THE CONTROL OF OIL POLLUTION AND THE ASSESSMENT OF ITS LEGAL FRAMEWORK
ABSTRACT
This project borders on oil pollution in Nigeria, its control through the existing laws and the assessment of these existing laws; how efficient have they been to ensure Nigerians live in a healthy environment? This is essential because Nigeria is an oil producing country, it’s important for the citizens to not be adversely affected by oil and gas exploration activities by oil and gas companies operating in Nigeria. How are their rights protected through these legal frameworks & policies?
Oil was first discovered in the 50s and since then, we’ve not looked back. Oil pollution affects any of the 2 main parts of the earth; land, water, oil spills on land through accidental oil spills by worn out pipelines/equipment and oil can also be spilt by oil theft and sabotage/intentional third party interference. The lives of victims of oil spills are seriously endangered. Generally, the habitat is prone to degradation.
This project will examine the role the judiciary has played in the control of oil pollution in Nigeria through its decisions and if it has served as a deterrence to other oil companies committing the same offence. A plethora of cases exist on this matter. Also to be discussed is the Compensation framework available to affected parties, principles to be highlighted include the POLLUTER PAYS PRINCIPLE.
In conclusion, this work will attempt a critique of the legal framework of oil pollution in Nigeria as well as well as state cases where it has failed to protect the victims of oil pollution. I also look to proffer solutions to ensure a better legal framework for oil pollution control in Nigeria and still maintain a healthy business environment.
TABLE OF CONTENTS
Contents Pages
Title page ---------------------------------------------------------- 1
Certification -------------------------------------------------------- 2
Dedication ----------------------------------------------------------- 3
Acknowledgement -------------------------------------------------- 4
Table of contents ---------------------------------------------------- 5-7
Abstract --------------------------------------------------------------- 8
CHAPTER ONE: INTRODUCTION
1.0 INTRODUCTION
1.1. DEFINITION OF OIL SPILL
1.2. DEFINITION OF A LEGAL FRAMEWORK
1.3 DEFINITION OF OIL THEFT AND SABOTAGE
CHAPTER TWO: OIL SPILL AND SABOTAGE
2.0. BACKGROUND OF OIL SPILLS & OIL SABOTAGE IN NIGERIA
2.1. VARIOUS COMPANIES INVOLVED IN OIL EXPLORATION IN NIGERIA
2.2 OIL SPILL INCIDENTS IN NIGERIA
2.3 IMPACT OF OIL SPILL ON LIFE AND HABITAT; IMPACT IN THE NIGER DELTA
CHAPTER THREE: CONTROL OF OIL POLLUTION IN NIGERIA
3.0. APPLICATION OF POLLUTER PAYS PRINCIPLE IN NIGERIA
3.1. INTERNATIONALLY RECOGNISED STANDARDS FOR OIL SPILL CONTROL
3.2 OIL SPILL RESPONSE AND BLOCKAGES IN NIGERIA.
CHAPTER FOUR: LEGAL FRAMEWORK FOR OIL POLLUTION AND ASSESSMENT
4.0 LEGAL MANAGEMENT OF OIL SPILLS IN NIGERIA
4.1 LEGAL FRAMEWORK FOR COMPENSATION AND REMEDIATION ON OIL SPILLS IN NIGERIA
4.2. JURISDICTIONAL ISSUES IN OIL SPILL LITIGATION
4.3. ANALYSIS OF GAPS IN THE POLICY AND LEGAL FRAMEWORK
CHAPTER FIVE: CONCLUSION
5.0. RECOMMENDATION
5.1. CONCLUSION
CHAPTER 1
1.0 INTRODUCTION
Oil pollution also known as oil spill is a form of pollution on the environment. Oil spills are normal in the day to day activity of oil companies. Oil companies engage in activities which lead to spilling oil which are oil exploration, oil transportation through ships. Oil spills may be by accidental fuel spills or oil sabotage. The former occurs through ships which adversely pollute the water due to the large quantity usually carried while the latter occurs when individuals deliberately destroy oil pipelines belonging to oil companies to steal their oil and sell in the black market or for political/military advantage. Unrest in the society can also lead to oil sabotage. Oil spills in water is known to be more devastating than oil spills on land due to the effect wide effect of such spill and the clean-up process cost. Oil spills have occurred in Nigeria and other parts of the world. In Nigeria, it’s most rampant in Niger delta. There are different estimates of oil spills in the Niger Delta, that it would not be far from the truth to say that these guesstimates do not match the scale of the horrors. According to the Department of Petroleum Resources (DPR), an estimated 1.89 million barrels of crude oil were spilled between 1976 and 1996 from an overall total of 2.4 million barrels spilled in 