THE STATE OF THE ENABLING LAWS AS IT RELATE TO THE ENVIRONMENT

 THE STATE OF THE ENABLING LAWS AS IT RELATE TO THE ENVIRONMENTBY  ARC. A.O. OBABORI, MNIA, MNITP, MAARCHESDEPARTMENT OF ARCHITECTUREAMBROSE ALLI UNIVERSITY,EKPOMA - NIGERIA  ARC. M. O. OGUNRAYEWA, MNIA, MAARCHESDEPARTMENT OF ARCHITECTUREUNIVERSITY OF JOS,JOS - NIGERIA  BARR. ADEKANLE,JURISPRUDENCE & INTERNATIONAL LAWFACULTY OF LAWAMBROSE ALLI UNIVERSITYEKPOMA - NIGERIA

The state of the Enabling Laws as it relates to the  environment

Keywords: Environmental Impact  Assessment; Environmental matters;               Environmental   Standard; Pollution; Sustainable Development

 Abstract

 There are wide range of environmental issues and  problems to be resolved  and tackled by he system of our education and policy makers. Amongst such problems are desertification which is a global threat posed by climate change and the loss of biodiversity.. Also visible are  waste managment problems, oil pollution, environmental degradation, soil erosion. over grazing and bush burning. Increasing acidity witnessed in fertile land areas from which the people derived sustenance through farming and other economic activities are source of concern. This is what inform submissions in area of  water quality, Effluent limitation, Air quality, Ozone protection, Noise control, Discharge of hazardous substance. Selected  cases and proceedings in decided cases are cited as source of results which form the basis for decisions. Highlight of suggestions points to the need to develop a more environmentally and socially equitable approaches to environmental managment in  Nigeria. The concept should be embraced by all  educational Institution  and reflected in their  curriculum. There is importance for regeneration and

 redevelopment of the environment. A more formidable  method should exist in  considering destruction by  individuals and negligence of corporate  organisation within and outside the court. Strategic  policy plan should be worked out to determine  associated loss of human  welfare and implement  functional financial and Institutional mechanism to  assimilate these losses (ie Insurance and Banking  Sectors Options). The review of the environmental  Law should be done  to meet today's need.

THE STATE OF THE ENABLING LAWS AS IT RELATES TO ENVIRONMENT

INTRODUCTION

There are laws that govern activities of man generally. Environmental matters are regulated by both International and Municipal laws. Exploration activities notably resulting into oil spillage and damage to terrestrial life have to be addressed.

Industrial accidents have led to widespread poisoning with dire consequences to human lives. Thus, the leakage of poisonous gases at a pesticide plant in Bhopal, India in 1984 sent a cloud of metal isocyanate gas across the city. Two thousand people died within hours and over a thousand more died in four years. Over 200,000 were injured.

New substances are being created and their effect on human life is not fully known, chemicals is being subjected to International standards for their use and control.

Mining of tin in Jos under open-cast method has left the land degraded. The sea is polluted by wastes from chemicals as well as oil from ship. Mining accidents offshore or onshore, pollute both the land and the seas with harmful effects on animals and vegetation. It has been noticed that industrialized countries disposed of chemical toxic wastes in developing countries in shady deals with capricious or ignorant leaders or individuals. The dumping of toxic waste in Koko, Delta State of Nigeria in June, 1988 prompted the need to protect the shores of the country.

Overgrazing and over-cultivation could result into hazards to the environment.

States are under customary law obliged to use or utilize their property in such a way as not to impede other states enjoyment of their own property sic utere tuo ut alienum non leadas.

In an attempt to solve environmental problems globally there have been bilateral and multilateral arrangements to deal with specific aspects of pollution. The conference held in Stockholm in 1972 was the first International attempt. The thrust of agreement was based on the tuo utere rule in principle 21: that states in accordance with the charter of the United Nations and the principles of International law “the sovereign right to explore their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of area beyond the limits of national jurisdiction”.

Umozurike further stressed that “the state has responsibility to protect and improve the environment for the present and future generations to maintain the ecosystem and prevent environmental pollution and release public information on harmful or potentially harmful pollutants”

In 1972 there was the establishment of the United Nations Environmental Programme (UNEP) with a governing council of fifty-eight member states, an environmental coordination Board and a small secretariat based in Nairobi. Relying on previous conventions and uptill 1982 UN convention on the law of the sea deals with the broad aspects of marine protection and the legislative and enforcement competence of literal states. Other treaties that came to focus are: The International Convention Relating to Intervention on the High Seas in cases of Oil Pollution casualties 1969; International Convention on Civil Liability for Oil Pollution Damage 1969, Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matters 1972; International Convention for the Prevention of Pollution from ships 1973 and so on.

