1. ABSTRACT Scientists predict that increases in these gases in the atmosphere will make the Earth a warmer place.

They expect a global rise in average temperature of 1.4 to 5.8 Celsius degrees (2.5 to 10.4 Fahrenheit degrees) in the next century. Average temperatures have in fact been rising. The 1990s were the warmest decade on record, and 2005 was the warmest year on record. Some scientists are reluctant to say that global warming has actually begun because climate naturally varies from year to year and decade to decade, and it takes many years of records to be sure of a fundamental change. There is little disagreement, though, that global warming is on its way. Global warming will have different effects in different regions. A warmed world is expected to have more extreme weather, with more rain during wet periods, longer droughts, and more powerful storms. Although the effects of future climate change are unknown, some predict that exaggerated weather conditions may translate into better agricultural yields in areas such as the western United States, where temperature and rainfall are expected to increase, while dramatic decreases in rainfall may lead to severe drought and plunging agricultural yields in parts of Africa, for example. Warmer temperatures are expected to partially melt the polar ice caps, leading to a projected sea level rise of 9 to 100 cm (4 to 40 in) by the year 2100. A sea level rise at the upper end of this range would flood coastal cities, force people to abandon low-lying islands, and completely inundate coastal wetlands. If sea levels rise at projected rates, the Florida Everglades could be completely under salt water in the next century. Diseases like malaria, which at present are primarily found in the tropics, may become more common in the regions of the globe between the tropics and the polar-regions, called the temperate zones. For many of the worlds plant species, and for animal species that are not easily able to shift their territories as their habitat grows warmer, climate change may bring extinction1.

2. INTRODUCTION The Industrial Revolution is mainly characterized by the widespread replacement of manual labor by machines that began in Britain in the 18th century and is still continuing in some parts of the world. The most immediate changes were in the nature of production: what was produced? As well as where? And how? Goods that had traditionally been made in the home or in small workshops began to be manufactured in the factory. Productivity and technical efficiency grew dramatically, in part through the systematic application of scientific and practical knowledge to the manufacturing process. Efficiency was also enhanced when large groups of business enterprises were located within a limited area. The

Micheal Manstrandrea and Stephen H. Schneider, 2009.

Industrial Revolution led to the growth of cities as people moved from rural areas into urban communities in search of work. But that wasnt enough. Man began to explore and embark on scientific research that could enhance technological advancement. Coal was too troublesome as it gave away too much fumes and created too much of a mess. And just in the nick of time, Black gold was discovered for the true potential that it has. A more user friendly energy source had been discovered. And it was a direct substitute for Coal, with more energy and diversity. At this point, priorities changed. Transport; in form of ships, trains and automobiles which were manufactured in high-hazard operating factories and in turn made use of the same Petroleum to function making it an all stage commodity. The use of petroleum powered Generators and electricity powered by gas further expanded the scope of the use of Oil and Gas to the maximum made it a priceless commodity that had become part of everyday living. For these reasons the need for immediate access was tantamount. And immediate access (demand) could only be ensured by prompt and reliable supply. Soon, mass production of Petroleum Products was made available as Multinational Companies that were brave enough to take risks explored at seeming disadvantages and exploited. Refineries and Processing Plants were built and oil and Gas was ready to be extracted and processed at super rates. However, the first feature of energy is its invincibility2. Energy cannot be destroyed; it can only be transformed into another kind of substance which is in itself, energy. But just like coal which it replaced, Oil and Gas after combustion is transformed into non renewable energy. At its instance, the effects were not recorded. But as time went on, research showed that the use of Oil and Gas resources may be just as harmful as it is useful. Before, during and after its production, oil and Gas releases energy/substance into the atmosphere that is harmful in the short and long run. A recent report of the U.N shows that Oil and Gas pollution contributes 75% of the Worlds pollutants. The response has been the use of regulations and guidelines to limit and control the occurrence. However, the quantities and effects made it necessary to create laws (national and international3) to give legal backing and urgency to the situation. This paper aims to point the different stages of Oil and Gas exploration and identify the environmental implications of these activities. Using Nigeria as a case study, we hope to
2

Empirical observation in the 19th century led to the conclusion that although energy can be transformed, it cannot be created or destroyed. This concept, known as the conservation of energy, constitutes one of the basic principles of classical mechanics. Microsoft Encarta 2009. 1993-2008 Microsoft Corporation. All rights reserved.
3

United States Convention on Laws of the Seas, 1996. The convention has been seen as instrumental but a replica of the EEZ Act as far as oil and gas pollution is concerned.

communicate the dangers that directly and indirectly affect Man and his Environment. In a nutshell, this paper is a tool that exposes the causes, effects and prospective solutions to otherwise unanswerable questions about Oil and Gas Pollution and the role of law in the tripod.

3. CASE STUDY DEFINITION OF TERMS Hydrocarbons are organic chemical compounds containing hydrogen and carbon atoms only arranged in particular and peculiar manners. They include alkenes, alkanes and alkynes4. Refineries are places for the refining of oil and gas raw materials. Processing Plants are facilities for treating and gas extensively. Compounds such as ethane, propane, butane, and other substances are separated and removed for different uses. Pollution is the contamination of something that makes it impure, unclean and generally unfit for its needed purpose; the release of energy into the atmosphere in a quantity that adversely affects the environment5. Oil and Gas pollution refers to the release of petroleum material into the atmosphere that makes it6 Water bodies refer to lakes, rivers, streams, estuaries, oceans, seas and any other nomenclature that is used in place of a collection of large amounts of water; natural or artificial. Petroleum is generally crude oil that occurs naturally in sedimentary rocks and consists mainly of hydrocarbons. Natural Gas is a mixture of combustible hydrocarbon gases, mostly methane and ethane, found trapped in the pore spaces of some sedimentary rocks, often along with petroleum deposits. BACKGROUND Oil and Gas are chemical compounds made up of mainly hydrocarbons. Also considered is that petroleum is a big contributor in the production processes of many products such as plastics, laundry equipment, nylons, fuels, e.t.c. However, a greater percentage of oil and gas is made for combustion in the form of petroleum. Diesel, petrol, kerosene and cooking gas are products that
4 5

Encarta English dictionary. Culled from Wikipedia. 6 See 2 above.

are consumed in tens of thousands of tons daily in Nigeria, domestically or industrially. The question posed is whether the products of these This has led to the creation of other dimensions. Therefore, this paper will first discuss oil and Gas pollution and then break it into three phases; -the pre-production stage -during production stage -post production stage The Pre-Production Stage is the least documentary. This is because as a natural resource, oil and gas hidden beneath the surface of the earths crust does no harm- at first. However, with the discoveries of the migratory nature of oil and gas that gave birth to the Qualified-Ownership and Non-Ownership theories7, there have been theoretical as well as historical problems posed by oil and gas resources buried in the ground. The Production Stage is the partially disturbing. Oil and gas can only be accessed through drilling. Drilling oil wells also creates environmental problems because the petroleum pumped up from deep reservoir rocks is often accompanied by large volumes of salt water. This brine contains numerous impurities, so it must either be injected back into the reservoir rocks or treated for safe surface disposal. The extraction of unconventional crude oil sources, such as bitumen, poses even greater environmental problems due to the large number of pollutants produced and the use of fossil fuels involved in the extraction. It is in this stage that Gas flaring comes in. The Post Production Stage Petroleum usually must also be transported long distances by tanker or pipeline to reach a refinery. Transport of petroleum occasionally leads to accidental spills. Oil spills, especially in large volumes, can be detrimental to wildlife and habitat. This will further be divided into three; Oil spills, gas flaring and combustion related waste. While the first and second issues are most recognized in relation to oil and gas pollution, the third has been seen as the end result of the whole process of exploiting Crude oil. The Global field and Global Warming Crude oil is perhaps the most useful and versatile raw material that has become available for exploitation. By 2003, the United States was using 7 billion barrels of petroleum per year, and worldwide consumption of petroleum was 29.3 billion barrels per year. This was exemplified by

the uproar and response of various countries8 to Barrack Obamas speech at the 2009 Copenhagen summit9 Developing countries portrayed themselves as victimized once again by the wealthier industrialized nations. On one hand, these countries believe they have the most to lose from continued global warming. Because much of the developing world occupies warmer regions, where many species of crops and domesticated animals live at the upper limit of their natural temperature tolerances, higher temperatures could lead to widespread livestock declines and crop failures. Moreover, unlike the industrialized world, most developing nations lack the capital and infrastructure to develop new varieties of heat-tolerant crops and animals, build flood control systems, and deploy disaster relief when needed. On the other hand, global emission reduction targets also hurt developing countries because such reductions interfere with their plans for economic development through inexpensive, carbonbased energy sources. Indeed, many representatives of developing countries see global warming advocates as part of a conspiracy to maintain the economic advantages of industrialized nations at the expense of poorer nations. Thus, developing countries argued that they be exempted from emission reductions until their economies approached the strength of those in developed nations. Gas flaring in Nigeria has contributed more greenhouse gas emissions than all other sources in sub-Saharan Africa combined10. Carbon-cycle calculations, however, suggest that allowing developing countries to delay by decades their participation in emission reduction agreements would commit the world to very large increases in levels of atmospheric carbon dioxide. The carbon cycle refers to the natural processes through which carbon dioxide injected into the atmosphere is slowly removed by photosynthesis in plants and absorption in the oceans. These processes take about a century to complete. Various carbon-cycle models have shown that if fossil fuels are used to power industrial growth in developing countries, then their carbon dioxide emissions will soon outpace even those of the currently industrialized countries. These computer models strongly suggest that emission reductions must be achieved everywhere, presumably through a Kyoto or post-Kyoto negotiated protocol. Oil and Gas Industry Pollution in Nigeria Petroleum Operations give rise to various types of pollution at any stage from the processes of exploration and production, to when the refined products are being transported and utilized. The types of pollution could be air, water, land, noise, or thermal pollution. One industrial activity can give rise to several types of pollution. For example, gas flaring is extremely deleterious to the environment and causes thermal, noise, air, land and water pollution.

