Integrating the Principles and Values of Sustainable ...

Lead City University Law Journal: Vol. 1, Pt 2, July 2008-June 2009

Integrating the Principles and Values of Sustainable Development in the Nigerian Petroleum Industry

* C. T. Emejuru & 0. EmejllnJ

In trod uctioQ Petroleum is a generic name for combustible hydrocarbon found in the earth, It is the world's most important energy sources, the means of lubricating the machinery of the modem l industrial society anci.a raw material from which an enormous range of products can be made This source of energy il'\cidentally, has become the main stay of the Nigerian economy. Nigeria possesses extremely large. reserve of the resource which has caused her economy to be synonymous with petroleum. In a bid to exploit this product, there is an assemblage of big time multinational players

in the oil and gas industry, particularly the seven major oil companies and a host of other players including indigenous companies. This is with a view to meeting tip with it's daily quota production of2.5 million barrels per day (bid). Considering the importance of oil 10 the econo~y and political stabili J y of Nigeria. this paper seeks to examine government policy and the role of muTti+l-ational oil com(!anies towards adopting a sustainable development in the industry. bearing in mind that a breakdown of the internal political stability of the country may make it for any oil and gas company operating in the industry physically or fi)r safety reasons. impossibie to continue its operations", In the extreme cases the oil company may be forced to abandon ils operations altogether.

Sustainable Development International guiding principles, of sustainable devclopment, are in the process of articulation by the international community Lhrough such statements as 1992 Rio Dec/aration on Rnvirol1ment and Developmenl.} These principles include integration. precaution, intergencraLional equity. public participation. polluter pays, indigenous rights and community­ based management. While still somewhat jll-defined. the principles of sustainable development do indicate some general directions for legal and instiLutional rethinking and refonTmtion at all levels uf environmental decision-making, national, regional and intcmationaL Sustainable development concept or ethic was raised to global heights by the fVorld ('ommissiurl (in Environment und Developmenl. "Ihe need to integrate economic and ecological considerations in {kx.:ision-makillg~

I Wi:lianis ,end i\,lrycrs. Oil and (Jas 1,1111 J\bridg\.'d ed.l_ tv1altIK~\\ Bender_ Sc~warlz. W F, and Kindred. 11~1. "Americall Repdatiol1 0/ Oil ImpOrTS Lmrs, Policy and /!lsl!Iuliolluf Re.lfJonstbil!f),". \lllrnal oCWl1rld Trade Law. No 15.1971.267 . .' Tavcme. B. Perrolellnl. Indu5f1Y and Guvernments: :In inrroduUion io Pellu/elfln In !?1!:"u/afiol1

I~·con(}mics ond (JO\'emment Policies. Kluwcr Law International. 1999,82

I .'\ V. COni 151 Rev I \ 13 ,bne 1992). rcprinleJ in S.P. Johnson (00). Vunder was. I)

, WorlJ Commission on Lnviromm'llt and Developmcnt. Our Common Future (OxronJ 'ni versl1y Prcss:

1987 at p. J.J

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the clear Pinnacle of World Commission on Environment and Development Strategy, is simply a common sense call for getting at the policy sources of pollution and environmental degradation rather than treating the symptoms or effects through «band-aid" measures. slich as end-of-pipe effluent regulation, Ine goals of meeting the essential needs of the world's poor and ensuring future generations an adequate resource base ring with moral troth in the famous words of the Commission:

Sustainable development is development that meets the needs of the present without compromising the ubi/itp ofJitlllre f;enerations to meel their own need'/ c. The concept of sustainable development has also usefully emphasized the multiple and interrelated dimensions of environmental problems where «quick fixes" are hard to come by. However, on clear examination the concept of sustainable development. rather than offering firm groundings or a clear blueprint for the future, is cloaked with various interpretative, definitional and tenninological mists. In the bid for the concept to avoid extreme ethical positions of no economic growth or unlimited economic growth, it has masked potentials for ongoing philosophical debates over values and interpretations based on interests". There is a debate v..hether the environment should be as instrumental or utilitarian in value or as intrinsic (holding value aside from hmmn uses). It is prest~OO that a better view is to properly balance i bet\-\'\;.'C~ resource conservation versus preselvation , the appropriateness of economic cost­ benefit or risk-benefit trade-offs in making decisions,g and the validity of centralized and hierarchical management approache~t Interests groups may also influence interpretations of what is su')tainable development. HO\\ever. authors have acknowledged the mediating aspect of the sustainable developrrent term. According to ORiordan, the term attempts to bridge the gap io betvveen "developers" and "environm=ntalists ". Regardless of terminology, the concept is generally viewed as requiring major societal changes throllgh radical or incremental restructuring .. o f ·mstltutlons an d management approac hes II

treatoo

The Environmf'nt and the Law A discussion of the environment and the law immediately poses the question; 'What is law", Law has been described as a way of rt'gulating human behaviour. One school of thought posits that law is a command of a sovereign backed up by sanctions in the evenl of disobedience. The problem with the command concept of law is that it doesn't fit very readily with laws that merely empower or permit one to do something. The common concept has another difficulty: it fails adcquate;y to separate legal coercion t!'om non-legal coercion. A multinational corporation might instruct its staff to keep-quiet about pollution incidents caused by its activities on pain of dismissal. Would that be law? Whatever may be Ihe case, it is obvious that many agree that law

