The Environmental Impact Assessment Practice In Nigeria: The Journey So Far

INTRODUCTION
The World Conservation Strategy (WCS) (Published in 1980 by the United Nations) stated that humanity, which exists as a part of nature, has no future unless nature and natural resources are conserved. Conservation includes both protection and the rational use of natural resources. The WCS further emphasised that conservation is not the opposite of development. Stressing the interdependence of conservation and development, the WCS was the first to give currency to the term “Sustainable Development”.

The World Commission on Environment and Development (WCED) endorsed the concept of sustainable development in its Brundtland Report of 1987 (also called Our Common Future). The Commission defined “Sustainable Development” as “Development which meets the needs of the present without compromising the ability of future generations to achieve their needs and aspirations.”

Globally, Environmental Impact Assessment (EIA) is recognised as a tool for achieving sustainable development. The main objective of the EIA is to ensure that potential environmental impacts are foreseen at the appropriate stage of project design and addressed before any decision is taken on the project.

The EIA can be defined as a systematic process for identifying, predicting and evaluating potential impacts associated with a development project. The EIA process must proffer mitigation measures to avoid, reduce or minimize the negative impacts on the environment, public health and property. It must also enhance positive impacts. The mitigation measures entail identifying possible alternative site, project, process design, including that of not proceeding with the project.

The EIA is not a one – off process which terminates in the production of a report on the effects of the project and associated mitigation measures. It also deals with monitoring the construction and operational phases, and acting on the results of such monitoring till final abandonment/closure. The post-closure care is also an integral part of the EIA process.

EIA legislations and the required procedural guidelines for carrying out the EIA process became effective since the 1970s in developed countries. Nigeria took a giant leap when she promulgated her main EIA legislation (i.e. EIA Act No.86) in 1992.

EIA is proclaimed in Principle 17 of ‘Agenda 21’ (Agenda for the 21st century) of the United Nations Conference on Environment and Development (UNCED), which was held on 3-14 of June, 1992, in Rio de Janeiro, Brazil. It states that: “Environmental Impact Assessment as a national instrument shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and subject to a decision of a competent authority.”

The Nigerian EIA Act No. 86 of 1992 makes the EIA mandatory for development projects likely to have adverse impacts on the environment prior to implementation. (Section 14(1) (a) & (b)). Section 14 (1) (d) further states that the Federal, State, Local Council or any of its agencies, prior to environmental assessment of the project in accordance with the EIA Act, shall not “under the provisions of any law or enactment, issues a permit or license, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.”

EIA is mandatory for activities in all sectors of the economy. The activities in the oil and gas sector which require an EIA include:

a) Oil and gas fields development;
b) Construction of off-shore, on-shore, and overland pipe line;
c) Construction of oil and gas processing facilities;
d) Construction of oil refineries;
e) Waste treatment and disposal.

THE SCOPE OF EIA PROCESS
The EIA process entails the following four stages:

A) EIA Reports Preparation
The EIA reports should clearly state:
a) The environmental effects associated with the project and its alternatives at the construction, operational and abandonment phases.
b) Mitigation measures and monitoring strategy for the entire life cycle of the project.
c) The post-closure care / reclamation of the environment should also be explicitly stated in the EIA Reports. ( Sections 4, 21 & 24 of the EIA Act).

B) Public Participation / Independent Review
a) The EIA report is presented to the public for comments. The public display affords the stakeholders and other interested members of the public an opportunity to give their views on the environmental effects and observance of relevant procedures in respect of the EIA process. The comments arising from the public display of the EIA report are forwarded to the Independent Review Panel as part of the assessment process. (Sections 7; 22 (3), 25 & 37 of the EIA Act).

b) The EIA report is also subject to an impartial, scientific and independent review. The peer review should be independent of the regulatory body and the project proponent. The verification exercise by the independent review body ensures that the information in the EIA report is complete, correct and unbiased.

