This project is an inspiration from God.

This study guide was prepared with a view to contribute my own

quota to the community of selfless students who voluntarily and
painstakingly prepared detailed study materials and made them
available at no cost, of which I have been a beneficiary throughout
my undergraduate years. This study material is meant to assist
assimilation and private reading for Environmental Law students.

NOTE: This study guide is made available at NO COST is not

meant to be printed for sale. It is also not a substitute for the
textbooks and reading materials provided or recommended by the
lecturers. It is solely for revision purposes.

All rights Reserved.

Authored by Oluwasanjo Oreoluwa Precious.

Email Adress: pearlsoluwasanjo@gmail.com

To every student pushing hard for a better future and trying their best to
survive through the storms and fire surrounding getting a law degree, don’t
give in, keep pushing, don’t stop praying and don’t stop surviving. The
silent tears, the many sighs and those sleepless days will pay off soon and
the sun will shine again.

WE WILL MAKE IT TOGETHER!

 Stay Exceptionally Green!

COURSE OUTLINE
1. Definition(s) of the Environment and Environmental Law.
2. Reasons and Theories of Environmental Protection.
3. Customary Environmental Law and Policies for Environmental Protection.
4. Common law principles in relation to Environmental Law.
Nuisance, Negligence, The Rule in Rylands v Fletcher, Trespass.
5. International Environmental Laws
Permanent Sovereignty over Natural Resources, Precautionary Principle, Principle of
Common but Differentiated Responsibility, Polluter Pays Principle, Principle of
Intergenerational Equity, Principle of Common Natural Heritage, Principle of Inter-
Governmental Equity and the Principle of Carrying Capacity.
6. Domestic/Municipal Regulation of Environmental Law: The 1999 Constitution,
The NESREA Act and Regulations, The EIA Act and Domesticated International
Treaties.
7. Water Pollution: Marine, Fresh water and Ground water pollution.
8. Atmospheric Pollution:(Air Pollution, Noise pollution, Ozone Layer Depletion and
Climate Change.
9. Land Pollution and Land Degradation,
Municipal Legal regime to Combat Land pollution.
10. Waste management Technique in Nigeria and Lagos State.
11. Environmental Impact Assessment in Nigeria.
12. Compensation for Environmental Pollution and Environmental Litigation

“We ought to rise day by day with a certain zest and a clear intention.

A design to make the most of every hour;

Not to let the busy hours shoulder each other or tread on each other’s heels,
But to force every action to give up its strength and sweetness.
There is work to be done, and empty hours to be filled as well….
But, most of all, there must be something to quicken, enliven, practice the soul”.
Arthur C. Benson.

TOPIC 1.

DEFINITION OF THE ENVIRONMENT

The Environment is defined under the Environmental Protection Act 1990
(U.K) as consisting of all or any of the following media namely, the air, water
and land, the medium of air including the air within buildings and the air within
other natural or manmade structures above and below ground.
Wilkinson and Wyman defined the Environment as all the interesting factors
and circumstance that surround, influence and direct the growth and behavior of
individual beings, groups, species and communities.1
The Nigerian Environmental Standards and Regulation Enforcement
Agency (NESREA) in Section 37 defines the Environment as water, air, land,
all plants and human beings or animals living therein and the relationships which
exist among these or, any of them.
DEFINITION OF ENVIRONMENTAL LAW.

Professor Amokaye defined Environmental Law as the body of rules that regulates
human activities on the physical and cultural environment toward attaining
sustainable utilization of resources for the social and economic development of the

1
Wilkinson, F.F. & Wyman W., (eds) Environmental Challenge; Learning for Tomorrow’s World, (Althouse Press London
1986)
 society through the adoption of pollution control measures and the integration of
environment considerations into developmental processes.2

Bimal N. Patel defined Environmental law as a collective term describing the

network of treaties, statutes, regulations, common and customary laws
addressing the effects of human activity on the natural environment.

Environmental law is also defined as the compilation of legal rights, duties,

powers and liabilities contained in International Treaties, Customary
International Law, Domestic Legislation and Common Law. It includes all legal
regimes of Environmental protection and the prevention of pollution of Land, Air,
Sea and Waterbodies as well as the regulation, reservation of Bio diversity and
cultural heritage. 3

COMPONENTS OF THE ENVIRONMENT

➢ Atmosphere; gaseous covering of the earth.
➢ Hydrosphere; body of water within the earth.
➢ Lithosphere; the rigid outer most part of the earth consisting of the crust
and upper mantle.
➢ Biosphere; the totality of living organism on or within the earth.
The existence of Environmental laws is solely for Environmental Protection. The need to
protect the environment comes from the consciousness to preserve and nurture the Natural
Resources available to us. There is therefore a dire need for laws that can effectively and
efficiently address itself to the problems posed by the activities of man with a view to
enhancing the quality of life of the people and to guarantee sustainable development.
THE SCOPE OF ENVIRONMENTAL PROTECTION IN NIGERIA.

2
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.3
3
Culled from Environmental Law Class notes delivered by Dr. Olubunmi Ainoi on the 14th day of November 2023.
• Traditional Indigenous Importations
• Colonial laws and Regulations
• The Criminal/Penal Code.
• Land Use Planning Laws

REASONS FOR ENVIRONMENTAL PROTECTION.

1. The need to protect the Environment.
2. Conservation and preservation of Natural Resources.
3. Regulation of Human Activities on the Environment.
4. Control of Environmental Pollution; Water Pollution, Atmospheric Pollution
and Land Pollution.
5. Public Health concerns arising from the abuse of the environment which has
become tremendously unhealthy.
6. The need to address resource depletion due to over consumption of the
available resources by the largely increasing population.
7. Prevention of Health Hazards in order to protect Human Health.4
TOPIC 2.

THEORIES OF ENVIRONMENTAL PROTECTION.

▪ Economic Theory
▪ Deep Ecology Theory
▪ Sustainable Development Theory.
The Economic /Economic Growth Theory
The theory posits that humans can exploit and harness natural resources exclusively
for their own ends. It is Anthropocentric i.e. the theory regards man as the central
unit in the environment. The justification for this theory is however hinged on the fact

4
ibid
that man’s needs and other advanced resources comes from the environment before
they are processed. Man cannot but depend on the exploration and exploitation of the
physical environment around him.

The economic theory holds a host of views, although not limited to:

Man comes from nature and is a dominant constructor capable of transforming

the lithosphere and biosphere at will for sporadic production of material goods. There
is the somewhat sufficiency of natural resources and when they run out, technology
will discover new ones.

The notion that the earth has the capacity to support an unlimited number of
people and that the earth can and will stabilize itself.

The view that Environmental crisis and ecological damages are all scientific
myths and that environmental problems/Challenges will and can be addressed with
the aid of science.

The notion that production and Consumption can increase indefinitely without
no good reason to restrict them.5

THE DEEP ECOLOGY THEORY

This theory is eco-centric; censuring the anthropocentric view and proclaims the
rights of nature. Eco-centrism as a concept sets to redefine the economic concept
into the perspective that the earth is a living and self-regulating organism and that,
man and his environment are perceived as partners in progress. It advocates for a
return to simpler, more natural ways of managing nature with its focus on non-

5
Amokaye, op. cit., 12-14
human nature and protection of the whole eco-system as opposed to humanist
concern. Under this theory, Nature is regarded as special and sacred. 6

The eco system has their own intrinsic worth and unique elements in their own right.
Humans are obliged to respect, protect, and preserve plants, animals and all of nature
because they possess the right to existence and human treatment as well as
respecting the carrying capacity of the environment to meet the growth, population,
economic and technological advancement of man.

THE THEORY OF SUSTAINABLE DEVELOPMENT.

This theory cuts out on the economic and deep ecology theory and has remained the
source and origin of contemporary environmental protection.

Development is defined as the process by which a country provides for its entire
populace through facilitating the construction of infrastructure and mechanism
which would create spontaneity in the productive output of the country such as
agriculture and industries.

Sustainability requires that there is a peaceful equilibrium between man and the
ecological system for peaceful co-evolution of both within the earth surface. It is a
deliberate process whereby the essential ecological processes and life support
systems are maintained including the preservation of genetic diversity for the future
generations and the sustainable utilization of species by the present generation.7

The theory posits that there is sustainability of the ecosystem if there is restraint and
reasonable exploitation of the ecosystem by man for whatever development that is
intended. This is only possible when there is efficient and effective use of natural
resources to get the only permissible and desirable increase in material wealth as

6
ibid.
7
Amok aye, op. cit., p.18
well as reconciliation of environmental and developmental concerns at all levels of
decision making.8

Strict adherence to this procedure will make for efficient management of the earth,
to continue driving more natural resources from the ecosystem for a longer stretch
without altering the ecological balance. Sustainable development is only visible
when there is an increase in a country’s wealth production, conservation and
sometimes recovery of the adequate natural capital to support qualitative
development policy to future generations. This is provided for in Principles 3 and 4
of the Rio Declaration, where it is specifically states that conservation of natural
capital is the nucleus of the notion for sustainable development.

Principle 3 provides for the right of development must be fulfilled so that it

responds in a proper way to the developmental and environmental needs of present
and future generations. Principle 4 reiterates that environmental protection is meant
to be an inseparable part of the developmental process which cannot be dealt with
separately.9

TOPIC 3.

CUSTOMARY ENVIRONMENTAL LAW.

Prior to the inception of the English common law system which is now the hallmark
of our modern legal system, it is important for us to understand that there have been
culturally inclined practices of environmental protection which were in form of
beliefs, practices and lifestyles although rudimentary in nature but were highly
effective.

8
ibid
9
Amokaye, op. cit., p.19
The advent of industrialization and commercialization has opened up bigger
environmental challenges which will require more stringent rules and world
collaboration to tackle in order to clamp down the resounding effects of continuous
exploitation of the earth resources. It is trite to say that the earth has the capacity to
renew itself but it has not been given the time to regain its balance.

These practices have been utilized using various socio-cultural mechanism such as
Belief, Cultural practices, Dietary Prohibition and Taboos.

Taboos are forms of social prohibitions imposed by the leadership of any given
community regarding certain times, places, actions, events, and people, especially,
but not exclusively, for religious reasons for the well-being of the society. Through
taboos, unsustainable exploitation of certain environment’s components such as
plant species, forests, mountains, rivers and animals and other ecological species in
the ecosystem have been successfully achieved.

There has also been systemic and sustainable conservation and forestry practices
applied by the traditional people primarily for the preservation and protection of the
environment and ensuring the biodiversity of the plants and animals in Nigeria and
in Africa.

For the preservation of Land Resources, the traditional people classify and zone
their entire land mass into thick and lower forest and groves. The lower forests for
farming purposes, housing and other social purposes. The thick forests are not to be
cultivated on or its resources utilized for any economic purposes. Some forests are
reserved for game hunting and there are also specialized forests like elephant forests
that hosts endangered species.10 Sacred Groves are small forested ecosystems that

10
Amok aye; opacity. p.9
have been historically been protected by local communities as an integral part of
traditional resources.

For instance, the Zulu tribe of South Africa attribute Divination and Fertility
symbolism to the Fig Tree and consider it to be sacred. Thus, in this community, it is
strictly prohibited to cut down these trees or use them as firewood and when a fig
tree falls accidentally, rituals are conducted to ‘appease’ the gods and to safeguard
the communities from their wrath.

For instance, in some parts of Ebonyi and Imo states of Nigeria, it is forbidden to
kill snakes, let alone eating them. In some part of Rivers state, Crocodile is seen as
sacred beings with some super power. Hence, they are not to be killed. The same
applies to Hippopotamuses.11

Beliefs in the customary environmental context refers to the spiritual, cultural, and
traditional values and principles that guides human behaviour and decision-making
related to the environment. Some cultures place importance on Ants believing that
they are bringers of Good Luck and they should not be killed as they have the right
to live so long as they have been created by God and no human can actively and
successfully create them.

Food gains are always left behind on forest paths for them to pick up after harvest.
The same goes for ducks or other animals plying the road, motorists are to slow
down till they get to the other side. If by accident, a motorist runs over an animal, it
is expected that the vehicle is brought to a halt and some money and other items as

11
Ago Caroline; Tackling Environmental Change in Contemporary Africa; the prospects of Customary Environmental
law.
prescribed by culture is placed on the dead animal. It is believed that failure to do
this might cause an automobile accident up ahead the journey.12

With respect to hunting, Certain animals were off limits and sacrifices were
performed on an occasion of accidental killing.13

In Farming, Shift Cultivation is a major preservation ethos. The local policy

provides that farm lands for cropping in a year must be left uncultivated for years
after harvesting for that year. This is undoubtedly good for the environment as it
prevents over-cultivation which often leads to soil erosion.

Some plants species/ trees were not be cut down even when cultivations are carried
out for farming. They are reserved for herbal medicine or religious worship and are
specially given to such communities by God. For instance, in some communities,
Iroko trees are worshipped as sacred trees, never to be cut down without the
permission of the village gods. Cultural practices regarded various social activities;

Designation of Hills and Mountains as Sacred: In certain cultures, hills and

mountains were in the past designated as sacred where people met with their gods
and fore fathers as the case may be. Such mountains or hills are often protected by
the community from defilement of any kind. This has been very effective in the
protection of the hill and mountain scape as some of those hills and mountains are
eventually developed and made center for tourism and recreation. A good case in
point is the Idanre hill in Ondo state which often attracts many tourists yearly. 14

Dietary Restrictions: It is important to note that many customary practices relating

to food restriction of specific food items for certain individuals, such as snails, twin

12
Gunadi Raymond; Environmental Issues in Yoruba Religion: Implications for Leadership and Society in Nigeria. Last
accessed 6th November 2024.
13
Ibid.
14
Supra, Note 12
bananas (Ogede Ibeji), and monkeys. In various communities in the eastern part,
certain animals are regarded as totems and should not be killed for meat such as
Monkeys (Anambra, Awka), wild rabbits (Ewi) in Nnewi, Crocodiles, Bush birds
(okwa), Native Cows (Ehi igbo), snails and some snakes. In Orogun kingdom in
Ughelli North Local Government, the reptile Iguana are sacred and must not be
eaten or killed. Ancient myth provides that these animals formed a chain to serve as
a bridge across the river in their flight for safety during the trade fight between the
Orogun people and Benin Traders. Eating them by indigenes bring about rashes to
their bodies in which the culprit will be marked with native chalk from the shrine
and must undergo cleansing. When an Iguana dies, it is given a befitting burial 15

TOPIC 4.

COMMON LAW PRINCIPLES AND THEIR INTERRELATIONSHIP

WITH ENVIRONMENTAL LAW.

The Law of Torts is an offshoot of the common Law that is in sync with
environmental pollution control. A tort is a civil wrong which entitles the injured
party to claims damages for his loss or seek an injunction for the discontinuance or
prevention of the wrong. There are four torts specifically relevant to the control of
environmental pollution.

• Negligence
• Nuisance
• Trespass
• Strict Liability

15
Rim Rukeh et.al; Traditional Beliefs and conservation of natural resources; Evidence from selected communities in
Delta State, Nigeria.
 NEGLIGENCE

Winfield and Jolowicz defined the tort of negligence as the breach of a legal duty to
take care resulting in damage undesirable by the defendant to the plaintiff. The main
elements which the aggrieved must prove:
a. Duty of care owed by the polluter to the plaintiff.
b. The polluter breached the duty of care.
c. The breach caused foreseeable damage to the Plaintiff.

