An Appraisal of the Legal Framework on Environment Impact Assessment (EIA) in Nigeria

 

By Shedrack Ekpa Esq. LL.B (Hons), LL.M, PhD, BL Senior Lecturer, Faculty of Law, Kogi State University,

Anyigba-Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it., and Friday Okpanachi, Ekpa Esq., LL.B (Hons), LL.M, BL Lecturer, Faculty of Law, Kogi State University, Anyigba, Nigeria, email: This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Abstract

 

The need to protect human environment against all forms of intractable degradation cannot be overemphasised in the face of technological advancement that is currently witnessed globally. This article aims at appraising the legal framework for combating this global menace as it relates to Nigeria and more particularly on the growing concerns regarding institutional faceoff amongst agencies saddled with responsibilities of safeguarding environment in Nigeria as it relates to delivery of their respective mandates. Being a conceptual analysis, the paper relies on both primary and secondary sources of data. The paper founds that the current institutional faceoff between Nigerian Communications Commission (NCC) and National Environmental Standards and Regulations Enforcement Agency (NESREA) is unnecessary and recommends meaningful collaborations between these agencies of government with the common goal of nipping problems of legal regulation of harmful environmental practices in the bud.

 

Introduction

 

The environment is the core of man’s existence on the planet. There is no doubt that in every society, there are competing claims on the environment. This competition is between the forces or activities, which conserve the environment and those that degrade it. It is man’s responsibility to protect his inalienable rights to a clean environment by putting in place laws to maintain a sustainable equilibrium between man’s deleterious activities and the conservation of his physical environment.[1]

 

Environmental issues have constituted a major concern to world leaders, especially in the developed nations of the western world for over three decades.[2] The close of the 80s saw environmental issues raising global concerns as the future of earth climatic conditions and man’s survival on the planet were called into question because of scientific studies.[3] The basic causal factors in the alteration of the earth climatic conditions can be adduced to two related developments. First was the increasing depletion of the ozone layer above the earth atmosphere which in turn is caused by a continuous rise in the emission level of what scientists called “greenhouse gases” which consist mainly of carbon related fumes emitted by motor vehicles and industrial plant, and secondly, there was also the increasing decline of biological diversity and forest reserve (deforestation), the implication of the resulting loss which significantly acts as carbon sink further expose the world to the dangerous effect of greenhouse gases trapped in the atmosphere. [4]

 

It is against this background that environmental enforcement becomes a desirable instrument used by governments in curtailing or reducing the cause of these global concerns. The most fundamental reason, inter alia, for the convening of the Stockholm Conference of 1972andthe Rio de Janeiro Conference of 1992 was meant to fashion out legal regulations that would ensure environmental compliance.[5]

 

In a further bid to pursue vigorously the path to industrialization, developing countries were encouraged to pursue the same development models whose fall out assault degrade the environment. How to develop creatively, without compromising the natural integrity of the environment now constitutes a major challenge. Environmental Impact Assessment (EIA) became the perceived tool for achieving the desired balance.[6] Pursuant to several international treaties to which Nigeria is signatory, Nigeria has not only domesticated those international standards on environmental protection but has gone ahead to establish by legislation regulatory agencies, and saddled them with the responsibility of monitoring environmental safety.[7]

 

This paper, apart from appraising legal framework on EIA in Nigeria, also seeks to examine the overlap and/or faceoff particularly between Nigerian Communications Commission (NCC) and the National Environmental Standards and Regulation Enforcement Agency (NESREA) in the discharge of their respective functions, insofar as it relates to the protection and enforcement of environmental standards through the procedure of environmental impact assessment

 

Conceptual Clarifications

 

At this juncture, a glossary understanding of EIA and its procedure is imperative, especially its implication in the context and spirit of Nigerian laws on regulation and enforcement of environmental standards:

 

Judicial definition of the term ‘environment’ came to fore before the Supreme Court in Attorney General, Lagos State V. Attorney General, Federation[8] as “the totality of physical, economic, cultural, aesthetic and social circumstances and factors which surround and affect the desirability and value of property and which also affect the quality of people’s lives.” In similar context, the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment[9] defines the word ‘environment’ “to include natural resources both abiotic and biotic, such as air, water, soil, fauna and flora, and the interaction between the same factors; property which forms part of the cultural heritage; and the characteristic aspects of the landscape.”[10]

 

Statutorily speaking, the Environmental Impact Assessment Act[11] on the other hand defines ‘environment’ to mean:

 

The components of the earth, and includes-

(a)   Land, water and air, including all layers of the atmosphere;

(b)  All organic and inorganic matter and living organisms; and

(c)  The interacting natural systems that include components  

       referred to in paragraphs (a) and (b).[12]

 

It is apparent from the above definitions that man and his environment can be described as intertwined and in desperate need of each other to survive. It is in further appreciation of this interdependence that Akeredolu rightly posited that: Man has the ability to meddle and alter his environment in pursuit of an improved quality of life. Indeed, the environment is at the core of man’s existence on earth in that he cannot exist without it. Therefore, anything that affects the environment must affect the quality of his life.[13]

 

The term ‘impact’ on the other hand, can be defined as the reportable, quantifiable difference or potential difference that a project or program is making in real peoples’ lives. It reports payoffs and benefits to society. The focus is on public as opposed to personal benefit. Impact is change or potential change in one or more key areas: economic, environmental, social, health and well-being.[14] Assessment is defined as the determination of the rate or amount of something, such as a tax or damages.[15]

 

As far as the EIA Act is concerned, it is bereft of express definition of the term “impact”, despite the copious references made to it.  In view of this legislative gap, recourse would be had to other statutory and scholarly definitions whereat ‘environmental assessment’ as opposed to the ‘environmental impact assessment’ have been sufficiently dealt with.