The Nigerian EIA Act recognises the ‘Mediator’ and the ‘Review Panel’ for the independent review. The EIA Act, in sections 34 and 37, set out their duties in the EIA process.

i) ensure that the information required for assessment is obtained and made available to the public;
ii) hold hearing in a manner that offers the public an opportunity to participate in the assessment;
iii) prepare a report setting out:-

– the conclusions and recommendations relating to the environmental effects of the project and any mitigation measures or follow-up program;
– a summary of any comments received from the public; and

iv) submit the report to the council and the regulatory ministry.
Section 39 of the EIA Act places a requirement on the regulatory ministry to publish the report of the independent review body in any manner the council considers appropriate, and shall advise the public that the report is available.

C) Final Decision-Making / Authorisation
In view of the relevant provisions of the EIA Act in sections 13 (1) & (2), 40 (1) & (2), 41 & 42, the outcomes of the final decision – making can be one of the following:
a) The project or one of its alternatives is approved.
b) Request for further study/modify for future consideration.
c) The project is cancelled or rejected altogether.

Sections 9 and 41 of the EIA Act sum up, in respect of a project, the issues relating to final decision – making and those to be notified on the decision.

a) The decision of the regulatory ministry shall be in writing and include the following:
i) Its course of action in respect of the project
ii) The extent which the recommendations concerning mitigations for adverse environmental effects in the mediation and/or review panel’s reports have been adopted
iii) Any follow-up programme to be implemented with respect to the project
b) The regulatory ministry shall make the decision available to interested persons or groups
c) If no interested persons or groups request for the decision, the regulatory body shall publish the same in any manner by which members of the public and persons / groups interested in the activity shall be notified.

D) Post – Project Authorisation Activities
The regulatory body is required to carry out its statutory role of monitoring the follow – up programme for mitigations at the construction, operational and post-closure stages of the project. (Section 41 of the EIA Act).

THE FLAWED EIA PRACTICE IN NIGERIA

The regulatory body for the EIA administration in Nigeria is the Federal Ministry of Environment, Housing & Urban Development (FMEH & UD) (Formerly FEPA/FMENV). The regulatory body, with the approval of the President, Commander – in – Chief of the Armed Forces, is vested with the power to make regulations on EIA Procedure. (Section 61 of the EIA Act).

Regrettably, the EIA Procedure of August 1994 devised and contrived by the regulatory body is deficient and defective. In most cases, the provisions in the EIA procedure step outside the ambits of the EIA Act.

The faulty EIA procedure and vagaries of administrative fiats are being used to undermine the EIA Act. Hence, there is a legacy of environmental degradation and public health impairments arising from the projects whose approvals were purportedly obtained under the EIA Act. The failings of the regulator in this respect give rise to violent agitations in the oil- bearing communities, to assert their rights to healthy and unpolluted environment.

The EIA practice in Nigeria (in its present form) is a showcase for corruption and infraction of the EIA Act. Also, the public access to information through the public registry is yet to be honoured in compliance since the commencement of the EIA Act in 1992.

However, the Etche (Echie) community of Rivers State in the Niger Delta demonstrated a proactive non-violent approach to protection of their environment in respect of the ill-planned waste management facility for non-hazardous and hazardous wastes (tagged ‘Integrated Waste Management Facility’ – IWMF) proposed to be built and operated in the community by Shell Petroleum Development Company of Nigeria, Limited, Port Harcourt (SPDC-E).

The Etche community appointed me as the Environmental Impact Assessment (EIA) advisor for the IWMF. And I acted as an expert witness for the community at different fora organised by the agencies of Federal and Rivers State Governments (both executive and legislature). The issue of discussions bordered on environmental effects, corruption, and infraction of environmental regulations in respect of the Environmental Impact Assessment (EIA) Process for the SPDC-E’s IWMF.

The SPDC-E eventually abandoned the IWMF to hush up the case then pending before the Federal House of Representatives. This was the only but costly strategy available to the SPDC-E to prevent its wrong-doings and unholy dealing with the regulatory bodies from getting to the public domain.

The Etche community, guided by my expertise advice, successfully rejected the SPDC-E’s IWMF, for failing to comply with the due Environmental Impact Assessment (EIA) process. There was no single incident of violence through-out the period of the heated debates and discussions concerning the IWMF, which lasted over eight (8) years (1999-2006). The Etche community approach to Primary Environmental Care (PEC) in its community was exemplary and worth replicating in the Niger Delta area.