Successful proof of harm/ damage will accrue remedies which are damages and
injunctions which may be mandatory or prohibitive. In relation to environmental
issues, it is largely unhelpful for a host of reasons. Its application poses
complications, where the type of loss suffered by the Claimant is purely economic or
largely psychiatric or in situations where negligence is caused by omission of a
rather positive act.16

NUISANCE
It can be defined as inconvenience materially interfering with the ordinary physical
comfort of human existence. However, under environmental law, Nuisance occurs
when the emission of noxious or offensive materials from the defendant’s premises
significantly impairs the use and enjoyment by another of his property or
prejudicially affects his health, comfort or convenience. 17

Nuisance may be public or private. The relevance of the common law principle of
nuisance can be seen in the area of the polluter’s action leading to ‘material injury
to the property’ of the plaintiff such as flooding or depositing poisonous

16
Amokaye, op cit.p.87
17
National Open University of Nigeria; EMT 501: Environmental Law and policies Lecture Note
substances on crops as espoused in Attorney General v Cole and in relation to
‘sensible personal Discomfort such as excessive noise pollution and offensive odors
such as Adams v Ursell and in St Helens Smelting Co. v Tipping18

The same conduct leads to committal of both. The remedies available to the plaintiff
in this regard are (1) Damages and (2) an Injunction to restrain further nuisance and
abatement. However, the recent reality is that nuisance law in remedying
environmental harm caused by oil exploration has been watered down by virtue of
the utility factor which posits that oil production is important for the socio-economic
development which outweighs temporary inconvenience of the communities and
their farms.

STRICT LIABILITY

Liability is strict in those cases where the defendant is liable for damage caused by
his act, irrespective of any fault on his part as espoused in the rule in Rylands v
Fletcher (1986) LR Ex 265. The decision in this case established strict liability tort.
The principle states that polluters are liable, irrespective of wrongful intent of
negligence and in the words of House of Lords: “We think that the rule of law is that
the person who brings on his land, collects and keep there, anything, likely to do
mischief if it ‘prima facie’ answerable for all the damage, which is the natural
consequences of the escape”.

It is important that for a Plaintiff to be successful or to rely on the principle as

decided in the above cases, he must prove that there was a non-natural use of land
by the defendant and he must show that there was an escape of materials or objects
from the defendant’s adjourning land to his property. Irrespective of the problems,
the rule has no doubt been successfully applied in environmental law

18
Supra Note 16 p.80
cases/litigations. Most particularly, those involving the oil sector, that is, oil spillages
as outlined in (Umudje vs. Shell-B.P Petroleum Development Co. of Nigeria Ltd
(1975) 11 S.C 155).

TRESPASS TO LAND.

This tort may be committed either physically by the person or by causing an object to
intrude on the land of another. The defendant’s conduct must be intentional rather
than careless or unreasonable and the resultant damage must have direct rather indirect
consequences. The Prior of Southwark’s Case espoused that deliberate entry on the
land was sufficient and it is irrelevant whether or not the defendant knew that he was
entering the land or thought that the entry was authorized as in Conway v George
Wimpey. In Simpson v Weber, simply placing waste or noxious substance on the
boundary so that it comes into contact with the plaintiff’s land will amount to trespass.
The same was espoused in Weststripp v Baldock.

ADVANTAGES OF THE COMMON LAW REMEDIES

• Where there is a dearth of federal or state laws/statutes on remedies for certain

environmental harm, the common law principles will suffice.
• Where environmental pollution did not reach the threshold standards set up by
the laws/statutes, sometimes these damages are recognizable under the
common law principles.
• These remedies can be modified to meet individual circumstances and
sustaining a wide range of remedies which could be monetary based or
injunctive.
• They are regarded as supplementary statutory regulations particularly for the
assessment of Damages and payable compensation.19

19
Amokaye, op.cit. p.71
 CRITICISMS OF THE COMMON LAW RULES

• These rules have become inadequate to address contemporary environmental

issues like bio diversity loss, ocean acidification, acid rain and a host of
others.
• These common law rules are not fully effective as a sword for compensation
for aggrieved persons because of the growing uncertainty marked by the
inability to ascertain reasonable forseeability of the polluter’s activities.20
TOPIC 5.

PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL

PROTECTION.

THE PRECAUTIONARY PRINCIPLE

This is by far one of the most important international environmental principles to

prevent environmental damage and for sustainable development. This principle
advocates prevention instead of remediation and is inclined with taking
precautionary measures in proportion to potential damage.

The principle highlights that the earth’s system is self-repairing and at the same time
vulnerable and the lead way effect is to caution environmental activities which may
cause ecological imbalance instead of permitting them and deferring the rectification
process for later.

It is rooted in Principle 15 of the Rio Declaration which provides that the approach
is to be applied by states according to their capabilities. In cases of threats of serious

20
Ibid.
or irreversible damage, lack of scientific discovery will not be a reason for
postponing cost-effective measures to prevent environmental damage. Prompt action
is required to be taken by communities and states on an occasion of reasonable
foreseeability of environmental harm.21

It is trite to say that it is not easy to predict environmental damage sometimes it can
be calculated meaning that some kinds of damage are certain to happen because they
flow from a particular use of the environment and the manner at which these
resources are exploited and harnessed. It is safe to be over protective of the
environment than to leave its resources on the table for a gamble.

This principle has been applied in the Gabcikovo - Nagymaros Project, Hungary v
Slovakia’s case.

Other roots for this principle include:

Article 3 of the United Nations Framework Convention on Climate Change.

Article 3(3) of the Convention on Biological Diversity.

Preamble of the Convention on Biological Diversity.

Article 4, paragraph 3(f) of the Bamako Convention.

The Cue; Prevent pollution shapaly, no wait till the earth scatter finish before taking
action….no wait until nature vex!!!

PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES

This principle advocates that it is a positive obligation for natural resources to be

used sustainably by the sovereign states that possess them. The United Nations

21
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.157
Resolution declared that the right of the people and nations to permanent
sovereignty over their natural wealth must be exercised in the interest for national
development and for the well-being of concerned persons.

The exploitation, disposition, economic development of these resources as well as

the import of foreign capital has to be in line with the rules and conditions which the
people consider. This principle outlines where mutual benefit of exploitation of
natural resources and international law fuse together.

Roots; Article 21(3) of the African Charter on Human and Peoples’ Rights.

Article 1(2) of the Civil and Political Rights Covenant and the Economic & Social Right
Covenant.22

POLLUTER PAYS PRINCIPLE

This principle encapsulates a decent burden of responsibility on polluters. It is a

preventive, compensatory and punitive principle all in one. It provides that the
cost of pollution should be borne by the person or persons responsible for causing
pollution, consequential costs and damage. The polluter will be made to pay the cost
of pollution abatement, environmental rehabilitation where necessary as well as
damages for aggrieved persons who suffered damage caused by pollution.

Principle 16 of the Rio Declaration; Nations are encouraged to internalize

environmental costs and ensure that the polluter pays the cost of the environment in
such a way that it does not have any effect on trade and investors.

There are arguments that the polluter pays principle should not be punitive but must
be incentivized. By virtue of this principle, environmental cost and the cost of
preventing potential harm should be shouldered by the producers rather than

22
Amokaye, op.cit. p.55
imposing it on the society. This is in view of the reality that pollution costs are borne
by the entire community or by consumers and seldom by those who pollute.

The aim of the principle is to place an obligation on the polluter to bear the full cost
of pollution by factoring them into the activities of such establishment.

The principle embedded in Section 21 of the FEPA Act.23

Cue; If you pollute the environment, you go pay!

PRINCIPLE OF COMMON NATURAL HERITAGE

The environment has been classified and acknowledged as man’s natural/cultural

heritage and thus it requires equal protection. The bane of the natural heritage
includes the geography, biological species, topography, natural aesthetics as well
as other deeper elements of nature.

It encompasses exceptionally sensitive eco-systems, areas of great ecological or

geological value, areas of rich bio-diversity, areas of untouched by human activity,
natural or geo-morphical formations with special ecological or aesthetic value such
as waterfalls, wells, ravine, beaches, caves, reefs, rocks, bank, and shoreline
vegetation, coral formation etc.24

This principle annunciates the need for the preservation of the natural assets not only
in its original state but in the sustainable exploitation of resources.

This principle recognizes and ensures that there is considerable protection of the
quality of life and natural landscapes, rocky outcrops, the coastlines, green life, wild
forests and to ensure that they do not become objects of appropriation and its

23
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.162

24
Amokaye, op.cit, p.164
common use to be in any way revoked, restricted or degraded. It is open and should
be accessible to all.

This principle adumbrates that wild life is sacred, to be conserved and must be
exempted from human intervention. The rationale and justification of this is to
maintain the balance between man’s activities and the ecosystem.

Roots: Section 20 of the 1999 Constitution.

Federal Environmental Protection Agency Act.

Principle 4 of the Stockholm Declaration.

Ramsar Convention on Protection of Wetland.

PRINCIPLE OF INTER-GENERATIONAL EQUITY

This concept deals with justice and fairness in the distribution of resources and
responsibilities, stating that each generation owes a duty to future ones to avoid
impairing their abilities to fulfill their basic needs. The present generation is under
a duty to exercise prudent and austere measures in the management of the natural
resources in order to ensure that the environment is handed over in a suitable manner
to the future generations.

All humans, present and future have an “equitable right of access to use the common
patrimony of natural and cultural resources of our planet. According to Weiss, the
normative theory of intergenerational equity includes duties to conserve resources, to
ensure equitable use, avoid adverse impact, prevent disasters, and to mitigate
damage and compensation for environmental harms.25

25
Weiss, E.B., In Fairness to Future Generations; International Law, Common Patrimony and intergenerational Equity
(New York; Trans-national Publishers, Inc.1989)
It espouses that the current generation is to hold on trust for the full benefit, use and
enjoyment of the generation yet unborn subject to careful use and protection. There
is the need for restraint in the use and management of natural resources for future
beneficiaries.

Roots; Article 4 of the 1979 Moon Treaty

Preamble of the United Convention on Biological Diversity

Article 3(1) of the United Convention on Biological Diversity.26

PRINCIPLE OF PUBLIC PARTICIPATION

The E.I.A Act specifically provides for public participation. This is the process
where the public takes part in the implementation of policies. The public consists of
non-governmental activities such as NGOs and CSOs. The aim is to engender
collaboration between State and Communities and calling out bad environmental
policies.

Roots; Principe 10 of the Rio Declaration

Chapter 23 of Agenda 2127

PRINCIPLE OF COMMON BUT DIFFRENTIATED

RESPONSIBILITY.

This principle attests that the level of contribution to global pollution and emission
determines the assignability of liability for ensuing environmental damages and the
responsibility for clean contribution to the global environmental changes such as

26
Supra Note 23
27
Ibid.
depletion of the stratospheric ozone layer and global climatic change, restoration,
their remedial measures and consideration.28

The principle explains that there are multi state actors in the global environmental
activities with each actor having a certain level of clean contribution to the global
environmental changes such as depletion of the stratospheric ozone layer, global
climatic change and in the same vein attesting the disparity between developed and
developing countries.

Roots; Principle 7 of the Rio Declaration on the Environment and Development;

“….in view of the different contribution to global environmental degradation, states
have common but differentiated responsibilities. The developed countries
acknowledge the responsibility that they bear in the international pursuit of
sustainable development….”

Section 3 paragraph 1 of the U.N.F.C.C.C.

Principle 10 of the Rio Declaration.29

PRINCIPLE OF INTER-GOVERNMENTAL EQUITY.

This principle is somewhat similar to the Principle of International Co-operation

and Good Neighborliness as espoused in Article 74 of the U.N Charter in relation to
social, economic and commercial matters contained in many treaties and state
instruments to foster vivacious attitude towards environmental protection and
emergencies via state collaboration.

28
Amokaye; op.cit. p.166
29
Ibid.
Principle 24 of the Stockholm Declaration reflects a general political commitment
to international co-operation in matters concerning the protection of the
environment. Principle 27 of the Rio Declaration provides that the people and State
are to co-operate in the spirit of partnership and in good faith to ensure that the
principles contained in the Declaration is actualized and also to pave way for further
future development of international law in the field of sustainable development.
When states implement and adopt environmental inclined treaties and conventions,
this principle comes to life.30

PRINCIPLE OF CARRYING CAPACITY.

Carrying capacity entails the number/unit of species which can be maintained

indefinitely by an eco-system without degradation. It is actually the optimum size
which maintains the equilibrium of the whole system. This principle states that the
construction of man-made systems must not supersede their own carrying capacity
or that of the ecosystem that influences them.

It poses inherent adaptability and balanced co-existence and co-evolution of made-

made systems and the eco system, placing a limit on the development of man-made
systems. For there to be equilibrium, there has to be careful operation and co
evolution of both because when carrying capacity of both systems are exceeded
there will be disturbance/imbalance resulting to irreversible results.

This principle in practice requires that a distinction should be made between

ordinary and fragile eco-system., established measures to determine the carrying
capacity of man-made systems as well as steady state policy/principle for the natural

30
Amokaye ,op.cit p.167
atmosphere, hydrosphere and lithosphere systems whose elements must remain at
appropriate values.31

Roots; Principle 3 and 6 of the Stockholm Declaration.

TOPIC 6.
DOMESTIC/MUNICIPAL REGULATION OF ENVIRONMENTAL LAW

The 1999 Constitution

The NESREA Act Regulations
The EIA Act
Domesticated International/Regional Treaties
THE 1999 CONSTITUTION.
Section 20 provides that the state shall protect, improve the environment and
safeguard the water, air, land, forest, wildlife in Nigeria.
Section 12 establishes although impliedly that international treaties (including
environmental treaties ratified by the National Assembly should be
implemented as law in Nigeria.
Section 33 and Section 34 which guarantees fundamental Human Rights to
life and Human Dignity respectively have been argued to have links with the
need for a healthy and safe environment to give effects to these rights.
NESREA ACT
Administered by the Ministry of Environment, the NESREA Act replaced
the Federal Environmental Protection Agency Act. It is the embodiment of
laws and regulations focused on the protection and sustainable development of
the environment and its natural resources.

31
Ibid p.168
 Section 7 provides authority to ensure compliance with local and international
environmental laws on environmental sanitation, pollution prevention and
control through monitoring and regulatory measures.
Section 8 (1)(k) empowers the agency to make and review regulations on the
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. The offence is punishable under this section
with a fine not exceeding N 1,000,000 (One million Naira) and an
imprisonment term of 5years for individuals and N 5,000,000 for companies.32

ENVIRONMENTAL IMPACT ASSESSMENT ACT

This Act deals with considerations of environmental impact in respect of
private and public projects.
Section 2(1) requires an assessment of public or private projects likely to have
significant 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 where E.I.A is required.

32
Nnamani, Emmanuel C. And Odoh, Osita D; Effective Waste Management in Nigeria: An Approach for Sustainable
Development. Available at:
https://www.researchgate.net/publication/351062102_EFFECTIVE_WASTE_MANAGEMENT_IN_NIGERIA_AN_
APPROACH_FOR_SUSTAINABLE_DEVELOPMENT?__cf_chl_tk=MNxeAIIqKIyx3_jzkFUg19GmV1._6qJbVNz
Z4C4TeWM-1738429880-1.0.1.1-1Net.tH.1HQgaQ4Ekz48wPX9cCYVwriDgDy01vxYO7U
 Section 60 creates a legally liability for contravention of any provision.33

DOMESTICATED INTERNATIONAL/REGIONAL TREATIES

Nigeria has signed/acceded to some global and regional treaties, agreement,

protocols on the Environment which include but not limited to:

1. The Universal Declaration of Human Rights 1948;

Article 25(i) states that everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food, clothing,
housing and medical care.