 

According to the EIA Act, ‘environmental assessment’ means “in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and any regulations made thereunder, while ‘environmental effect’ as couched in the EIA Act which is not the same as ‘environmental impact’ means:

 

In respect of a project:

(a) Any change that the project may cause to the environment; and

(b) Any change the project may cause to the environment,

     whether any such change occurs within or outside Nigeria,

     and includes any effect of any such change on health and

     socio-economic conditions.[16]

 

In view of the statutory omission of the  definition of the term ‘impact’ in the EIA Act as identified above, a learned author, Okon, defines the term ‘Environmental Impact Assessment’ in wholesome manner “as a systematic process involving the identification, predicted evaluation and presentation of the probable as well as possible consequences (positive or negative) of proposed project, policy or programme, at a stage in the decision-making process where serious environmental damage can either be avoided or reduced”.[17]

 

Atsegbua on the other hand defines ‘Environmental Impact Assessment’ as the process by which changes in the environment as a result of development are assessed to measure how beneficial or deleterious these changes might be.[18] It is a policy and management tool for both planning and decision making by comparison of the various alternatives by which a desired objective may be realised and seeks to identify the one which represents the best combination of economic and environmental costs and benefits.[19]

 

Furthermore, EIA is the process by which information about environmental effects of a project is collected, assessed and considered by the planning service in reaching a decision on whether the proposed development should be granted planning permission. EIA can also be defined as a systematic process to identify, predict and evaluate the environmental effect of proposed actions to aid decision making regarding the significant environmental consequences of projects or proposed development.[20] At the global level, World Bank Operational Directives of 1989 describes ‘environmental assessment’ as “a flexible procedure, which can vary in breadth, depth and type of analysis, depending on the project.”[21] It may be carried out at one point in time, stretched over a year to account for seasonal variation, or done in discrete stages. On the other hand, ‘Environmental Impact Assessment’ is also defined as “the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effect of development proposals prior to major decision being taken and commitments made.”[22]

 

EIA is usually carried out to produce an environmental statement which should include: description of the project: location, design, scale, size etc.; description of significant; mitigating measures and non-technical summary.[23] A review of application of EIA in Africa shows that some forms of environmental assessment have occasionally been carried out on major development initiatives prior to its systematic institutionalization in the region. Recently, there has been a steady increase in the number of EIA to development project.[24] The steady increase in the number of EIA application received has been attributed to the enactment of EIA legislation, the establishment of institutions, increase in the level of economic activity and a growing awareness about EIA requirements. The sectorial distribution of EIA application depends on the dominance of the sector in the economy and its potential impacts on the environment.[25]

 

EIA is one of the successful policy innovations of the 20th century for environmental conservation.[26] Some of what later become known as ‘environmental assessment’ had started under town planning regulations, land use and other policies prior to this period.[27] There has been growing public and government concerns about the pollution of the Nigeria’s environment. Slow poisoning of water is witnessed in this country and the destruction of vegetation and agricultural land by oil spills which occur because of petroleum operations. With increasing public awareness of the damage done by oil operations on the environment, government intensified measures to combat these problems.[28] Environmental impact assessment consists of eight steps with each step equally important in determining the overall performance of the project. These eight steps of the EIA are: Screening; Scoping; Impact analysis; Mitigation; Reporting; Review of EIA; Decision-making and Post Monitoring.[29]

 

Legal Framework on Environmental Impact Assessment in Nigeria

 

Flowing from the Rio Declaration on Environment and Development,[30] it became imperative for countries to conduct environmental impact assessments with respect to activities that are likely to significantly affect the environment within their territory as proactive steps towards prevention of environmental hazards associated with development.[31]

 

Globally, EIA is recognized as a tool for achieving sustainable development. EIA legislation and the required procedural guidelines for carrying out the EIA process became effective since the 1970s in developed countries. Nigeria took a giant leap when she promulgated her first legislation on EIA.[32]

 

EIA is also proclaimed in Principle 17 of ‘Agenda 21’ of the United Nations Conference on Environment and Development (UNCED)[33] held in Rio de Janeiro, Brazil. The principle stipulates that ‘environmental impact assessment’ shall be undertaken for proposed activities that are likely to have a significant adverse effect on the environment and subject to a decision of a competent authority.[34]

 

In Nigeria there are three independent EIA regimes in operation namely; the EIA Decree 86 (1992),[35] the Town and Country Planning Decree 88 (1992)[36] and the Petroleum Act (1969).[37] Ogunba[38] observed that whilst the current practices as outlined in the three EIA systems in Nigeria are at different stages of evolution, it suffices to state that the Town and Country Planning Decree is yet to evolve satisfactorily in comparison to the other two; the EIA Act and the Petroleum Act provides detailed guidelines on environmental safety, though are yet to be put in effective practice.

 

Aside from the foregoing, there are other domestic legislation in Nigeria that deals with specific subject or activity that could violate environmental standards and the need to safeguard.[39] However, for the purposes of this article, the focus shall be limited to the EIA Act and the Urban and Regional Planning Act.