, Ibid

{, Strong, ~-1. I LI:o 9:2: ('rilical Challenges and (ilona! Solutiolls" 44 J. Inlematlanal AlTair 287 (1991),

291 Ta; lor, I), M. "l.hlogreeitlJ!, un II/t: 13asi(;s,' Environmental Denotes Nef/ect Competing ~f/orld Views" 18(3) Alternative 30 1992. , Endre, I r. "I.egal i?egulafion (!t,"justamublt' Del'e/upmenl in Australia. Po/i/ics, Hconomic VI' Dhic;/! 32 National Resources Journal. 487 1992 495-13 Sagofr M. The J~collomy of lhe 1~(lrth, Cambridge University Press (1988) 10 220{)'Riordan. T. "The Politi",,· of SlIstainahilitv". in Turner. R. K.: (cd) Sustainable /,'nl'irunmet/lol ,\fanagemenf' I'rllleiples and Practice (Westview Press: Boulder. Colorado. 1988) 29. l'

Toner G. B.., t>asslOno(e Politics Canada's Grf!t:n Plan- for Social Change? Ecodecisions 31 (1991).

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consists simply of a body of clear rules surrounded by a woolly mantle of judicial discretion. Thus, the decision in Donoghue had the effect of creating a rule of liability. Law also contains principles. It is in this light that judges reach a solution based on the principles of their particular legal system. The sorts of principles which can be found in most legal systems include: (l) The principle of proportionality (Jaws should not be draconian); (2)The principle of non­ discrimination (laws should not make arbitrary distinctions between subjects); (3) Principles of natural justice (e.g. the right to a fair trial); and (4)Equitable principles such as equity will not permit a statute to be used as an instrument of fraud I:? An important question to examine is whether environmental principles such as the precautionary principle and the polluter pays principle have been accepted into environmental law. Laws for environmental protection are embedded in and are influenced by the characteristics of, 'parent' legal systems. A law that exists for the purpose of environmental improvement can only function welJ if the legal system in which it exists is strong and effective. The type of legal system within which a given environmental law originates is of considerable importance in determining the ability of that law to tackle the environmental problem it is designed forB.

The Pre-Cautionary Principle

~l

!

Ii

t,

f

it is said that precautionary principle has an elusive character and that it is hard to formulate a universally accepted definition for itl4 . According to Lucas, the best known definition is pOPlJlarly known as 'Triple Negative Definition". which runs along the following lines; "not having scientific uncertainty is not a justification for not regulating". To support this definition. reference is often made to the Rio Dec/aration and the Biosafety Protocol, made under the Convention on Biological Diversity (eBD). Principle 15 of Rio Declaration and Article 11 (8) of the Cartagena Protocol on Biosafety, inter alia. provide as fi)lIows:

Where there are threats of serious or irreversible damage. lack of fill! sciemific uncertainty shall not be used as a reason /()r postponing cost-effective measures to prevent environmental degradation. The quality of this definition is that it strives for precaution to be taken in case of scientific uncertainty of harm even though the uncertainty is not "full scientific uncertainty". It gives power to states to regulate. The definition above reveals that where scientitic uncertainty about adverse effects of new technologies or chemicals and other substances proposed to be introduced exists, proponents have to take appropriate precautions. The Wingspread statement IS on the precautionary principle rightly puts it as;

11

Wilkinson. D. Em·iranmenf and l.aw, Routledge-London. 2002, 13

j)

Ibid

14 Van-Dyke J. M., "The Evolutiun and International Acceptance of Precautionary Principle", Paper Presented at International Conference ()n International Law in 'he New Millennium: Problems and Challenges Ahead, 4-7 October 200 I New Delhi, Organized by the Indian Society of International Law,

New Delhi. Ij An international group of scientists, government ofriciais, lawyers, and labour grassroot environmental activists met on 23-25 January 1998 at Wingspread in Racine, Wisconsin to define and discuss various as

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When an activity raises threats ofharm to human health or the environment, precautionary measures should be taken even if some cause and effict relationship are not fully established, scientifically Like Sustainable development, Precautionary principle embraces an anticipatory approach to environmental issues under which an attempt is made to determine the likely nature and cost of environmental problems in advance of their occurrence, so that appropriate measures can be taken to prevent the impoverishment of the future. It is in view of this that the white paper: This Common Inheritance"', now states. at p. II.