The resultant effect of National Policy on Environment was the promulgation of the Federal Environmental Protection Agency Act No. 58 of 1998. The statutory responsibility of the agency is to protect the Nigeria environment. The structure or functions and power of the agency shall be examined in line with the performance recorded in recent times.

AN OVERVIEW OF THE FEDERAL ENVIRONMENTAL PRO-TECTION AGENCY ACT NO. 58 OF 1998

Section 5 of the FEPA Act enumerated the functions of the agency. The Agency shall, subject to this Act, have responsibility for the protection and development of the environment and biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology, including initiating policy in relation to environmental research and technology: and without prejudice to the generality of the foregoing it shall be the duty of the Agency to:

-           prepare a comprehensive national policy for the protection of the environment and conservation of natural resources, including procedure for environmental impact assessment for all development projects;

-           Prepare in accordance with the National Policy on the Environment, periodic master plans for the development of environmental science and technology and advise the Federal Government on the financial requirements for the implementation of such plans:

          Advise:

(i)       The federal government on national environmental policies and priorities, the conservation of natural resources and sustainable development and scientific and technological activities affecting the environment and natural resources.

(ii)      The President on the utilization of the one percent Ecological fund for the protection of the environment:

promote cooperation in environmental science and conservation technology with similar bodies in other countries and with international bodies connected with the protection of the environment and the conservation of natural resources:

cooperate with federal and state ministries, local governments, statutory bodies and research agencies on matters and facilities relating to the protection of the environment and the conservation of natural resources and

Carryout such other activities as are necessary or expedient for the full discharge of the functions of the Agency under this Act.

For these highlighted functions to be performed Section 6 of this Act which deals with powers of the Agency to give grant stated some of the conditions that private and public sectors can exploit to achieve their objectives. Section 7 and 23 on removal method etc also granted the president power to give directions on matters relating to the performance by the Agency of its function and it is, the duty of the agencies to comply. The conscious effort at protecting and developing the environment can not be assessed properly due to the fact that there are a lot of problems that needed attention seriously that bother on environment.

The aspect of the environment that deals with construction and its impact to control possible excesses of the developers. Section 33 of the Nigerian Urban and Regional Planning Act No. 88 of 1992 states that “A developer shall at the time of submitting his application for development submit to an appropriate control Department a detailed environmental impact statement for an application for:

(a)      a residential land in excess of 2 hectares or

(b)     permission to build or expand a factory or for the construction of an office building in excess of four floors or 5,000 square meters of a lettable space or

(c)      permission for a major recreational development”

Human activities especially development projects have both negative and positive impact on the environment which negate the essence of control by appropriate authorities and agencies.

The seach light of our educational system should be beam towards the current trend in the environment. Architectural design/Study should respond to the changing environment e.g erosion, land slide, earth quakes and other forms of disesters. The turning around of the negative impact of the environment and  assessing all developmetal projects in view of achieving maintenance, restoration, preservation, protection and conservation should be addressed to create a new avenue to meet growing demand in our decay environment. The information technology system should integrated into our educational system and we should  take advantage of benefits accrue from it.

          It is an attempt to achieve this laudable environmental goal, that some countries of the world enacted legislation requiring Environmental Impact Assessment (EIA) on prospective major developments and Environmental Audit Report (EAR) in respect of existing projects which is discussed briefly here under.

Environmental Impact Assessment is the study of the likely environmental impact of a proposed project finding ways and means to prevent, mitigate or compensate for unacceptable impact and making development responsive to their local environment and presenting the predictions and options to decision makers. It is a planning and Management tool used by officials and managers who formulate policies and take important decisions about development projects; to ensure that a balance is struck between development and environmental protection.

Here lies the relationship and the significance of EIA (Environmental Impact Assessment) as a strong essential tool or instrument for sustainable development for an enhanced and pollution free environment.

The Act in its Part II stated the National Environmental Standards which touches on water quality, effluent limitation, air quality and atmospheric protection, ozone protection, noise control, spillers liability within section 16 and 22. The Act establish guidelines, specification and standard to enhance the quality of the Nigeria’s environment.

WATER QUALITY

It is within the ambit of the agency to recommend to the president the purpose of establishing water quality standards for the inner state waters of Nigeria to protect the public health or welfare and enhance the quality of water to serve the purpose in the provision. The agency shall consider the supply of public water propagation of fish and wildlife recreational pursuance, agricultural, industrial and other legitimate uses. It shall establish different water quality standards for different uses. This is in respect of various sources of water that are available which are subject to pollution.