8 9

China, Japan and North Korea. The meeting held in Denmark lasted for 2 weeks but failed to achieve its set objective as many countries felt victimized at their prospective quota of environmental pollution to relief ratio. 10 World Bank figures

Oil Spillage
"if you want to go fishing, you have to paddle for four hours through several rivers before you

can get to where the spill is lesser and catch fish... some of the fishes we catch, when you open the stomach, it smells of crude oil.11" Spillages can occur at any stage in oil industry operations. Crude and refined oil are both pollutants that have lasting and deleterious effects on the environment. While the big disasters get a lot of attention, small scale pollution occurs all the time all over the country, without being noticed. For example few people realize, when they ask the petrol attendants to fill their cars to the brim, and the overflow spills onto the ground, that they are in fact contributing to the degradation of the environment. Those little drops that are spilled every time a fuel tank is filled, add up to a sizeable amount of wasted petrol. A second common and overlooked example is to be found in the typical mechanic shop, where used engine oil is carelessly thrown away, in ignorance of the fact that used oil is a hazardous waste which contains toxic materials, does great harm to the environment, and can be carcinogenic. In the Niger Delta, between 1976 and 1998, over 2.5 million barrels of oil have been split into the Delta environment; and that is only spills officially recorded by the Department of Petroleum Resources12. Leaking pipelines, running through villages, farms, creeks and rivers in the Niger Delta, are a major source of pollution, sickness and economic ruin for the people of the Niger Delta. Farmland polluted by oil is rarely rehabilitated, destroying livelihoods. Fish contaminated by oil cause sickness among the people and further economic ruin as fish stocks decline. The spillages are a regular feature of life in the Delta. They are rarely dealt with promptly. In some cases, minor leaks are left for months, resulting in major pollution. Why do oil spills occur? Spills are caused by a multitude of factors in the Niger Delta. Poorly maintained infrastructure fails under high pressure. Accidents occur and pipelines running overground get ruptured. The burgeoning trade in stolen oil means that local people tap into lines and wells damaging them or leaving them leaking. Sabotage of pipes is common, often by local people hoping to get cash compensation. Where the spills are due to failing equipment, the oil companies are clearly responsible. But where they are blamed on sabotage, the companies and government blame local people and criminal gangs.

11 12

Niger Delta Fish Farmer. Report of 2010 at the annual NDLEA Conference.

The Movement for the Emancipation of the Niger Delta13 is a direct consequence of the inabilities and insatiable demands of the people of the Niger Delta. Causes of crude oil spills have been classified as being equipment failure, sabotage, human error, corrosion, blowouts, engineering errors, natural causes, and acts of third parties, erosion and death. Data show that most spills are attributable to technical reasons such as corrosion or equipment failure. A number of spills are attributable to sabotage which is defined as a willful attempt to disrupt or interrupt the production and distribution of oil by third parties. Sabotage is a result of poverty and ignorance. Often members of the community where oil is being produced tamper with oil installations so that their property will be damaged and compensation will be paid to them. It is now a crime with very stiff penalties. The law also provides that no compensation is payable for a spill attributable to sabotage. However, the final way of solving the problem of sabotage probably lies in educating the people as to the adverse effects of oil pollution, and also in the government and companies jointly working to ensure that the oil producing communities are provided with a few basic amenities. Gas flaring the heat is unbearable we can hardly sleep at night sometimes we cannot even tell the difference between Night and day14 The practice of flaring Gas is a worldwide one. The reasons range from its economic sense to it efficiency advantage. When oil is to be extracted, the associated gas is useful to help propel the oil at speedy rates and as such, the wasted gas has to be flared or re-injected into the ground. It is important to note that flaring prevents the release of the gas directly into the atmosphere as this is even more dangerous than the already toxic practice of flaring. A gas flare, alternatively known as a flare stack, is an elevated vertical conveyance found accompanying the presence of oil wells, gas wells, rigs, refineries, chemical plants, natural gas plants, and landfills. They are used to eliminate waste gas which is otherwise not feasible to use or transport. They also act as safety systems for non-waste gas and are released via pressure relief valve when needed to ease the strain on equipment. They protect gas processing equipments from being overpressured. Also in case of an emergency situation, the flare system helps burn out the total reserve gas. Reason for flaring gas

13

MEND is an unlawful association that was recently during the Yaradua administration, given amnesty for their criminal activities. Their major complaint has been the insufficiencies of the compensation regime. 14 Resident of Niger Delta.

On oil production rigs, in refineries and chemical plants, its primary purpose is to act as a safety device to protect vessels or pipes from over-pressuring due to unplanned upsets. This acts just like the spout on a tea kettle when it starts whistling as the water in it starts boiling. Whenever plant equipment items are over-pressured, the pressure relief valves on the equipment automatically release gases (and sometimes liquids as well) which are routed through large piping runs called flare headers to the flare stacks. The released gases and/or liquids are burned as they exit the flare stacks. The size and brightness of the resulting flame depends upon how much flammable material was released. Steam can be injected into the flame to reduce the formation of black smoke. The injected steam does however make the burning of gas sound louder, which can cause complaints from nearby residents. Compared to the emission of black smoke, it can be seen as a valid trade off. In more advanced flare tip designs, if the steam used is too wet it can freeze just below the tip, disrupting operations and causing the formation of large icicles. In order to keep the flare system functional, a small amount of gas is continuously burned, like a pilot light, so that the system is always ready for its primary purpose as an overpressure safety system. The continuous gas source also helps diluted mixtures achieve complete combustion. Enclosed ground flares are engineered to eliminate smoke, and contain the flame within the stack. Worldwide occurrence The World Bank estimates that over 134 billion cubic metres of natural gas are flared or vented annually, an amount equivalent to more than 20 percent of the United States gas consumption or 33 percent of the European Unions gas consumption per year. This flaring is highly concentrated: 10 countries account for 70% of emissions, and twenty for 85%. The top ten leading contributors to world gas flaring in 2010, were15: Russia (26%), Nigeria (11%), Iran (8%), Iraq (7%), Algeria (4%), Angola (3%), Kazakhs tan (3%), Lybia (3%),Saudi Arabia (3%) and Venezuela (2%).16

The effects of flaring include the release of heat and fumes which produce green house effects. The fight against gas flaring; dream or goal?

15 16

In descending order.
^ ,Global Gas Flaring reduction, The World Bank, "Estimated Flared Volumes from Satellite Data, 2006-2010

Even though Nigeria loses an estimated $2.5 billion to gas flaring yearly17, Nigeria cannot stop gas flaring without ruining its economy. says Billy Agha18. He said despite the environmental and safety hazards and the huge revenue losses, the current economic situation in the country permits the continued flaring of gas by oil companies during oil production activities. it would be uneconomical. You need to balance between the economy and actions to be taken. We don't want to do something that will cause trouble in the system." Oil accounts for about 80 per cent of Nigeria's revenues and over 90 per cent of its foreign exchange earnings, such that shutting down defaulting oil fields, will mean huge loss of revenue and the disruption of economic activities in the country. "To shut down oil fields will send the nation into confusion," he warned, adding, "flaring have stopped drastically, but we have not shut down any field." Rather than clamp down on offending fields, Mr. Agha said the regulator has devised a systematic means of reducing gas flaring at the oil fields. "We are relying on the allowable by trying to open up other fields with less gas ratio." He argued that through this oil-to-gas ratio system, his department has actually succeeded in bringing down the volume flared from above 2.5 billion standard cubic feet/day to current levels of 1.9 billion standard cubic feet daily. In addition to this reduction, he said the federal government has equally earned higher revenues from fines imposed on oil companies for flaring gas during production. Between January and March, the director said the agency paid the sum of N530.48 million as penalty collected from oil companies for gas flaring, out of the entire revenue of N166.08 billion that the department paid into the Federation Account. Combustion related pollution Although this is normally not considered a major factor in Oil and Gas pollution. This however does not mean that it is not a major factor. The constant burning of fuels is a major contributor to green house effects ad Global warming.