4,835 incidents.A report by the UNDP indicates that there was a total of 6,817 oil spills between 1976 and 2001, with three million barrels of oil dumped into the environment and only about 30% of that was recovered.According to the NNPC there have been about 300 separate oil spills daily. Going by a rampant case of under reporting or no reporting at all, it can be said that there is an oil spill every day in the Niger Delta.According to the World Bank, because supposedly minor oil spills are not taken into account in the mathematics of these oil spills, “the true quantity of petroleum spilled into the environment could be as much as ten times the officially claimed amount.”In other countries, oil spills have occurred in Kuwait, Trinidad & Tobago, U.S.A, Spain & Portugal. Oil spillage has led to serious pollution and destruction of flora, Fauna and resort centres, pollution of drinkable water, destruction of properties and lives along the Nigerian coast. Oil spillage has also caused regional crisis in the Niger Delta. Some of the factors responsible for oil spillage in the zone are; corrosion of oil pipes and tanks sabotage, port operations and inadequate care in oil production operations and engineering drills..
Nigeria is bordered to the North by the Republics of Niger and Chad, to the West by the Republic of Benin, to the East by the Republic of Cameroon and to the South by the Atlantic Ocean. Nigeria has a coastline of approximately 853km facing the Atlantic Ocean. Nigeria exercise sovereignty over its territorial sea which has its breadth up to a limit of 12 nautical miles; Nigeria has sovereign rights in a 200- nautical mile exclusive economic zone (EEZ) with respect to natural resources and certain economic activities, and exercise jurisdiction over marine science research and environmental protection (UNCLOS, 1982). Nigeria‘s continental shelve extends from the shore to the 200m depth (CIA World Fact Book, 2005).
Oil spills have the most devastating effects in coastal areas and in Nigeria there are numerous coastal areas, some affected by oil spillage. The coastal area is low lying with heights of not more than 3.0 m above sea level and is generally covered by fresh water swamp, mangrove swamp, lagoon mashes, tidal channels, beach ridges and sand bars (Dublin- Green et al, 1997). Nigeria’s total land and water area is 923,768 sq. km, with the area of the land being 910,768 sq. km while that of water is 13,000 sq. km (CIA World Fact Book, 2005).
In 1956, Shell British Petroleum (now Royal Dutch Shell) discovered crude oil at Oloibiri, a village in the Niger Delta, and commercial production began in 1958. Today, there are 606 oil fields in the Niger Delta, of which 360 are on-shore and 246 off-shore. (Nigeria Country Analysis Brief, 2005). Nigeria is now the largest oil producer in Africa and the sixth largest in the world. Nigeria’s economy is heavily dependent on earnings from the oil sector, which provides 20% of GDP, 95% of foreign exchange earnings, and about 65% of budgetary revenues (CIA World Fact Book, 2005). Nigeria's state-held refineries (Port Harcourt I and II, Warri, and Kaduna) are hindered by problems including sabotage, fire, poor management and lack of regular maintenance. Plans for several small, independently- owned refineries are also being developed.
The Niger delta is the main area of focus for oil pollution because that’s where oil drilling processes take place and where oil is spilt the most by the oil producing companies and sabotage. They have been treated in an animalistic manner, unworthy citizens of Nigeria by the Nigerian government. Oil is our main source of revenue and each successive government has come to terms with that. As the saying goes, “Blood may be thicker than water but oil is thicker than both”.
This paper therefore examines the governance of oil spills in the Niger Delta, the different stakeholders involve in oil exploration, the impacts of oil spill on the environment, the policy and legislative framework, a vivid case study within the Niger Delta and lastly the gaps and policy recommendation of oil spills in Nigeria
1.1 DEFINITION OF OIL SPILLS
Oil pollution/spills is the release of liquid petroleum hydrocarbon into the environment caused by human activity It's the accidental release of oil into a body of water, from a tanker, offshore drilling or underwater pipeline which is a hazard to marine life & environment often referred to as marine oil spill. These spills can spread towards land & affect land animals as well.