 

Environmental Impact Assessment (EIA) in Nigeria under the EIA Act

 

The goals and objectives of Environmental Impact Assessment (EIA) Act are provided as follows:

 

To establish before a decision is taken by any person, authority corporate body or unincorporated body including the Government of the Federation, State or Local Government intending to undertake or authorise the undertaking of any activity that may likely or to a significant extent affect the environment or have environmental effects on those activities shall first be taken into account;

To promote the implementation of appropriate policy in all Federal Lands (however acquired) States and Local Government Areas consistent with all laws and decision making processes through which the goal and objective in paragraph (a) of this section may be realised;

To encourage the development of procedures for information exchange, notification and consultation between organs and persons when proposed activities are likely to have significant environmental effects on boundary or trans-state or on the environment of bordering towns and villages.[40]

 

In similar context, the Nigeria’s National Policy on Environment[41] made pursuant to the EIA Act sets out the following goals:

 

Securing the quality of the environment for health and wellbeing;

Conserving and using the environment and natural resources for the benefit of present and future generations;

Restoring, maintaining and enhancing the ecosystem and ecological processes essential for the functioning of the biosphere to preserve biological diversity and the principle of optimum sustainable yield in the use of natural resources;

Promoting public awareness on the link between development and the environment; and,

International co-operation with countries and international organisations in the protection of the environment.

 

Notwithstanding the elaborate provisions in the main EIA legislation and the subsidiary rules as identified from the foregoing, Nwazi, a learned scholar, opines that the goals of EIA may also include: responsible use and exploitation of natural resources; sustainable productivity of ecosystems; maintenance of the carrying capacity and the absorptive capacity of air, land and water; prevention of the degradation of environmental quality; and use of appropriate technology.[42]

 

On his part, Ivbijaro, commented further on what could clearly be captioned as falling within the realm of goals and objectives of EIA posited that the aims of EIA may also include; to ensure that the possible negative impacts of development projects are predicted and addressed prior to the project take off; to ensure that development projects are environmentally sound and sustainable; EIA like feasibility studies is a planning and management tool for officials and managers who formulate policies and make important decisions about development.[43] The learned author submits that the public or private sector of the economy shall not undertake or embark on public or authorise projects or activities without prior consideration, at an early stages, of their environmental effects. Where the extent, nature or location of a proposed project or activity is such that is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of the EIA Act.[44] Laid down standard and procedures under the EIA Act shall be used to determine whether an activity is likely to significantly affect the environment and is therefore subject to an environmental impact assessment. The EIA Act also requires all agencies, institutions (whether public or private) except exempt under the EIA Act, before embarking on the proposed project apply in writing to the Agency, so that subject activities can be quickly and surely identified and environmental assessment applied as the activities are being planned.[45]

 

To ensure that proper data/information are elicited from applicants in need of certification of their level of compliance to environmental safety, the EIA Act prescribes the minimum content of EIA as follows:

 

An environmental impact assessment shall include at least the following minimum matters, that is -

(a) A description of the proposed activities;

(b) A description of the potential affected environment including specific information necessary to identify and assess the environmental effects of the proposed activities;

(c)  A description of the practical activities, as appropriate;

(d) An assessment of the likely or potential environmental impacts on the proposed activity and the alternatives, including the direct or indirect cumulative, short-term and tong-term effects;

(e) An identification and description of measures available to mitigate adverse environmental impacts of proposed activity and assessment of those measures;

(f) An indication of gaps in knowledge and uncertainty which may be encountered in computing the required information;

(g) An indication of whether the environment of any other State, Local Government Area or areas outside Nigeria is likely to be affected by the proposed activity or its alternatives, and

(h) A brief and non-technical summary of the information provided

         under paragraph (a) to (g) of this section.[46]

 

Furthermore, the EIA Act provides for consultation in granting approval for a project initially by ensuring that NESREA[47] affords concerned professionals, government agencies and other stake-holders opportunity to make an input prior to release of final report or decision, which is required to be made public.[48]

 

With respect to mandatory projects, the provisions of the EIA Act is clear: such projects   require EIA in accordance with the conditions set out in the Act or any regulation made thereunder.[49] Where a project is so described to be mandatory, no federal, state or local government or any of their authority or agency shall exercise any power or perform any duty or functions that would permit such project to be carried out in whole or in part until the relevant agency has taken a cause of action conducive to its power or has taken a decision or issue an order that the project could be carried out with or without conditions.[50] Any conditions given by the agency of either federal, state or local government must be fulfilled before that project is embarked on.[51]

 

The EIA Act further enumerates other cases where the conduct of environmental impact assessment is a condition precedent as follows:

 

Notwithstanding the provisions of Part I of this Act an environmental impact assessment shall be required where a Federal, State or Local Government Authority established by the Federal, State or Local Government Council:

 

·       Is the proponent of the project and does any act or thing which commits the Federal, State or Local Government authority to carrying out the project in whole or, in part;

·       Makes or authorises payment or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except when the financial assistance is in the form of any reduction, avoidance, deferral, removed, refund remission or other form of relief from the payment of any tax, duty or excise under Customs Tariff (Consolidated) Act or any Order made thereunder, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the enactment, regulation or order that provides the relief to be carried out;

·       Has the administration of Federal, State or Local Government and leases or otherwise disposes of those lands on or any tests in those lands or transfers the administration and control of those lands or invest therein in favour of the Federal Government or its agencies for the purpose of enabling the project to be carried out in whole or in part; and,

·       Under the provisions of any law or enactment, issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.[52]

Furthermore, EIA shall not be required by an agency where a project is on the list of projects whereby the President is of the opinion that the environmental effects are likely to be minimal, or where the project is to be carried out during national emergency, or the project is to be carried, in the opinion of the agency, in the interest of public health or safety.[53]

 

 

 

Environmental Impact Assessment under the Nigerian Urban and Regional Planning Act

 

Assessment of the environmental effects of major proposed developments before planning permission is granted is now a central part of the decision-making process for planning authorities.[54] Under the Act, a developer (whether private or government) is required to draw a building plan by a registered architect or town planner before an application for development will be considered.[55]

 