4. BASIC LEGAL REGIMES There are various Regulatory Bodies that are empowered with tackling Oil and Gas pollution in Nigeria. The agencies for oil and gas regulation in nigeria
17

Strategic Gas flaring Plan for Nigeria, Joint UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP), February 2004, pg 13. 18 The Director of the Department of Petroleum Resources.

The 1999 Constitution recognises the importance of improving and protecting the environment and make provisions for it. The constitution has been able to enshrine into its various sections, regulations of the activities of oil and gas operations in Nigeria. Thus Section 20 makes it an objective of the Nigerian state to improve and protect the air, land, water, forest and wildlife of Nigeria. Section 12 establihes, though impliedly, that international treaties (including environmental treaties) ratified by the National assembly should be implemented as law in Nigeria. Sections 33 and 34 which guarantee fundamental human right to life and human dignity respectively, have also been argued to be linked to the National Environmental Standards and Regulation Enforcement Agency (NESREA) Act, 2007; administered by the ministry of environment. The National Environment Standards and Regulation Enforcement Agency ( NESREA) Act of 2007 replaced the Federal Environmental Protection Agency (FEPA) Act. It is the embodiment of laws and regulations focused on the protection and sustainable development of the environment.

The nature of oil and Gas as hydro carbons makes it inclusive in almost all forms of pollution, hence the following; [LOCAL] CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (1999) The constitution, as the national legal order, recognizes the importance of improving and protecting the environment and makes provision for it. Relevant sections are:

Section 20 makes it an objective of the Nigerian State to improve and protect the air, land, water, forest and wildlife of Nigeria. Section 12 establishes, though impliedly, that international treaties (including environmental treaties) ratified by the National Assembly should be implemented as law in Nigeria. Section 33 and 34 which guarantee fundamental human rights to life and human dignity respectively, have also being argued to be linked to the need for a healthy and safe environment to give these rights effect. AND REGULATION

NATIONAL ENVIRONMENTAL STANDARDS ENFORCEMENT AGENCY (NESREA) ACT 2007

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Administered by the Ministry of Environment, the National Environment Standards and Regulation Enforcement Agency (NESREA) Act of 2007 replaced the Federal Environmental Protection Agency (FEPA) Act. It is the embodiment of laws and regulations focused on the protection and sustainable development of the environment and its natural resources. The following sections are worth noting:

Section 7 provides authority to ensure compliance with environmental laws, local and international, on environmental sanitation and pollution prevention and control through monitory and regulatory measures. Section 8 (1)(K) empowers the Agency to make and review regulations on air and water quality, effluent limitations, control of harmful substances and other forms of environmental pollution and sanitation.

Section 27 prohibits, without lawful authority, the discharge of hazardous substances into the environment. This offence is punishable under this section, with a fine not exceeding, N1,000,000 (One Million Naira) and an imprisonment term of 5 years. In the case of a company, there is an additional fine of N50,000, for every day the offence persists.

REGULATIONS (UNDER NESREA) National Effluent Limitation Regulations.

Section 1 (1) requires industry facilities to have anti-pollution equipment for the treatment of effluent. Section 3 (2) requires a submission to the agency of a composition of the industrys treated effluents. National Environment Protection (Pollution Abatement in Industries and Facilities producing Waste) Regulations (1991). Section 1 Prohibits the release of hazardous substances into the air, land or water of Nigeria beyond approved limits set by the Agency. Section 4 and 5 requires industries to report a discharge if it occurs and to submit a comprehensive list of chemicals used for production to the Agency. Section 1 makes it an obligation for industries to identify solid hazardous wastes which are dangerous to public health and the environment and to research into the possibility of their recycling.

Federal Solid and Hazardous Waste Management Regulations (1991).

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Section 20 makes notification of any discharge to the Agency mandatory. Section 108 stipulates penalties for contravening any regulation.

ENVIRONMENTAL IMPACT ASSESSMENT (EIA) ACT. CAP E12, LFN 2004. An Environmental Impact Assessment (EIA) is an assessment of the potential impacts whether positive or negative, of a proposed project on the natural environment: The E.I.A Act, as it is informally called, deals with the considerations of environmental impact in respect of public and private projects. Sections relevant to environmental emergency prevention under the EIA include:

Section 2 (1) requires an assessment of public or private projects likely to have a significant (negative) impact on the environment. Section 2 (4) requires an application in writing to the Agency before embarking on projects for their environmental assessment to determine approval. Section 13 establishes cases where an EIA is required and Section 60 creates a legal liability for contravention of any provision.

THE LAND USE ACT, 1978 The Land Use Act places the ownership, management and control of land in each state of the federation in the Governor. Land is therefore allocated with his authority for commercial, agricultural and other purposes. HARMFUL WASTE (SPECIAL CRIMINAL PROVISIONS) ACT CAP H1, LFN 2004 The Harmful Waste Act prohibits, without lawful authority, the carrying, dumping or depositing of harmful waste in the air, land or waters of Nigeria. The following sections are notable:

Section 6 provides for a punishment of life imprisonment for offenders as well as the forfeiture of land or anything used to commit the offence. Section 7 makes provision for the punishment accordingly, of any conniving, consenting or negligent officer where the offence is committed by a company. Section 12 defines the civil liability of any offender. He would be liable to persons who

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have suffered injury as a result of his offending act. HYDROCARBON OIL REFINERIES ACT, CAP H5, LFN 2004. The Hydrocarbon Oil Refineries Act is concerned with the licensing and control of refining activities. Relevant sections include the following:

Section 1 prohibits any unlicensed refining of hydrocarbon oils in places other than a refinery. Section 9 requires refineries to maintain pollution prevention facilities.

OIL IN NAVIGABLE WATERS ACT, CAP 06, LFN 2004. The Oil in Navigable Waters Act is concerned with the discharge of oil from ships. The following sections are significant:

Section 1 (1) prohibits the discharge of oil from a Nigerian ship into territorial waters or shorelines. Section 3 makes it an offence for a ship master, occupier of land, or operator of apparatus for transferring oil to discharge oil into Nigerian Waters. It also requires the installation of anti-pollution equipment in ships. Section 6 makes punishable such discharge with a fine of N2, 000 (Two thousand naira). Section 7 requires the records of occasions of oil discharge.

ASSOCIATED GAS RE-INJECTION ACT, CAP 20, LFN 2004. The Associated Gas Re-Injection Act deals with the gas flaring activities of oil and gas companies in Nigeria. The following sections are relevant to pollution prevention:

Section 3 (1) prohibits, without lawful permission, any oil and gas company from flaring gas in Nigeria. Section 4 stipulates the penalty for breach of permit conditions.

SEA FISHERIES ACT, CAP S4, LFN 2004. The Sea Fisheries Act makes it illegal to take or harm fishes within Nigerian waters by use of explosives, poisonous or noxious substances. Relevant sections include the following:

Section 1 prohibits any unlicensed operation of motor fishing boats within Nigerian

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waters.

Section 10 makes destruction of fishes punishable with a fine of N50,000 or an imprisonment term of 2 years. Section 14 (2) provides authority to make for the protection and conservation of sea fishes.

INLAND FISHERIES ACT, CAP I10, LFN 2004. Focused on the protection of the water habitat and its species, the following sections are instructive:

Section 1 prohibits unlicensed operations of motor fishing boats within the inland waters of Nigeria. Section 6 prohibits the taking or destruction of fish by harmful means. This offence is punishable with a fine of N3, 000 or an imprisonment term of 2 years or both.

EXCLUSIVE ECONOMIC ZONE ACT, CAP E11, LFN 2004. The Exclusive Economic Zone Act makes it illegal to explore or exploit natural resources within the Exclusive zone without lawful authority. The Federal Government regulates the activities of the Exclusive Zone. OIL PIPELINES ACT, CAP 07, LFN 2004. The Oil Pipelines Act and its Regulations guide oil activities. The following sections are pertinent;

Section 11 (5) creates a civil liability on the person who owns or is in charge of an oil pipeline. He would be liable to pay compensation to anyone who suffers physical or economic injury as a result of a break or leak in his pipelines. Section 17 (4) establishes that grant of licenses are subject to regulations concerning public safety and prevention of land and water pollution.

OIL PIPELINES REGULATIONS (UNDER OIL PIPELINES ACT)

Section 9 (1) (b) establishes the requirement of environmental emergency plans. Section 26 makes punishable any contravention with a fine of N500, 000 and/or an imprisonment term of six months.

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PETROLEUM ACT, CAP P10, LFN 2004. The Petroleum Act and its Regulations remain the primary legislation on oil and gas activities in Nigeria. It promotes public safety and environmental protection. The following sections are relevant:

Section 9 (1) (b) provides authority to make regulations on operations for the prevention of air and water pollution.

REGULATIONS PETROLEUM DRILLING AND PRODUCTION REGULATIONS:

Section 17 (1) (b) places restrictions on licensees from using land within fifty yards of any building, dam, reservoir, public road, etc. Section 23 and 27 prohibits, without lawful permission, the cut down of trees in forest reserves. Section 25 establishes that reasonable measures be taken to prevent water pollution and to end it, if it occurs.

