in part, by the boost injected into this area by the popular proclamations on the environment through the Stockholm Declaration on the Human Environment of 1972[10]. Thus, the upward trend has continued with the emergence of the most significant and comprehensive environmental legislation in Nigeria: the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, hereinafter referred to as the NESREA Act.

3.0 THE NESREA ACT: A SYNOPSIS OF.

On 17 May, 2007 and 30 May, 2007, the Nigerian Senate and the House of Representatives, respectively, passed the National Environmental Standards and Regulations Enforcement Agency (Establishment) Bill, 2007. On 30 July, 2007, the then Nigerian President, Umaru Musa Yaradua, assented to the Bill, thus heralding the new law on environmental protection, hereinafter called the NESREA Act, 2007. It is worthy of emphasis that the NESREA Act repealed the Nigerian flagship law on the environment ie the Federal Environmental Protection Agency Act (FEPA Act)[11]. Consequently, the NESREA Act has become the primary law on environmental protection in Nigeria while the new Agency has replaced the old Agency.

The NESREA Act[12], which came into force in 2007, created the National Environmental Standards and Regulations Enforcement Agency, hereinafter referred to as the Agency.The Agency is currently the major federal body charged with the protection of Nigeria’s environment.The Federal Government, in line with Section 20[13] of the 1999 Constitution, as amended, established the Agency as a parastatal of the Federal Ministry of Environment, Housing and Urban Development[14].

The Agency has recorded substantial achievement in environmental monitoring and policy implementation. As at May, 25,2011, the Agency had developed about twenty four regulations and standards to check environmental abuse in Nigeria[15].

The NESREA Act isdivided into six parts, but for constraints of space, I shall examine the establishment, mandate and enforcement powers and the structure of the agency under the Act.

a) ESTABLISHMENT OF NESREA:

NESREA was established on July 30, 2007 as a body corporate, with perpetual succession and a common seal, which may sue and be sued in its corporate name.[16] It is responsible for the enforcement ofenvironmental standards, regulations, rules, policies and guidelines. Its authority extends to theenforcement of environmental guidelines and policies, such as the National Policy on the Environment, 1999.

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. Part 1 of the NESREA Actdeals with the establishment and objectives of the Agency and the Governing Council and the tenure of office of members.

B) MANDATE AND POWERS OF NESREA:

Part II of the NESREA Act dwells with the functionsand powers of the Agency and Council. The Agency isauthorized to enforce compliance with laws, guidelines,policies and standards of environment matters[17], such standards would include the federal water qualitystandards and air quality standards. In executing its mandate, it is to co-ordinate and liaise with stakeholders within and outside Nigeria, on matters of environmental standards, regulations and enforcement[18]. Relevant stakeholders would include the organized private sector, environmental groups at both national and international levels and other ministries and parasatals.

A remarkable provision of the NESREA Act is Section 7(c) which mandates the Agency to enforce compliance with the provisions of international agreements, protocols, conventions and treaties on the environment and such other agreements as may, from time to time, come into force.

The issue that arises here is ‘What is the legal effect of Section 7(c) of the NESREA Act inview of the prohibitive provisions of Section 12(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended?’Can a treaty, protocol or convention apply, by virtue of this section, without the prior constitutional requirement of domestication? Is NESREA given the authority to enforce such environmental treaties in Nigeria irrespective of that constitutional requirement? It would appear to be so because, by subscribing to the treaty, Nigeria has acquired the obligation of compliance. Moreover, Article 26 of the Vienna Convention on the Law of Treaties is predicated upon the principle of pacta sunt servanda[19]. This position is re-inforced by the case of MOJEKWU v. EJIKEME[20], where the Court of Appeal made copious references to and relied on an undomesticated convention on gender rights in its judgment. It is apparent that our courts, in line with judicial activism, are at liberty to take into consideration the provisions of ratified but undomesticated treaties in arriving at their decisions when issues of fundamental human rights, access to justice and environmental factors are involved[21].This position has earned the support of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which in 3(a) of its preamble, states as follows:

“The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protection intended by them”.

The Agency is also mandated to enforce compliance with policies, standards, legislation and guidelines on water quality, environmental health and sanitation including pollution abatement[22].It can therefore be implied that the functions of 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 guidelines and legislations on sustainable management of the ecosystem, biodiversity conservation and the development of Nigeria’s natural resources[23]. The Agency is empowered toestablish mobile courts to expeditiously dispose of cases of environmentalinfringements, but this has to be done with the ‘relevant judicial authorities’ as well as in consonance with the Nigerian Constitution[24]. The Act generally confers wide powers, including public education and enlightenment, on NESREA[25], which cannot be adequately dealt with here for space constraints.