The environmental standards can be found in S.15 through S. 20 of the Act. Having considered water quality; the next one is effluent limitation.

EFFLUENT LIMITATION

The agency shall as soon as possible after the commencement of this Act establish effluent limitations for new point sources which shall require application of the Best Available Technology (BAT) currently available and implementation of the best management practices.

The Agency shall as soon as possible after the commencement of this Act establish effluent limitation for existing point sources which shall require the application of the management practices under circumstances as determined by the Agency and available schedules of compliance for installation and operation of the best practicable technology as determined by the Agency.

The performance level of FEPA in this respect is being subjected to questions. One problem with this regulation is who determine or what constitute “BAT” (best Available Technology). It is the responsibility of FEPA, the  Agency had trained inspectors and scientist who are staff in the inspectorate division who are sufficiently equipped on this matter. There are recorded cases of textile industry in Lagos state discharging waste water containing dyes flowing into streets and adjoining streets in the immediate neighbourhood where such factories are sited.

Human wastes are sometimes deposited into water bodies and dangerous chemicals which could greatly impair the health of those living in the area. The acceptable level of oil and grease content in brine and other production wastes is 10mg/litres for discharge into inland waters.

Offenders are to pay a fine of N20,000, two years imprisonment or both. For a corporation the fine is N50,000. With effluent standard in place care should be taken to protect surface water since such water serves many of the communities for drinking and other domestic purposes.

AIR QUALITY

According to Section 17 of the Act “the Agency shall establish more criteria, guidelines, specification and standards for air quality and enhance the quality of Nigeria’s air resources so as to promote the public good, welfare and the normal development and productive capacity of the nation’s human, animal or plant life and include in particular.

(a)      Minimum essential air quality standards for human, animal or plant health;

(b)     The control of concentration of substances in the air which separate and in combination are likely to result in damage or deterioration of property, human, animal or plant health.

(c)      The most appropriate means to prevent and combat various form of atmospheric pollution.

(d)     Controls for atmospheric pollution originating from energy sources that is produced by aircraft and other self-propelled vehicles and in built power generation stations.

(e)      Standards applicable to emission from any new mobile source where Agency’s judgment causes or contributes to air pollution which may be anticipated to endanger public health or welfares and

(f)       The use of appropriate means to reduce emission to permissible level.

(g)      The Agency may establish monitoring stations or networks to locate where exist atmospheric pollution and determine their actual or potential danger.

It is usual nowadays to find motor vehicles motor cycles and even electricity generators emitting obnoxious fumes such as carbon dioxide, carbon monoxide, nitrogen oxide etc into the atmosphere without any form of control. Bush burning have also contributed to pollution of the air. This has led to depleting of the forest resources. Emission from industries also constitute a serious health problems because of indiscriminate citing of industries in residential area.

OZONE PROTECTION

Section 19 of the Act sub section (1) states that “the Agency shall undertake to study data and recognize developmental operational force and other countries regarding the cumulative effect of all substance notices, processes and activities which may affect the stratosphere, especially human activities on stratosphere.

(2)     The Agency may make recommendations and programmes for the general public, substance, practice, process or activity which may reasonably be anticipated to affect stratosphere especially ozone in the stratosphere when such effect may occur and as anticipated to endanger public health or welfare.

(3)     For the purpose of this section “stratosphere” means that part of the atmosphere above the troposphere.”

Kyoto accord was organized in order to address the problems emanating from the ozone depletion which is a global affair to help reduce green house effect and other related emission which causes climatic related problems amongst them are global warming, skin burn diseases etc.

NOISE CONTROL

The provision of the Act in respect of noise control in Section 20 which states that:

(1)      The Agency shall, as soon as practicable after the commencement of the Act and with consultation with appropriate authorities:

(a)      Identify major noise sources, noise criteria and noise control technology

(b)     Establish such noise abatement programmes and noise emission scheme and may determine necessary to preserve and maintain public health of the people.

(2)      Any noise criteria identified under this section shall reflect the scientific edge most useful in indicating the kind and extent of all identifiable effects in the health or welfare which may be expected from differing qualities and quantities of noise.

(3)      The Agency shall make recommendation to control noise originating from industrial, commercial, domestic, sports, recreational, transportation or other related activities.

For quite some time now especially before the enactment of the FEPA Act. The level of acceptable noise have not been standardized. The Civil Aviation Act is also silent on this matter. Commercial record players, religious bodies, public address systems, industrial plants, electricity power generating plants have been the sources of noise and fumes.