Article 28 entitles everyone to a social and international order in which the rights
and freedoms in the declaration can be realized in compliance with international law.

2. Convention on the prevention of marine pollution by dumping of waste and

other matters, 1972.
The treaty provides measures to prevent dumping of waste and other pollutants into
the marine environment.
Article 1 of the treaty provides for the effective control of all sources of pollution of
the marine environment and emphasizes on taking all practicable steps to prevent the
pollution of the sea by dumping of waste capable of causing hazards to human life
and interfering with other legitimate uses of the sea”.34

33
Ibid.

34
FUNAAB EMT 501: Environmental Law Lecture Notes
 3. International Convention for the prevention of pollution of the sea by oil
1954; amended in 1962 and 1969).
The convention was aimed at preventing and curtailing the pollution of the sea and
prohibiting the discharge of oil or oily mixture in the stated zones.

4. Convention on the Continental Shelf 1958.

Nigeria acceded to this treaty on 28 May 1971. The treaty recognizes and delimits
the rights of states to explore and exploit the natural resources of the continental
Shelf. Articles 5 and 7 provides that exploration of continental shelf and the
exploitation of its natural resources must not interfere with navigation, fishing,
conservation of the sea life, fundamental oceanographic or other scientific research
carried out with the intention of open publication.

5. The Convention on the High Sea 1958:

Acceded to in 1962. Aimed at codifying rules of International Law relating to the
high sea. “High Seas” according to Article 1, means “all parts of the sea not
included in the territorial sea or in the internal water of a state”.

Article 24 propels environmental protection states to draw up regulations to prevent

sea pollution by the discharge of oil from ships/pipelines, exploitation and
exploration of the sea bed and its sub soil taking account of existing treaty
provisions on the subject.

Article 25; Measures must be taken to prevent sea pollution by oil discharge from
dumping of radioactive wastes. 35

6. OAU Convention Banning Outright Import of All Forms of Toxic Wastes

into Africa and controlling Trans –boundary Movement of such Wastes.

35
Ibid.
 7. African Charter on Human and People’s Rights. Signed and ratified in
August 1982 and June 1983.
Articles 24 provides that all persons shall have the right to a general satisfactory
environment favorable to their development. Article 26 stated that “Parties to the
charter shall allow the establishment of appropriate national institutions entrusted
with the promotion and protection of the freedom guaranteed by the Charter.

8. Vienna Convention for the Protection of the Ozone Layer 1985.

Purpose: To protect the ozone layer through precautionary measures to control

global emissions of substances that deplete it.

9. Basel Convention on the control of Trans – boundary Movement of

Hazards, Wastes and their Disposal; 1989. Acceded to in March 1991
Purpose: Minimum reduction and efficient management of trans-boundary
movements of wastes.
• Minimizing the amount of hazardous waste and ensuring environmentally
sound disposal.36

TOPIC 7.

ENVIRONMENTAL POLLUTION

MARINE POLLUTION

Marine pollution is defined by the United Nations Convention on the Law of the
Seas (UNCLOS) “as the introduction by man directly or indirectly, of substances
or energy into the marine environment, including estuaries which results or is likely
to result in such deleterious effect as harm to living resources and marine life,

36
FUNAAB EMT 501: Environmental Law Lecture Notes
hazards to human health, hinderance to marine activities, including fishing and other
legitimate use of the sea, impairment of quality of uses of sea water and reduction of
amenities”.37

Marine elements include the ocean, waterbodies, enclosed seas, high seas, sea bed,
as well as the marine areas under national jurisdiction such as continental shelves,
exclusive economic zones fishery zones, other functional zones, archipelagic waters
and territorial waters. Archipelagic waters refer to the waters enclosed by an
archipelago, which is a group of islands that are closely spaced and interconnected.38

SOURCES OF MARINE POLLUTION

• Land based activities: run off from agricultural pesticides, herbicides,

effluents discharged from sewage plants, maritime transportation, offshore
vessels and sea bed activities.
• Operational and accidental oil spill into the marine environment, arising
from oil exploratory and exploitative activities or from oil vessel through
intentional or accidental discharge of oil and waste into the ocean.
• Discharge of chemicals and other forms of industrial and radioactive waste
into the ocean.39
MUNICIPAL REGIME FOR MARINE RESOURCE

PROTECTION.

• National Environmental (Coastal and Marine) Regulations, 2011.

The Regulations regulate the activities of all users of coastal and marine areas in
Nigeria and seeks to provide regulatory framework capable of preserving the natural

37
Amokaye, op.cit. p.698
38
Ibid.
39
Ibid.
ecological conditions of the marine environment from degradation and to reduce the
long-term irreversible risk effects on the coast.

Regulation 2 contains the objectives of the regulation elaboratively.

Regulation 4(3) & (4) states that the input of communities and the local government
at work as state holders is necessary to determine what areas are to be included as
Coastal and Marine Areas.

Regulation 5 classifies these areas into Critical Rescue Zones (CRZ).

CRZ I areas that are ecologically sensitive and important such as parks/marine
parks, forest reserves, wildlife habitats; areas of outstanding natural beauty; areas
close to spawning and breeding of fishes and other Marine Life; areas between the
Low Tide Line and High Tide Line.

CRZ II areas that have already been developed up to or close to the shorelines area
within municipal limits or in other legally designated urban areas.

CRZ III relatively undisturbed areas and do not belong to CRZ I OR CRZ II coastal
zones in rural areas (developed and undeveloped) and areas within Municipal limits
which are not substantially built up.

CRZ IV artificial formed low tide elevations on Island and Coastal Areas.

• Oil in the Navigable Waters Act, 1968.

Section 3 provides that it is an offence for a Nigerian ship to discharge oil into a part
of the sea designated as "prohibited sea area". A violation of this Act attracts a fine
for the owner or master of the ship not exceeding N2,000 on a summary trial. It is an
offence to discharge oil from any vessel from any place on land, or from any
apparatus used for transferring oil from or to a vessel into the "whole of the sea
within the seaward limits of the territorial waters of Nigeria and all other waters
within those limits including inland waters which are navigable by sea-going ships."

However, there are some exceptions. Section 4 states that a vessel may discharge oil
in order to secure the safety of the ship and save lives at sea or where the discharge
has resulted from damage to the ship. A ship owner or master can also prove that the
discharge arose as a result of damage to the vessel itself or by reason of leakage
provided that the leakage was not due to any want of reasonable care. Also, the ship
owner or master may plead sabotage and establish absence of negligence where it is
of utmost emergency.40

THE TORREY CANYON CASE

The oil spill happened in 1967. The canyon was owned by an American but was
registered in Liberia which ran underground on international waters in the English
Channel. It was reported that about 120,000 tons of crude oil leached out into the sea
and polluted the nearby French and English coastlines. To curtail the pollution, the
wrecked ship was bombed and the oil set ablaze but considerable damage was
already done to the marine wildlife leaving coastlines severely affected.

The incident pushed for the Convention Relating to the Intervention on the High
Sea in cases of Oil Pollution Damage and the International Convention on Civil
liability for Oil Pollution Damage.41

INTERNATIONAL LEGAL REGIME

UNITED NATIONS CONVENTION ON THE LAW OF THE SEAS.

40
Amokaye,op.cit. p.701
41
Ibid.
Most comprehensive International Instrument which aims to establish legal order for
the seas and ocean which will facilitate peaceful use of the seas and ocean and for
the efficient utilization of its resources and protection of the Marine Environment.

Article 192 requires states to protect and preserve Marine Environment.

Article 194(3) there is an obligation to prevent pollution damage from land-based

activities seabed activities and dumping from vessel.

Article 207 specifically with land-based pollution.

Article 208 deals with sea bed activities subject to National Jurisdiction.

1973 INTERNATIONAL CONVENTION FOR THE PREVENTION OF

POLLUTION FROM SHIPS.

It replaced the 1954 International Convention for the Prevention of Pollution of

the Sea by Oil (OILPOL). Article 1 provides for the regulatory framework on
operational discharge and unintentional release of pollutants and harmful substances
of such effluents such as oil, sewage, plastics and garbage from vessel-based
activities into the Marine Environment.

Article 2(2) gives a touchdown of the harmful substances in the context of Marine
Pollution which includes substances which if introduced into the sea will create
hazards to human amenities or the legitimate uses of the seas.

The Convention established provisions supported by 5 annexes:

• Prevention of pollution by oil (Annex 1)

• The control of pollution by noxious liquid substances in bulk (Annex 2)
• Prevention of pollution by harmful substances carried by sea in packaged
form (Annex 3)
 • Prevention of pollution by sewage from ship (Annex 4)
• Prevention of pollution by garbage from ship (Annex 5)

Annex 1, Regulation 9 provides that Annex 1 seeks to prevent discharge of oil or

oily mixtures into the sea unless certain conditions are met.42

THE 1969 CONVENTION RELATING TO THE INTERVENTION OF THE HIGH

SEAS.

One of the treaties adopted soon after the Torrey Canyon incident.

Article 1 outlines that Contracting parties must take measures to prevent or

eliminate grave danger on our coast lines from pollution or threat of pollution.

Article 3 posits that on account of Ship Collision/ Incident of Navigation which

results to damage, affected ships are to consult with persons, company that have
interest in the ship to ensure that there is no risk of loss of human life.

1969 CIVIL LIABILITY CONVENTION FOR OIL POLLUTING

DAMAGE AND THE PROTOCOL OF 1992

This convention provides for the legal responsibility to pay compensation for
pollution damage. Article II applies to damages caused within the territory of a
state, including territorial seas and Exclusive Economic Zones. Compensation is
also payable for the cost of unreasonable measures taken to prevent or minimize
pollution damage after an altercation.

Article III implements a strict liability regime similar to the Rylands v Fletcher on
polluters for pollution arising from escape or discharge of oil in marine environment.

42
Supra Note 39 p.717
Article V provides that all ship owners can limit their liability as long as they
establish a fund from which damages can be paid to aggrieved individuals.

Other Legislations include;

• 1990 International Convention on Oil Pollution Preparedness, Response and

Co-operation.
• Convention on the Establishment of International Fund for the Compensation
for Oil Pollution Damage 1971 and 1992 relating thereto.43

FRESH WATER/SURFACE WATER POLLUTION

Surface water is defined in the National Environmental (Surface and Ground

Water Quality Control) Regulations 2011 to mean “any waters in the country that
are not ground waters”. Fresh/surface water can be polluted by organic and non-
organic pollutants.44

Pollutants are defined in the Surface and Ground Water Quality Control
Regulations as ” any element or property of dredged material, solid waste,
incinerator residue, sewage, garbage, sludge, sediment, filter backwash, munitions,
chemical wastes, biological material, radio-active materials, heat, wrecked or
discarded equipment, rock, sand cellar dirt, industrial/municipal or agricultural waste
or effluent, petroleum/petrol products, including but not limited to oil; or any
material which is likely to alter the physical, chemical, biological or radiological
characteristics and/or integrity of water as provided for in Regulation 35.

43
Ibid.
44
Amokaye, op cit. p.640
Bio-degradable pollutants are mostly domestic sewage/ industrial effluents that
rapidly decompose by natural process or engineered systems such as human or
animal wastes.

Non -degradable pollutants include Aluminum Cans, Mercurial Salts, (hg) long
chain chemicals, DDT; exotic organic chemicals, including pesticides, industrial
products, petrol/petroleum products especially oil spills. They have direct effects on
marine life and elicits chemical changes in the water column.

ORIGIN OF WATER POLLUTON

Could be Point Source and Non-Point source:

Point Source Pollution is caused by pollutants released from a stationery or fixed

facility such as industrial or chemical waste discharged through pipes, ditches,
lagoons, wells or oil formation. It also includes pollutants emanating from direct
discharge of effluents and waste waters into open rivers, lagoons and estuaries or by
improper management of many industrial sewages waste.

Regulation 35 of the Surface and Ground Water Quality Control Regulations

defines it as “any discernable confined and discrete conveyance, including but not
limited to any pipe, ditch, channel tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation or vessel or other floating craft,
from which from pollutants are or can be discharged but does not include return
flows from irrigated agriculture”.

Non-point source pollution is defined in Regulation 35 of the Surface and

Ground Water Quality Control Regulations as “everything that is not point source
or not associated with a discrete point of discharge or diffused sources associated
with land practices including but not limited to “non channelized run off, drainage,
atmospheric deposition, precipitation and seepage”.

Non-point source pollution is caused by farming, mining and construction

activities. Other sources include run offs moving over the ground that pick-up
pollutants and deposit them into waterbodies, fertilizers and other agricultural
products, chemicals from energy production, salt from irrigation, faulty septic
systems and a host of others.

GROUND WATER POLLUTION

It is defined as “any water found underground which partially or completely fills the
open spaces between particle of soil and within rock formations”45

Section 19 of the Water Resources Act 1993 defines Ground Water as “water
occurring on or obtained from any geographical structure or formation or artificial
landfill, permeated or capable of being permeated occasionally with water and
includes any matter dissolved or suspended in such water”.

Ground water is a source of irrigation, livestock watering, drinking water and

sanitation; naturally protected from losses by evaporation and is generally of good
quality.46 Ground water is naturally impure and the concentration of natural
impurities is dependent on the geological material through which the groundwater
moves and the quality of the recharge water.

SOURCES OF GROUND WATER POLLUTION

45
Regulation 35 of the National Environmental (Surface and Ground Water Quality Control) Regulations 201.
46
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.645
 • Shallow disposal of cooling, processing and cleaning water used by
manufacturing and service industries is another confirmed source of ground
water pollution.
• Cleaning off holding tanks/ spraying equipment on the open ground.
• Disposing of waste in septic tanks;
• Storing hazardous chemicals in uncovered areas/ areas without pad with
drains or catchment basins.
• Mining of fuel and non-fuel minerals.
• Unsustainable disposal off domestic waste water.
• Salt contamination/salt water encroachment as well as incursion of salt water
from the sea because fresh water is pumped too intensively from wells in
coastal areas.

A veritable case illustration of Ground Water Pollution is in Cambridge Water

Works v Eastern Leather Counties Plc where chemicals from the defendant’s
tanning factory percolated into the underground aquifers of the plaintiff.47

TOPIC 8

ATMOSPHERIC POLLUTION

• AIR POLLUTION

• NOISE POLLUTION

• OZONE LAYER DEPLETION

Article 1(4) of the UN Convention on Long Range Transboundary Air Pollution

{LRTAP} defines Air pollution is the presence of any substance in the atmosphere

47
Ibid.
at a concentration high enough to produce an objectionable effect on humans,
animals, vegetation or materials or to alter the natural balance of any ecosystem
significantly.

Air pollution in the words of Atsegbua, et al (2003) “is the of setting of the natural
arrangement of different gases in the air. Air pollution is the accumulation of
substances in the air, in sufficient concentrations to produce measurable effects on
man, plants and animals. It involves the erosion of harmful substances into the
atmosphere, which cause danger to any living things”

Air pollution comes from both natural and manmade sources. Though globally
man-made pollutants from combustion, construction, mining, agriculture and
warfare are increasingly significant in the air pollution equation. Motor vehicle
emissions are one of the leading causes of air pollution. Agricultural air pollution
comes from contemporary practices which include tree felling and burning of natural
vegetation as well as spraying of pesticides and herbicides. The sources of air
pollution could take effect from various locations, activities or factors which are
responsible for the realizing of pollutants in the air. There are two major categories
of sources of air pollutants, that is anthropogenic sources and natural sources.