Regrettably, the Niger Delta local communities, more often than not, are unable to make informed contributions and decisions on projects affecting their environment in accordance with the laws of the land. So, they make recourse to violent agitations to assert their rights. And the oil companies cash in on the justifiable reaction of the local communities to invite security agencies to unleash naked terror on them.

THE ENVIRONMENT AND STAKEHOLDERS
The environmental stakeholders are under moral and legal obligations to protect and enhance the natural environment. They can do this by combating destructive environmental projects; promoting environmental sustainability of natural resources, good environmental policy/practice; and striving for environmental justice.

The environmental stakeholders include the government regulators, the projects proponents, the local communities, the non-governmental organisations (NGO’s) and the general public. In essence, everyone is a stakeholder in the environment.

The government has a major role to play in providing a national framework for integrating development and conservation. The government should:

• Establish a comprehensive system of environmental law and provide for its implementation and enforcement by all stakeholders.
• Review the adequacy of legal, political and administrative controls concerning implementation and enforcement mechanisms, recognising the local approaches.
• Ensure the national policies, development plans & programmes, budgets and other decisions take full account of their effects on the environment.
• Use economic incentive or disincentive as appropriate to achieve sustainability.

In Nigeria, the EIA regulations are principally contained in the EIA Act No. 86 of 1992. The law is administered by Federal Ministry of Environment, Housing & Urban Development (FMEH&UD). But in practice the law stands ‘abrogated’, as it has not been rightly enforced by the regulator since its commencement. This is due to lack of technical resources by the government regulatory body on the one hand and the considerable leverage of the operators of projects (with potential hazards) over the regulator on the other hand. Both the regulator and operators often engage in pretend game at the expense of the local communities.

The multinational oil and gas industry gives itself moral and legal authority to regulate its own activities and also dictates to the government agencies regarding the regulatory regime. This enables the law to be prostituted to the greedy oil and gas industry. Consequently, the multinational views collaboration with local communities as an undue burden on it rather than a means to develop a productive rapport with its social environment.

In the developed countries, compliance with environmental standards is best achieved not only when government regulators enforce the law, but also with strong community pressure both on the operators and on the government agencies. The western legal system allows affected groups to be heard in administrative procedure and gives them standing in litigation. In Nigeria, there are frequently less political and legal avenues for the participation of local communities and NGO’s in the administrative, political and judicial decision – making process regarding environmentally sensitive facilities.

THE ENVIRONMENT AND FREEDOM OF INFORMATION (FOI)
It is recognised that a company (project operator) may have a trade secret which must be respected and protected. But the protection should not prevent the disclosure of information relevant to the environment and public health. The operation and maintenance of a public registry, as statutorily required by the EIA Act, is consistent with the underlying principle that the public should have access to information on potential hazards that may impact negatively on environmental health safety and property.

Section 57 (1), (2), (3) & (4) of the EIA Act provides that the public registry established and maintained by the regulatory body shall contain in respect of a project:
• records of the commencement of the environmental assessment until any follow – up program is completed.
• records relating to the mediator/review panel’s reports and comments filed by the public in relation to the assessment.
• records in possession of the regulatory authority and other government bodies regarding the project.
• records on third party information on reasonable grounds that the disclosure would be in the public interest.

Records on information bordering on national security shall be excluded from the register (section 61(e) of the EIA Act).

Section 57(6) of the EIA Act further defines the third party information, in respect of entries in the public register, to mean:
“a) trade secrets of a third party;
b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party;
c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of a third party; and
d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.”

The EIA Act further states that, notwithstanding any other enactment, no civil or criminal proceedings in respect of the disclosure of third party information shall lie against the government, regulatory body, or any person acting under their direction or on their behalf for the disclosure in good faith (Section 57 (5)).