Furthermore, a developer shall at the time of filing his application for development submit to an appropriate control department a detailed environmental impact statement for an application for building of a residential land more than 2 hectares; or permission to build or expand a factory or for the construction of an office building more than four floors or 5,000 square meters of a lettable space, or permission for a major recreational development.[56]

 

Section 48 of the Act[57] empowers the planning authority to direct a developer to alter, vary, remove or discontinue a development having regard to the likely environmental degradation or impact of such development if allowed. The Act prescribes such violation as an offence and upon conviction and sentence to a fine not exceeding ten thousand naira (N10,000) and in the case of a company, to a fine not exceeding fifty thousand naira only (N50,000).[58] The Act also provides for preservation and planting of trees for the purposes of environmental conservation against the hazards of degradation.[59]

It has been submitted that the requirement of an environmental impact statement (EIS) under the Act[60] is separate and distinct from the requirement of an environmental impact assessment under the EIA Act. From all intents and purposes, the requirement of an EIS is an integral part of the general package for the enhancement of development towards the EIA Act’s goal of a more efficient land use and planning as a national policy.[61]

 

It is important to note that despite repeated references made to the terms ‘significant’ or ‘major’ in the description of environmental impact that could suffice as falling within the thresholds of the regulation envisaged in the EIA Act and the NURP Act examined above,[62] the definition of these key terms is copiously absent thereby given room to some forms of interpretative disharmony amongst stakeholders. This paper therefore submits that such gaps in legislation erodes certainty and predictability that are key criteria to good legislation.

 

The position is better appreciated from the background that the threshold of major environmental impact under the NURP Act may not be as high as under the EIA Act. For instance, an impact as simple as the disturbance of the aesthetic quality may suffice as a major environmental impact for the purposes of the NUPR Act.[63] 

 

Judicial attempts at filling the gaps are not particularly helpful. In Natural Resources Defence Council v. Grant,[64]  the term ‘major’ was defined as ‘an action that requires substantial planning, time, resources or expenditure. However, in Rucker v. Willis,[65] it was held that the defendants, corps of Engineers, were not required to prepare an environmental impact statement about a permit to build a fishing pier and marina. Further, the project was not major stressing the private nature of the project and the minimal federal involvement.

Two-pronged test to determine the phrase ‘significantly affects the quality of the human environment’ was set out in the case of Hanly v. Kleindienst,[66] as follows:

 

i. The extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it; and

ii. The absolute qualitative adverse environmental effects of the action itself, including the cumulative harm that results from the contribution to existing adverse conditions or uses in the affected area.

 

It therefore follows that what is ‘significant’ or serious ’ for the purposes of breach of the legal protection contemplated under the EIA Act and NURP Act would continue to be determined, based on the peculiar facts and circumstances of each case.

 

Implementation/Enforcement of EIA Laws in Nigeria: The NCC/NESREA’s Faceoff

 

Implementation and enforcement of environmental safety standards in Nigeria was formally vested in the Federal Environmental Protection Agency (FEPA).[67] However, the National Environmental Standards and Regulation Enforcement Agency (NESREA) was established as the paramount federal agency charged with the protection of Nigeria’s environment. [68] It is worthy of note that the NESREA Act repealed the Nigerian flagship law on protection of the environment that is, the Federal Environmental Protection Agency Act.[69] Consequently, NESREA has become the primary agency on environmental protection attributable to man-made development in Nigeria.

 

For the records, NESREA has the sole responsibility for protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines inter alia.[70]

 

However, a critical appreciation of the NESREA Act reveals that the inclusion of ‘oil and gas’ on the list of international treaties on the environment to be enforced by NESREA[71] is contradictory and confusing considering provisions in the Act which expressly remove oil and gas from the purview of NESREA.[72] It is thus submitted that such legislative imprecision should not be encouraged. The phrase ‘oil and gas’should be struck out to bring section 7(c) in conformity with other sections of the Act and to reflect the true intention of the drafters.[73] This paper agrees with the view expressed by Ladan, to the effect that NESREA constitutionally can only enforce domesticated treaties but that the agency could play a vital role in the domestication process of relevant environmental treaties.[74]

 

The Agency is armed with a wide range of powers, with a view to making its operations more effective. In the sphere of environmental protection, the agency can “prohibit processes and use of equipment or technology that undermine environmental quality”.[75] It can also “conduct field follow-up compliance with set standards and take procedures prescribed by law against any violator”.[76] The agency is empowered to establish mobile courts to expeditiously dispense cases of environmental infringements.[77] However, this has to be done with the ‘relevant judicial authorities’ as well as in consonance with the provisions of Nigerian Constitution. Furthermore, the agency can conduct public investigations[78] and make proposals to the Minister for the review of existing guidelines, regulations and standards on environment.[79] In partnership with the public or private agencies, institutions and organizations, it can promote the expansion of research experiments, surveys and studies.[80] With the approval of the Minister, the Agency can “establish programmes for setting standards and regulations for the prevention, reduction and elimination of pollution and other forms of environmental degradation in the nation’s air, land, oceans, seas and other water bodies and for restoration and enhancement of the nation’s environment and natural resources.”[81] Through publications and other appropriate means, the agency can collate and make available basic scientific data on environmental standards.[82]

 

Pursuant to the provisions of EIA Act, [83] NESREA is the agency empowered by the EIA Act to enforce environmental standards and regulations in Nigeria, following the defunct Federal Environmental Protection Agency (FEPA),[84] which is empowered to enforce EIA Act insofar as such projects are proposed by government agency at any level, be it federal, state or local.