Natural sources include: windblown soils, forest fires and volcanoes.

Anthropogenic sources: Industrial processes, power generation, waste disposal,

agricultural practices, stationery combustion process etc.

The most common air pollutants are, particulate matter, ground level ozone,
common mono-oxide, Sulphur Dioxide (SO2), Nitrogen oxides and Lead.

Air pollution can be a threat to human life, the health effects vary based on the level
and time of the exposure.
Types of air pollution: Line, Point and Area sources.

A point source is single facility that has one or more emission points.

An area source is a collection of smaller sources within a particular geographical

area e.g. emissions from residential heating.

Line source; One dimensional horizontal configuration.

AIR POLLUTION VIA VEHICULAR EMISSIONS

Biggest source of air pollution more than any human activity. It has become the
dominant source of Common monoxide (CO), Nitrogen Oxides (NOx) that are
Volatile Organic Compounds (VOCs) which are substantial contributors to the
emissions of greenhouse gases. These emissions comprise of hundreds of
compounds that are present in the air in form of aerosols, gases and particulates. The
secondary pollutants that are degenerated from these are Smog, Acid Aerosols, and
Carcinogenic Hydrocarbon.

LEGISLATIONS TO ADRESS VEHICULAR EMISSION

National Environmental (Control of Vehicular Emissions from Petrol and Diesel

Engines)

Part 1 provides for the regulation of emissions from Petrol Engines arising from
new Motor Vehicles. Manufacturers are compelled to produce new technologies to
minimize vehicular emissions through imposition of strict values and penalties for
the pollution by SO2, (NOx) and other unburned hydro-carbons including benzene.
Schedule 4 provides that cars must meet exhaust emission standards prescribed
under the regulation and to verify this, manufacturers, assemblers and importers are
to conduct tests. 48

THE TRAIL SMELTER CASE

The decision in the case supposes that a state is not permitted to allow its territory to
cause harm to the territory of another state.

The Facts; A smelting facility was erected near a locality known as Trail B.C. A
charter was incorporated from the Canadian authorities by The Canadian Mining
Smelting Company of Canada Limited. The company continued operations
uninterrupted till it became the largest equipped Smelting Plant. In 1925 and 1927,
smelting activities increased causing the production of concentrated Sulphur dioxide
fumes measured to be about 300-350 tons of Sulphur emitted into the air every day
in 1930. The emission damaged crops, greenery, trees and agriculture in the United
States.

The United States and Canada agreed to submit their claims to the U.S – Canada
International Joint Commission. The commission made recommendations
concerning damages which were measured up to 350,000 dollars in favor of U.S to
cover up the loss in 1932. In 1933, further damage was recorded and the two
countries submitted their claims to an arbitral tribunal consisting of three arbitrators
supported by two scientists.

The first question to be determined was whether the question was to be answered on
the basis of the law followed in the United State or on the basis of International Law.
The Tribunal applied International Law and remarked that under the principles of

48
Supra Note 46 pp.565-567
international law, no state has the right to use or permit the use of its territory to
cause injury by fumes into the territory of another state, or the property of another,
most especially when the case is of serious consequences and injury is established
by clear convincing evidence. The judgement in the case has been legally
transplanted into Principle 21 of the Rio Declaration. 49

INTERNATIONAL LEGAL REGIME.

THE 1979 LONG RANGE TRANS-BOUNDARY AIR POLLUTION

CONVENTION.

Article 2; The objective is to protect man and his environment against air pollution
limiting it as for as possible, gradually reducing and preventing air pollution
including long range transboundary pollution. Contracting states are to initiate
policies to aid exchange of information, consultation, research and monitoring to
combat the discharge of air pollutant.

The convention seeks to examine the effect of Sulphur Compounds and other major
air pollutants on human health and the environment. It also sought for collaboration
among member states in the area of research and development of existing
technologies to reduce emission of Sulphur compounds and other major pollutants.50

NOISE POLLUTION

Regulation 18 of the (Noise Standards and Control) Regulations 2009 defined

Noise as an unwanted, annoying or excessive non-harmonious sound that has
undesired physiological, institutional, and adverse effect on human health or the

49
Amokaye, op.cit., pp.585-589

50
Ibid.
environment. Noise levels are measured in Decibels(db.) and it is divided into 3
levels: Steady level noise, Mixed noise, and Impact Noise.

Steady level noise is produced over a period of time at a constant level common in
factories and manufacturing plants where machines are commonly used.

Mixed noise is made up of several layers of steady noise.

Impact noise is made up of short duration noise arising from the use of hammer or
drilling machines.

The question to determine noise level is subjective varying from one individual to
the other. Urban dwellers are subject to noise pollution mostly occasioned by
neighborhood noise caused by boom boxes and speakers, power generated plants,
construction, transportation, industrial and religious activities.

Remedies are available to either be private or public. Private remedies as provided

in the common law of nuisance while public remedies are located in the regulations
and standards imposed by statute.

PRIVATE REMEDIES

The courts have been awarding damages involving private and public nuisance
arising from noise pollution to the annoyance or discomfort of a claimant.

In Tebite v Nigerian Marine Co. Ltd, the Plaintiff, a Legal Practitioner complained
that the noise and smell made by the Defendant while carrying on his boat building
and repairing business interfered with his enjoyment of his Chambers premises. The
court found on evidence that the area was a mix of commercial and residential area
yet the noise and smell generated amounted to substantial discomfort and the Court
awarded damages and an injunction to restrain the Defendant.
Also, Adeniran v Interland Transport Ltd; the Plaintiffs sued for and on behalf of
the residents of a residential estate to complain about excessive noise suffered by
them as a result of the Defendant’s haulage activities within the estate. The courts
found that that the activities complained of were public nuisance and substantial
damages were awarded to the plaintiff.

In Karagulamus vs. Kolawole Oyesile (1973) 3 UI.L. R, the fumes coming out of
the defendant’s machines to the Plaintiff’s bedroom were offensive to the Plaintiff
who successfully sued.51

NOISE LEVELS FOR FACILITIES;

Under the Noise Standard Control Regulation, facility is defined as machinery,

instrument, industry, mines and all tools that can generate noise. Where a facility is
used as Hospitals, Convalescence Home, Home for aged, Sanitarium and other
Institutes of Higher Learning, Conference Rooms, Public Libraries, Environmental /
Recreation Sites. Noise levels must not exceed 45 Db(A) (leq) in the day and 35dB
(leq) at night.

This regulation seeks to improve the psychological well-being of Nigerian citizens

and tranquility of their environment by prescribing the maximum noise levels of a
facility or activity which a person may be exposed to as well as the mitigation
measures for noise reduction.

Industrial noise and other form of daily noise exposure to workers should not exceed
90 decibels (db) daily for an 8-hour working period. Regulation 6(1) proposes that
the agency may consult with State/Local Government Authorities to designate any
area as noise control zone for the purpose of controlling noise.

51
EMT 501 MARCH 2021.pdf. file:///C:/users/HomePC/Documents/EMT%20501%20MARCH%20201.pdf. Last
accessed 13th November 2024.
Purely residential: 50 Db(A) (leq) in the day and 35db (leq) at night

Mixed residential (commercial and entertainment activities): maximum noise

level is 55 Db(A) (leq) in the day and 45db (leq) at night.

Mixed residential/ industrial/ small scale production area: 60 Db(A) (leq) in the
day and 50db (leq) at night.

Industrial facility: 70 Db(A) (leq) in the day and 60 db (leq) at night.

Day period is between 6:00 am -10:00 pm and Night time is 10:00pm to 6:00am.52

Factory/workshop: the level from factory/workshop must not exceed 85 Db(A)

(leq) in the day and 60 db (leq) at night.

Construction Site: 75 Db(A) (leq) in the day and 65 db (leq) at night

Public Announcement System or Device placed in a residential zone: 60 Db(A)

(leq) in the day and 40 db (A) (leq) at night. If placed in commercial zone, should
not exceed 75 Db(A) (leq) in the day and 50 db (A) (leq) at night. For Industrial
Zone, 85 Db(A) (leq) in the day and 65 db (A) (leq) at night.

Entertainment: when a [lace is used for amusement, entertainment, playing music,

dancing, performance/show, the maximum noise level 60 Db(A) (leq) in theday and
40 db (A) (leq) at night.

Places of Worship: the maximum noise level 60 Db(A) (leq) in the day and 40
db(A) (leq) at night in residential areas. the maximum noise level 75 Db(A) (leq) in
the day and 50 db (leq) at night. In Industrial areas, it is fixed at 85 Db(A) (leq) in
the day and 65 db (A) (leq) at night.

52
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014, pp. 593-595
 OZONE LAYER DEPLETION

The ozone is a colourless gas that has a very pungent odour. It exists naturally on the
stratosphere blocking out the sun’s ultraviolet rays (a form of electromagnetic
radiation) thus acting as our planet’s natural sun block.

CONSEQUENCES OF OZONE DEPLETION

The Ozone layer protects us most of the sun’s biologically harmful ultraviolet radiation called
“UVB”. Natural events like volcanic eruptions can have adverse effect on Ozone layer, this
however, cannot be compared with effects of man-made Ozone Depletion Substances which
can be found in chemicals used in foam production or in industrial activities where aerosol
sprays are produced as propellants and solvents. The effect of these chemicals is that it reduces
the thickness of the ozone layer by 40% and continually reduces it. The amount of UV-B
reaching the Earth’s surface has been shown to correlate with the extent of Ozone depletion.

Increased UV levels on the earth surface are damaging on human health, air quality,
biological life, and certain materials such as plastics. On human health, exposure have
been linked to certain types of skin cancer, cataracts and sunburns.

According to 1998 assessment by the UNEP, Ultra violet radiation has the capacity
to cause allergy reaction to the skin which could cause immune deficiency disorders.
It can also irritate the membrane lining of the nose, throat and airways and can trigger
or exacerbate asthma attacks. UV-B exposed skin tends to become thicker and
browner.

Biologically, ozone layer depletion disrupts terrestrial and aquatic eco-system and
marine food web thus stunting the growth of tiny marine organism at the base of the
food web such as juvenile fish crab larvae, reducing their ability to reproduce grow
and survive. It affects food chains and biological cycles, in particular, aquatic life
occurring just below the surface of the water. Plant species which form the basis of
the food chain are adversely affected by elevated levels of UV radiation.53

MUNICIPAL LEGAL CONTROL

The legal framework for the regulations of ozone layer depletion is contained in the
National Environmental (Ozone layer protection) Regulations 2009. It seeks to
ensure ozone layer protection by prohibiting activities relating to the handling, usage
and disposal of Ozone depleting substances and materials containing them.

The regulation creates a phasing out approach of these ODS. It also empowers the
agency to issue permit for use, disposal and management of the ODS. It also
criminalizes certain acts. Regulation 1(1) states that it is an offence to import,
manufacture, install offer for sale, sell or buy refurbished facilities intended for the
production of ODS except if they are to be used recycling these substances.

Regulation 4(1) and (2) prohibits the importation, use, sale or offer for sale or buy
new fire extinguishing equipment that contains ODS with a potential higher than 0.05.

Regulation 1(2) provides that it is an offence to manufacture either for export or

local consumption any product containing ODS or derived from the ODS prohibited
in Schedule 3 of the regulation.54

INTERNATIONAL LEGAL FRAMEWORK FOR THE PROTECTION

OF THE OZONE LAYER.

VIENNA CONVENTION ON SUBSTANCES THAT DEPLETE THE OZONE

LAYER.

53
Supra Note 51
54
Amokaye, op. cit,614-616
This treaty is the first international effort at addressing ozone layer related issues
particularly on CFCs (chloro-foro-carbons) production. Article 2 saddles
collaborating state parties the general obligation of protecting the ozone layer for the
preservation of human health from the resulting consequences caused by human
activities.

Article 3 requires that state parties are expected to cooperate with each other to
conduct research, scientific assessment, systematic observation and share valuable
information on the physical and chemical processes that may affect the ozone layer,
human health and to address other biological effects. Appropriate legislative and
administrative measures are to be in place to clamp down on the production and
consumption of the depleting substances.

The convention was however said to be inadequate in its effectiveness for a lot of
reasons;

• Looseness of the language i.e. it was not strong enough to compel state
collaborators to move to action.
• Scientific disagreement as to the nexus between the CFC and Ozone Layer
Depletion
• No data was presented about CFC production from the Soviet Union and other
developing countries to draw the benchmark for global production.

1979 MONTRÉAL PROTOCOL ON SUBSTANCES THAT

DEPLETE THE OZONE LAYER.

The negotiations for this treaty began upon the announcement of an ‘ozone hole’ in
the Antarctic as well as a 1987 report by the International Scientific Study Group
set up by the United States, Germany, WHO and UNEP to ascertain the human effect
on the ozone layer. It was shown that flame retardants called ‘halons’ were largely
responsible for the ozone layer depletion.

The convention initiated new regulatory techniques for and made for the adoption of
innovative financial mechanism as well as institutional establishment.

Article 2 imposed obligations on parties for the same limitation and reduction of
calculated levels of consumption and production of certain controlled substances.

Article 4 regulates the trade of these depleting substances with non-state parties.

Article 5 permits developing countries to delay in their compliance within 10 years

provided that their annual calculated level of consumption of the controlled substances
is less than 0.3 kilo per capita.

CLIMATE CHANGE

Article 1 of the United Framework Convention on Climate Change 1992 defined

Climate Change as a change attributed directly or indirectly to human activity that
alters the composition of the global atmosphere and which is, in addition to natural
climate variability, observed over comparable time periods.

Climate Change can be defined as the response of the Earth's climate system to
altered concentrations of "greenhouse gases" to the atmosphere

Greenhouse effect is a natural phenomenon that keeps the Earth warmer than it would
otherwise be. By this natural method, the Earth absorbs energy from the sun in the
form of solar radiation. About one-third is reflected and the rest is absorbed by
different components of the climate system, including the atmosphere, the oceans, the
land surface, and the biota.55

55
Amokaye, op.cit., p.621
The major greenhouse gases include but are not limited to;

Carbon Dioxide (CO2): released through fossil fuel combustion, deforestation and
land use changes.

Methane (CH4); released through agriculture especially rice and cattle farming,
natural gas production and landfills.

Nitrous oxide (N20); released through agriculture, industrial processes and the
burning of fossil fuels.

Fluorinated gases (F-gases); released through the production and use of refrigerators,
air conditioners and electrical equipment.

Chlorofluorocarbons (CFCs); released through the production and use of products

such as refrigerators and aerosol cans.

IMPACTS OF CLIMATE CHANGE

International scientists have come to the conclusion that CO2 and other greenhouse
gases warm the earth and has raised greater uncertainties on the issue of impact of
such warming on human health, distribution of warming, degree of impact on human
lives and environment and at what rate the planet will warm. These uncertainties
beclouded the negotiation and implementation of the international legal framework
put in place to address them.

The Intergovernmental Panel on Climate Change (IPCC) by UNEP and World

Meteorological Organization in 1988 have cleared some of these doubts and
extracted from the IPCC Reports some of the expected impacts of climate change.

Field C.B. et al (eds.) (2014) IPCC Climate Change: The IPCC Scientific Assessment
Weather Intensity: Warmer temperatures are very likely to lead to a more vigorous
droughts, flood and heat waves in some places.

