text:
Nigerians In America
- http://www.nigeriansinamerica.com
Improper Abandonement Of Oil
Carl Collins Ogunshola Oshodi
Oshodi writes from Nigeria.
By Carl Collins Ogunshola Oshodi
Published on 08/14/2010
Improperly abandoned oil wells, improperly abandoned facilities, and abandoned oil sumps are all potential sources of safety hazards. Prior to current abandonment procedures, oil wells were cut off below ground and capped...
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There are about 603 fields in the Niger Delta. Over 55 per cent of these are onshore, while the remaining is in the shallow waters (less than 500 metres). Of these fields, 193 are currently producing while 23 have either been closed down or abandoned. Across the Niger Delta, abandoned drill locations (including well stubs) numbering well over several tens of thousands.
A large number of exploratory wells were drilled on land, swamp and offshore locations. The practice then was the use of Water Based Mud (WBM) and bigger holes. At the land sites, earth materials were borrowed from offsite locations to the drill sites for civil work construction. Large borrow pits were created as a result.
Improperly abandoned oil wells, improperly abandoned facilities, and abandoned oil sumps are all potential sources of safety hazards. Prior to current abandonment procedures, oil wells were cut off below ground and capped. However, this procedure may not comply with the current abandonment standards.
This information is intended to encourage investigation of oil operating companies to ascertain compliance to industry standards and procedures in respect of abandoned/ suspended oil wells in Rivers, Bayelsa, Ondo, Edo, Akwa Ibom states and Niger Delta Region in general. Our objectives include:
§ To safeguard human health, safety and environment.
§ To ensure that the abandoned oil wells are properly abandoned to comply with the industry standards and best practice.
§ To guide against the potential consequences of abandoned oil wells failure and the resultant incidents.
§ To ensure compliance with industry standard procedures.
§ To ensure oil operating companies create a resource data base for their abandoned oil wells in Niger Delta Region.
§ Most of the oil wells were probably abandoned without proper evacuation procedures.
§ Some of the abandoned oil wells might be poorly plugged and could lead to disaster if failure occurs.
§ Poorly plugged abandoned oil wells could blow up without warning.
§ Nonchalant attitude might have been exhibited during the plug back of the wells without compliance with acceptable safety standards.
§ Gradual failure could result if the abandoned oil wells were not properly plugged over time.
§ Some abandoned land oil wells are not secured with parameter fence and are exposed to human trespass and interaction.
§ Poor education and lack of awareness of the community people of the dangers of abandoned oil wells.
§ Security problems that may arise should there be incident due to failures.
§ 14 Oil wells Ogoni land, SPDC
§ 2 Oil wells at Afam, Oyigbo LGA, SPDC
§ 2 Oil wells at Egberu, Oyigbo LGA, SPDC
§ 3 Oil wells at Kuruma Tai, Tai LGA, SPDC
§ 6 Oil Wells at Tua-Tua, Tai LGA, SPDC
§ 3 Oil wells at Idu- Obosiukwu, ONELGA, ELF
§ 2 Oil wells at Idu- Osobile, ONELGA, NAOC
The above areas where oil well heads have been improperly abandoned depends on the geological foundation of the area, else this can also be a quick time bomb that may brew crisis in the region.
Abandoned oil wells are dangerous because very few of them are really properly capped or retired. Most of these oil wells were not probably abandoned with proper evacuation procedures and very few of them ever get checked after abandonment. So pressure that builds up from gases in the earth and shifting earthquakes can cause oil and gas to come back to the surface, even on an oil well that had been capped. This causes spills and emissions that could harm air, land and water body.
Improperly capped wells have the potential to leak methane gas which poses an explosion hazard. There is a danger that leaking gas combined with the oil could create an inferno. There is the potential incident of spillage or blowout resulting to disaster. Apart from threatening aquatic lives, spills could lead to destruction of natural vegetation and flora as well as the soil.
The effect on human health and community environment cannot be over emphasized. There is also the cost effect of payment of compensations and resettlement of the human inhabitants where necessary. It is therefore necessary to secure these wells and other facilities to comply with the industry standards and best practice to guide against the potential consequences of their failures, which our community is already prone to.
§ Bodo-West Oilfield spillage.
§ Yula oilfield, spillage
§ Bomu oilfield fire incident
§ Afam, oil well fire incident.