 

Conversely, there exists another federal agency called the Nigerian Communications Commission, which was established in 2003,[85] and saddled the regulation of the communications sector generally in Nigeria. It is empowered inter alia to facilitate the investment in and entry into the Nigerian market for provision and supply of communications services, equipment and facilities and to grant and renew communications licences whether the licences themselves provide for renewal in accordance with the provisions of this Act and monitor and enforce compliance with licence terms and conditions by licensees.[86]

 

The NCC Act further provides that licensees may require approvals of the state government, local government or other relevant authority for installation, placing, laying or maintenance of any network facilities on, through, under or across any land and it shall be the responsibility of such licensees to obtain such approvals and that a licensee shall, in installing its network facilities, take all reasonable steps to ensure that he causes as little detriment and inconvenience, and does as little damage, as is practicable. Further that, if a licensee engages in an activity in relation to any land, the provider shall take all reasonable steps to restore the land to a condition that is like its condition before the activity began. Also, that all licensees shall, about the installation of their respective network facilities, take all reasonable steps to act in accordance with good engineering practice; protect the safety of persons and property; ensure that the activity interferes as little as practicable with –the use of land; and protect the environment.[87]

 

For all intents and purposes and flowing naturally from the above provisions of the NCC Act, it has not in any way placed regulation of environmental issues or the enforcement of EIA laws in the NCC.[88]  Though NCC is recognized as an agency of Federal Government of Nigeria, it is not so captioned under the EIA Act or NURP Act as an agency saddled with implementation and enforcement of environmental standards and safety in Nigeria.

 

What is more, NCC Act recognizes the existence and role of NESREA as a collaborative agency in matter of telecommunication installations which harbours environmental dangers to human population, by providing the grant of its licence to prospective investors is subject to the overriding approval of relevant authority which is in this case NESREA.[89]

 

There are current concerns regarding the exercise of the powers of these two sister agencies in matters of installation and operation of telecommunication masts that radiate injurious electromagnetic field (ETF) rays affecting human environment. While NCC certifies a minimum of five-metre distance from a residential building and other requirements, NESREA on the other stipulates a minimum of 10 metres, as stipulated by its regulation on telecommunications and broadcasting facilities[90] on the ground that the said distance would be too close and could pose intractable environmental dangers to residential buildings.[91] In enforcing the above regulations, NESREA have ordered a number of telecommunication base stations that contravened the laid down criteria to be shut down.[92]

 

This development has given rise to frosty relationship between NCC and NESREA, resulting in faceoff that has hampered smooth and collaborative running of these agencies in Nigeria As clearly observed from the foregoing analysis of the enabling laws which is clear and not shrouded in legislative controversy, their mandates are quite dissimilar but complementary.[93]

 

Breathing along the same line of thought, Ogboru is of the view that the rift is unnecessary and in fact needless for the two agencies to engage themselves in such avoidable and mundane battle, given that they both regulate different sectors of the Nigerian economy. [94]He observed that while NCC regulate telecommunications, NESREA is concerned with protection of environment regulation and compliance, adding that the issue of regulation of telecommunication base station remained within the competence of the NCC being a telecoms matter per se,  but that where such endeavours pose environmental issues of pollution and the likes, being an environmental issue, NCC is enjoined to refrain from engaging in needless rifts with NESREA, especially having regard to the provision of its own law which envisages such collaboration with NESREA in addressing the matter.[95]

 

The learned scholar opined further that NESREA’s act of closure/sealing of a communication in consequence of breach of its regulation ought not to be taken as incursion into the exclusive preserve of the functions of NCC.[96] This paper agrees with the foregoing views expressed by Ogboru, and adds that such institutional friction/animosity in quest of supremacy is unnecessary if we are to achieve the set-out objectives of these relevant government agencies.

 

 

Conclusion

 

Since the environment is the core of man’s existence on the planet, anything that affects it must invariably affect the quality of man’s life.[97] Even though an individual is entitled to make use of the environment for his own sustenance, there can be no corresponding right for the individual to do whatever he likes with the environment as it does not form part of fundamental right to pollute or to use the resources of nature in an unsustainable manner.

 

There should therefore always be a balance between man’s efforts in exploiting nature for his survival and the need to avoid degrading the environment.[98] Hence, all hands must be on deck in securing our environment.

 

Although the existence of numerous legislation on EIA in Nigeria is a welcome development, what is more important lies beyond this much touted celebrated flagrancy: effective implementation and compliance of the set out standards on healthy use of resources of nature, particularly as envisaged in the establishment of NESREA with its monetary and other punitive sanctions, is key in the prevention of harmful environmental practices in Nigeria.[99] The importance of EIA as a veritable tool for sustainable development must be deeply appreciated beyond mere semantics.

 

Insofar as the faceoff between the NCC and NESREA regarding the environmental issues associated with installation of telecoms systems, this paper concludes that such war of supremacy is self-serving and borne out of lack of understanding of the letters and spirit of   laws establishing the respective agencies, as there is no such legislative gap in the enabling statutes that could fan embers of acrimony amongst them.

 

To this end, it is recommended that Nigerian government should harmonize the activities of these agencies regarding the discharge of their respective roles in relation to environmental impact assessment in the country.[100] Needless to add that our laws as typified in several legislations on the subject should also be reviewed to address issues of overlap of functions, in order to forestall possible outbreak of institutional crises as enumerated earlier.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Ivbijaro, M.F., ‘Environmental Impact Assessment / Environmental Audit Report in Nigeria:

An Overview’ Environmental Law and Sustainable Development in Nigeria, Ajomo, M.A. & Adewole, O. (eds) (Lagos: NIALS, 1998)

Ladan, M.T., ‘Review of NESREA Act 2007 and Regulations 2009- 2011: A New Dawn in

Environmental Compliance and Enforcement in Nigeria’ (2012) Law, Environment and Development Journal 118-140. Available at http://www.lead-journal.org/content/12116.pdf accessed on 26/4/2017.