FEPA in its guidelines and standards for environmental pollution control in Nigeria as it relate to noise. According to the guidelines the recommended daily noise exposure for workers should not exceed 90 decibels, dB(A) daily for an 8 hours working period. Also available is the noise exposure limit for other periods.

DISCHARGE OF HAZARDOUS SUBSTANCE

The discharge of such harmful quantities of any hazardous substance into air or upon the land and the waters of Nigeria or adjoining shore lines, except as permitted or authorized by any law in force in Nigeria. Any defaulter will pay N100,000 fine or ten years imprisonment or both where the offence is committed by a corporate body the penalty is N500,000 and the additional fine of N1,000 for everyday the offence subsisted. Hazardous substance by FEPA means any material that poses a threat to human health and/or the environment. FEPA had severe limitations concerning the control of oil that reduced the Act efficacy in preventing oil pollution of water.

It is of note that the scope of FEPA and consequently its mandate were restricted to “waters of Nigeria” which are defined by the “Act” to mean all waters in any form which are (i) interstate (ii) in federal capital territory (iii) territorial waters of Nigeria (iv) within the exclusive economic zone (v) in any other area under the jurisdiction of the Nigerian Federal Government.

The extent at which this law is being obeyed is still being observed. This is because cases relating to the environment have not been common with the generality of the public. The enforcement mechanism still needs to be boosted with capacity to perform its role.

Haven considered certain aspect of the Act it is pertinent to mention that it is possible to enhance the short-coming of the Act by the provision of Section 40 which is on the “power to make regulations” “the Director-General may with the approval of the council, make regulation generally for the purposes of this Act and without prejudice to the generality of the public; the Director-General may in particular, prescribe standards for: (a) water quality (b) effluent limitations (c) air quality (d) atmospheric protection (e) ozone protection (f) noise control and (g) control of hazardous substances and removal control methods.

THE ENFORCEMENT POWER OF FEDERAL ENVIRONMENTAL PROTECTION AGENCY

For the agency to succeed in the performance of its functions, it is important to ascertain the powers vested in the agency. The Act provides that it shall be lawful for the Agency to:

(a)      Make grants to suitable authorities and bodies with similar function.

(b)     Collect and make available through publications and other appropriate means and in co-operation with public or private organisation basic scientific data and other information pertaining to pollution and environmental protection mark.

(c)      Establish, encourage and promote training programmes for its staff and other appropriate individuals for public or private organizations.

(d)     Establish such environmental criteria guidelines, specification or standard for the protection of the nations air and interstate water as may be necessary to protect the health and welfare of the population from environmental degradation.

The enabling Act is to protect the nations environment and conserve its natural resources. The Agency can only work within the frame work of the power vested in it. It is obvious that the power to execute the obligation of the Act have not been felt in totality. This is because there is extensive violation of the existing environmental law at local, state and national level. The consciousness of the Agency is being drawn to the fact that the Act is to be used in addressing arising problems that bothers on the environment. It has been observed that other bodies/agencies set                           up to exercise control over the environment have made activities of FEPA inconsistent and weak in respect of performance.

In furtherance and jurisdiction of the court for a court to decide a case, it must have jurisdiction over the parties and the subject matter of the case. Section 251 and 272 respectively of the 1999 constitution defines the jurisdictions of the Federal and State High courts. It is the Attorney-General of the federation and state counter part that can prosecute a case.

Apart from states and local government who prosecute violators of sanitation and public health laws, prosecution and convictions for environmental damage is yet unheard of. The reasons why the paucity of enforcement and prosecution of environmental offences according to A. Awogbade are:

(i)       The incipient statutes of environmental law and therefore the fact that it is yet to be fully understood by all players including enforcement agencies.

(ii)      The realization of the immense back-log of environmental           damage which makes the choice of culprit difficult.

(iii)     The realization of the enormity of the cost of compliance and remediation even when liability is established.

(iv)     The cross-sectional and trans-boundary nature of environmental hazards which renders apportionment difficult with the result that there is bound to be jurisdictional conflict among tiers and agencies of government, if prosecution were to be pursued.

(v)      The involvement of the state in large commercial activities and utilities whose activities invariably result in environmental damage.

(vi)     The inadequacies of the adjudicatory capacity, having regard to knowledge gap, lack of technology and scientific skills necessary to ensure successful prosecution.

(vii)    The “Nigeria factor” which creates a wide gap between diagnosis, prescription and care.

The afore mentioned factors inhibit prosecution of environment matters.

CONSTITUTIONAL PROVISION FOR THE ENVIRONMENT

The constitution of the Federal Republic of Nigeria recognizes the importance attached to the environment. Although the constitution is not elaborate on the general scope to be followed with the enactment of related environmental Act the area of concern will be viewed in a more broader way.