The NESREA possesses broad enforcement powers for the purpose of enforcing the Act. Thus, an officer of the Agency may at all times enter and search, but with warrant issued by a court, any premises including land, vehicle, tent, vessel and floating craft, inland water and other structures which he reasonably[26] believes carries out activities or stores goods which contravene environmental standards or legislation for the purpose of conducting inspection, searching and taking samples for analysis. These powers to enter and search premises exclude oil and gas facilities such as maritime tankers, barges, floating production and storage offload[27]. So,
to constitute a ‘lawful search’, the search has to be carried out with a search warrant issued by the federal or state high court. This is in contrast to section 2O of the repealed FEPA Act and section 10 of the Harmful Wastes Special criminal provisions) Act where environmental protection agencies were empowered to issue search warrants. The new requirement of a search warrant by the court is in recognition of the right to privacy guaranteed under the Constitution[28]. This involves the recognition of the citizens’ right to be secure in their persons, houses, papers and efforts against unreasonable and unlawful searches and seizures.

(c)LIMITATIONS ON THE MANDATE AND POWERS OF NESREA:

The NESREA Act confers the Agency with a broad range of powers for the protection and development of the Nigerian environment. However, the powers are by no means absolute, as they are subject tocertain limitations, viz:

i).The functions and powers of NESREA do not extend to the all-important oil and gas sector of the Nigerian economy. Sections 7 and 8 of the NESREA Act, dealing with the mandate and powers of the N’ESREA contain the recurring phrase “other than in the oil and gas sector”[29]. The effect of these provisions is to remove all environmental issues rising from the exploration and exploitation of petroleum andnatural gas from the authority of NESREA.

The limitation placed on the powers of NESREA could be seen as a response to the conflict between the defunct FEPA and the Department of Petroleum Resources (DPR) of the Ministry of Petroleum Resources[30]. Prior to the creation of FEPA, the department had been responsible for monitoring pollution in the petroleum sector. Several years after the creation of FEPA, controversy arose as to which among these two was the correct body to set the guidelines and standards for pollution control in the oil industry and which of them was to enforce these standards. The need to resolve this controversy must have given rise to the emergence of the provisions.

The NESREA Act has therefore laid the issue to rest and it is now clear that the mandate and powers of NESREA do not extend tothe oil and gas sector. The clear delineation of functions and powers between agencies is a necessity for effective enforcement of environmental laws as controversies would only act as a distraction.

ii)The right of NESREA and other environmental protection bodies to search and seize environmental substances considered harmful is not absolute. It must be based on a reasonable belief that the premises is being used for activities or storage of goods which contravene environmental standards or legislation. The courts, in the interest of the ‘privacy of the citizens’, has construed the power of search restrictively.

The Act gives the agency powers to examine any article found pursuant to the search to which the Act or regulations apply or which it reasonably believes is capable of being used to the detriment of the environment. An officer of the Agency, where he seizes any goods or articles in the course of a search, is bound to issue a written receipt for the thing seized[31].

iii) The search power of the officers of the Agency under the Act is limited by the need for an order of court before a search can be conducted on any vessel or premises. The requirement of a court order would guard against the arbitrary exercise of its powers by the Agency. It could however have the effect of working delay in favour of the polluting facility. This is a serious limitation on the enforcement powers of NESREA[32].

iv) It is pertinent to note that, although the Agency has a Director-General as its ChiefExecutive Officer[33], it still remains, like its predecessor (FEPA), a parastatal within theFederal Ministry of Environment, Housing and Urban Development[34]. The efficiency of the Agency will be more enhanced if it is made to be independent of the supervising Ministry.

d.STRUCTURE AND COMPOSITION OF NESREA:

The agency is headed by a Director-General and Chief Executive appointed by the President on the recommendation of the Minister. He or she is required to be a person with good working knowledge of the environment and with a minimum of 15 years postgraduate experience in environmental management or a related discipline[35].However, the supreme organ of the Agency is the Governing Council[36], whose functions, as outlined in Section 9 of the Act, include responsibility for the appointment, promotion anddiscipline of staff, advising on financial, operational and administrative matters.

The provisions for the qualification of the Director-General of the Agency is commendable and a clear improvement on the repealed FEPA Act which was silent on the qualifications of the Director-General. The provision would ensure that the occupant of that position is selected, not whimsically and capriciously, but on the basis of merit and competence.