Ladan, M. T.  Law, Cases and Policies on Energy, Mineral Resources, Climate Change,

Environment, Water, Maritime and Human Rights in Nigeria (Zaria: ABU Press, 2009)

Nwazi, J., ‘An Appraisal of the Environmental Impact Assessment as a Device for Sustainable

Development in Nigeria’ (2008) 6 Igbinedion University Law Journal 193

Nwoko, C.O., ‘Evaluation of Environmental Impact Assessment System in Nigeria’ (2013)

2(1) Greener Journal of Environmental Management and Public Safety 23. Available at www.gjournals.org accessed on 14/4/2016

Ogunba, O.A., ‘EIA Systems in Nigeria: Evolution, Current Practise and Shortcomings’ (2004)

24 Environmental Impact Assessment Review.643–660

Okon, E.E., ‘The Legal Framework of Environmental Impact Assessment in Nigeria’ (2001)

5(2) Modern Journal of Finance and Investment 213

Sadler B., (ed.) Environmental Assessment in a Changing World: Evaluating Practice to

Improve Performance, International Study of the Effectiveness of Environmental Assessment, Final Report, 1996.

Thornton, J. and Berkwith, S., Xwell’s Environmental Law, 2nd edition (London: Sweet &

Maxwell, 1997).

 

Nigerian Domestic Laws and Regulations

Constitution of the Federal Republic of Nigeria 1999 as amended

Environmental Impact Assessment Act, Cap E12 LFN, 2004

Federal Environmental Protection Agency-National Guidelines and Standards for Industrial

Effluents, Gaseous Emissions and Hazards Waste Management in Nigeria, 1999

National Environmental (Standards for Telecommunications and Broadcasting Facilities) Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of 29th April, 2011

National Environmental (Noise Standards and Control) Regulation, 2009, cited as Federal

Republic of Nigeria, Abuja, Regulations No. 35 of 2009, Official Gazette, Vol. 96, No. 67 dated 19th October 2009

National Environmental (Standards for Telecommunications and Broadcasting Facilities)

Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of 29th April, 2011

National Environmental Standards and Regulation Enforcement Agency (Establishment) Act

No. 25 0f 2007

National Communications Commission Act, 2003

Urban and Regional Planning Act, Cap N138, LFN 2004.

 

 

 



[1] Nwazi, J., An Appraisal of the Environmental Impact Assessment as a Device for Sustainable Development in Nigeria, Igbinedion University Law Journal, Vol. 6, 2008, p.193; Agbazue V.F., Anih E.K, and Ngang B.U., The Role of NESREA Act 2007 in Ensuring Environmental Awareness and Compliance in Nigeria, ISOR  Journal of Applied Chemistry Volume 10, Issue 9 Ver. III, September 2017, p. 32.

[2]Seigel M., Environmental Issues of the 70s and 80s,The Wottonpost, 2012 available at http://the

  wottonpost.wordpress.com, accessed on 26/3/2018.

[3] Shantora V., Environmental Concerns of the 80s, Journal of the Air Pollution Control Association, 33:6,

  2012, pp.559-561, available at www.tandfonline.com>doi>pdf, accessed on 23/3/2017.

[4] Nwankwoala H. N. L, Causes of Climate and Environmental Changes: The Need for Environmentally Friendly  

  Education Policy in Nigeria, Journal of Education and Practice Vol. 6, No. 30, 2015, pp. 224-234

[5] Edo, Z.O.,The Challenges of Effective Environmental Enforcement and Compliance in the Niger Delta Region

  of Nigeria. Journal of Sustainable Development in Africa, Vol. 14, No. 6, 2012, p.12

[6]Anago, I., Environmental Impact Assessment as a Tool for Sustainable Development: The Nigerian   

  Experience, Paper presented at the FIG XXII International Congress, Washington, D.C. USA, April 19th -26th   

  2002.

[7] Such as National Environmental Standards Regulation Enforcement Agency (NESREA) and Nigerian 

  Communications Commission (NCC) to mention but a few.

[8] (2003) FWLR Pt. 168 at 922.

[9] Adopted in Lugano, June 21, 1993, available at https://www.ecolex.org, accessed on 12/3/2018.

[10]  Article 2(10) thereof. See also Thornton, J. and Berkwith, S., Xwell’s Environmental Law, 2nd edition,       

   (London: Sweet & Maxwell, 1997), p.23.

[11]  National Policy on the Environment of 1999 (revised edition).

[12]   Section 63(1) of Environment Impact Assessment Act Cap E12 LFN 2004, (hereinafter referred to as EIA  

    Act).

[13] Akeredolu, A., NESREA Vis-a-Vis FEPA: An Old Wine in a New Bottle? NIALS Journal of Environmental

    Law, Vol. 1, 2011, p.309.

[14] What is impact? The heart of your EARS report, available at

    http://www.extension.unl.edu/c/document_library/get_file?folderId=3602&name=DLFE-2444.pdf accessed  

    on 17/4/2017.

[15]  Garner, B.A., Blacks’ Law Dictionary, 8th Edition, (St Minns: West Publishing Co., 2004), p.125.

[16] Section 63(1) of the EIA Act.

[17] Okon, E.E., The Legal Framework of Environmental Impact Assessment in Nigeria, Modern Journal of

    Finance and Investment, Vol.5, No.2, 2001, p.213.

[18] Atsegbua, L., et al., Environmental Law in Nigeria, Theory & Practice, (Lagos: Ababa, 2003), p.167.

[19] Ivbijaro, M.F., “Environmental Impact Assessment / Environmental Audit Report in Nigeria: An Overview” 

    in Environmental Law and Sustainable Development in Nigeria, Ajomo, M.A. & Adewole, O. (eds) (Lagos:  

    NIALS, 1998), p.148.