Apart from the human and environmental threat of Gas Flaring in the region; justice haven been denied, the issues of proper decommissioning of dry Oil-Wells have not be given sufficient attention, and international legislation guiding proper Abandonments, Decommissioning, remediation, reclamation and consolidation has not be adhered to strictly. In a layman terms, it means that several flow stations such as prominent in Diebu Creek Flow Stations , dry oil wells were not properly decommissioned and land reclaimed for arable and aquatic uses as seen and practiced in the developed countries of the world such as the United State of America (USA), UK, Germany, France etc.
In an interview conducted by The Foundation of Ijaw Liaison Legacy (FILL), it was discovered, that with the ongoing agitations by various Ijaw Oil communities. It was evident that another kind of conflict may ensue, and a violent agitation may emerge if issues of this utmost consideration are not attended to. As peace loving Ijaw communities, it will be recalled that under the aegis of FILL, few communities collaborated to draft a proposal for the development of the region; at least with the ecological trust funds, in which its use is absent, and has in the past voted unanimously to confront both local, state and federal government, and the Multinational Oil Companies to develop the area, but unfortunately, it fell on deaf ears.
Haven researched on several Abandoned Oil Wells which are Methane Gas Prone; Most Oil Multinational does not follow current international standards in decommissioning, remediation, reclamation and re-vegetation procedures. Research conducted indicated poor policy standards in the decommissioning, remediation and re-vegetation process, which makes the Multinational Oil Companies automatically liable in the violation of internationally accepted environmental policies. In all the sites visited, a pictorial view shows that that the casings of the Oil Wells were not properly removed, or the pipe were poorly capped with cements to prevent possible escape of Methane and other rare Gases (it is not surprising, then, that these attractive forces are easily overcome by thermal energy, so that melting and boiling occur at very low temperature at m.p. - 1830, b.p. - 161.50).
Methane is colourless and, when liquefied is less dense than water (sp.gr. 0.4). As reiterated by chemical scientist, and in agreement with the rule of thumb that "like dissolves like", it's only slightly soluble in water, but very soluble in organic liquids such as gasoline, either, and alcohol. It should be noted that methane is an end product of anaerobic ("without air") decay of plants, that is, of the breakdown of certain very complicated molecules. As such, it is the major constituent (up to 96.85%) of natural gas. It is the dangerous firedamp of coal mine, and can be seen as marsh gas bubbling to the surface of swamp.
Imperatively, if methane is needed in pure form, it can be separated from the other constituent of natural gas (such as crude oil) by fractional distillation through chemotographic cracking of its hydrocarbon-Alkane chains. Most of it, of course is consumed as fuel without purification. This means that during the drilling of crude oil, all that is present in the Alkane-Aliphatic compounds of Hydrocarbon is Methane soiled Gas. At the expiration of the drilling, or perhaps the life span of the oil well; traces of Methane is still present as the byproduct of anaerobic manifestations, which includes its reactive nature with the halogenations with Iron/casings segments (X2 F2 > Cl2 > Br2 (> I2).
Quite specifically, it is rumoured by archaeologist and by some theories that, the origin of life go back to a primitive earth surrounded by an atmosphere of Methane, water, ammonia, Thick clouds of Nitrogen, and Hydrogen. This means that Methane (CH4) belonging to Aliphatic group of hydrocarbon family, under alkane analysis.
When methane swells up, and there is high level of O2, there is an Oxidation reaction taking place deriving the following Methane reaction:
CH4 + 2O2 ---- (flame) --à CO2 + 2H2O + Heat (213 Kcal/mole) - Combustion
This means that when oil is dried up completely, with the transition state reached, a new generation of Carbonium ion is created and different nature of methyl epilates within the earth beds, escaping through the narrow curvatures of pipes, even though if they are properly capped.
With regard to international standards, a rig is deployed to pull out pipes to definite kilometres from the earth, due to the presence of large oil valves which are sometimes several kilometres below the sea level. Or most likely, facilities could be developed to tap the methane gas present in some pipes for other economic uses. In Diebu Creek, an SPDC flow station, several visible oil wells heads, haven reach their life span are not properly decommissioned. This in the nearest future may disrupt peace and security in the area, as well as serve as a landmine in the eruption of uncontrolled agitation by Oil-Bearing communities in the region, starting with Diebu creek flow station.
Careful researched reports shows that, there are more than 30 abandoned Oil well Heads in Diebu Creek axis and other communities in Bayelsa state, Nigeria as they were not properly decommissioned and land reclaimed. Within the Niger Delta region of Rivers and Bayelsa State respectively, 40 Dry and un-decommissioned Oil wells are visible. With available seismic reports of these sites indicates that Methane can contaminate underwater life, should it escape into the estuary level of the sea.