Section 20 of the 1999 constitution states that “the state shall protect and improve the environment, safeguard the water, air and land, forest and wild life of Nigeria”. The steps taken by various states government in area of environmental matter is being supported by the constitution. This has made it possible for states to operate on matters relating to environment. Also before the inception of the present democratic government in 1999 there have been state environmental protection bodies enacted by the Edicts.  The states that are already in the vanguard of environmental protection are Lagos State, Oyo State, Edo State, Delta State and Other States. The responsibilities at each level of government should be worked out to avoid conflict that may impede the realisation of the objective of achieving sustainable environment vis-à-vis constitutional exclusive legislative list and the concurrent list of the states.

RYLAND VS. FLETCHER RULE

The principles of Ryland v. Fletcher have been subject of reliance whenever issues that affect environment and notably nuisance and negligence is being mentioned. “There is the uphill task of establishing that damage or injury had occurred to the plaintiff as a result of the escape from the defendants land into the plaintiff’s land of something likely to cause mischief and that there was non-natural user of the defendant’s land. For instance in Edhemowe v. Shell B.P. Petroleum Company of Nigeria Ltd. the defendant company in the course of their petroleum operation dug a waste pit for the storage of oil. When the pit was full, more oil was dumped in it. This led to escape of oil from the waste pit to the plaintiffs land and his fishes died. In a suit against the defendant, it was held that the accommodation of crude oil in the waste pit is a “non-natural users” they were thereby held to be strictly liable. In Chief Otoko and Ors vs. Shell B.P, Petroleum Companies of Nigeria Ltd. It was held that by digging the pit and burying the crude oil unburnt, the defendant had gathered a non-natural user.

Identifying another limitation to this rule is statutory authority which is a complete defense to a claim brought under the rule. Thus in Ikpede vs. Shell B.P. Petroleum Development Company of Nigeria Ltd leakage of crude oil from defendant’s pipelines caused damages to the plaintiff’s fish swamp, it was held that the plaintiff could not recover under the rule and that even if all the requirements of the rule (i.e. Ryland vs. Fletcher) was met, the defendant could not be held liable under the rule since the act of laying pipe was done pursuant to a license issued under the oil pipeline Act. There is every indication that constraints inherent in the environmental legislation and the common law tort claims that some urgent steps needed to be taken to check this unfavourable development.

RECOMMENDATIONS

There is urgent need for environmental safety policy that would guide the people, the government and the oil company operating in the country. All categories of mineral exploitation and pollution generating activities should be inclusive.

The development in Lagos State should be encouraged in all states of the federation. At state level Lagos State Ministry of Environment and the Lagos State Environmental Protection Agency (LASEPA) have been directed as from April 1, 2005 to embark on an awareness campaign against air and noise pollution, areas which had hitherto been largely ignored. The effort will focus essentially on control of fumes from private electricity generators a situation that officials say has become a major threat to friendly air in Lagos.

The clean air bill can be prepared to address air polluted issue which should cut across all sphere of life. This has already been introduced by the United States of America.

Some workers in the Industrial sector have been informed of the acceptable level of noise according to standard. The noise standard for all other sectors should be introduced and at the same time enforcement procedure enhanced.

Amendment of the act and other laws which relate to environment may be necessary to give it proper impetus. Review and proper machinery for enforcement will not be out of place where it is desirable. The need to protect and sustain the environment should be brought into the notice of all and sundry through wide range of information technology applicable in each circumstance. An Institution  already established to handle environmental issues should be strenghten and funded to perform effectively.

CONCLUSION

There is growing need for environmental protection and applicable laws to stem the consequences of human activities. The World Banks Operational Policy on Economic, Evaluation of Investment operations requires that project evaluations include all the costs and benefits generated by the project, including environmental costs and benefits. The degree to which environmental benefits are valued differs from sector to sector. The instrument of the law have to be framed for the use of environmental valuation as additional measure to secure the safety of the environment.

REFERENCES

1. Awogbade, A. (1988) Environmental Law and policy (eds) by Simpson and Fagbohun

2. Homes and Property (2006) How "Desertification of commitment" is worsening Nigeria environment in                                       The  Guardian; Vol. 22, No 10,069,  June 19, P. 39

3. The Federal Government Press (1988) Federal Environmental Protection Agency Act. Cap 165, Law of                                    the  Federation.

4. The Federal Government Press (1992) Nigeria Urban and Regional Planning Act. The Federal                                                  Government Press, Lagos, Nigeria

5. Umozurike, U. O. (2005) Introduction to International Law, Spectrum Books Limited, Ibadan, pp. 252-259