PETROLEUM REFINING REGULATION

Section 43 (3) requires the Manager of a refinery to take measures to prevent and control pollution of the environment. Section 45 makes any contravention punishable with a fine of N100 or an imprisonment term of six months.

MINERAL OIL SAFETY REGULATIONS AND CRUDE OIL TRANSPORTATION AND SHIPMENT REGULATIONS. These Regulations prescribe precautions to be taken in the production, loading, transfer and storage of petroleum products to prevent environmental pollution. PETROLEUM PRODUCTS AND DISTRIBUTION ACT, CAP P12, LFN 2004. Under this Act, the offence of sabotage which could result in environmental pollution is punishable with a death sentence or an imprisonment term not exceeding 21 years.

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TERRITORIAL WATERS ACT, CAP T5, LFN 2004. The Territorial Waters Act makes punishable any act or omission committed within Nigerian waters which would be an offence under any other existing law. NUCLEAR SAFETY AND RADIATION PROTECTION ACT, CAP N142, LFN 2004. The Act is concerned with the regulation of the use of radioactive substances and equipment emitting and generating ionizing radiation. In particular:

Section 4 provides authority to make regulations for the protection of the environment from the harmful effects of ionizing radiation. Section 15 and 16 makes registration of premises and the restriction of ionizing radiation sources to those premises mandatory. Section 37 (1) (b) allows an inspector verify records of activities that pertain to the environment. Section 40 clarifies that the same regulations guiding the transportation of dangerous goods by air, land or water should also apply to the transportation of radioactive substances.

NIGERIAN MINING CORPORATION ACT. CAP N120, LFN 2004. This Act establishes the Nigerian Mining Corporation. It has authority to engage in mining refining activities and to construct and maintain roads, dams, reservoirs, etc. In particular:

Section 16 creates a civil liability on the corporation for the physical or economic damage suffered by any person as a result of its activities.

BASINS DEVELOPMENT AUTHORITY ACT, CAP R9, LFN 2004. The River Basins Development Authority is concerned with the development of water resources for domestic, industrial and other uses, and the control of floods and erosion. FACTORIES ACT, CAP F1, LFN 2004. The Factories Act promotes the safety of workers and professionals exposed to occupational

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hazards. Under this Act, it is an offence to use unregistered premises for factory purposes. In particular19: Section 13 allows an inspector take emergency measures or request that emergency measures be taken by a person qualified to do so in cases of pollution or any nuisance. WATER RESOURCES ACT, CAP W2, LFN 2004. The Water Resources Act is targeted at developing and improving the quantity and quality of water resources. The following sections are pertinent: Section 5 and 6 provides authority to make pollution prevention plans and regulations for the protection of fisheries, flora and fauna. Section 18 makes offenders liable, under this Act, to be punished with a fine not exceeding N2000 or an imprisonment term of six months. He would also pay an additional fine of N100 for everyday the offence continues. NIGER-DELTA DEVELOPMENT COMMISSION (NDDC) ACT, CAP N68, LFN 2004. The Niger-Delta Development Commission Act is concerned with using allocated funds to tackle ecological problems arising from the exploration of oil minerals in the Delta. Section 7 (1) (b) empowers the Commission to plan and to implement projects for the sustainable development of the Delta in the field of transportation, health, agriculture, fisheries, urban and housing development, etc. The Commission, under this Act, has a duty to liaise with oil and gas companies and advice stakeholders on the control of oil spillages, gas flaring and other related forms of environmental pollution. OTHER..LEGISLATION: Environmental-Sanitation-Law: This is a law of Lagos State focused on environmental sanitation and protection. It punishes in varying degrees acts like street obstruction, failure to clean side-walks, cover refuse bins or dispose wastes properly. CRIMINAL-CODE: The Criminal Code contains provisions for the prevention of public health hazards and for
19

This is in view that a refinery is an Oil and Gas factory.

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environmental-protectionHence: Sections 245-248 deal with offences ranging from water fouling, to the use of noxious substances. STATUTORY REGULATIONS GUIDING SOLID WASTE MANAGEMENT IN NIGERIA

THE NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY ACT 2007 (NESREA ACT)

After the repealing of the Federal Environmental Protection Act of 1988, the NESREA Act, 2007 became the major statutory regulation or instrument guiding environmental matters in Nigeria. It specially makes provision for solid waste management and its administration and prescribes sanction for offences or acts which run contrary to proper and adequate waste disposal procedures and practices.

ENVIRONMENTAL IMPACT ASSESSMENT ACT OF 1992

The purpose of the EIA Act is to among other things establish before a decision taken by any person, authority corporate body or unincorporated body including the Government of the Federation, State or Local Government intending to undertake or authorize the undertaking of any activity that may likely or to a significant extent affect the environment. Such activities include the disposal of solid waste in the environment.

NATIONAL ENVIRONMENTAL (SANITATION AND WASTES CONTROL) REGULATIONS, 2009

This regulation that was promulgated in 2009 among other things makes adequate provisions for waste control and environmental sanitation including punishments in cases of malfeasances.

THE HARMFUL WASTE (SPECIAL CRIMINAL PROVISIONS, ETC) ACT

The Decree prohibits the Carrying, depositing and dumping of harmful waste on any land, territorial Waters, contagious zone, Exclusive Economic Zone of Nigeria or its inland Water ways and prescribes severe penalties for any person found guilty of any Crime relating thereto.

18

THE NEP (POLLUTION ABATEMENT IN INDUSTRIES AND FACILITIES GENERATING WASTE) REGULATIONS

Restrictions are imposed hereunder on the release of toxic substances and requirement of Stipulated Monitoring of pollution to ensure permissible limits are not exceeded; Unusual and accidental discharges; Contingency plans; Generator's liabilities; Strategies of waste reduction and safety for workers.

THE MANAGEMENT REGULATIONS

OF

SOLID

AND

HAZARDOUS

WASTES

These regulate the collection, treatment and disposal of solid and hazardous waste for municipal and industrial sources and give the comprehensive list of chemicals and chemical waste by toxicity categories.

THE NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY ACT 2005 (NOSDRA ACT)

This statutory regulation makes adequate regulations on waste emanating from oil production and exploration and its potential consequences to the environment.

THE NATIONAL EFFLUENTS LIMITATIONS REGULATION

This instrument makes it mandatory that industrial facilities install anti-pollution equipment, make provision for further effluent treatment, prescribe maximum limit of effluent parameters allowed for discharge, and spell out penalties for contravention.

THE NATIONAL GUIDELINES AND STANDARDS FOR ENVIRONMENTAL POLLUTION CONTROL IN NIGERIA.

This was launched on March 12th 1991 and represents the basic instrument for monitoring and controlling industrial and urban pollution.

NATIONAL POLICY ON ENVIRONMENT

19

Launched by Government on 27th November 1989, this document prescribes guideline and strategies for achieving the Policy Goal of Sustainable Development.20

5. IMPLEMENTATION OF LAWS Attitude of the Oil Companies they have not denied anything, all they have done is attempt to divert responsibility these Companies should learn to practice business the way they would in developed Countries21 Oil companies have been subjected to various accusations and punishments. However there are two sides to this story. While the affected see Oil companies as negligent and totally responsible, some see them as responsible for a necessary evil. Shell has been the major perpetrator of these crimes and the cases and instances have shown that they care very little about the safety and welfare of the people of the Niger Delta or the Environment. Therefore, not everyone agrees with claims of Multinationals. (AI) and Friends of the Earth International (FoEI) insisted that Shell breached the OECD Guidelines for Multinational Enterprises for allegedly using discredited and misleading information to blame the majority of oil pollution in the Niger Delta on sabotage. Several studies have placed the bulk of the blame for oil spills in the Niger Delta on the doorsteps of the oil companies; particularly Shell,22 As it is documented and with reference to their operations in other jurisdictions, it is hard to give a good word for Oil Companies as they appear to take undue advantage of the privileges they get from their host governments. For developing Countries, they have utmost need for Multinationals and these entities act with seeming disregard for the Environment and human life. Amnesty International (AI) and Friends of the Earth International (FoEI) had announced that they had filed formal complaints with the British and Dutch governments over Shells failure to take responsibility for the majority of the oil pollution in the Nigerias oil rich Niger Delta region. But the company denied the allegation maintaining that the discrepancy between the originally reported figure for 2008 and the updated one was explained at length in our 2009 briefing notes which are available on the web.

20

Although many of these documents are not directly concerned with oil and gas, they affect petroleum products and this is the rationale for their inclusion. 21 Per Katsina-Alu JCA in SPDC v. ISAIAH. 22 Nnimmo Bassey, friends of the earth, Nigeria.