The Agency is divided into five directorates, each headed by a Director. They are namely: Director of Administration and Finance, Directorate of Planning and Policy Analysis, Directorate of Inspection and Enforcement, Directorate of Environmental Quality Control and Directorate of Legal Services. Furthermore, the Agency has zonal offices in the six geopolitical zones of the country[37]. These are needed to address the environmental problems of the variousecological and industrial zones and to place within the reach of states the required technical advisory support needed by the state environmental protection agencies[38].

CONCLUSION:

The enactment and coming into force of the NESREA Act is, no doubt, a bold step in the right direction. However, it is not conclusive, may be not even suggestive, of the fact that our environmental regime needs to be further shaped up with more radical amendments to the Act to address the limitations set out above and which are presently hampering the effective implementation of the Act. If the limitations and other setbacks in the Act are fully addressed, the access to environmental justice by the citizenry will be enhanced[39].

BIBLIOGRAPHY

  1. BOOKS AND JOURNALS:
  1. FGN, Abuja Official Gazette, Vol. 96, Nos. 58 – 68 dated 2-20 October, 2009.
  1. Ladan, M. T., Cases and Materials on Environmental law and Policy, ECONET Publishers, (2004), p.2
  2. Ladan, M. T., “Towards an Effective African System for Access to Justice in Environmental Matters”, in A. B. U. Law Journal, Vol. 23-24(2).
  3. Barros, J and Douslas Johnston, ‘The International law of Pollution’, Macmillan Publishers, London, p. 300.
  1. STATUTES:
  1. National Environmental Standards and Regulations Enforcement Agency, Cap N164, Laws of the Federation of Nigeria, 2004.
  2. National Environmental Protection (Effluent Limitations) Regulation, 1991;
  3. National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations, 1991;
  4. Management of Solid and Hazardous Waste Regulation, 1991,
  5. Criminal Code Act, Cap. C38, Laws of the Federation of Nigeria, 2004.
  6. Public Health Act, Cap. P40, Laws of the Federation of Nigeria, 2004.
  7. River Basins Development Authority Act
  8. Oil in Navigable Waters Decree of 1968 now Oil in Navigable Waters Act, CAP 06, LFN, 2004.
  9. Fundamental Rights (Enforcement Procedure) Rules, 2009
  1. CASES:
  1. MOJEKWU v. EJIKEME, (2002) 5 NWLR (PART 657) AT 402
  2. Att. Gen., Lagos State v. Att. Gen., (Federation), (2003) FWLR (PT 168) 909.
  3. ODUMEGWU OJUKWU v. YARADUA & 4 ORS. (2009) 4-5 SC (Pt. 1) 13.
  1. WEBSITES:

i).

ii)

1

[1] Cap N164, Laws of the Federation of Nigeria, 2004.

[2] See the FGN, Abuja Official Gazette, Vol. 96, Nos. 58 – 68 dated 2-20 October, 2009. See subsequent regulations such as National Environmental Protection (Effluent Limitations) Regulation, 1991; National Environmental Protection (Pollution Abatement in industries and facilities generating wastes) Regulations, 1991;Management of Solid and Harzadous Waste Regulation, 1991,

[3] Cap. C38, Laws of the Federation of Nigeria, 2004.

[4] Cap. P40, Laws of the Federation of Nigeria, 2004.

[5]See also P. B. Ajibola, ‘Protection of the Environment through the Law’, in F. Shyllon (ed) The Law and Environment in Nigeria (1999) University of Ibadan Press, Ibadan.

[6]See Oil in Navigable Waters Decree of 1968 now Oil in Navigable Waters Act, CAP 06, LFN, 2004.

[7]The main national laws and decrees promulgated during the period and most of which are still in operation today include the Sea Fisheries Act, Hides and Skins Act, Endangered Species Act, Pets (Control of Produce) Act, Quarantine Act, Associated Gas Re-injection Act, Civil Aviation Act, Animal Diseases (Control) Act, Bee (Import, Control & Management) Act, Exclusive Economic Zone Act, National Water Resources Institute Act, Kainji Lake National Park Act, Harmful Waste Disposal Act, Land Use Act, Minerals Act, Criminal Code Act, Energy Commission of Nigeria Act, Federal Environmental Protection Agency Act, Natural Resources Conservation Council Act, Environmental Impact Assessment Decree, River Basins Development Authority Act, etc.