Section 63(1) of the EIA Act defines a record to include: “ …… any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microfilm, sound recording, video tape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof…”

The EIA Act places a requirement on the regulatory authority to maintain a statistical summary of all environmental assessments in relation to projects subjected to the EIA process, and shall ensure that the statistical summary for each year is compiled and completed within one month after the end of that year (Section 58 (1) & (2).

Surprisingly, the regulatory authority, in notorious breach of the EIA Act, legitimises concealment of information as a tactical means to cover-up its failings, infraction of regulations and corruption in respect of the EIA process.

THE WAY FORWARD
The EIA process administration in Nigeria is at odds with the EIA Act in terms of institutional framework and procedural guideline. The Nigeria’s EIA regime does not also provide for affected communities, individuals, or groups to be heard on their complaints against the EIA process using administrative procedure, or a fast – track tribunal for dispute settlement.

(A) Institutional Framework
The EIA Act recognises a tripartite institutional structure for the EIA process administration. The Institutional structure comprises:
(a) The President, Commander – in Chief of the Armed Forces
(b) The Council
(c) The Regulatory Ministry

The above arrangement is far from a pecking order. It is more of a co-operative approach to ensure checks and balances in the administration of EIA processes.

Most activities in the EIA process would not be satisfactorily carried out by the regulatory ministry without the consent/permission of the Council and / or the President. Conversely, the EIA Act requires the President and / or the Council to seek the opinion of the regulatory ministry when making some decisions on environmental assessments (See sections 9 (4); 15(1)(a) 17(2)(e); 17(3)(b); 22 (1)(b); 23 (b); 26(b); 27; 29; 30; 32; 36; 49(1) &(2); 50 (1) & (2); 51(1); 53(1); and 61).

Sadly enough, our EIA practice is characterised by distortion of the tripartite arrangement, which is absolutely skewed in favour of the regulatory ministry; thereby making the statutory roles of the other two members (i.e. the President and the Council) alien to the EIA process. Hence, the regulatory ministry exercises power arbitrarily and unlawfully, resulting in corruption and infraction of the EIA regulations.

(B) Procedural Guideline
Nigeria is yet to produce, through administrative mechanisms, a procedural guideline which contains the entire activities in the EIA Act. The present EIA procedure is defective and deficient in that its provisions are either lacking in important detail or largely step outside the ambits of the EIA Act. This faulty EIA procedure and vagaries of administrative orders have been used and are still being used to administer the EIA process in notorious breach of the EIA Act.

I have watched with dismay the wide divergence of the EIA Act and our actual EIA practice since 1992. More importantly, the escalating environmental and public health consequences arising from the dismal failure of the regulator in rightly enforcing the EIA Act call for the legislative intervention, to urgently sanitise the EIA process in Nigeria.

In view of the foregoing, there is an urgent need for a public hearing that will lead to enactment of supplemental legislation on EIA procedure for Nigeria. The new EIA procedure should capture the following:
a) Rectification of ambiguities, obscurities, omissions, wrong spellings and misleading cross references in the EIA Act No. 86 of 1992.
b) The entire EIA process activities in the EIA Act.
• The actors at every step
• The duration of activity at every step
• The time frame between one step and the next
c) Institutional framework reflecting the statutory roles of the tripartite structure (the president, the council and the regulatory ministry) in accordance with the EIA Act.
d) Transparent procedure for ensuring disclosure of records relating to environmental assessments.
e) The right to appeal through the administrative mechanisms and further be heard by a tribunal or arbitrator dedicated to EIA cases.

CONCLUSION
This piece has examined the EIA practice in Nigerian vis–a-vis the attitude of the government regulator in aiding and abetting the irresponsible operation of the extractive industry in the Niger Delta region. It is not also in doubt that the flagrant violation of environmental protection laws pervading the oil exploration and production (E & P) activities is primarily responsible for the harmful impacts affecting the environment, public health and property in this region. These avoidable negative impacts on the social, economic, religious and political space of the people have either been the remote or immediate cause of violent agitations in the ecologically threatened Niger Delta of Nigeria. Therefore, the panacea for the intractable Niger Delta crisis requires a strong political will on the part of the Nigerian government to sanction the greedy and lawless multinationals that treat our people and the environment with contempt and disdain.