Desert and Desertification: Deserts are projected to become hotter but not
significantly wetter. Temperature increase could be a threat to organisms that exist
near their heat-tolerance limits. Desertification is more likely to become irreversible
if the environment becomes drier and soil becomes further degraded

Agriculture and Food Security: Agricultural lands could be flooded permanently,

lost by increased marine erosion or inundated as a result of disrupted river and tidal
regimes. Livestock production may be affected by changes in grain prices and pasture
productivity.56

Forest Loss: Sustained increases of as little as 1°C in mean annual air temperature
can be sufficient to cause changes in the growth and regeneration capacity of many
tree species; alter the function and composition of forests, in others, it can cause forest
cover to disappear completely. Suitable habitats for many species or forest type are
likely to shift.

Water Resources: Freshwater ecosystems greatly influence the distribution of

population and economic growth, add greatly to the biological and ecological diversity
of the landscape, and provide a variety of goods and services. The effects of climate
change on freshwater ecosystem will interact strongly with anthropogenic changes in
land use, waste disposal, and water extraction.

Public Health Implication: Direct health effect includes increase in mortality and
illness due to an anticipated increase in the intensity and duration of heat waves. An

56
Id. at 624
increase in extreme weather would cause a higher incidence of death, injury,
psychological disorders and exposure to contaminated water.

Indirect effects of climate change include increase in illnesses such as malaria,

dengue fever, yellow fever and some viral encephalitis resulting from extensions of
the geographical range and seas for vector organisms. Additional indirect effects
include respiratory and allergic disorder due to climate-enhanced increases in some
air pollutants and pollens. Exposure to air pollution and stressful weather events could
combine to increase the likelihood of morbidity and mortality. Some regions could
experience a decline in nutritional status as a result of adverse impacts on food and
fisheries productivity.57

Biodiversity Loss: Distributions, population sizes, population density and behavior

of wildlife have been, and will continue to be, affected directly by changes in global
or regional climate and indirectly through changes in vegetation. These pressures had
caused some species to be classified as "critically endangered or vulnerable" and
closer to becoming extinct.

Sea-Level Rise: Climate change will lead to changes in sea level, altered ocean
circulation and as a result, nutrient availability, biological productivity, the structure
and functions of marine ecosystem may be affected, with important feedback to the
climate system. Sea-level rise has negative impacts on a number of sectors, including
tourism, freshwater supply and quality, fisheries and aquaculture, agriculture, human
settlements, financial services and human health.

MUNICIPAL LAW FOR ADRESSING CLIMATE CHANGE

57
Id. At 625
Associated Gas (Reinjection) Act regulates climate change control in Nigeria.
However, in Jonah Gbemre Shell Petroleum Development Company Nigeria Ltd., a
Federal High Court in Benin declared the continuous flaring of gas by the Shell
Petroleum Development Company (SPDC) as illegal, a flagrant breach of the
provisions of the Associated Gas (Reinjection) Act as well as Section 33 and 34 of
the CFRN; a breach of the fundamental human right of the Iwherekan Community,
(an oil producing community in Niger Delta) to life and/or dignity of human person.

INTERNATIONAL FRAMEWORKS

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE

CHANGE

The major convention that seeks to regulate global climate objective of the
Convention is the "stabilization of greenhouse gas change. The Convention divided
Parties into three essential categories;

Annex "I" which includes all industrialized country Parties;

"Annex II" which includes all industrialized country Parties except those from the
former Soviet bloc in a process of transformation. The non-Annex I Party which
includes all developing countries.

Article 4 provides that all parties subject to the principle of common but
differentiated responsibility must develop, periodically update, publish and
communicate to the Conference of the Parties (COP) its national inventories
(comprehensive list) of greenhouse gas emissions caused by human activities using
comparable methodologies

• Formulate, implement, publish programmes and measures to mitigate and adapt

to the effects of greenhouse gases.
 • Cooperate on technology related guiding principles at the international level.
• Integrate climate change consideration in the relevant national/regional social,
economic and environmental policies with a view to minimizing its adverse
effect on the economy, public health and the quality of the environment
• Exchange information on matters such as technology and the economic
consequences of actions covered by the Convention.
• Promote and cooperate in education, training and public awareness in climate
change activities and to encourage the widest participation of both
governmental and non-governmental organizations in climate change activities.

The Convention advocates for systematic research among parties, promotion of

education, training and public awareness as a means of promoting endogenous
capacity building in the field of climate change.

PROTOCOL TO THE FRAMEWORK CONVENTION ON CLIMATE

CHANGE (KYOTO PROTOCOL)

Scientific evidence and concerns by international communities led by the United

States of America moved for the adoption of a legally binding instrument that would
stabilize greenhouse gas concentration in the level that would prevent dangerous
anthropogenic interference with the climate system. The Kyoto Protocol went several
steps further than the Convention by establishing binding emission reduction
commitments for Annex I countries

The core of Kyoto Protocol is the introduction of targets and or timetables, or

quantified emission limitation and reduction objectives (QELROS) for
industrialized Annex I Parties to reduce their net emissions. The Kyoto protocol also
contained innovative concepts and flexibility mechanisms to ensure cost-effectiveness
to meet targets. Article 17 of the Kyoto Protocol establishes emissions trading
schemes.58

TOPIC 9

ENVIRONMENTAL IMPACT ASSESSMENT

There is no universally acceptable definition of EIA but it can be defined to mean the
examination, analysis and assessment of planned activities with a view to ensuring
sustainable development.

Definition 2

The process of identifying, predicting and evaluating the forcible impact of both
beneficial and adverse alternatives and also mitigating measures with a view to
eliminate or minimize the negative impact and to optimize positive impacts.

Definition 3

It is also a process of decision-making to ensure that the project options under

consideration are environmentally, socially and sustainably sound.

Definition 4

The EIA Procedure 1985 defines EIA as an estimate or judgment of the significance
and value of environmental effects for natural, socio- economic and human
receptors.59

58
Amokaye, op cit. p.631
59
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.802
 Objectives of Environment Impact Assessment (EIA).

The primary purpose of EIA legislation is to make EIA mandatory by ensuring that
the potential environmental impacts of a proposed activity are identified and
evaluated before a firm decision is taken to proceed with planning and
implementation of the activity. Decision makers for the purpose of EIA is not
necessarily limited to the proponents of the project it extends to regulatory agencies
as well as Environmental Protection Authorities, Independent Commissions
appointed under sections 27 and 32 of EIA Act, State and the Local governments,
local communities and interested non- governmental organizations (NGOs). Section
1 of the EIA Act outlines some fundamental objectives of our EIA legislation:60

• Establishment of significant environmental effect of any project to be

undertaken by any person, authority, corporate body or incorporated body
including the Federal, States or Local Government.
• Encouragement of development of procedures for information exchange,
notification and consultation between organs and people when proposed
activities are likely to have significant trans-boundary effects.
• Consideration of environmental factors in addition to economic, technical and
political considerations in decision making.
• Improvement of public participation in decisions relating to development and
environment.

What is a Project?

Section 63 of the EIA Act provides for the definition of a project and proponent.

60
Id. at 802.
 A project refers to any physical work that a proponent proposes to construct,
operate, modify, de-commission, abandon or otherwise carry out or a physical
activity that a proponent proposes to undertake or otherwise carry out. A proponent
in respect of a project means the person, body or federal authority that proposes the
project.

PRIVATE PROJECTS VS PUBLIC PROJECTS.

The EIA Act does not discriminate between private and public projects. By statute,
EIA is mandated for all private and public projects except where the project is
exempted.

Private projects undertaken by individuals or organizations (both corporate and non-

governmental organizations). Public projects include projects undertaken with public
funds by direct authorization or financial assistance by the federal, state and local
governments; projects guaranteed by federal, state and local governments; projects
proposed in whole or part individually by federal, state and local governments or in
partnership with other private entities and organizations, including international
organizations and non-governmental organizations, or projects with significant
environmental impact which require government's permit, license, grant or approval
or administrative action before the take-off of the projects.61

The law authorizes the government to examine the consequences of its action in the
context of the entire project's impact before granting permits, approval, or licenses.

In Baytide (Nig.) Ltd v. Aderinokun; the Court of Appeal held that a where a State
Government is in the process of creating a new satellite town carries out the necessary
survey and designates a particular area for specific project or development, there is a

61
ibid
presumption that it had taken into consideration all the necessary environmental issues
before designating the area for such project as required under section 2(1) of the EIA
Act. The EIA Act implicitly requires reasonable forecasting of environmental effects
of any project with government involvement.

When is EIA Necessary?

An EIA is necessary only if the proposed project will have an impact on the
environment. Section 64 of the EIA Act defines Environment in this context as the
natural and physical environment including social and cultural disruptions, aesthetic
and socio- economic aspects of human environment and the interaction among these
components.

Environmental effect referred to is any change that the project may cause to the
environment whether any such change occurs within or outside Nigeria, and it
includes the effect of such change on health and socio- economic conditions.

Economic or social effects are not the core factors as to why an Environmental Impact
Assessment should to be prepared but when an environmental assessment is prepared
and these effects are interrelated, then the EIA Report must discuss all these effects on
the human environment.

In Hanly v. Kleindeinst (Hanly I), the Second Circuit Court in the United States
found that the NEPA (National Environmental Protection Act) it included socio-
economic impacts, holding that quality of life for city residents was a significant effect
to be included in an impact statement.

Again, although environmental effects of an action that will affect human health and
environment must be taken into consideration, such effect must not be too remote or
speculative as espoused in Metropolitan Edison Co. v. People Against Nuclear
Energy (PANE). 62

When is it Significant?

By statute, projects that are likely to have serious or significant environmental

effects on the environment of Nigeria shall not be undertaken by the private or
public sector without first undertaking EIA. The issue is when is a proposed project
likely to " significantly affect the environment”? Whether a particular proposed
action significantly affects the environment is a threshold question.

The criterion and procedure to determine whether proposed action "significantly"

affects the environment" is not specifically defined in the Act and there is no local
judicial authority on this matter.

But the Act and the Procedure specifically identify projects for which EIAs are
mandated and the projects or environmental effects of malfunctions or accidents and
authorizes the Ministry to consider the environmental effects of that may occur in
connection with a project and any cumulative environmental effects likely to result
from the project as outlined in section 17(1).

Whether or not a court would conclude that an activity is a major significant action
having significant effect on the environment is a mixed question of law and fact.

In determining whether a project is significant, for which EIA is to be undertaken

comprehensively or partially, the court must satisfy itself on some questions:

(1) Whether the project falls within the Mandatory List for which EIA is required;

62
Amokaye, op.cit. p.812
(2) Whether the project is in a particular sensitive or vulnerable location for which
EIA is mandatory.

(3) Whether the project is unusually complex and likely to generate potentially
adverse environmental effect.

In Baytide (Nig.) Ltd v. Aderinokun.; The Respondent, a resident association

challenged the construction of a petrol filing station undertaken by the Appellant at
Lekki Phase 1, a high-brow area in Lagos. It was the contention of the Respondent
that the petrol station was undertaken without the Appellant's undertaken the
necessary EIA under the EIA and if any, the Respondent was not consulted as
mandated under Section 7 of the EIA Act.

Rejecting the Respondent's argument, the Court of Appeal held that since the
construction of a petrol filing station have been excluded from the mandatory EIA
study under Paragraph 12 of the Schedule to the EIA Act, it is not considered
activity likely to ' significantly affect the environment' and as such the Appellant is
not under any statutory duty to conduct such EIA as contended by the Respondent.63

MANDATORY/DISCRETIONARY PROJECTS.

EIA will be necessary if the proposed project falls within the Mandatory Study List
under Category 1 or II of Section 13 of the Act depending on the nature, size or
location of the activity regardless of its environmental impact.

With regard to mandatory study activities, EIA is compulsory, no project proponent

whether State or individual, could embark on them unless the Ministry approves the
EIA. There cannot be a waiver for this requirement by the Ministry.

63
Id. at 816.
Activities subject to mandatory EIA are further sub-divided along sectoral lines such
as agriculture/agro-allied projects fisheries, forestry, industry, food, beverages and
tobacco processing, infrastructure, ports developments, housing projects, airport,
drainage and irrigation, railways, transportation, resort and recreational
development, power generation and transmission, petroleum exploration and
explorative projects, mining activities, quarries, waste treatment and disposal, water
supply.

Activities which are not deemed significant specifically may be subject to EIA under
Categories II and III, if they are to be implemented in environmentally sensitive
areas (ESA) or protected areas because of its importance or vulnerability.

Environmental sensitive areas, in this context, include but are not limited to, coral
reefs, mangrove swamps, small islands, mountain slopes, coastal/wetlands of
national or international importance and natural conservation areas.

Any activities in category II involving agricultural, rural, industrial and

infrastructural developments undertaken in environmentally sensitive areas are
automatically converted into Mandatory Category for which the proponents of the
projects will be required to undertake full-scale EIA. Such activities include
reforestation/afforestation project, small scale irrigation and drainage, saw milling,
rubber processing, fish processing.

Projects under Category II not located within environmentally sensitive areas will
require a partial EIA. When necessary, the proponent of the project may be required
to provide mitigative measures or changes in project design depending on the nature
and magnitude of the environmental impacts revealed by the EIA.

An EIA Study will be required for projects classified under Category III if such
projects are essential and beneficial to the environment. Such projects involve the
establishment of institutional development, health programs, family planning
program, nutritional education programs etc.

In Section 15(2) of the EIA Act , the requirement for EIA may be exempted where
in the opinion of the Federal Ministry of Environment, the project is in the list of
projects which the President is of the opinion that the environmental effect of the
project is minimal, or the project is carried out during national emergency for which
a temporary measure has been taken by the government and in the opinion of the
Ministry in the best interest in public safety and health.

Timing of EIA

Project proponents get to determine when environmental assessment is to be

undertaken. One view is that EIA should be integrated into the project cycle at the
formative stage. Basically, there is no hard and fast rule regarding this. A contrary
view is that EIA Report prepared too early in the planning process may produce
inadequate information for the Federal Ministry of Environment to take appropriate
decision.

On the other hand, if EIA is unduly delayed, it may delay the progress of the
underlying actions or commit itself to a particular decision such that an impact
statement becomes merely a rationalization of what the proponent already intends to
do.

The better view and one that is consistent with principles and practice is that EIA
should be integrated into the project cycle early enough where alternatives from an
environmental viewpoint such as alternative sites, designs, feasible strategies of
action, technologies can be considered realistically and implementation and
operating plans can be designed to respond to critical environmental issues in the
most cost-effective manner.64

EIA PROCESS.

STAGE 1: SUBMISSION OF THE PROJECT PROPOSAL.

When a project falls under Categories I and II of the Mandatory Study List, it is
the duty of the project proponent to initiate approval. Once a decision has been taken
that EIA is necessary, it is the duty of the project proponent to initiate approval
process with the Ministry.

The proponent is to notify the Federal Ministry of Environment, Abuja in writing as

soon as he decides to embark on any development project contained in Categories I &
II by submitting an EIA Notification Form which is available upon the payment of a
N10,000 application fee.

To facilitate quicker screening of the project, he must submit along with the
application a detailed land-use map used for the project and other relevant information
such as a brief description of the project, an outline of the planning and
implementation program, an outline of the major element of the surrounding
environment which might be affected.

STAGE 2: SCREENING

Environmental screening is primarily the responsibility of the project proponent to

decide whether or not a project requires assessment and the level of assessment that
may be necessary.

64
Id. at 818
This is to eliminate projects that are not likely to have serious adverse environmental
consequences and to ensure that the appropriate amount of attention is devoted to the
environmental impacts aspects of the proposed project from the very onset of the
project cycle: to identify as much as possible, the key environmental issues and to
"determine the type of environmental analysis which is needed so that those issues
(and others which may arise) can be addressed in project planning and design.