20

Attitude of the Government The attitude of the Government has been less than assuring. Although there have been mistakes in the past, we shall not include the unpredictable nature of the Military Government. The reason is simply that the Military rule is notorious enough as it is for non adherence to the rule of law and their voluntary consultations and recognition of Fundamental Human Rights has been exemplified by the Ken Saro Wiwa tragedy. However, we shall make reference to the current democratic regime and its attempts. No end to flaring Now there is no specific period to end gas flaring in Nigeria, as each agency of government from the executive to the legislature and even the oil companies have given different deadlines to end flaring. But each deadline had come and gone without any reduction; if anything, the rate of flaring - until the latest statistics provided by the DPR - had been increasing because of a lack of will to enforce the law against flaring. Besides, it was more economical for the oil companies to continue to pay the paltry fines hitherto imposed by the regulator than to end flaring. In mid-January, the House of Representatives called for a fine of $500,000 to be imposed on any company which fails to report, within 24 hours, any emergency flaring on account of equipment failure. In addition, the House resolved that any company that declares an incorrect flared volume shall be fined $100,000, and the volume flared subjected to the prevailing international gas market price. The penalties were based on the recommendations made by the House committees on Gas and Justice, which organized a public hearing on a bill to amend the Associated Gas Re-Injection Act, No 99 of 1979 and Cap A25 Laws of the Federation of Nigeria, 2004. Section 3 (1) of the Principal Act, stipulating January 1, 1984, later moved to December 31, 2008 was amended to December 31, 2012. Nigeria is next to Russia, accounting for 12.5 percent of the world's gas flaring with about 40 percent of gas flared at production23. Inhabitants of oil communities have suffered severely as a result. A BBC report early last year, when Nigeria failed to meet the January 1 flare out deadline, quoted an indigene as saying that "doctors have reported higher rates of cancer, children with asthma and a suggestion that the burning gasses may be making residents infertile." But to demonstrate the regulator's resolve to end flaring during oil processing, Mr Agha said a Special Committee on Flare Reduction, has been set up to review the gas allowable in terms of gas to oil production ratio.

23

According to statistics from the Nigerian National Petroleum Corporation.

21

"If you are using gas lift to produce then you must flare gas because that is the technology, but for those that are not using gas lift, we are looking at how to interchange the fields between those that have high gas ratio with those that have high oil ratios." Attitude of the Courts [CASE LAW] Burden of Proof The Burden of proof in Oil and Gas litigation is on the person alleging damage and infringement to personal right. The Courts in a number of Cases have relied on the Strict Liability Rule as set out in Rylands v. Fletcher24. These cases are briefly summarized below; SHELL PETROLEUM DEVELOPMENT COMPANY v. ISAIAH [1997] 6 N.W.L.R p. 236 Issues for determination -Whether the respondents proved pollution of their farmlands, fish ponds, swamps e.t.c and whether the court should have visited the locus in quo to resolve the conflict in evidence. -Whether the trial court followed the proper principles of law in the assessment and award of damages of N22 million -Whether the judgment was against the weight of the evidence heard in the trial court. Facts At about July 1988, an old tree fell on the appellants pipeline indenting it. According to the respondents, the pipeline ran across their farmlands and swamps. While carrying out repairs on the pipes, oil spilled freely into the lands and waters for several hours. As a result of the spillage, the lands were completely useless as regards the villagers uses for it. He appellant investigated with experts but did not bring forth the findings of their experts as evidence. The respondents however brought forth their expert witness and his testimony was not contested by the appellant. The Court of Appeal ruled in favour of the respondents. Judgment The court of Appeal considered SEC 57 of the Evidence Act25 which provides for the admission of experts in Court. The leading Judgment given by Katsina-Alu JCA26 stated;

24

Locus classicus that established the principle laid down in Read v. Lyons. The rule states that where one brings something upon a land that is not naturally there and due to the accumulation of that thing, there is an escape to the premises of another. The party that accumulates will be strictly liable for any damage caused as a result of such an escape. 25 CAP 112 1990 and Ord. 11 rules 1 and 8 of the High Court (Civil Producer) Rules of Rivers State, 1987.

22

The facts here are straightforward and largely undisputed. The spillage and pollution on swamplands with streams quickly spread over the plaintiffs vast communally owned Miniaba farmlands and swamplands spanning over 100.564 hectares. No precautions were taken by the defendant. The defendant did not call any expert The Court of Appeal unanimously dismissed the appeal and upheld the judgment of the trial Court. They received their award in damages amounting to N22 million according to the rule in Rylands v. Fletcher27. SHELL v. TIEGBO [1996] 4 N.W.L.R pt 440 to 145, pg 657. Issues for determination -Whether the respondents proved any expenditure by the community in purchasing drinking water at the material time. -Was there any credible evidence from which pecuniary value could have been put or alleged damage to young raffia palms? -What was the N5 million awarded by the trial Court as general damages for and was it a proper award in the circumstances? Facts The respondents as Plaintiffs at the Yenegoa High Court of Rivers State sued the appellants as defendants claiming as special damages the total sum of N64, 146,000.00 for negligence as well as the rule under Rylands v. Fletcher or in the alternative, being compensation from the appellant in accordance with SEC 11 of the Oil Pipelines Act, 1956. Tiegbos case was that in Shells course of business, on or about 16th January 1987, there was an extensive spillage from the installations at PEREMABIRI. The Police and the appellant were alerted but Shell did not visit the scene until one week after the incident. The spillage covered the entire river Nunua tributary of river Niger which flows through the respondents community and is the source of their drinking water. The majority of the inhabitants of the Peremabiri community as well as its numbers are fishermen and farmers. The 600 barrels of crude oil spilled to pollute 40 fish ponds and the need for drugs and drinking water was affected. Also affected were the communitys economic trees like raffia palms. Judgment
26 27

As he then was. The birthplace of Strict liability. Also the follow up to the decision in READ v. LYONS.

23

Shell was adjudged not to have taken precautionary measures to prevent the spillage with proper maintenance of the pipes and oil pipelines. Shell did not deny the spill but claimed it only affected 2.3 hectares of seasonal swampland and fish ponds and that it had offered N5, 500.00 which in their opinion was fair thereby refusing negligence. The trial court awarded N6 million to the appellants. Shell appealed to the Court of Appeal. The Court of Appeal followed suit. SHELL PETROLEUM DEVELOPMENT CO. LTD v. COUNCILLOR FARAH [1995] Issues for determination In May 1989, a writ of summons was taken against Shell for damages. The relief sought was; -N26, 490,000.00 as compensation for damages suffered by them as quantified in their valuation report -Order of Court compelling Shell to rehabilitate the land in line with recommendations made in the specific report prepared by the plaintiffs or; -N6, 000,000.00 for the plaintiffs to carry out the rehabilitation their selves. Facts In 1970, there was an oil blowout in the Bonnu well owned by Shell which lasted several weeks releasing hydrocarbons to an extent considered as a first class pollution case. The emissions formed a thick layer covering and altering farmlands and swamps, crops and natural vegetation as well as economic trees. The total area affected was about 607 hectares. 5 families that owned 13.5 hectares brought the application suit. Shell accepted responsibility and paid their evaluated compensation but did nothing in terms of rehabilitating the land. To Shell; -It had paid adequate compensation to them in the sum of N22, 000.00 -It had rehabilitated their lands and had therefore discharged its obligations to them -that the action was Statute barred Judgment

24

A highlight of a unanimous judgment for the respondents, Onalaja J.C.A28 made the following observation; There is a universal phenomenon of oil blowout in the worldwide oil industry as recorded in Alaska U.S.A over the Exxon oil spillage saga and more recently in the Republic of Russia. The Judgment of my learned Brother is a guide to the appraisal of the law about oil spillage in Nigeria as at now. It will serve as a beacon light to the Oil Mineral Producing areas of Nigeria as to the certainty of the legal rights of the citizens in claim of compensation arising from oil spillage or blowout. It is also a guide to the oil companies in settlement of compensation arising from oil spillage or blowout.29 6. COMPARATIVE JURISDICTION. This Group has decided to shed light on comparative jurisdiction. We have picked two Countries as case study. U.S.A because of her advancement and exemplary system; Russia because of their status as the Country with the highest pollution rate. The table of other major spills can be found in page 41 of this report. U.S.A One of the first modern environmental protection laws enacted in the United States was the National Environmental Policy Act of 1969 (NEPA), which requires the government to consider the impact of its actions or policies on the environment. NEPA remains one of the most commonly used environmental laws in the nation. In addition to NEPA, there are numerous pollution-control statutes that apply to such specific environmental media as air and water. The best known of these laws are the Clean Air Act (CAA), Clean Water Act (CWA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commonly referred to as Superfund. Among the many other important pollution control laws are the Resource Conservation and Recovery Act (RCRA), Toxic Substances Control Act (TSCA), Oil Pollution Prevention Act (OPP), Emergency Planning and Community Right-to-Know Act (EPCRA), and the last being the Pollution Prevention Act (PPA)30. Preventive Methods

Seafood Sensory Training- in an effort to detect oil in seafood, inspectors and regulators are being trained to sniff out seafood tainted by oil and make sure the product reaching consumers is safe to eat.

28 29

As he then was. Italics are an imputation by Group 2. 30 http://www.pollutionissues.com/Ho-Li/Laws-and-Regulations-United-States.