Below is an international policy in properly decommissioning a Dry Oil Well (DOW), those policies required in addressing land/sea sites:
1. Demolition of existing camp/concrete structures.
2. Removal of existing well heads
3. Backfilling of existing pits (including large borrow pits)
4. Leveling of entire drill site to match natural contour level
5. Spreading of native humus soil and revegetation with native plant species
And Offshore
1. Ensuring that they are completely plugged and abandoned using a more cost-effective approach such as the use of highly compressed sodium bentonite
2. The wells should be cut below mud line and removed, that is, when highly compressed sodium bentonite (Zonite) for plugging well stubs.
Technically, if dry oil wells are not properly abandoned / decommissioned through remediation and reclamation in the case of onshore sites, it may lead to tremours, bombardment with the presence of high gaseous methane gas that could narrowly escape into the atmosphere causing explosion during bush burning, or some other environmental hazards. The fire outbreak at Obama flow station in 2001 and the attendant injury to the surrounding communities; which caused severe earth tremours and the raptures of the earth bed-wave. The affected communities included:
1. Ombuikiri community
2. Iwokiri Community
3. Sounkiri and Ologoama Communities
4. Akakumama community
5. Akribe Family and Akakumama Community
6. Solomon Family and Akakumama Community
7. Kariyai Family and Kariyaikiri Community
8. Owili Family and Emina-Ama Community;
These were the annexure communities and families that drafted a suite before NOAC, and it was reported that up till date no relief materials or compensation has been received by these communities and families, yet they continue to suffer the consequences of Oil Companies' Monstrous and barbaric activities that have in all indications threatened the existences of the communities inhabitants and their immediate environments - a means for their survival. It is therefore a belief that NAOC's intransigence and their unholy treatments of the wellbeing of the communities in this particular researched case study stems from the company's knowledge about the Nigerian socio/economic condition, particularly our legal system which is fraught with avoidable delays and huge financial implications. These indices are obvious obstacles in the ability of the impoverished host oil communities to effectively champion their legal rights and compel the NNPC joint venture partners operating in their areas to recognize and carry our their obligations.
Before now it was known that our community lies in arable cum aquatic landmass, where our people involved both in subsistence agriculture and fishing as the means sources of livelihood; this was before the advent of crude oil exploration and exploitation. With the SPDC, AGIP and NNPC in our community, the sources of livelihood to our people were deprived. Gas is still flared in its high intensity, and with the acidic and thermal effects on plants, roofs and other water lives, productivity began to reduce. Waters are polluted with crude oil deposit in the water which affects fishes and aquatic lives, the effect of the gas flared caused acid corrugation to the roofing sheets thereby lowering the lifespan from 25-30 to 3-5 years. Apart from the above explanation given, the acid rain effects on plants are adverse. With the initiation of heat and thermal intensity, etiolating can occur with plants redundancy.
The Community which was once a visible mangrove land was canalized, with arable land used for agriculture being dredged in order to accommodate large Oil Wells Servicing Boats. With regard to the international standard, when these oil wells are dried up, remediation such as refilling and reclaiming site is carried out with recent international environmental standards and EIA carried out consecutively. With the negative effects of the MNOCs activities in my communities and its surrounding communities housing flow stations and improperly decommissioned oil well, the MNOCs is liable of a criminal charge by national and international court on failures to meet with the standard environmental and industrial practices. It is on this ground that we are demanding that several in-depth canals be remediated and land reclaimed for agricultural and other uses. For peace and tranquillity to reign in the communities and in the region, our canalized land should be reclaimed and remediated to ensure security, prosperity and posterity of our generation yet unborn. A visit and a thorough investigation of our community indicated that it is now situated in an island, causing erosion and other ocean prone problems.
The common practice with regard to international environmental standard is that the people be relocated, that is, if remediation and reclamation is going to be expensive, such as those in Finima, Bonny Island.
The genesis of the ecological trust fund is towards the development of those areas that are poorly developed, as it is required in a decent rural/community/village or towns. Such as a standardized health care centres, Primary and Secondary schools, Electricity, Portable water, civic centres, town halls, modern roof coverings and other benefits as stipulated in the utilization of the ecological trust fund.
It is pertinent that since the inception of crude oil exploration in our community in the early 50's, and when ecological trust fund was passed into law by the Obasanjo's administration, it positive effects in terms of development has not been benefited by our community. It is in this light we are stressing our discontent with how the trust fund is being utilized for community transformation. To digress a little bit, the north do not produce oil, yet the ecological trust fund is now being used to declare state of emergency in major villages in the North in terms of development, while our community is unattended to.
