• Friday, December 01, 2023
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Who controls the environment: State or federal government?

Delta communities urge Buhari to address Polobubo/Opuama oil spillage

“The environment is no one’s property to destroy; it’s everyone’s responsibility to protect. – Mohith Agadi

In many countries, including Nigeria, the control and regulation of environmental matters often lead to conflicts and legal disputes between state and federal governments. This contest arises from the complex nature of environmental issues, which can span multiple jurisdictions and levels of government. Environmental concerns encompass a wide range of topics, such as air and water quality, land use, pollution control, natural resource management, and conservation.

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The Nigerian Constitution delineates the powers and responsibilities of both the federal and state governments, creating a framework for governance. However, environmental matters fall into a grey area, as they often intersect with both state and federal jurisdictions. This has led to disagreements regarding who has the authority to legislate, regulate, and enforce environmental laws and policies.

Key issues at the heart of these disputes include defining the scope of “environment” as outlined in the Constitution, determining whether certain aspects of environmental control fall within the concurrent or exclusive legislative lists, and clarifying the powers of regulatory agencies at the state and federal levels.

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The Nigerian judiciary plays a crucial role in resolving these disputes, with landmark cases, such as Attorney General of Lagos State v. Attorney General of the Federation & 35 others (2003) 6 SC (Pt. 1), Attorney General of Ondo State v. Attorney General of the Federation, and IHS (Nigeria) limited v. attorney general Ogun state & 3 ors., providing legal precedents that influence how environmental matters are handled.

Impact of the judicial contest

These legal battles have significant implications for environmental protection, natural resource management, and sustainable development in Nigeria. Clarification of the roles and responsibilities of each level of government is essential for effective environmental governance and ensuring that the environment is preserved for future generations while balancing economic interests.

In the case of Attorney General of Lagos State v. Attorney General of the Federation & 35 Ors. (supra) the term ‘Environment’ was defined as the natural conditions, including land, air, and water, in which people, animals, and plants live. This definition implies that the environment encompasses both land and air, which are essential for human habitation. Furthermore, Section 61 of The Environmental Impact Assessment Act, 2004, provides additional clarity on the concept of the environment. It enumerates its components, including land, air, and water, encompassing all layers of the atmosphere. It also includes all organic and inorganic matter, living organisms, and the interdependent natural systems that involve land, air, water, atmospheric layers, organic and inorganic matter, and living organisms.

It is evident from the cited case that the term “environment” encompasses both measurable and immeasurable elements that we interact with as humans, including land, air, water, and natural resources like oil, ore, and coal. However, complications arise when dealing with immeasurable components of the environment, such as air. It is well-established that laws and nation-states regulate nearly every aspect of human life, even down to the minutest details. Nevertheless, there is often ambiguity regarding the ownership of rights concerning the environment, leading to conflicts, with airspace being a prominent example.

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Environmental law is a comprehensive field that addresses various aspects of the law aimed at safeguarding the environment and its components. The overarching objective of environmental law and associated regulations is the protection of the environment. These laws aim to protect a range of elements, including but not limited to mineral resources, forest resources, water resources, pollution control, and addressing issues related to climate change. It is crucial to emphasize that environmental protection is fundamental to the survival and well-being of all living organisms within the atmosphere. The detrimental consequences of unchecked technological growth and failure to adhere to these fundamental environmental principles are severe and far-reaching.

Legal Framework

Nigeria’s approach to environmental protection has seen remarkable growth, akin to a mustard seed maturing into a thriving tree bearing fruit. However, like any tree, it can become unruly without regular pruning. It’s essential to note that the prevailing trend, as influenced by various laws, leans heavily on the ‘polluter pays’ principle rather than the ‘prevention principle.’ While the former may address immediate concerns, it proves detrimental in the long run. The only sustainable path to reaping the continuous benefits of a healthy environment and its offerings is through proactive protection.