25

Secondary containment - methods to prevent releases of oil or hydrocarbons into environment. Oil Spill Prevention Containment and Countermeasures (SPCC) program by the United States Environmental Protection Agency. Double-hulling - build double hulls into vessels, which reduces the risk and severity of a spill in case of a collision or grounding. Existing single-hull vessels can also be rebuilt to have a double hull.

Skimmers- are things that skim the slick (oil) off the top of the water. Boomers- are inflatable, rubber blockades that trap the oil, so it is easier to skim.

Corrective Methods Cleanup and recovery from an oil spill is difficult and depends upon many factors, including the type of oil spilled, the temperature of the water (affecting evaporation and biodegradation), and the types of shorelines and beaches involved. Methods for cleaning up include:

Bioremediation: use of microorganisms or biological agents to break down or remove oil. Bioremediation Accelerator: Oleophilic, hydrophobic chemical, containing no bacteria, which chemically and physically bonds to both soluble and insoluble hydrocarbons. Undetectable levels of hydrocarbons can be obtained in produced water and manageable water columns.

Controlled burning: can effectively reduce the amount of oil in water, if done properly. But it can only be done in low wind and can cause air pollution. Dispersants act as detergents, clustering around oil globules and allowing them to be carried away in the water. Dredging: for oils dispersed with detergents and other oils denser than water. Skimming: Requires calm waters Solidifying: Solidifiers are chemically composed mainly of dry hydrophobic polymers that both adsorb and absorb. They clean up oil spills by changing the physical state of spilled oil from liquid to a semi-solid or a rubber-like material that floats on water. Solidifiers are insoluble in water, therefore the removal of the solidified oil is easy and the oil will not

26

leach

out.

solidifier

called

C.I.

Agent

(manufactured

by

C.I.

Agent

Solutions of Louisville, Kentucky) is being used by BP in granular form as well as in Marine and Sheen Booms on Dauphin Island, AL and Fort Morgan, MS to aid in the Deepwater Horizon oil spill cleanup.

Vacuum and centrifuge: oil can be sucked up along with the water, and then a centrifuge can be used to separate the oil from the water. Usually, the water is returned to the sea, making the process more efficient, but allowing small amounts of oil to go back as well. This issue has hampered the use of centrifuges due to a United States regulation limiting the amount of oil in water returned to the sea.

Equipment used includes:

Booms: large floating barriers that round up oil and lift the oil off the water Skimmers: skim the oil Sorbents: large absorbents that absorb oil Chemical and biological agents: helps to break down the oil Vacuums: remove oil from beaches and water surface Shovels and other road equipments: typically used to clean up oil on beaches The gulf of Mexico Spill, 2010

The Deepwater Horizon oil spill (also referred to as the BP oil spill, the Gulf of Mexico oil spill, the BP oil disaster, or the Macondo blowout) is an oil spill in the Gulf of Mexico which flowed for three months in 2010. It is the largest accidental marine oil spill in the history of the petroleum industry. The spill stemmed from a sea-floor oil gusher that resulted from the April 20, 2010, explosion of Deepwater Horizon, which drilled on the BP-operated Macondo Prospect. The explosion killed 11 men working on the platform and injured 17 others. On July 15, 2010, the leak was stopped by capping the gushing wellhead, after it had released about 4.9 million barrels (780,000 m3) of crude oil. An estimated 53,000 barrels per day (8,400 m/d) escaped from the well just before it was capped. It is believed that the daily flow rate diminished over time, starting at about 62,000 barrels per day (9,900 m/d) and decreasing as the reservoir of hydrocarbons feeding the gusher was gradually depleted. On September 19, 2010, the relief well process was successfully completed, and the federal government declared the well "effectively dead". The spill caused extensive damage to marine and wildlife habitats and to the Gulf's fishing and tourism industries. In late November 2010, 4,200 square miles (11,000 km) of the Gulf were re-closed to shrimping after tar balls were found in shrimpers' nets. The amount of Louisiana shoreline affected by oil grew from 287 miles (462 km) in July to

27

320 miles (510 km) in late November 2010. In January 2011, an oil spill commissioner reported that tar balls continue to wash up, oil sheen trails are seen in the wake of fishing boats, wetlands marsh grass remains fouled and dying, and that crude oil lies offshore in deep water and in fine silts and sands onshore. A research team found oil on the bottom of the seafloor in late February 2011 that did not seem to be degrading. Skimmer ships, floating containment booms, anchored barriers, sand-filled barricades along shorelines, and dispersants were used in an attempt to protect hundreds of miles of beaches, wetlands, and estuaries from the spreading oil. Scientists have also reported immense underwater plumes of dissolved oil not visible at the surface as well as an 80-squaremile (210 km) "kill zone" surrounding the blown well. The U.S. Government has named BP as the responsible party, and officials have committed to holding the company accountable for all cleanup costs and other damage. After its own internal probe, BP admitted that it made mistakes which led to the Gulf of Mexico oil spill. They have committed over $10 million to the clean up exercise31.

RUSSIA The energy sector is essential to Russias long-term economic recovery. After dropping sharply in the 1990s, oil production expanded dramatically. In the early 2000s increased oil and gas production accounted for about 50 percent of the countrys total industrial growth. Oil and gas were the leading earners of foreign exchange, accounting for approximately half of total Russian exports. Private oil companies led the surge in oil production. In Russia, the most documented case of oil and gas pollution occurred in Siberia in the mid 90s. the spill covered as much as 3 million square kilometres. However, the geography of Russia makes their case a peculiar one. 1. Even though they contribute the highest statistics in terms of Gas flaring, their regular weather of temperature which can go as low as -2 degrees make the effect less harmful. 2. Also, the oil spills were unable to travel as far as they would have in regular climates as they froze along the way helping the cleanup exercise. With that mentioned, it is noteworthy that Russia is at par with the U.S.A in terms of response and preventive measures. NOTE: that both countries enjoy these benefits because of the improved involvement of their governments. Something Nigerian Governments would rather leave to the whims of the Oil Companies. Major Oil Spills Throughout the World
31

Culled from Wikipedia.

28

Date Location Description Liters (millions) Amount U.S. Gallons (millions) March 1967 off Cornwall, England grounding of Torrey Canyon June 1968 off South Africa hull failure of World Glory December Gulf of Oman collision of Sea Star with another 1972 ship May 1976 La Corua, Spain grounding of the Urquiola December Nantucket (MA), United grounding of Argo Merchant 1976 States February mid-Pacific Hawaiian Patriot develops leak 1977 and catches fire April 1977 North Sea blowout of well in Ekofisk oil field March 1978 Portsall, Brittany, France grounding of the Amoco Cadiz June 1979 Gulf of Mexico blowout of well in Ixtoc 1 July 1979 off Tobago, Caribbean collision of the Atlantic Empress and Aegean Captain February Persian Gulf blowout of well in Nowruz oil 1983 field August 1983 off Cape Town, South fire on board the Castillo de Africa Bellver September Delaware River, United grounding of Grand Eagle 1985 States January Floreffe (PA), United collapsing of Ashland oil storage 1988 States tank March 1989 Prince William Sound, off grounding of Exxon Valdez Alaskan Coast June 1989 Canary Islands fire on board the Kharg-5 January Sea Island Terminal of deliberate release of oil by Iraqi 1991 Persian Gulf troops at end of Persian Gulf War January Shetland Islands, Scotland grounding of Braer 1993 August 1993 Tampa Bay, United States collision of two barges and a Philippine freighter January south shore of Rhode grounding of the tugboat Scandia 1996 Island, United States and North Cape tanker it was towing February Pembrokeshire coastline of grounding of Sea Empress 1996 Wales, British Isles January Sea of Japan Russian tanker breaks in half in 1997 rough seas December French Atlantic Coast Maltese tanker breaks apart and 1999 sinks off Brittany January Guanabara Bay, Brazil Petrobras pipe ruptures

134 42 117

35.4 11 31

68-79 18-21 28.4 7.5 114 307 257 681 420 681 284 1.9 2.6-3.0 41.3 73.8 908 148 1.1 1.1 30 81 68 180 111 180 75 0.5 0.70.8 10.9 19.5 240 39 0.3 0.3

72 4.9 11.4 1.1

19 1.3 3.0 0.3

29

2000 November 2000 October 2001 November 2002 July 2006

Lower Mississippi River, United States Port of Paraguana, Brazil off Galicia coast, Spain Lebanese coast north of alJiyeh Yellow Sea, South Korea

oil tanker runs aground in Louisiana Petrobras ship hits rocks oil tanker breaks up in heavy seas Israeli bombing of Jiyeh power station barge collided wih Hebei Spirit

2.3 4.9 34.1* 11.717.5* 11.712.2

0.6 1.3 9.0* 3.14.6* 3.13.2

December 2007 *Rough estimate32.

CRITIQUE OF THE LEGAL FRAMEWORK

Before 1970, the existing petroleum law in Nigeria ostensibly covered gas. In reality, the law was designed for crude oil exploitation as gas was not recognized then as a community in its own right. In 1973, a Petroleum Amendment Decree was adopted in which associated gas could be taken and used without payment of royalties.

