The Act establishing the National Oil Spill Detection and Response Agency (NOSDRA) may be amended to give bite to its funding demands. This is as stakeholders have proposed amendments to the agency’s Act.
In Port Harcourt midweek during a roundtable discussion organised by NACGOND, grey areas revolving around funding, jurisdiction, compensation and regulatory overlap with other regulators (like the Department of Petroleum Resources) were spotted.
Stakeholders said some clauses in the document were vague. For instance, while Section 11 of the NOSDRA Act provides that ‘a take-off grant from the Federal Government shall be paid. In addition, annual subventions from the Federal Government consolidated revenue fund, and counterpart funding as may be provided from time to time by State or Local Government, may also be paid; it is widely recognised that NOSDRA struggles with poor funding.’
A 2011 report by the United Nations Environment Programme (UNEP) seemed to confirm this concern. UNEP said NOSDRA is poorly funded and as such lacks the wherewithal to execute its statutory requirements due to inadequate budgetary and staffing provisions. According to the document, the gross funding of the agency had over time forced NOSDRA to depend on the infrastructure and equipment of the oil companies it is set out to regulate, a practice that upends supposed independent regulation.
To this defect, it was proposed that “The NOSDRA Act be amended in order to provide for a fund to which a certain percentage of the profits of oil companies are paid. A percentage of this fund should be used for the activities of NOSDRA. This will ensure that the agency does not rely on oil companies for the funding of its logistics.”
In terms of defect on jurisdiction, the document states that: “An effective regulatory body would require adequate powers as defined in a statute. Its scope must be clear and its ability to ensure that its directives are carried out must be sufficient enough to command the respect of the regulated. The fines must be clearly provided for in a statute otherwise it would be challenged in a court of law.
“The problem however is that the Act appears not to have given NOSDRA the power to impose fines on oil spillers. Other than Section 6 which imposes a fine on oil spillers for failing to report or remediate impacted sites, there appears to be no other sanction vested on NOSDRA. Then there is the issue of whether or not NOSDRA has the power itself to impose those fines or whether it should act as ‘prosecutor’ by charging oil spillers to court.”
To this end, the stakeholders proposed that the “Act should establish a more elaborate penalty regime under which NOSDRA would be able to impose stiffer penalties on oil spillers.”
On Regulatory overlap, stakeholders argued that the jurisdiction for prevention of oil spills and gas flaring is only domiciled with the DPR; a defect they consider as too restrictive on NOSDRA, hence they proposed through their document that “The power to impose fines and regulate oil companies with regards to oil spills be consolidated in NOSDRA.”
The stakeholders also proposed that with respect to compensation and remediation, a trust fund should be set aside to give room for a “a first line charge for the remediation of oil spills and for the compensation of impacted communities, as well as cater for their emergency needs.”.
Speaking after the Discussion on what the National Assembly is expected to do with the proposals, National Director of NACGOND, Edward Obi said: “We are undertaking this venture as concerned Nigerian citizens who want the best for the environment and for the people of the Niger Delta. We as a cross section of the Nigerian population and concerned citizens are gathered to lend a helping hand to the National Assembly and to give them encouragement to think very carefully about the amendment of what we have proposed to that law because eventually, all we are asking is to see a NOSDRA that is strong, very firm and resolute in pursuit of a good environment for the Niger Delta and Nigeria at large.”
Legborsi Pyagbara, president of the Movement for the Survival of Ogoni People (MOSOP), also expressed reason the proposed amendment is necessary.
“A call to put NOSDRA on the right track is very important especially looking at the fall out of the report (in 2011) by UNEP (on Ogoni). It is clear that it recommended that some of these institutions need to be streamlined, some of them need to be reformed, and some of them need to be strengthened; and NOSDRA is one of those institutions that needs to be strengthened in terms of giving them leverage that is required for their financial autonomy; in terms of the infrastructure that they need to have; in terms of power and even in terms of the real mandate,” Pyagbara said.
“I think that mandate needs to be expanded to, at least, respond to clean up whenever it happens. Beyond that, a laid out legal protection for it to have its own infrastructure is needed. They must not depend on the oil companies for whatever they want to do,” he added.
Kenneth Aroh, a representative from NOSDRA, said despite the defects in the Act, the agency has over the years worked hard to actualise national environmental policies. But because of the loopholes inherent in the NOSDRA Act, Aroh said: “We have issues coming from IOCs (international oil companies) who try to nose-switch allegiance to another regulatory agency; feeling like NOSDRA is like subservient to regulatory functions and feeling that the other agency (DPR) is having that monopolistic tendency in oil and gas regulation.”
The DPR, is saddled with the responsibility of regulating petroleum resource operations and production, hence it is under the Ministry of Petroleum Resources. But NOSDRA is under the Ministry of Environment, with its activities tilted towards regulating the environmental impact of such operations.
Innocent Iwara