As stated in Section 16 and 19 of the EIA Act, it appears from the EIA Act that the
responsibility to conduct screening is now vested in the Ministry but nothing prevents
the project proponent from conducting and initial screening as part of the project cycle
before applying to the Ministry.

The EIA Regulation authorizes the ministry, upon the receipt of the project proposal
to carry out initial environmental examination (IEE) and assign the project or activity
as either Category I, II or III project depending on the magnitude, extent, duration and
frequency, risks, significance and mitigation measures available for associated and
potential environmental impacts.

The Ministry is obligated within ten (10) working days of the receipt of the proposal
to send its screening report or advice to the project proponent. The extent of EIA
required will depend on the scale and nature of local environmental guidance to assist
with the screening process.

Screening criteria include:

• Risk to human health.

• Significant adverse effects on quantity/quality of natural resources.
• Resettlement or significant alteration of lifestyle/customs, proximity to towns
or resources or protected areas.
• Environmental value of the area in which the project occurs.
 • Significant alteration of the scenic or tourist value of a zone.
• Alteration of the important cultural sites.
• Harm to flora/fauna and damage to material assets and disturbance of
ecological balance.

Category I belongs to the Mandatory Study List.

Category II deals with specified agricultural and industrial projects undertaken within
environmental sensitive areas while Category III deals with projects that have
physical intervention on the environment.

The Ministry may after the completion of its screening report be of the opinion that
the project is likely to cause significant adverse environmental effect or that the
adverse effect cannot be or the project is of public concern and therefore decide to:

• Order the continuation of the project and ensure that any mitigation measures
considered by the agency as appropriate are implemented.
• Refer the project to the Council for a referral to mediation of a review panel in
accordance with Section 25.
• Stop the carrying out of the project.65

STAGE 3: SELECTION OF EIA TEAM

Where the Screening Report has been received from the Ministry and the project
initiator is advised to undertake an EIA, it is the responsibility of the project proponent
to prepare the Terms of Reference (TOR) for the Environmental Assessment and
other analysis and to obtain the necessary experts to carry it out.

EIA process involves an array of activities, which are inter-twined, multidisciplinary

and technical in nature. Terms of Reference should be prepared outlining the key

65
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.821
issues to be covered, the decisions to be taken, options to be investigated in order to
minimize omissions, and the possibility of the introduction of costly additional issues
in the latter stages of the EIA process.

For a major development, or smaller projects of high and diverse environmental

sensitivity, multi-disciplinary teams are usually required to prepare an EIA Report.
Experts in the field of economics, environmental management, forestry,
environmental law, social science, public health, information technology, soil and
water resource management and atmospheric science are imperative.

A single person may complete an EIA for small projects with minimal specialist
support. For larger projects, an overall co- coordinator and, in some instances, a
management committee, may be appointed to ensure that all disciplines are working
to a coordinated brief, identify the need for specialist investigations and their
inclusion, program all activities so that information is available at the appropriate time
for approval and meetings, organize and collate each team member's input to
produce an EIS Report. It is critical to recognize that the technical validity of EIA
studies can be easily compromised without effective study management.66

STAGE 4; Scoping

Scoping is done by the project proponent or by his consultant in order to identify and
narrow down the potential environment impact with a view to ensuring that the
assessment focuses on the key issues for decision making. It also offers a crucial
opportunity of involving local people in determining the scope and focus of the impact
assessment. It entails discussions and consultations with interested parties including

66
Id. at 823
project proponents, decision makers, local communities, regulatory authorities to
determine the terms and boundaries of EIA study.

Each study should ensure that it attempts to answer such question as:

* What impact will occur as a result of the project?

* What will be the extent, magnitude and duration of the impact?

* What will be the significance of these impacts within local, national and
international contexts.

* What can be done to mitigate, reduce or avoid all adverse impacts or optimize
positive impact?

There are varieties of techniques that may be utilized to solve these questions at
scoping stage. These include checklists, baseline studies, matrices, networks and
environmental features mapping. For example, the EIA Procedure 1995 requires the
proponent of a project to carry out a scoping exercise to ensure that all significant
impacts and reasonable alternatives are addressed in the intended EIA.

STAGE 5: SUBMISSION AND CONTENTS OF THE EIA REPORT.

The EIA Report must be prepared in good faith giving sufficient consideration to
environmental factors and impacts. It must be neither combative nor unduly defensive
or advocatory. It must include data necessary to identify effects which the
development is likely to have on the environment. It must also comprehensively
address the effects of the proposed development on human environment, flora, fauna
and geology, land, air and climate and other indirect and secondary effects associated
with the project.
It must capture the effects on human beings, buildings and man-made features include
such matters as population changes, visual effects, effects arising from emission
during normal Operation, noise effects, transportation effects and vibration effects.
With regards to effects on flora, fauna and geology, ecological consequences are to
be evaluated and loss of damage to habitats, plants and animal species and geological,
paleontological and physiographical features stated.

Effects on land include change of topography, potential for soil erosion and risk of
instability due to earth moving. Emissions can affect soil conditions, afforestation and
building. The requisite minimum content of EIA report is outlined in Section 4 of the
EIA Act and EIA Procedure. It requires that an EIA Report must contain a
description of:

* The project and/or process description (including type, input and output of raw
materials and products.

* Location, technological layout, product process, project operation and maintenance

and project schedule.

* Description of the potential environmental impact of the proposed activity (study

approach, baseline data acquisition methods, geographical location, field data.

* Climatic conditions; air quality noise level assessment.

* Vegetation cover characteristics; potential land use and landscape patterns,

ecological sensitive areas; terrestrial fauna and wildlife.

A diagnosis of the existing environmental situation (including baseline information or

data); a description of the practical activities as appropriate; an assessment of the
likely or potential environmental impacts of the proposed activity and the alternatives
including direct or indirect cumulative short-term and long-term effect amongst
others.

Data should be given with regard to other indirect and secondary effects associated
with the project such as effects from road, rail, air and water related to the
development.

Effects arising from the extraction and consumption of material, water, energy or
other resources by the development; effects of other development associated with the
project such as the provision of new infrastructure, for example, new roads, sewers,
housing, power lines, pipelines and telecommunication.

Such associated and potential environmental impacts must demonstrate and establish
inter alia: significant positive impacts, significant negative impacts, site preparation
and construction impacts, transportation impacts, raw material impacts, process
impacts, project specific incremental environmental changes, project specific
cumulative effects, project specific reversible/irreversible effects, project specific
adverse/beneficial effects and project specific risk and hazard assessment.

In addition, the report must contain information indicating whether the environment
of any other State or Local Government or areas outside Nigeria are likely to be
affected by the proposed activity or its alternatives as well as a brief and non-technical
summary of the information provided.67

EIA FOR OIL EXPLORATORY AND DEVELOPMENT ACTIVITIES.

The impacts associated with the development of on-shore and offshore oil and gas
resources can be classified into three main groups:

• Primary impacts

67
Amokaye, op cit. 826
 • Associated impacts
• Induced impacts.

The primary impacts are the most significant immediate impacts generated by
onshore development, building and widening roads, and in providing services such as
water and electricity. Each successive activity through the exploration, appraisal and
development phase has associated impacts. These produce a possible zone of
disturbance around the area of primary impact, with the extent and significance of this
depending on its context.

These are effects which cross the site boundary such as noise, air pollution, water
pollution and a damage associated with the transport of petroleum product from the
site or with waste disposal.

Induced impact may arise in areas of high conservation value. These categories of
impacts are recognized and addressed by EGASPIN (Environmental Guidelines and
Standards for the Petroleum Industry in Nigeria). The Guidelines contain elaborate
procedure for undertaking EIA in petroleum related projects that have significant
environmental impacts.

The threshold of environmental impact is defined to include the short- and long-term
effect, primary and secondary effect of the project on changes in land use patterns,
changes in energy supply and demand, significant changes in life habitats, potential
adverse effects on fish migration routes and nursery areas, potential and significant
socio-cultural consequence of an activity and damage to historic and anthropogenic
sites.

EIA is mandatory if any of these impacts is anticipated. It is immaterial that the

proposed action or operation may have net beneficial effects. Extensive EIA will be
required in the following areas of operations: seismic operations, oil and gas field
development in both onshore, near-shore, offshore and deep offshore environment,
including development well drilling and construction of crude oil production, tank
farm and terminal facilities, laying of crude oil and gas delivery line, flow line and
pipeline in cumulative excess of 20km length and/or as determined by the Director of
Petroleum Resources.

In Baytide (Nig.) Ltd v. Aderinokun; the Court of Appeal upheld the fact that EIA is
mandated in oil and gas field development; construction of off-shore pipelines in
exactly of 50 kilometres in length; construction of oil and gas separation, processing,
handling and storage facilities; construction of oil refineries; and construction of
depots for the storage of petrol, gas or diesel (excluding service stations) which are
located within kilometres of any commercial, industrial or residential areas and which
have a combined storage capacity of 60,000 barrels or more.68

PUBLIC PARTICIPATION IN EIA

Public participation is concerned with informing, consulting and involving the

public in project evaluation, project identification and EIA process. To be effective,
participation must be part of a process, which provides an opportunity, or more
correctly, encourages the public to express their views. It gives confidence to them
that due consideration has been given to public values, concerns and preferences when
decisions are made.

To be of useful importance, public participation requires the availability of adequate

and relevant information. The legal requirement for public participation in EIA
process is contained in Environmental Impact Assessment Act.

68
Id.at82223
The broad dissemination of information mandated by law permits the public and other
stakeholders to react to the effect of a proposed action timeously. Community
involvement is important in order to understand the nature and extent of potential
impacts socio-culturally and to assess the suitability and acceptability of various
measures that might be used to prevent or mitigate or to compensate affected groups
for unavoidable ones.

Section 7 of the Act requires that information gathered in respect of the

environmental statement should be made available to the public, government
agencies, interested members of the public and experts. These categories of
stakeholders should be given opportunity to express an opinion before the Ministry
gives final approval for the implementation of the project.

Formal requirements for public consultation in EIA in the planning system are fairly
limited. At no stage is the developer required to enter into discussions with the public,
although information concerning the project and the EIA Report must be made
available.

This is because there is no formal requirement for discussion or consultation during

the preparation of the EIA Report, and the emphasis is mainly on ensuring that the
public is kept informed. In practice, the local people that are likely to be affected by
the project are informally consulted at the earliest stages of project identification and
preparation stage. Formal public consultations are undertaken after the EIA Report
has been prepared as well.

The public hearing provides opportunity for the proponent to defend the projects.
Many strategies could be utilized to achieve this purpose. These include presentations,
exhibitions, public meetings and a consideration of alternatives. The consultations
provide views from all the concerned parties on the principle of development the site;
alternatives and impacts.

Although, the stage of public hearing is not statutorily regulated, an EIA approved
without public hearing or oral hearing is done in contravention of the law and can be
set aside by the court. But where a project proponent has held both oral and written
hearings and issued a draft impact assessment, the court will resist the invitation to
nullify the EIA.

Public opposition to EIA Report must not be based on emotions, political sentiments
or personal idiosyncrasies or sensitivities to the project; the opposition must establish
a clear nexus with actual or threatened environmental harms or public health
consideration.

It could also be based on resources depletion, damage to ecosystems, socio-economic

disruptions, displacement or extinction to wildlife population arising out of epizootic
diseases. But in taking a final decision to approve the project, the Ministry must
consider the economic and environmental costs against the benefits of public interest
and come to the conclusion that the overall public interest would be served.69

Mitigative and Alternative Measures

The EIA Act requires that EIA Report must identify and describe feasible and cost-
effective measures which may reduce potentially and assessment of these measures
and alternatives. Mitigation measures include measures to:

69
Id. at 829
* Avoid the impact altogether by not taking a certain action or parts of an action.

* Minimizing impacts by limiting the degree or magnitude of the action and its
implementation.

* Rectifying the impact by repairing, rehabilitating or restructuring the affected

environment.

* Reducing or eliminating the impact overtime during the life of the action and
compensating for the impact of replacing or providing substitute resources or
environment.

This will practically involve making provisions or capital and recurrent costs to
accommodate liability and compensation, resettlement, provision of best available
control technology to mitigate the effect, site alternative, location/routes,
consideration of no project option, insertion of table listing impacts with
corresponding mitigation measures, I compliance with health and safety hazards
requirements and institutional training.

Next, the Act mandates the Ministry to consider the mitigation measures in their
decision-making. But where the environmental effect of the project cannot be
mitigated, the Ministry may reject the project in entirety or refer the project to a
mediator or review panel for proper finding as stated in Section 22 of the EIA Act.

An important issue is whether the EIA requirement is limited to mere inclusion of

mitigation plans or it imposes an obligation to mitigate the effect. This issue has not
been judicially considered in Nigeria. In Robertson v. Methow Valley Citizens
Council, the US Supreme Court drew a fundamental distinction, between a
requirement under the NEPA Act that mitigation be discussed in sufficient details in
Environmental Statement (ES) to ensure that environmental consequences have been
fairly evaluated and a substantive requirement that a complete mitigation plan be
actually formulated and adopted.

It held that the legal requirement is met when the mitigative effects have been
elaborately outlined in the project. Sections 40 and 41 of Nigerian EIA Act formally
impose a duty to adopt or implement the mitigative plans outlined in the EIA Report.

Consequently, where EIA approval has been a duty to adopt or implement the
mitigative plans outlined in the and the project proponent refuses to implement the
mitigative measures, the Ministry or an interested person may institute an
action to compel compliance.

Essentially, the consideration of alternatives is an essential element of the EIA process.

This involves the consideration of alternative designs, operating processes and the
environmental implication of each alternative.

The relevant alternatives are primary and secondary alternatives. Primary

alternatives refer to those projects that can environmentally, technically and
economically act as substitutes for the proposed project. Secondary alternatives are
different ways in which a proponent can carry out its proposed activity: for example,
modification of a project or an alternative building site.

Although there is no local judicial authority on the treatment of alternatives in EIA

Report, the attitude of the US Supreme Court as demonstrated in Vermont Yankee
Nuclear Power Corp., v. NRDC is to defer in certain respect to the proponent's
decision on alternative particularly where the alternatives are costly, environmentally
disruptive, environmentally inferior or inadequate for meeting the project goals. But
where they are not discussed or too conclusive, the court may reject the EIA Report.70

70
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.833
 WORST CASE ANALYSIS

A decision to approve the EIA Report may be challenged if the Ministry fails to
adequately analyzes either the foreseeable and unforeseeable risks or where it fails to
adequately evaluate the mitigative measures.

The question as to whether a project proponent or Ministry must undertake a 'worst-

case' analysis of potential environment harm if relevant information concerning
significant environmental effects is unavailable or too costly to obtain was addressed
in the EIA Act.

Section 4(d) of the EIA Act requires that a project initiator must include in the EIA
Report information of any indication of gaps in knowledge and uncertainty, which
may be encountered in computing the required information. This requirement imposes
on a project proponent a statutory duty to describe environmental impacts even in the
face of substantial uncertainty.71

TOPIC 1O

WASTE MANAGEMENT TECHNIQUES AND DISPOSAL

Waste is one of the most prevalent environmental issues in cities. In developing

countries, such as Nigeria, waste management is greatly influenced by the growth in
urban population; the expanded availability of manufactured goods; absence of
institutional framework for waste managers; indiscriminate and improper disposal of
waste; the inabilities to quantify the amount of solid waste being produced by the
people to enable policymakers develop efficient methods of disposal, lack of adequate
funds to provide appropriate waste disposal facilities and a host of other factors.