The legal framework governing environmental matters in Nigeria comprises several key statutes, including the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Environmental Standards Regulations and Enforcement Agency (Establishment) Act 2007, the Environmental Impact Assessment Act 1992, the Harmful Waste (Special Criminal Provisions, etc.) Act, the Endangered Species (Control of International Trade and Traffic) Act, the National Oil Spill, Detection, and Response Agency Act 2006, the National Park Services Act, the Nigerian Minerals and Mining Act 2007, the Water Resources Act 2004, the Hydrocarbon Oil Refineries Act, the Associated Gas Re-injection Act, the Nuclear Safety and Radiation Protection Act, and regulations concerning oil in navigable waters, in addition to various state laws on environmental protection. Each of these laws has its corresponding administrative agencies.

However, despite this comprehensive legal framework, and perhaps partly because of it, disputes have arisen concerning jurisdiction and authority over environmental matters. There continues to be an ongoing debate about which statutory body or agency possesses the authority to grant permits, collect levies and taxes, regulate licenses, monitor effluent discharge, address oil spills, and more. This conflict primarily unfolds between the federal and state governments, complicating the landscape of environmental protection.

The root cause of this discord lies in the language employed within the legal framework. As American sociologist Deborah Tannen aptly noted, “We tend to look through language and not realize how much power language has.” The use of language, including specific words and terminology, can significantly impact the interpretation and enforcement of laws. Language has the potential to clarify, confuse, incite conflict, or promote harmony. The legal system is not immune to the influence of language and words, as they serve as the tools through which societal rules are conveyed. The failure of the law to articulate its intentions succinctly has contributed to the perplexity currently observed in the Nigerian environmental sector.

The Constitution of the Federal Republic of Nigeria, 1999, as amended, plays a central role in this conflict. Section 20 of the Constitution mandates that “The state shall protect and improve the environment and safeguard the water, air, land, forest, and wildlife of Nigeria.” However, the interpretation of the term ‘state’ in this context has sparked numerous disputes involving environmental matters. State governments argue that environmental issues fall within the concurrent list, granting them legislative and regulatory authority, including the ability to execute orders, regulate emissions, and control activities within their airspace. To resolve this dispute, it is imperative to conduct a comprehensive analysis of other constitutional provisions and the jurisprudential leanings on environmental matters. Such an approach is necessary because Section 20 does not exist in isolation, and reconciling the conflict requires a holistic reading of the constitution, taking into account the primacy of federal laws.

Section 4(2) of the Constitution of the Federal Republic of Nigeria empowers the federal legislature to make laws for the peace, order, and good government of the federation, specifically relating to matters included in the Exclusive List of the Constitution. Subsection 3 further clarifies that all issues within the Exclusive List fall exclusively within the purview of the national assembly, with no interference allowed from the state house of assembly. This strict rule is reinforced by Subsection 7a, which outlines the powers of the state house of assembly, except for matters explicitly stated in the Exclusive List.

The judiciary has settled the matter in favor of the federal government, basing its decision on the interpretation that the term ‘state’ in Section 20 was not meant to be taken literally as an individual state within the country. The case of A.G. Federation v. A.G. Lagos State where there was a split decision of the supreme court justices of 4:3 supporting this interpretation. Lawyers advocating for the federal government have urged the court to consider this interpretation in light of the items listed in the Exclusive List, which goes against the argument that Section 20 should be literally interpreted as pertaining to the individual states of the federation. It is argued that the term ‘state’ in Section 20 was intended to refer to the federation as a whole. Paragraph 60(a) of the second schedule reinforces this argument by granting the national assembly the authority to promote and enforce the observance of the fundamental objectives and directive principles contained in Chapter 2 of the constitution.