In 1979, legislation banning gas flaring was promulgated. According to this associated gas re injection act of 1979, all companies were to submit a plan on gas utilization and gas re injection program by 1980. By this legislation, no company was to flare gas after January 1984 without special permission from the minister of petroleum resources. The penalty for the original enactment was punishment by forfeiture of concession. This penalty was seen as too severe by most stakeholders, the deadline was shifted twice until January 1985 when the associated gas re injection (continued flaring of gas) regulation of 1984 came into force and provided for exemption to the general rule on flaring. at that time a total of 86 out of 155 fields were exempted of which one field operation by pan ocean was included. The penalty for not reinjecting associated gas was changed to a low fine which made it more economical for companies to flare than to market or re-inject gas. An oil company was quoted then as stating

32

Microsoft Encarta 2009. 1993-2008 Microsoft Corporation. All rights reserved.

30

that it was cheaper for it to flare gas at a cost of 1 million us dollars as against the 56 million us dollars cost of switching from water to gas injection.

The easing of the government position as against the penalty of 1980 was as a result of various factors amongst which were lack of infrastructure for associated gas utilization and financial constraints. The government was expected to contribute based on the existing joint venture agreements to the cost of any gas injection facility. Even though the fine for flaring gas increased in 1990, the amount remained low when compared to the cost of alternatives.

The Environmental Impact Assessment (EIA) Procedures and Guidelines related to gas flaring are being overseen by a single body, the ministry of environment. The laws have not been reviewed and although the government has promised a Comprehensive Gas Utilization Law, this is yet a top agenda. There is also a huge lack of capacity in enforcing the standards for gaseous emissions from e & p as prescribed by the effluent limitation regulation of 1991. Despite public statements, attempts to end flaring have not been backed by law. The House of representatives in 2001 passed a bill fixing the date of 2004 for flare phase out. The bill never never became law following the controversy surrounding the terminal date and the major oil operators argued that the date was unrealistic with Nigeria's planned increase in production to over 3 million barrels a day; besides the date was not feasible since the government's strategy of gas utilization by promoting LNG and LPG as foreign exchange earners was yet to make an impact.

Currently, no agreements are in place with operators in Nigeria, rather the government, through statements and policy pronouncements not backed by law, encourages the private sector and the joint venture partners to mobilize towards the timely implementation of the new flare phase out date of 2008. A deadline which was not also realistic and was not enforced.

The current regulations are Insufficient to reduce flaring, the capacity to enforce any regulation is lacking and without any legal standing, compliance cannot be quantified at this stage. at a fee of 7.5 US cents per 1000 standard cubic feet the operators continue to find it in their economic interests to flare. Though the fees for flaring gas are relatively small, yet it generates substantial

31

revenue for the government than out right prohibition of gas flaring. In recognition of such loss of revenue and the desire to encourage investment, government has favored an Incentive Approach to reduce gas flaring. In 1992, The Associated Gas Framework Agreement (AGFA) was introduced as a package of fiscal incentives introduced in 1998.

To date, an encompassing Gas Utilization bill that covers gas production, transportation and distribution as well as flaring is yet to be passed into law. Given the practical difficulty, to end gas flaring is as unrealistic as it was in 2008 and as it is now.

The federal government's decision and continued insistence on taking this compensatory sum of money so to say, is tantamount to an unjustifiable benefit from the fruit of illegality. The question to be answered here is what is this levied sum meant to cater for? Is it just another source of income or a quantified sum of the damage inflicted on the environment or a punitive sum for doing an act which the law defines as a crime? Is this penalty prohibitive in nature so as to deter flaring of gas? It is sad to note that the community in which the gas is flared is not the recipient of the sum of money charged for every gas flared. Indeed, the federal government should render to the communities that suffer from the effects of this flaring returns of the revenue derived from the compensation received for this gas flaring.

The operation of pipelines across the Niger Delta by the MNOC has caused a lot of hardship on these communities. These pipelines which have suffered extensive corrosion and do not in any way conform to the environmental standards stipulated in the pipelines regulations of 1995. Leakages of petroleum products from these death traps have been swiftly attributed to sabotage on the part of the communities through which such pipelines pass. Sabotage is a crime, the penalty for which could be as stiff as the death penalty as prescribed in the Petroleum Production and Distribution (Anti Sabotage Act) and the Special Tribunal (miscellaneous) Offences Act. The oil pipelines act is full of inequalities working adversely against the communities and individuals whose lands have been adversely affected as a result of pipeline operations. this led to short revolts by these communities; for example, the Ogoni people have been victims of human right violation for many years, Ken Saro-Wiwa, the president of MOSOP led a protest that were designed to stop contractors from laying a new pipeline for shell BP. In 1990, Mobile Police Force (MPF) shot down protesters and raided the area to quell the unrest killing 80 people and destroying 495 homes. It was alleged that 27 villages were raided in 1993 resulting in the death of 2000 Ogoni people and displacing of 80,000 villagers.

32

In December 1998, all Ijaw youths conference crystallized the Ijaw struggle for petroleum resources Our theory It is our contention that the Nigerian Government has gotten it all wrong in its fight against Oil and Gas pollution. For this to be proven, we shall make the following submissions; 3. The practice of Gas flaring is one that may be too bogus to eliminate; at least in the nearest future. 4. Oil spillage is mostly as a result of accidents and sometimes the products of law breakers and criminals. 5. The combustion of fuels is practically impossible in the nearest future. With the above submissions, we argue; 1. That the Nigerian Government is guilty of putting Profit before Nigerians. 2. That the Nigerian Government is too inefficient towards the treatment of Oil Companies. 3. That Nigerian law is not only defective, but goes a long way to encourage Oil and Gas pollution. The real problem is not the incidence or accidents that are accompanied with Oil operations but the direction of correction. Compensation is not the answer. Land is a commodity that cannot be replicated i.e. it is an immovable. This means that there can hardly be any source of compensation that will adequately make up for destruction of means of livelihood. Nigerian law, via the Land Use Act33 can create an avenue whereby the residents of the area are evacuated. There is no excuse for allowing the habitation of people in an area that is within a 500metre radius of a refinery. In such a case, the effects cannot be regarded as accidental but consequential to their habitation. Yes the government may feel reluctant to pay people off as it may be too expensive, but everyone will agree that it is a better option compared to compensating for irreparable damage.

33

Section 28 of the LUA gives the governor the power to revoke land ownership rights for overriding public purpose.

33

Cancer, deficient immune systems and so on cannot be covered up by money, no matter how much. This means that it is the responsibility of the Government. Therefore, we 34 propose that the government take the following steps as a start; 1. The areas where sensitive material can be kept and used should be quarantined and made purely industrial in order to prevent human interaction. 2. The land owners in those regions should be deprived of their lands and compensated3536 either with money or alternative land37

THE ROLE OF ALTERNATIVE ENERGY PROSPECTS

Alternative Energy, generally a form or forms of energy that are not based on fossil fuels but are either renewable or sustainable without depleting a finite resource. Examples of alternative energy are Biofuels; Geothermal Energy; Solar Energy; Tidal Energy; and Wind Energy. Biofuels refer to the use of organic material produced by living plants and organisms. In principle, burning Biofuels adds less carbon to the environment than burning fossil fuels because the carbon atoms released by burning Biofuels already existed as part of the modern carbon cycle. Burning fossil fuels, on the other hand, always adds extra carbon because the carbon they contain comes from a buried source that was not part of the modern carbon cycle. Geothermal Energy refers to energy contained in intense heat that continually flows outward from deep within Earth. This heat originates primarily in the core. Compared to other types of power plants, geothermal plants have relatively little effect on the environment. Geothermal power plants have been successfully operated in farm fields, in sensitive desert environments, and in forested recreation areas. Solar Energy refers to the heat and light harnessed from the rays of Sun that streams into the Earth. This is seen as the most valuable source of energy as it is eternally a part of the Earths sustenance. Tidal Energy refers to energy generated from the force of rushing waters. The energy of tides has been harnessed to produce electricity. In the summer of 1966, a tidal
34 35

Group 2. The right to Compensation is a Consttutional right available to all citizens in Section 44(1) 36 Section 33(1) of the Mineral Act and Mineral Oils Act. 37 Similar provision in

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power plant with a capacity of 240,000 kilowatts (kw) went into operation on the Rance River, an estuary of the English Channel in northwestern France38. The highest tides in the world occur in the Bay of Fundy in Nova Scotia, Canada, where the difference between high and low tide is about 18 m (about 60 ft). The Annapolis Royal tidal-power project came into service in 1984 and harnesses the massive water movement in the Bay of Fundy to generate electricity.