71
Ibid. at.837
 Definition of Waste.

Waste has no general definition. Waste could be characterised by its inherent

properties and in terms of utility, what constitutes waste at one end could be a raw
material for the production of another product. However, whether the waste holder
discards a substance or object depends upon whether the substance or object has been
consigned to a recovery waste. In other words, does substance consigned to a recovery
operation or re-cycling process constitute waste?

The difficulty in finding a general consensus on the concept of waste has accounted
for the slow pace in the formulation of workable definition of "waste" and the
promulgation of statutory regulation in waste generation, disposal and management.

Waste means refuse or superfluous material which remains after a manufacturing or

chemical process has taken place; any substance or object that is discarded, rejected,
or abandoned, and is not intended to be used again.

Waste could be classified according to source, effect and re-cycling processes. It may
be in the form of liquid, solid or gas. The broad categories of waste are solid,
radioactive, and hazardous waste. Examples of solid waste include eggshells, potato
peelings, empty cartons, papers, plastic pens, broken chairs, leaves, grass clippings
and weeds that come from the gardens generated by people in their homes, offices and
business, human excreta and sewage sludge etc.

The Harmful Waste (Special Criminal Provisions etc.) Act defines harmful waste
as any "injurious, poisonous, toxic or noxious substances and, in particular, includes
any nuclear waste which emits radioactive substances if the waste is in such quantity,
whether with any other quantity of the same or of different substances, as to subject
any person to the risk of death, fatal injury or incurable impairment of physical and
mental health…."
 The 1972 London Convention also defines waste to include "materials and
substances of any kind, form or description." The 1989 Basel Convention, on the
other hand, defines waste by reference to their end use as "substances or objects which
are disposed of or are intended to be disposed of or are required to be disposed of by
the provisions of national law"

In National Environmental (Sanitation and Wastes Control) Regulations, 2009,

solid waste is defined to mean "all putrescible and non-putrescible solid and semisolid
waste including garbage, rubbish, ashes, industrial waste, swill, demolition or
construction waste, abandoned vehicles or parts thereof and discarded commodities.

In Long v. Brook, the Court held that the term 'waste' under the Control of Pollution
Act, 1974 means discarded materials by the owner. This definition was followed in
Kent County Council v. Queenborough Rolling Mill Co. Ltd, where the defendant
was charged with depositing waste on land without a disposal licence. The waste
concerned of ballast, China clay and broken pottery from a disused site which was
being cleared by a demolition company. It was used to fill an area subject to
subsidence. The magistrate held that such material was not a waste as it was being
used for the purposes of infill.

On appeal, it was argued that the material was a waste by its very nature. But it was
to be put to a useful purpose and therefore was not unwanted. The Court held that,
although the material was put to a useful purpose, that was not a relevant factor in
deciding whether the material was a waste. The important factor was the nature of the
material when it was discarded. If it were a waste, it would always remain a waste
until it was adequately reconstituted or recycled.72

72
Amokaye O.G, Environmental Law and Practice in Nigeria (MIJ Professional Publishers Ltd 2014) p.514
 Methods of Waste Disposal in Nigeria

Dumping: In Nigeria, the most common way of disposing waste is the indiscriminate
and unsanitary dumping of waste in open spaces as opposed to sanitary landfill.
Dumping of refuse in an open land or wetland areas or surface water sources rather
than proper sanitary landfill is rampant among the people and authorities.

This method has been used to reclaim land for future industrial or residential purposes.
The environmental and health implications of indiscriminate waste dumping in
landfills are numerous. Not only that it poses serious health hazards to the people, it
is wasteful of scarce land resources.

Buried garbage even in sanitary landfill is still hazardous, as waste decomposes it

produces a colourless flammable gas called methane. If not controlled, methane may
migrate underground away from the landfill, destroy vegetation, seep into nearby
buildings and explode if ignited or it may seep into water supply sources causing
contamination of the underground aquifer.

Sanitary Landfill (Controlled Tipping): This is a method of refuse disposal in

which the waste is imprisoned on land, so as to allow natural decomposition to take
place. In a properly planned landfill, refuse is placed in well- compacted layers and
=sealed with a layer of earth at the end of the day. Explosive gases produced by the
process of decomposition are vented and the ground water in the vicinity is regularly
tested and treated if found to be contaminated. Compacting of the waste and layering
with earth is done to obviate the danger of spontaneous combustion and to keep
down noxious odour. Proper landfills are lined at the bottom to minimize the leakage
of soil pollutants from seeping into ground water.73

Composting: involves a conversion process known as bio- conversion. It is a

technique that involves organic and degradable solid waste being mixed and
decomposed by aerobic bacteria to produce compost soil conditioner and fertiliser.
The practice of composting, though prevalent among farmers, is not yet documented
in Nigeria.

Incineration: A method of refuse disposal in which controlled burning of the waste

is undertaken in an enclosed chamber. It is a combustion process that reduces solid
waste to carbon- monoxide and other gases, and relatively inert residues. The inert
residues are usually disposed of by land filling. This method encourages the
destruction of useful materials or resources that can be used further.74

Waste disposal by incineration serves many purposes. First, burning of refuse reduces
the number of materials that need to be disposed of. Second, burning generates an
enormous amount of heat. This heat energy can be harnessed and utilised usefully.
Major drawback to the use of incinerating plants includes the cost of installation and
maintenance of the plants;

The process is also referred to as thermal treatment where solid waste materials are
converted by Incinerators into heat, gas, steam and ash. Incineration of solid waste is
suitable if waste contains more hazardous material and organic content (combustible
refuse). Incineration is practiced in countries where landfill space is no longer

73
Mafara, S.M. and Magami, I.M., “Challenges of Solid Waste Disposal in Nigeria: A Review” (2019) 5 International
Journal of Science for Global Sustainability,86.

74
ibid
available, which includes Japan. It is expensive when compared to composting or
land-filling.

Incineration also poses health risks because the burning of refuse causes atmospheric
pollution. Some of the fumes and gases issuing out from the incinerating plants are
potentially toxic and could pose health hazards to a significant proportion of the
people.

Recycling is a waste reduction method practised in many western countries. It is a

process by which municipal wastes are categorised, properly sorted out and sold to
the manufacturers for further production of useful materials. Wastes such as metals,
plastics, glass and papers are sorted by homeowners, industrial facilities and waste
disposal authorities. Papers, usually consisting of all grades of residential mixed
papers and cardboards, are usually collected in compactor trucks. Glass collection, on
the other hand, is more likely to be performed using closed recycling collection
containers, sometimes called igloos. Igloos are usually placed so as to have small
clusters of containers for different materials, including, glass, plastics and, rarely,
paper or metal cans. They are emptied by automated equipment into trucks. Collection
is performed by municipal governments, regional solid waste authorities as well as
companies in the material markets themselves.75

THE LEGAL FRAMEWORK FOR THE CONTROL OF DISPOSAL

AND MANAGEMENT OF SOLID MUNICIPAL WASTE.

• The Constitution of the Federal Republic of Nigeria 1999

Section 20 provides that the government shall protect and improve the environment
and safeguard the water, air, and land of Nigeria. This provision is however contained

75
Amokaye, op.cit. p.517
in Chapter II of the CFRN which sets out the fundamental objectives and directive
principles of state policy which are unfortunately non-justiciable. In A. G. Ondo v
A. G. Federation, the Supreme Court held, inter alia, that courts cannot enforce any
of the provisions of Chapter II of the constitution until the National Assembly has
enacted specific laws for their enforcement. According to the Supreme Court, those
objectives and principles that serve as the constitutional policy of governance remain
mere declarations which cannot be enforced by the legal process but would be seen as
a failure of duty and responsibility of state organs if they acted in clear disregard of
them. The court went further to maintain that the Directive Principles (or some of
them) can be made justiciable by legislation.

• The NESREA Act 2007

This is currently the principal legislation on environmental protection in Nigeria. The

Act establishes the National Environmental Standards Regulatory and
Enforcement Agency (NESREA) which repealed the Federal Environmental
Protection Agency (FEPA). The NESREA is now the main agency mandated to
enforce compliance with environmental laws, both local and international, on
environmental sanitation and pollution prevention and control through monitoring and
regulatory measures and to make regulations on air and water quality, effluent
limitations, control of harmful substances and other forms of environmental pollution
and sanitation. The Agency is mandated to enforce compliance with policies,
standards, legislation and guidelines on water quality, environmental health and
sanitation including pollution abatement. The establishment of such policies and laws
are primarily directed at the prevention of pollution and environmental degradation.
76

NATIONAL ENVIRONMENTAL (SANITATION AND WASTES

CONTROL) REGULATIONS, 2009.

The regulations are structured into seven parts, eighteen schedules and with wide
application to issues of environmental sanitation and particularly to food, market, and
industrial wastes and sanitation, the different categories of wastes therein generated
with special reference to community, healthcare, industrial, radioactive, solid wastes.
The regulation deals with general environmental sanitation matters such as general
cleanliness, duties of owners and occupants of premises.

The regulations also make provisions inter alia for control of solid waste, effluent
discharge and hazardous and healthcare wastes; provides that no person is to discard,
or otherwise dispose of litter and refuse anywhere except in designated litter bins.
Owners, operators, occupants or persons managing or controlling any premises are
not to allow the release of litter or refuse into the environment. In fact, Section 5 of
the NESREA Act provides that even occupants of vehicles plying Nigerian roads are
statutorily prohibited from littering the public places, highways or any road at all.

• National Environmental (Base Metals, Iron and Steel Manufacturing /

Recycling Industries Sector) Regulations. This regulation is aimed at
preventing and minimizing pollution in the Nigerian environment from

76
Nnamani, Emmanuel C. And Odoh, Osita D; Effective Waste Management in Nigeria: An Approach for Sustainable
Development. Available at:
https://www.researchgate.net/publication/351062102_EFFECTIVE_WASTE_MANAGEMENT_IN_NIGERIA_AN_
APPROACH_FOR_SUSTAINABLE_DEVELOPMENT? __cf_chl_tk=MNxeAIIqKIyx3_jzkFUg19GmV1.
_6qJbVNzZ4C4TeWM-1738429880-1.0.1.1-1Net.tH.1HQgaQ4Ekz48wPX9cCYVwriDgDy01vxYO7U
 operations and ancillary activities of the sector. Other legislation and Re
gelation’s under the NESREA Act 2007 include;

• National Environmental (Pollution Abatement in Mining and Processing of

Coal, Ores and Industrial Minerals) Regulations, 2009: This Regulation seeks to
minimize pollution from mining and processing of coal, ores, and industrial minerals.

• National Environmental (Pollution Abatement in Chemicals, Pharmaceuticals,

Soaps and Detergent Manufacturing Industries) Regulations, 2009: This
Regulation is to prevent and minimize pollution from all operations and ancillary
activities from this Sector in order to protect Nigeria environment.

• National Environmental (Pollution Abatement in Food, Beverages and Tobacco

Sector) Regulations, 2009: These provide to prevent and minimize pollution from
all operations and ancillary activities of food, beverages and tobacco sector to the
Nigerian environment.

• National Environmental (Pollution Abatement in Textiles, Wearing Apparel,

Leather, and Footwear Industry) Regulations, 2009; These provide to prevent and
minimize pollution. From all operations and ancillary activities of food, beverages and
tobacco sector to the Nigerian environment.

• National Environmental (Wetlands, River Banks, and Lake Shores Protection)

Regulations, 2009; This Regulation provides for the conservation & wise use of
wetlands & their resources in Nigeria and ensure sustainable use of wetlands for
ecological and tourism purposes and to protect wetland habitats for species of fauna
and flora.

• National Environmental (Watershed, Hilly, Mountains, and Catchment Areas)

Regulations, 2009; This makes provisions for the protection of water catchment areas.
• National Environmental (Ozone Layer Protection) Regulations, 2009; These
provisions seek to prohibit the import, manufacture, sale and the use of ozone-
depleting substances.

• National Environmental (Noise Standards and Control) Regulations, 2009: The

main objective of the provisions of this Regulation is to ensure the tranquillity of the
human environment or surrounding and their psychological well-being by regulating
noise levels.

• Environmental Impact Assessment Act of 1992

This Act makes it compulsory for development projects with potential environmental
effects to undergo an environmental impact rent before commencement. It prohibits
the commencement of projects which may significantly affect the environment
without first considering the environmental effects77 where a project may likely result
in unjustifiable, immitigable, and significantly adverse effects on the environment, the
project shall not be permitted.78

• Lagos State Environmental Protection Agency Law79

This law was created by the Lagos State Environmental Protection Agency to advise
the State Government on all environmental policies. Section 7(g) provides that they
monitor and control disposal of solids, gaseous and liquid wastes generated by both
government and private facilities in the state. It also monitors and controls all forms
of environmental degradation from agricultural, industrial and governmental
operations.

• Harmful Wastes (Special Criminal Provisions Act 1988

77
Section 2
78
Section 30
79
Lagos State Environmental Protection Agency Law1996
This Act is essentially a penal legislation. The offenses are constituted doing any of
the act or omission stated in Section 12 of the Act. It was Nigeria’s first legislative
intervention following the Koko dumping incident that imposes criminal liability on
unauthorized dumping of harmful wastes on land, or in Nigerian waters. Section 1
(2) (a) provides that it is an offense for anyone not so authorized to carry, deposit,
dump, import, sells, offers for sale, negotiates or purchase any harmful waste on any
land, territorial waters, contiguous zone, exclusive economic zone or inland
waterways of Nigeria.

TOPIC 11.

STATUTORY COMPENSATION REGIME

Professor Amokaye defined compensation as recompense for loss suffered by an

aggrieved person ensuring that the injured victim is not worse off after the injury
complained of or if his property is destroyed, a fair market value is paid for the loss
or deprivation of his property.

Compensation could be relevant in two circumstances in oil pollution cases. First,

when private land is acquired by government for oil exploitative and exploratory
activities. Second, when there is oil pollution arising from pipeline leakages or other
exploratory activities.

It is however not restricted to personal or proprietary damages; it could be in form of

restitution where an award is made to restore the damaged environment to its original
position or restore the victim to the status quo ante insofar as it is possible so to do
through payment of monetary compensation. 80

The category of damage in environmental cases:

• Injury to, destruction of, loss of or loss of use of natural resources and the
reasonable cost of assessing damage.
• Economic losses resulting from destruction of real or personal damages to
property which is recoverable by a claimant who owns or leases that property
• Damage for loss of use of natural resources which shall be recoverable by any
claimant who so uses natural resources which have been injured, destroyed, or
lost by the polluter.
• Damages arising from the loss of profit or impairment of earning capacity due
to the injury,

The right to receive just compensation for expropriation of private rights is provided
for in the Constitution in Section 44(1)(a) requiring that prompt compensation be
given to persons whose property has been compulsorily acquired but it doesn’t provide
the mode of assessing compensation and timing of payment. The person who claims
compensation must be able to establish some degree of damage either to his person or
property as compensation is determined by the extent of damage.

Other legal compensatory regime is contained in Federal Environmental Protection

Agency Act, Petroleum Act, Land Use Act, Federal Environmental Guidelines
and Standards for the Petroleum Industry in Nigeria (EGASPIN), NOSDRA (Oil
Spill Recovery, Clean-Up, Remediation and Damage Assessment Regulation,
Petroleum (Drilling and Production) Regulations and Oil Pipeline Act.81

80
Amokaye, op.cit 966
81
Ibid. p.968
Nigeria’s legislation on compensation fails to address environmental concerns which
has raised much criticism and increased clamor for reform. First, the statutes are
advisory in nature, the language is rather loose merely directing polluters to pay
compensation. Second, the statutes merely create a liability regime for polluters and
in some cases require polluters to pay compensation without adequately providing
criteria for computing compensation payable. It is only the provisions of the Oil
Pipeline Act that provide adequate guidelines for environmental clean-up and
remediation.