[20] Chukwuma C., Environmental Impact Assessment of Development Projects and Natural Resources -A View

    Point, Journal of Environmental Studies, Vol. 50, Issue 3-4, 1996, pp. 187-200, available at http://www. 

    tandfonline.com, accessed on 21/3/2018.

[21] Federal Environmental Protection Agency-National Guidelines and Standards for Industrial Effluents,

   Gaseous Emissions and Hazards Waste Management in Nigeria, 1999.

[22] International Association for Impact Assessment (IAIA) and Institute of Environmental Assessment (1999).

[23] Akintunde, M. A., and Olajide, A., Environmental Impact Assessment of Nigerian National Petroleum

    Corporation (NNPC) Awka Mega Station. American Journal of Scientific and Industrial Research, 2(4), 

    2011, pp. 511-512 available at http://www.scihub.org/AJSIR, accessed on 14/4/2017.

[24] Chukuma, C., op cit, p.187.

[25] Akintude M.A., and Olajide A., op cit., p.512.

[26] Sadler B., (ed.). Environmental Assessment in a Changing World: Evaluating Practice to Improve 

    Performance, International Study of the Effectiveness  of Environmental Assessment, Final Report, June  

    1996, p. 1 available at https://www.ceaa.gc.ca>content>... accessed on 23/2/2018.

[27] Goodland, R. and Mercier, J.R., Environmental Assessment (EA) in Africa; A World Bank Commitment,

    Proceeding of the Durban World Bank Workshop, June 25, 1995.

[28] Akintunde, M. A. and Olajide A., op cit., p.512.

[29] Goodland, R. and Mercier, J.R, op cit.

[30] Principles 17 of the Rio Declaration on Environment and Development.

[31] Bhatt, R.P. and Khanal, S.N., Environmental Impact Assessment System and Process: A Study on Policy and

   Legal Instruments in Nepal, African Journal of Environmental Science and Technology Vol. 4(9), September

   2010, p.589, available at http://www.academicjournals.org/AJEST accessed on 14/4/2016

[32] Under EIA Act No.86 of 1992, now Cap E12, Laws of the Federation of Nigeria, 2004.

[33] Agenda for the 21st century, held on the 3rd to14th of June, 1992, Rio De Janeiro, Brazil.

[34] Ibid.

[35] Currently cited as Environmental Impact Assessment Act, Cap E12 LFN, 2004.

[36] Currently cited as Urban and Regional Planning Act, Cap N138, LFN 2004.

[37] Nwoko, C.O., Evaluation of Environmental Impact Assessment System in Nigeria. Greener Journal of

    Environmental Management and Public Safety Vol. 2 (1), January 2013, p.23, available at www.gjournals.org 

    accessed on 14/4/2016.

[38] Ogunba, O.A., EIA Systems in Nigeria: Evolution, Current Practise and Shortcomings, Environmental Impact

   Assessment Review, 24, 2004, pp.643–660.

[39] The Constitution of the Federal Republic of Nigeria (1999) (as amended), National Environmental Standards  

    and Regulations Enforcement Agency (Establishment) Act, 2007, Harmful Waste (Special Criminal

    Provisions) Act, Cap H1, LFN, 2004. Hydrocarbon Oil Refineries Act, Cap H5, LFN, 2004, Associated Gas  

   Re-injection Act, Cap 20, LFN, 2004, The Endangered Species Act, E9, LFN, 2004, Sea Fisheries Act, Cap  

  S4, LFN, 2004, Oil Pipelines Act, Cap O7, LFN, 2004, Petroleum Act, Cap P10, LFN, 2004, Petroleum

  Products and Distribution (Management Board) Act, Cap P12, LFN, 2004, Territorial Waters Act, Cap T5, 

  LFN, 2004, Nuclear Safety and Radiation Protection Act, Cap N142, LFN, 2004, Nigerian Mining

  Corporation Act, Cap N120, LFN, 2004, River Basins Development Authority Act, Cap R9, LFN, 2004, Pest 

  Control of Production (special powers) Act, Cap P9, LFN, 2004, Agricultural (Control of Importation) Act,

  Cap A93, LFN, 2004, Animal Diseases (Control) Act, Cap A17, LFN, 2004, Bees (Impact Control and

  Management) Act, Cap B6, LFN, 2004, Civil Aviation Act, Cap C13, LFN, 2004, Factories Act, Cap F1,  

  LFN, 2004, Water Resources Act, Cap W2, LFN, 2004, Hides and Skins Act, Cap H3, LFN, 2004, Federal   

  National Park Act, Cap N65, LFN, 2004, Niger-Delta Development Commission (NDDC) Act, Cap N68, LFN,

  2004 among others.

[40] Section 1 of the EIA Act.

[41] Constituted in 1989.

[42] Nwazi, J., op cit., p.199.

[43] Ivbijaro, M.F., op cit., p.149.

[44] Ibid.

[45] Section 2 of the EIA Act.

[46] Section 4 of the EIA Act.

[47] Note that NESREA is now the Agency responsible for the implementation of the EIA Act. Section 36 of

    NESREA Act repealed FEPA Act.

[48] Sections 7 and 9(2), (3) & (4) of the EIA Act.

[49] Under the Mandatory Project Lists in the Schedule to the EIA Act.

[50] Section 13 of the EIA Act.

[51] Nwazi, J., op cit., p. 201. Mandatory projects as listed under the Schedule to the Act are: Agriculture, Airport,

    Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, 

    Mining, Petroleum, Power generation and transmission, Quarries, Rail ways, Transportation, Resort and

    Recreational Development, Waste Treatment and Disposal, and Water Supply.