Where there are sigmficant risks of damage to the environment, the Government will be prepared to take precautionary action to limit... use of potentially dangerous pollutants, even where scientific knowledge is not conclusive ... particularly where there are good grounds for judging either that action taken prompt(v at comparatively low cost may avoid more costly damage laler. or that irreversible effecls may follow if action is delayed Given the current state of scientific knowledge, it is rarely possible for one to fully understand the mechanisms under which the environment is damaged. The danger, therefore, is that given the uncertainty surrounding the causes of environmental deterioration, legislation to protect the environment may be passed too late to be of any use, or may not be passed at all. The precautionary principle however, requires measures to be taken despite scientific uncertainty about the likelihood of harm, and even in cases where there is no scientific proof of a causal link between the emissions in question and their effects. Within the difficult framework regarding managing environmental aspect of oil and gas

in Nigeria (loss of biodiversity, degradation of ecosystems, difficult environmental conditions in combination with a focus on economic growth and competition with global markets), it is the view of the authors that capacity building among the relevant stakeholders to effectively and competently deal with regulatory. economic. environmental, technical and social issues of petroleum mining, leading to secured livelihoods and a more sustainable use of natural resources be integrated as a precaulionary aspect of sustainable resource management and precautionary measure. This will assess the current environmental status and challenges in the target area and produce specific recommendations to integrate natural resource management into a long-term socio-economic development strategy, considering the different livelihood strategies, options and restrictions. The assessment will also provide benchmark data on the environmental situation in the target area and allow for comparison. This is otherwise known as sustainable use of natural resources as livelihood security. Polluter-Pays Principles Polluter pay principle is an economic means used to regulate the environment. Experiments in this form of environmental control involve using taxation rather than legal sanctions. For example, the use of an energy tax to reduce consumption of energy may be more

aspect pertaining to the precautionary prinCiples. The declaration on the conclusion of the conference is known as "Wingspread Statement on the ('recautionary Principle". I.

(eM (200)

223

effective than either criminal or civil sanctions. The principle of the polluter pays' is seen as a preventive measure to encourage waste avoidance and prevent pollution damage. A particular focus for the debate over the scope of allowable damage has been oil pollution legislation. The Civil Liabili(v and Fund ConventIOns originally provided that: Pollution damage means loss or damage caused outside the ship carrying oil by contamination resulting jrom the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and mcludes (he costs of preventlve measures and further loss or dwnage caused by preventative measures,

Many national courts were, it appeared, prepared to award damages for injury caused by oil to general or unowned environmental entities 17 . Where the polluter pays principle is imposed through common law actions such as nuisance or negligence, calculations of liability may be complex. The general measure of damages is diminutive in value lS • For an action to succeed, particular darrnge ITIJSt be foreseeable at the tirre the escape occtnre'(:ll'l. The general rule in English Common Law is that contamination per se is not actionable; that is no claim can be maintained until some visible environmental harm arise 20 • The polluter pays principle derives from theories of justice and economics, but predominantly the latter. It requires polluters to cover at least the costs of regulation of their activity and probably also the restoration costs for ensuant environmental damage. Thus, our environmental laws stipulate fines and imprisonment inter alia for gross abuse of the environment whether committed by individuals or by corporation 11

Integration Integration in the environmental management field, may hf:lve a variety of meanings. First, the term may encapsulate the need for all policy sectors, at both national and intcmational levels. such as finance. energy, agriculture, transportation and trade. to ensure their plans, programmes and budgets integrate economic and environmental concerns 2 ]. "n1is is referred to as external integration. Second, the teml may also refer to the need to overcome fragmentation in departmental responsibilities and permitting process for air, water and land pollution through consideration of cross-media effects and co-ordination of governmental control efforts possibly through unified agency and/or pennit,23 This has been referred as internal integration, A third meaning involves the notion of interdisciplinary integration. Environmental managers. in deciding on the appropriate balance between environmental and developmental

Wilkinson. D, op cit 128

Moss v. Christchurch R.D,C. (1925) 2KB 750

10 Cambridge ~flaler Company V EaSTern Counties /~ealher

~o Salvin V North [Jrancepeth Coal Co. ( 1974) 9chAPP 705

2, 24 Ilegbunc T. o. "Enl'irunrm:nta/ Regulation and Enforcement" In Environmental 7

i8

LCM

and Policy.

Simpson and FagiJ