Wind Energy refers to energy contained in the force of the winds blowing across the earths surface. When harnessed, wind energy can be converted into mechanical energy for performing work such as pumping water, grinding grain, and milling lumber. By connecting a spinning rotor (an assembly of blades attached to a hub) to an electric generator, modern wind turbines convert wind energy, which turns the rotor, into electrical energy. The Connecting Factor How do these sources affect Oil and Gas Pollution? The very reason and cause for the search of renewable energy is the hazardous nature of oil and gas energy. The advent of Industrialization has led to the use of machinery at such a rate that it is not only harmful to man in the long run, but the fears of global warming and melting ice-caps. The theory is thus; the advent of new energy is reducing the need and reliance on oil and gas. Therefore, the fear of oil producing states and Companies is that untapped oil reserves can be rendered useless in as little as twenty years. In reaction, production has sped up so as to maximize the potential as soon as possible. The increased production then inevitably accompanies increased pollution. The formula is; New Energy = less need for oil in future = need to maximize oil potential now = multiplied Oil and Gas production = multiplied Oil and Gas Production 39. This in essence is in favour of the inevitability of pollution as this means that attempts to slow down oil and Gas production will in turn cripple Nigerias Economy. Although Nigeria is as always lagging behind in our search for alternative sources of energy, the reason is rather ironic. Nigeria because of her vast oil and Gas reserves are reluctant to explore other sources of energy. It will be pointless to start to sideline Oil and Gas when there really isnt any other resource at our disposal that can make up for the annual treasure chest in terms of Revenue.

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Microsoft Encarta 2009. 1993-2008 Microsoft Corporation. All rights reserved.

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Group 2 oil and gas pollution.

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Another fact worthy of mention is the fact that Nigeria is yet to tap into her Natural Gas reserves which according to various reports is well over and has the potential to yield almost two times the amount of Revenue that crude oil is currently generating.

RECOMMENDATIONS

A lot of practical hope for the Nigerian Oil and Gas sector is resting on the shoulders of the Petroleum Industry Bill (PIB)40. It can be described as prospective Recommendation Act and gives a number of regulations on Oil and Gas pollution. 2.11.3.7. Regulations Environmental quality management 199. (1) Every licensee or lessee engaged in petroleum operations shall, within one year of the commencement of this Act, or within three months after having been granted the license or lease, submit an environmental management plan to the Inspectorate for approval. The environmental management plan shall: (a) Contain the written environmental policy, objectives, and targets of the licensee or lessee; (b) Provide initial baseline information and establish a program for collecting further baseline information concerning the affected environment to determine protection, remedial measures and environmental management objectives; (c) Investigate, assess and evaluate the impact of the proposed exploration and production activities on: (i) The environment, and (ii) The socio-economic conditions of any person who might be directly affected by the petroleum operations; (d) develop an environmental awareness plan describing the manner in which the licensee or lessee intends to inform its employees of any environmental risks which may result from their work and the manner in which the risks must be dealt with in order to avoid pollution or degradation of the environment; and (e) Describe the manner in which the licensee or lessee intends to: (i) modify, remedy, control or stop any action, activity or process which causes pollution or environmental degradation, (ii) contain or remedy the cause of pollution or degradation and migration of pollutants, and (iii) comply with any prescribed waste management standards or practices. (2) The Inspectorate, in consultation with the Federal and State Ministries of Environment shall approve the environmental management program if: (a) it complies with the subsection (1) of this section; and
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GOVERNMENT MEMORANDUM - PETROLEUM INDUSTRY BILL 2009.

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(b) the licensee or lessee has the capacity, or has provided for the capacity to rehabilitate and manage negative impacts on the environment. (3) The Inspectorate shall not approve the environmental management plan unless it has considered the comments of the said Federal and State Ministries of Environment. (4) The Inspectorate may call for additional information from the licensee or lessee and may direct that the environmental management program in question be adjusted in such way as the Inspectorate may require. (5) The Inspectorate may at any time after the approval of an environmental management program and after consultation with the licensee or lessee concerned, approve an amended environmental management program. (6) No chemicals shall be utilized for upstream petroleum operations, unless the Inspectorate has granted the applicable permits. Section 323 is very specific that every company engaged in any activities with respect to petroleum operations, shall comply with all environmental health and safety laws, regulations, guidelines or directives as may be issued by the Ministry of Environment, the Minister of Petroleum or the Regulatory Institutions, as the case may be. This means the company shall comply with new regulations that may be issued, which did not exist at the time of the granting of the license or lease or technical or commercial license. As a result of the oil spill in the Gulf of Mexico it is likely that regulatory entities around the world will develop new regulations and directives with respect to deep water drilling operations. Section 323 permits Nigeria to adopt any new international practices that may emerge and apply these practices to any petroleum operations. The Act also makes provisions for; Protected objects 196. (1) In the course of upstream petroleum operations, no person shall injure or destroy any tree or object which is: (a) Of commercial value; or (b) The object of veneration; To the people resident within the petroleum prospecting license or petroleum mining lease area, as the case may be. (2) A licensee or lessee who causes damage or injury to a tree or object of commercial value or which is the object of veneration shall pay fair and adequate compensation to the persons or communities directly affected by the said damage or injury. As regards Compensation the Act provides; Compensation 197. The amount of compensation payable under section 196 shall be fair and adequate in consultation with designated persons and representatives which shall include a licensed valuer, in accordance with regulations prescribed under this Act.

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One addition made by this act is its provision for failure to compensate. It provides; Effect of failure to pay compensation 198. (1) where a licensee or lessee fails to pay compensation, the license or lease shall be suspended until the amount awarded is paid. (2) Where the licensee or lessee fails to make payment within thirty days after the suspension of the said license or lease in accordance with subsection (1) of this section, the Minister may revoke the said license or lease. As regards Gas flaring, the Bill provides; Gas flaring penalties 200. (1) the lessee shall pay such gas flaring penalties as the Minister may determine from time to time. (2) The lessee shall install all such measurement equipment as ordered by the Inspectorate to properly measure the amount of gas being flared. However, it doesnt seem too different from its predecessors; Consultation with State departments. 201. (1) When considering an environmental management plan, the Inspectorate shall consult with the Federal Ministry of the Environment and the State Ministries of Environment where the license or lease is situated and with any other relevant bodies in the area where the license or lease is situated. (2) The Federal and State Ministries of Environment, and any other bodies that the Inspectorate may consult, shall submit their written comments within thirty days of the date of request. Also; Financial contribution for remediation of environmental damage 202. (1) As a condition for the grant of the said license or lease and prior to the approval of the environmental management plan by the Inspectorate, every licensee or lessee shall pay the prescribed financial contribution to an environmental remediation fund established by the Inspectorate, subject to audit by the lessee, in accordance with guidelines as may be issued by the Inspectorate from time to time, for the rehabilitation or management of negative environmental impacts with respect to the license or lease. In determining the amount of the financial contribution the Inspectorate shall take into consideration the size of the operations and a reasonable level of environmental risk that may be determined to exist. (2) If the licensee or lessee fails to rehabilitate or manage, or is unable to undertake such rehabilitation or to manage any negative impacts on the environment, the Inspectorate may, upon written notice to such holder, use all or part of the fund contemplated in subsection (1) of this section to rehabilitate or manage the negative environmental impact in question. (3) The licensee or lessee must annually assess its environmental liability and increase its financial contribution to the satisfaction of the Inspectorate pursuant to the provisions of subsection (1) of this section. (4) If the Inspectorate is not satisfied with the assessment and financial contribution contemplated in this section, the Inspectorate may appoint an independent assessor to conduct the assessment and determine the financial contribution.

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CONCLUSION It appears that Nigeria is still a long way from developing effective Rules and Laws to combat Oil and Gas pollution. This is in view of the fact that even developed Countries like Denmark and the U.S.A are still struggling in terms of prevention techniques. Also worthy of note is the fact that the criminalization of pollution will never be effective against oil companies as they do not have singular responsible that will take the fall. We must however note that Nigerias pace is alarmingly slow vis--vis the permanent effects on land and human life. The issue of Global warming is only secondary as we need a formula to first and foremost, ensure the economical and environmental wellbeing of Nigeria. This will only be achieved if we put the people first, the environment second and the revenue last. But we concede that, as time has shown, it is easier said than done.

REFERENCES The Constitution of the Federal Republic of Nigeria (1999) National Environmental Standards and Regulations Enforcement Agency (NESREA) Act Environmental Impact Assessment Act The Land Use Act 1978 Harmful Waste (Special Criminal Provisions) Act Hydrocarbon Oil Refineries Act Associated Gas re-injection Act The Endangered Species Act Sea Fisheries Act Exclusive Economic Zone Act Oil Pipelines Act Petroleum Act Petroleum Products and Distribution (Management Board) Act Territorial Waters Act Nuclear Safety and Radiation Protection Act Nigerian Mining Corporation Act River Basins Development Authority Act Civil Aviation Act Factories Act

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Water Resources Act Niger-Delta Development Commission (NDDC) Act. Wikipedia 2010 Encarta 20010 Google.com.ng I.O Smith, Practical Approach to Law of Real Property in Nigeria Blacks Law Dictionary.

RESEARCH FOR THIS PAPER All the research for this presentation was carried out by the Members of Group 2 Oil and Gas, class of 2012. All allusions and references made in this report are accurate and subject to time. Subsequent updates and findings may alter the current validity of this document. However, as at 12. 07. 2011, this document was filed and reported and is valid as the preceding date is concerned.

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