In cases of Oil pollution, oil communities demand very high amount because they
believe that the oil being explored by the oil companies belongs to them. Hence, where
any opportunity arises for claims for damages to be made, such claims are usually
inflated, in order to get back a portion of the “royalty” that is considered due to them
for their oil and gas resources. This was evident in Shell Petroleum Development
Co. V. Farah and a host of oil pollution-related cases.

Can the natural environment be compensated, rehabilitated or restored?

Personal and proprietary injuries arising from environmental pollution could be

adequately compensated financially but can the same be said for natural environment?
Could there be adequate compensation, rehabilitation or restoration and at what cost
and for how long?

Theories have been formulated by scholars to ascertain the best way to value the
environment in cases of environmental pollution and the cost to impose on the polluter
to restore. The first essential step in determining what should be done about
environmental damage is to value it and compare it with the costs of damage
prevention because the major hindrance to justice in our compensatory regime is the
problem of valuation of environmental damage as observed in Amaco Production
Co. V. Village of Grambell Alaska, 480 U.S. 545 (1987).82

The measure of damages for injury to private property is the diminution in the
property’s market value, unless the injury can be repaired at lower cost but when it
comes to environmental damages, the market value is not ascertainable because
many public environmental resources are not traded in the market and there can be
no price tag for natural resources and environmental amenities. Even where the
market prices exist, they generally do not capture the full range that the public places
on the liability.

In determining compensatory injury or damage to the environment, it would not be

reasonable or appropriate to impose liability for any act and every physical or
chemical change in the natural environment resulting from the discharge of pollution.

In determining the scope and quantum of compensation payable., the contention is

whether liabilities should be imposed for the diminution in the value of injured
resources, which does require assigning a direct monetary value on environmental
loss, or for collateral economic losses, including diminished governmental revenues,
increased costs of public service, subsistence losses, and private financial losses not
based on injury to private property.

Liability in damages requires placing economic values on resources thus allowing the
courts to assess damages for environmental harm, deter future pollution, ensure
protection for natural ecosystem and to fix remediation or restoration costs payable to
the victim(s).

Natural resources valuation may also be critical to analyze the costs and benefits of
protecting the environment in government regulation. On the national and

82
Id. at 970
international law scene, it has been agreed that damages for environmental injury
should be based primarily on the reasonable costs of measures taken or to be taken to
remove pollution and otherwise prevent harm to the environment.

Thus, creating the need to develop valuation principles that will provide adequate and
fair compensation for loss and provide incentives for avoiding environmental harm
without saddling responsible parties with speculative or excessive liabilities or
imposing burden on adjudicatory tribunals and parties.83

THE LEGAL FRAMEWORK FOR COMPENSATION FOR NATURAL

RESOURCES

▪ The Land Use Act

▪ Federal Environmental Protection Agency Act
▪ Oil Pipelines Act 1956.
▪ Petroleum Act.
▪ Petroleum (Drilling and Production) Regulation.
▪ Harmful Waste (Special Criminal Provisions) Act.
▪ NOSDRA Oil Spill Recovery, Clean-up and Remediation Regulations.
▪ NOSDRA Oil Spill and Oily Waste Management Regulations.

The Land Use Act

Section 28 & 29 empowers the federal, state or local government to acquire land for
overriding public purposes and to pay compensation for such acquired land.
Overriding public purpose is defined to include the requirement of land for mining
purposes or oil pipelines or for public purpose. Compensation is however paid for

83
Amokaye, op.cit 971
unexhausted improvement to the holders of either statutory or customary right of
occupancy upon revocation of the right of occupancy.

Land acquisition and quality improvements permanently attached to land, directly

resulting from the expenditure of capital or labor by an occupier, or the utility or the
amenity thereof but includes buildings, wells, roads, and irrigation or reclamation
works, plantations of long-lived crops or trees, not including the result of ordinary
cultivation as espoused in Section 51 and in the case of Upper Benue River Basin
Authority v. Aika [1998] 2 N.W.L.R. (Pt. 537] 328.84

The Land Use Act on compensation have been largely unhelpful and unrealistic. First,
the right of an individual to receive compensation is restricted to acquisition of land
only and stands extinguished once the compensation has been paid at the point of
acquisition. Second, the compensation regime under the Act does not extend to
environment damage which is within the realm of common law remedies or statutory
regime provided under the Federal Environmental Protection Act Petroleum Act and
Oil Pipeline Act.

Section 23 of NESREA Act and Section 23 of the Harmful Waste (Special

Criminal Provisions) Act, and sections 67, 70 and 71 of Mineral and Mining
Decree are best known for authorizing the government to clean-up hazardous waste
disposal sites. Section 20 of the Federal Environmental Protection Agency Act
provides that the statutes also permit government entities to recover for virtually any
damage to public and private land, including “cost of removal, costs incurred on the
restoration or replacement of natural resources damaged or destroyed as a result of the

84
Ibid, 973
discharge, cost of third parties in the form of reparation, restoration, restitution or
compensation as may be determined by the Agency from time to time.85

Section 12(2) of the Harmful Waste (Special Criminal Provisions etc.) Act states
that where death or disease of any kind occurs as a result of dumping or deposit of
harmful waste in the environment, the environmental regulatory authority may recover
the cost of damage from the polluter.

The essence of the law is to hold the polluter responsible for any damage,
environmental harm and personal injury to the victims. The right of the government
to recover compensation for a private individual is based on agency theory. The
government merely acts as a conduit pipe in ensuring that adequate compensation is
paid to the victim.

This is because the Act does not create a private right of action for the recovery of
natural resources damaged. Only the authorized federal or state officer may bring an
action to recover natural resources damaged. These officials first assess the natural
resource damage resulting from a release of hazardous substances, and if warranted,
may bring an action against the affected polluter.86

COMPENSATION FOR OIL EXPLORATORY ACTIVITIES

Based on the provisions of the Petroleum Act, Petroleum (Drilling and Production)
Regulation, Oil Pipeline Act and NOSDRA (Oil Recovery, Clean-Up, Remediation
and Damage Assessment Regulations, 2011.

A holder of an oil exploration license, oil prospecting license or oil mining lease is to
pay fair and adequate compensation for the disturbance of surface or other rights to
any person who owns or is in lawful occupation of the licensed or leased lands, in

85
Id. at 973
86
Ibid.
addition to any liability for compensation which the Act may subject him to. Schedule
1, Petroleum Act, Cap P10, Laws of the Federation of Nigeria, 2010,

Under the NOSDRA (Oil Recovery, Clean-Up, Remediation and Damage

Assessment Regulations, 2011, the assessment of compensatory sum is made by
NOSDRA in collaboration with relevant stakeholders as espoused in Reg. 25(3) of the
Petroleum (Drilling and Production) Regulation.

The Oil Pipelines Act applies to pollution arising from corrosive or leaky pipelines
in the distribution, marketing and transportation of crude oil. Section 11(5) states that
A licensee must pay compensation to any person who suffers injurious affection, loss
or damage as a result of exercise of conferred on the license, leakage or breakage of
an oil pipeline or any ancillary installation. These statutes provide that to estimate the
compensation payable to the victims, the value of land polluted and the damage if any,
sustained by the owners by reason of severance or injurious affection.87

DEFENCES FOR OIL POLLUTION

A polluter may escape liability for compensation or damage if he can establish by the
preponderance of evidence that the discharge of the hazardous substances and the
resulting damages were caused solely by an act of God, act of war, natural disaster
and an act or omission of a third party, other than an employee or agent of the
polluter; and the sabotage of a third party.

Oil or oil mixture may be discharged into the navigable waters of Nigeria if it is
discharged for the purpose of securing the safety of any vessel as outlined in Oil in
Navigable Waters Act, s. 4(1).

87
Amokaye, op.cit 980
Section 4(2) (a) & (b) Oil in Navigable Waters Act and in the case of Tesco
Supermarket v. Natrass [1972], a polluter may also escape liability if he can
establish by the preponderance of evidence that he exercised due care and took
reasonably foreseeable precautions for preventing or reducing the escape of oil or
mixture and the polluter has taken practical reasonable steps after the escape of the oil
to stop or reduce the leakage.88

(ii) Industry Practice

Every spill presents a unique set of physical and economic changes for the company's
management consideration. This is dependent on the internal administrative procedure
of the oil companies. According to the Environmental and Safety Guidelines for
Petroleum Industry (EGASPIN), a spiller is liable for the damage from a spill but
settlement of damages and compensation is subjectively determined by a direct
negotiation between oil producers and landlords, where settlement fails, other
procedures such as arbitration and legal adjudication may be explored.

The practice in oil industry is that payment of compensation is limited to the surface
rights of all acquired land for use and for damage to land. These payments are settled
with land users and all parties sign an agreement. The level of compensation payable
is partially guided by the Oil Producers Trade Section rates issued by the Lagos
Chamber of Commerce and the Shell Petroleum Development Company's Lands
Department Procedure Guide and Administrative Guidelines issued by the
government.89

JUDICIAL INTERVENTION IN COMPENSATION ISSUES

88
Ibid. at 981
89
The legal base for judicial intervention in compensation issues in oil-related cases is
located in Section 6(6)(b) of the 1999 Constitution and Section 11(5) of the Oil
Pipeline Act. The Act empowers the court to fix compensation if the amount is not
agreed between any victim and holder of the oil pipeline license. The compensation
will take cognizance of the “injurious affection” suffered by the victims’ land as a
result of licensee’s operation.

The determination of the amount of compensation payable can be voluntarily

negotiated between the parties, where consensus cannot be reached, the matter is
referred to court for determination. In the process of determination of the amount of
compensation payable to the victims, both the court and oil companies do so by
reference to the principles of disturbance, injurious affection, investment and general
inconvenience.90

The practice of awarding compensation in environmental claim based on independent

heads of claim is not without difficulty. The issue is whether each of these heads of
compensation is to be assessed separately and independent of the value of the land.
The issue appears to be well settled in compulsory acquisition of land cases by the
House of Lords in Hughes v. Doncaster Metropolitan Plc, where the House laid
down the principles to be applied in the assessment of compensation.

The basis of compensation for land polluted is the value of the land to the owner as
they existed at the date of pollution. Such values include all potentialities to the owner
and all restrictions on user and enjoyment, disturbance, severance and injurious
affection on the land. In effect, while the courts are entitled to assess these heads of
claims as compensable injury, they must be taken into consideration in arriving at a
final but just compensation payable to the victim. In Samson Ediagbonya v. Dumez,

90
Id. at 984-93
the Supreme Court adopted similar approach in assessing the quantum of damages for
personal injury payable to the plaintiff. According to the court, in arriving at a single
composite sum for the damage payable to the victim, one element and sometimes
another may preponderate. It may be on be on occasions more convenient to separate
the elements. It has been found however more convenient to consider all the elements
together to arrive at a single global sum. This is done to avoid the possibility of over
compensation by making more awards for the same factor and to consider the effect
of the injury sustained as a whole.91

GENERAL PRINCIPLES ADOPTED BY THE COURTS IN THE

ASSESSMENT OF COMPENSATION PAYABLE IN OIL POLLUTION

RELATED CASES

1. Severance or Injurious Affection

At common law, it relates to the depreciatory effect of the acquisition on other land
retained by the owner as decided in Edmunds v. Minister of Transport [1964] 2
Q.B. 134; Cowper Essex v. Acton Local Board (1889) 14 App. Cas 153.

Therefore, unless a landowner retains other land depreciated by severance or injurious

affection, he may not be entitled to any compensation under this head of
compensation. However, in condemnation cases, compensation may be awarded to a
property owner for diminution in the fair market value of land as a result of severance
from the land of the property actually condemned.

Injurious affection as a basis for compensation is permitted under the Oil Pipelines
Act, which requires compensation to any person whose land, or interest is "injuriously
affected" by the activities of the licensee. The Act, however, did not offer the

91
Amokaye, op.cit 985
interpretation of "injurious affection" which has also led to parties having to determine
it every time. To compound this situation, Paragraph 36 of the First Schedule to the
Petroleum Act which purports to exclude the common law right of injurious affection
did not do so meaning that litigants have to resort to common law remedy of damages
and statutory compensatory scheme with the courts leaning more in favor of these
remedies.

The decision of the trial judge in Umudje v. Shell BP Petroleum Development Co.
of Nigeria Limited is commendable. In that case, the learned trial judge went ahead
to make award to the plaintiff’s compensation and injurious affections without
reference to common law remedy even though the claim was anchored in the Rylands
v. Fletcher rule and negligence. 92

2. Disturbance

Paragraph 36 of the First Schedule to the Petroleum Act provides the legal base
for compensation for disturbance in oil-related environmental cases. The Act requires
the licensee to pay fair and adequate compensation for the "disturbance" of land rights
of the owner or persons in lawful occupation. The Act did not define the term
'disturbance but the Supreme Court has in a related Public Land Acquisition case laid
down the principles to be applied in awarding compensation for disturbance.

In Williams v. Kamson, it was held that compensation for disturbance arises where a
claimant could establish loss owing to the disturbances from the action of the
defendant and such disturbance would arises where there is alteration of something
that would otherwise have continued.

Compensation for disturbance is identical to claims for loss of business or trade which
include items such as loss of goodwill, increased rental or other outgoings, cost of

92
Ibid p.986
alternative property, cost of relocation, removal, forced sale or diminution of value
and loss of profit during the period of establishment.

Disturbance and injurious affection are two different heads of compensation which
must be claimed separately, even though they co-exist in a particular claim. The most
important distinction is that, in the case of "injurious affection" there is usually a need
for a proof of loss of use of the subject matter of the claim alleged to be affected. But
in the case of disturbance, the subject matter of the claim is usually "loss of business
or trade. 93

It needs be emphasized, however, that loss of business or trade must be in respect of

a going concern. Where, therefore, the undertaking is unprofitable and abandoned,
there can be no compensation for loss of business or trade as espoused in Maja v
Chief Security to the Government.

A claim for disturbance is an element to be considered in computation of

compensation, like the injurious or severance claim, it is only an element to be
considered in the total computation of the compensation. It is wrong to treat
compensation for disturbance differently and independent of the compensation for the
value of the land; they must be considered simultaneously in arriving at the true value
payable for the land polluted as outlined in Horn v. Sunderland and in M'Ardle v.
Glasgow Corp (1972).94

3. General Inconvenience

The Petroleum Act also did not make any specific mention of the term "general
inconvenience", it could be inferred from the use of "other rights" expressed in

93
Amokaye, op.cit 987
94
Id. at 988
Paragraph 36 of the First Schedule to the Act. As Fekumo observes95, the term is
not identical with "disturbance" but a resultant effect of disturbance or injurious
affection. But in Idise v. Williams International Ltd, Musdaphar J.C.A. equated
general inconvenience with damage in a common law action.

However, in view of the widespread effect of oil pollution, claims for general
inconvenience in oil pollution cases should ordinarily be grounded on public nuisance.
The only fear usually associated with actions in respect of public nuisance is that the
plaintiff must cross the hurdle of establishing locus standi and proof that he has
suffered peculiar damages over and above the general public.

THE E

95
Fekumo, O.O., "Compensation for Oil Pollution in Nigeria, A New Agenda for Sustainable Development" in
Fagbohun& Simpson (eds), Environmental Law and Policy (Law Centre, Faculty of Law, LASU) 351.