An oil spill is oil, discharged accidently or intentionally, that floats on the surface of water bodies as a discrete mass and is carried by the wind, currents and tides. Oil spills can be partially controlled by chemical dispersion, combustion, mechanical containment and adsorption. They have destructive effects on coastal ecosystems.
It’s also defined as the presence of significantly large amount or layers of crude or refined oil on soil or sea water.
An oil spill is a form of environmental pollution. It is the release of a liquid petroleum hydrocarbon into the environment as a result of human activity. The term ‘oil spill’ is most commonly used in the context of marine oil spills where crude oil, refined petroleum products or by-products, ships’ bunkers, oily refuse or oil mixed in waste is released into the ocean or coastal waters. Costs incurred for removing oil spills is very high, and it may take several months or in some cases many years to clean up the spills. Marine oil spills may take place due to variety of reasons. Some of these are;
⦁ Carelessness or mistakes on the part of the oil tanker owner.
⦁ Breaking down of equipment in the tanker/vessel.
⦁ Oil release into the environment from the natural geological seeps on the sea floor.
⦁ Acts of terrorism, whereby there is intentional oil spills.
⦁ Hostile acts. When two nations are at war, one may decide to dump gallons of oil into the other national’s oceans.
⦁ Natural disasters such as hurricanes.
The effects of oil spills are devastating to put it lightly. It has the most effects on marine animals; fishes, whales, seahorses and have even rendered some marine animals endangered species. Birds are also affected as well as the repellency of their feathers is damaged making them prone to die from hypothermia. Also affect their sight if it encroaches their eyes. Ingestion of the spilt oil while they attempt to clean themselves, could lead to death. Generally, it affects the growth, enlarged livers, change it heart rates, fin erosion, reproduction, eggs & larval survival. Shows the high mortality rate in mangrove areas, sea weeds, algae.
1.2 DEFINITION OF A LEGAL FRAMEWORK
Firstly, a framework can be defined as a structure for supporting or enclosing something else, especially a skeletal support used as basis for something being constructed. Can also be a fundamental structure, as for a written work or a set of assumptions, concepts, values, and practices that constitutes a way of viewing reality. Also, can be defined as interlinked items supporting an action, a process, an approach. Serves as a guide, modifiable to meet fluctuating objectives. Seen as a broad overview, outline, or skeleton.
Policies need to be supported by appropriate and up-to-date legislation. Inappropriate laws will conflict with policies they are inconsistent with and will affect the growth of the sector concerned.
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process soon enough it becomes established as the de facto method of deciding like situations. A broad system of rules that govern and regulates decision making, agreements, laws etc. A system of rules, laws, agreements etc. that establish the way that something operates in business, politics, or society.
They are set of guidelines, as well as long term goals which are taken into account when policies are made. A fundamental prerequisite for a well-functioning government oil sector is the introduction of a sound legal, regulatory and supervisory framework. Many of the associated legal and regulatory reforms must be in place before the oil sector can develop. Moreover a balance must be struck among the needs for proper control, oil sector integrity and its development.
Frameworks differ in different legal systems. Especially in the oil and gas sector, what operates in America differs from what operates in Nigeria. For example, their legal system allows for individual ownership if a person discovers oil on his land whereas in Nigeria, land and all beneath it belongs to the government, including diamonds and gems. Also these frameworks set out how the sector should be run, registration processes, fees and fines, penalties, etc. a separate government parastatal is usually set up to enforce this framework and are delegated administrative powers to create policies and regulations to ensure the compliance to the laws created by this skeletal framework and non-compliance usually punished with a hefty fine.
1.3 DEFINITION OF OIL THEFT AND SABOTAGE
Sabotage can be defined as any underhand interference with production, work, etc., in a plant, factory, etc., as by enemy agents during wartime or by employees during a trade dispute.