[52] Section 14 of the EIA Act.

[53] Ibid., section 15.

[54] Thornton, J., op cit., p.375.

[55] Section 30 of the NURP Act.

[56] Section 33 of the NURP Act.

[57] Ibid.

[58] Ibid., section 59.

[59] Ibid., section 72.

[60] Ibid., section 33.

[61] Okorodudu-Fubura, M.T., op cit., p.304.

[62] For instance, section 3 (1) of EIA Act provides that ‘in identifying the environmental impact

    assessment process, under this Act, the relevant significant environmental issues shall be identified and

    studied before commencing or embarking on any project or activity convened by the provision of this Act or

    covered by the Agency or likely to have serious environmental impact on the Nigerian environment. (Italics

    for emphasis).

[63] Section 31 of NURP Act.

[64] 341 F. Supp, 356, 366-367 (ENDC 1972).

[65] 484 F. 2D 158 (4th cir 1978). See also Atsegbua, L. et al. op cit., p.171.

[66] 471 F. 2nd 823 2nd cir 1972.

[67] Established by FEPA Act Cap F10 LFN 2004.

[68] See the Long Title and Section 1(2) (a) of NESREA (Establishment) Act No. 25 of 2007. See also Ladan,   

   M.T., Review of NESREA Act 2007 and Regulations 20092011: A New Dawn in Environmental Compliance 

   and Enforcement in Nigeria. Law, Environment and Development Journal, 2012, Pp. 118-140, available at

   http://www.lead-journal.org/content/12116.pdf 

    accessed on 26/4/2017.

[69] Section 36 of NESREA Act, 2007.

[70] Ibid., section 7(a)-(m).

[71] Ibid., section 7(c).

[72] Ibid., section 7 subsections (g), (h) and (j) which excludes cumulatively the regulation of NESREA on matters

    of oil and gas by the use of the phrase ‘other than in the oil and gas sector’ (Italics for emphasis).

[73] Ladan, M. T.  Law, Cases and Policies on Energy, Mineral Resources, Climate Change, Environment, Water,

   Maritime and Human Rights in Nigeria (Zaria: ABU Press, 2009) p.  Another issue raised by S.7(c) as

   canvassed by Akeredolu, A. is that, since the section mandates NESREA to enforce compliance with 

   international environmental agreement, conventions, treaties and protocols, it raises the question whether such

   international obligations can be enforced without formal ratification by the National Assembly as required by

   section.12 of the Constitution of the Federal Republic of Nigeria 1999 (As amended), see Akeredolu, A., op

   cit., p.326.

[74] Ibid.,

[75] Section 8(d) NESREA Act.

[76] Ibid, section 8 (e).

[77] Ibid, section 8 (f).

[78] Ibid, section 8 (g).

[79] Ibid, section 8 (k).

[80] Ibid, section 8 (m).

[81] Ibid, section 8 (o).

[82] Ibid, section 8 (p).

[83] Section 14(d) of the EIA Act.

[84] Section 63 of the EIA Act defines ‘Agency’ responsible for its administration as FEPA. However, as stated

    earlier, Section 36 of NESREA Act, 2007 expressly repealed FEPA Act, the necessary implication is that

    NESREA has replaced FEPA as the “Agency” referred to in Section 63 of the EIA Act.

[85] National Communications Commission Act, 2003.

[86] Ibid., sections 3 and 4.

[87] Ibid., sections 135 and 136. It is our submission that the NCC Act recognizes the existence and power of any

   other Agency

[88] Either the EIA Act or the NURP Act.

[89] Ibid.

[90] Adeyemi,A.,  ‘Government Resolves NCC, NESREA Feud over Telecoms’ Facilities Control’ Guardian      

   (Lagos, 1 June 2012) <www informationng.com/2012/06/govt-resolves-ncc-nesrea-feud-over-telecoms-

   facilities-control.html> accessed 21st August 2017.See also National Environmental (Standards for

   Telecommunications and Broadcasting Facilities) Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of  

   29th April, 2011. The said regulation is meant to protect environmental and human health; ensure safety and  

   general welfare; eliminate or minimise public and private losses due to activities of the telecommunications

   and broadcast industry. See also section 8(d) of NESREA Act.

[91] National Environmental (Noise Standards and Control) Regulation, 2009, cited as Federal Republic of

   Nigeria, Abuja, Regulations No. 35 of 2009, Official Gazette, Vol. 96, No. 67 dated 19th October 2009. The

   said regulation is meant to regulate maximum permissible noise levels:- for general environment,

[92] Nigeria: The NESREA/ NCC Feud over Telecoms Masts, Leadership Newspaper, 10 August 2012, available

    at http://m.allafrica.com/stories/ accessed on 26/4/2016.

[93] A quick look at the long titles to both the NESREA Act and the NCC Act would reveal the differences in their

    respective mandates without much difficulty.

[94] Ogboru T., NESREA and NCC Regulation on Telecommunications: Implementing the Precautionary 

    Principle, Journal of Sustainable Development Law and Policy Afe Babalola University Vol. 5, No. 1, 2015,

    pp. 70-71, available at https://www.ajol.info>article>view...accessed on 28/3/2018.

[95]Ibid.

[96] This view is rational having regard to NESREA’s National Environmental (Standards for Telecommunications and Broadcasting Facilities) Regulations, 2011, S.I. No. 11 Gazette No. 38, Vol. 98 of 29th April, 2011.

[97] Atsegbua, L., et al., op cit., p.66.

[98] Nwazi, J., op cit., p.214.

[99] Ladan M.T., op cit., p.137.

[100] Agbazue V.F., Anih E.K, and Ngang B.U., op cit., pp.36-37