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Building upon the powers granted by the Constitution, the national assembly enacted the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 (NESREA). This legislation designates NESREA as the primary agency responsible for enforcing environmental standards, regulations, rules, laws, policies, and guidelines. Section 2 of the Act succinctly outlines NESREA’s responsibilities, including environmental protection, development, biodiversity conservation, sustainable development of Nigeria’s natural resources, and the coordination and liaison with relevant stakeholders on matters pertaining to the enforcement of environmental standards, regulations, rules, laws, policies, and guidelines. In a related context, the Environmental Impact Assessment Act 2004 (EIA) mandates that any activity likely to significantly affect the environment must undergo an assessment before proceeding.

Despite the existence of state laws and agencies similar to the National Environmental Standards and Regulations Enforcement Act, such as the Abia State Basic Environmental Law 2004, the Ogun State Environmental Protection Agency 2003, the Kano State Revenue Administration (Amendment) Law of 2017, Kogi State Environmental Protection not leaving out Imo State Environmental Agency, Zamfara State Environmental Agency amongst other states clamoring for control of space which has been designated to the Federal state. it is essential to recognize that matters related to the environment are under the jurisdiction of the national assembly. Therefore, state-level enactments and agencies in this domain often bypass the fact that environmental issues should be governed by national assembly legislation and are beyond the purview of state house assemblies in the various states of the federation.

The courts have definitively interpreted that matters pertaining to the environment fall under the exclusive list, and only the national assembly has the legislative authority in this regard, excluding all other tiers of government. This matter found resolution in the prominent case of Attorney General of Lagos State v. Attorney General of the Federation & 35 Ors. In this case, a panel of seven judges from the Supreme Court convened to settle the issue. A minority of three judges, including the justice delivering the leading judgment, held that unit states possessed the power to regulate environmental matters such as emissions and pollution within their boundaries, asserting that Section 20 of the constitution primarily concerned environmental objectives under state policy and was not intended as a basis for federal legislation. This minority position aligned with the argument presented by the learned Attorney General of Lagos, Yemi Osibajo SAN (as he then was).

However, the majority of the Supreme Court ruled that matters strictly within the purview of the term ‘Environment’ were the responsibility of the national assembly to legislate upon. Their decision rested on the precedent set in the case of Attorney General, Ondo State v. Attorney General of the Federation (2002) 6 S.C (PT 1), where the court defined the term ‘state’ as contained in Section 20 to refer to the federation as a whole rather than individual unit states. The subsequent case followed this conclusion by reading the constitution as a whole rather than in a piecemeal fashion. The court emphasized its authority to consider materials or information that aid in determining the true intention of a statutory or constitutional provision, utilizing a purposive interpretative approach to assess the correctness of the meaning it has assigned.

As the Supreme Court’s decisions are binding on all lower courts in Nigeria due to the principle of ‘stare decisis,’ all subsequent cases have upheld the ruling in favour of the federal government. For instance, in the case of IHS (Nigeria) limited v. attorney general Ogun state & 3 ors FHC/AB/CS/40/2022, where Ogun state argued that it had the responsibility for controlling emissions within its state according to the Ogun State Emission Control Regulations 2012 and that it was beyond the purview of the federal government, the court, through Justice [Name], relied on the Supreme Court’s decision. The court held that, regardless of the minority decision in A.G. Lagos State v. A.G. Federation & 35 others (Supra), the majority decision of the Supreme Court in attorney general of Lagos state v. attorney general of the federation & 35 ORS (SUPRA) was binding. Consequently, it affirmed that only the federal government, through the appropriate agency (NESREA), had the authority to enforce environmental laws, including emission control. See also IHS (Nigeria) limited v. Abia state government & ors FHC/UM/CS/146/16

In conclusion, it is the opinion that, although no one truly owns the environment as it is a natural entity, the law has structured it in a manner that places responsibility for its protection squarely on the federal government. It is incumbent upon the state to ensure the safeguarding of the environment, rather than exploiting it merely as a source of economic revenue. With the environment, the old adage “garbage in, garbage out” rings true, emphasizing that the quality of what we invest in its protection directly impacts what we reap from it.