Crude oil theft may refer to any activity relating to the theft or sabotage of crude oil, facilities or installations in form of illegal bunkering, pipeline vandalism, fuel scooping and illegal refining and transport and oil terrorism. Illegal oil bunkering is the most commonly known form of oil theft and it involves direct tapping of oil. Though oil bunkering is a necessity for maritime shipping within the maritime sector, it becomes an illegal oil bunkering when it is carried out without requisite statutory licenses or valid documents, or in violation of the Nigerian Maritime Sector and the guidelines made by the statutory institutions regarding it. It’s also referred to as INTENTIONAL THIRD PARTY DAMAGE (ITPD). `Good oil field practice’, including the Integrity Management system, requires operator attention to the potential for Third Party Damage (TPD). In much of the world, this normally implies accidental TPD, such as construction equipment accidentally rupturing a buried pipeline, etc. But clearly in the Niger Delta, intentional TPD - sabotage and illegal bunkering - is a legitimate concern, and should be considered a high priority in pipeline Integrity Management programs. Sabotage and theft is a problem for oil pipeline operators in several regions around the world, notably Mexico, Columbia, the Middle East, Asia, and Africa. There has been a great deal of industry and government experience with pipeline sabotage, and much has been learned about sabotage prevention and detection, particularly since the 9/11 terror attacks in the U.S. and the risk to oil infrastructure in Iraq during the Iraq war.
According to Shell’s annual report on oil sabotage, Crude oil theft, sabotage and illegal refining are the main source of pollution in the Niger Delta today. In 2013 the Nigerian government estimated crude oil theft and associated deferred production at over 300,000 barrels of oil per day (BOPD). Intentional third-party interference with pipelines and other infrastructure was responsible for around 75% of all oil spill incidents and 92% of all oil volume spilled from facilities operated by the Shell Petroleum Development Company (SPDC) over the last five years (2009-2013). Much greater volumes of oil are discharged into the environment away from SPDC facilities through illegal refining and transportation of stolen crude oil.
In 2013 the number of spills from SPDC operations caused by sabotage and theft increased to 157, compared to 137 in 2012, whilst production losses due to crude oil theft, sabotage and related temporary shut-downs increased by around 75%. On average around 32,000 bopd were stolen from SPDC pipelines and other facilities, whilst the joint venture lost production of around 174,000 bopd due to shutdowns related to theft and other third-party interference. This equates to several billion dollars in revenue losses for the Nigerian government and the joint venture.
Operational spills (those caused by corrosion, equipment failure or human error) accounted for around 15% of the total volume of oil spilled from SPDC facilities in 2013. The number of operational spills over 100kg was 30, down from 36 in 2012 and 63 in 2011. However the volume of oil spilled due to operational causes increased to 0.4 thousand tonnes. Around 0.3 thousand tonnes of this volume was from a single spill. SPDC has publicly reported oil spill statistics annually since 1995 and since 2011 has operated an Oil Spills Data website which publishes data on all spills from SPDC JV facilities and provides weekly progress updates, investigation reports and photographs. This website can be accessed at www.shellnigeria.com/spills. SPDC is the only oil and gas company in Nigeria that publishes spills data in this way.
Taking into account the threat of Intentional TPD / sabotage in an operating area, particularly one with such security risk as the Niger Delta, it is reasonable to expect an operating company to evaluate and incorporate into their Integrity Management program rigorous safety measures designed specifically to mitigate this threat. These additional sabotage prevention measures should include such things as more robust Design Factors including sabotage resistant pipe specifications, thicker walled pipe, reduced D/t ratio (pipe diameter / pipe wall thickness), higher grade steel, pipe-in-a-pipe or pipe-bundle technology, etc.; alternate choices for routing pipelines away from high-risk areas; deeper burial of underground pipeline segments; concrete casements around pipe; more rigorous and frequent inspection protocols; enhanced Leak Detection Systems with greater sensitivity; better community engagement; and other traditional security techniques. A crucial component of pipeline sabotage prevention system is enhanced pipeline surveillance. Pipeline surveillance regimes can include remote closed-circuit television cameras, fibre-optic sensor technology along the entire length of the pipeline, more frequent aerial patrols, remote listening devices (e.g. hydrophones, etc.) to detect drilling, digging, tapping, engine noise, explosions; satellite imaging; and so forth.
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