In our community, there is no visible and decent housing units, some and nearly all the necessary amenities to life is lacking, which is part of the Niger Delta question. The complexity is that, the presence of SPDC, AGIP, NNPC and other Multinational Oil Companies has caused more harm than good. It has worsened the standard of living of our people; it has shortened the only means of our survival through the pollution of our fishing waters, and the canalization of its arable land for sustainable agriculture. Health care is zero, as primitive medicine is still being applied to treat ailments.
The questions to be asked are;
1. What is the civic responsibility of these Multinational companies in the region?
2. What is the function of government in the JVC with MNOCs towards Host Oil-Bearing Communities' development?
3. How have the actions of the court in regard to address the underdevelopment in my community and others been tackle and executed by the Executive arm of government?
4. Why is the deplorable condition of the people still 0% when more than 32% of the crude oil from Bayelsa comes from these communities and its neighbouring clan-communities?
Certainly these are the questions that need to be answered on a moral and economic grounds, without these issues being resolved, we fear that the Government and MNOCs commitment to develop the area will serve as another backup to derail justice towards deprivation and marginalization of our communities, as several other communities have taken the MNOCs and Government to court were denied the treasure of the law as it favoured them.
On these conditions, these communities have given AOGPC their full mandate, thus making them case before the ICJ on the ground that they believe that their suit may be dismissed in the Nigerian court, as it is evidence in several other court judgments.
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Oil and Gas Operators should embark on abandonment and remediation/restoration programs to address all abandoned/ suspended wells cutting across land, swamp and offshore environments and a full stop to Gas Flaring. A well is abandoned when it reaches the end of its useful life or is a dry hole. A suspended oil well may be due to marginal production of less commercial value. A well is properly abandoned when:
§ The casing and other equipment is removed and salvaged.
§ Cement plugs are placed in the borehole to prevent migration of fluids between the different formations.
§ The surface is reclaimed.
In other words with the earth movement as it tilts, the core sometimes may experience strange tremours as a result of the methane swells albeit the valve corks of pipes (drill holes) several Kilometres underground. When Methane (CH4) over-swells, it form acidic effervescent which melts its surrounding rock-beds (hard earth cores (Fe2). These cores forms into molten magmas, through further swells escape upward the bar-cores/sea-level causing earth tremours through rock cracking by heat/thermal effects on Earth-pillar beds, hence either volcanic eruption or earth quakes through upper layer tear may occur, thereby endangering the lives and properties in our communities and several others. The geological possibility is that such effect expands by its thermal nature to other underlying earth beds through contraction and expansion towards its regional outlay by the earth movements.
Some communities have experienced these underground bombardment/tremours in the past, and though its effect were not adverse, yet there is a likelihood that our communities are not safe until there is a "project decommissioning, remediation, revegetation, and refill of all canals" in the Diebu Creek Flow State by NNPC/SPDC, and Sagana River owned by Agip . These are some of the issues which if various communities seek redress in the Nigerian Court may be dismissed and lacking merit, and if on the contrary justice prevailed, no responsive and responsible government authority will be deployed to attend to the resolution of the marginalization, deprivation and violation of the fundamental human rights perpetuated against these communities by Multinational Oil companies, Governments and its officials; which may be a decision reached by the court will be carried.
Therefore it on this premise that the Association of Oil and Gas Producing Communities has applied to sue:
i. The Federal Government of Nigeria (1st Respondent).
ii. Shell Petroleum Development Company of Nigeria, Nigerian Agip Oil Company, Totalfina (ELF), and other Multinational Oil companies not here mentioned respectively as (2nd Respondents).
iii. The Nigerian National Petroleum Corporation NNPC (3rd Respondent)
iv. The Attorney General Of the Federation of Nigeria (4th Respondent)
To the International Court at Hague, Netherland of Scandinavia on a series of the aforementioned petition amongst others that has been filed and submitted to the ICJ for cross examination.
The federal government and oil operators based on this research should not wait for failure to occur before ensuring compliance with the existing international laws and industry standards and best practice. A good knowledge of these abandoned/ suspended wells and their proper evacuation shall save the nation of their potential consequences in the near future.
In a research conducted (Peter Idialu, Jimoh Ainodion, Lanre Alabi, ChevronTexaco Nigeria Limited), in mid 2002, the Federal Government of Nigeria through the Special Adviser on Petroleum Matters gave a directive that all Oil and Gas Operators should embark on abandonment and remediation/restoration programs to address all abandoned drill locations cutting across land, swamp and offshore environments, as was reiterated by the then Honourable Minister of State, Federal Ministry of environment Dr. Imeh.
The overall effects of the study of Gas Flaring in Ogba/Egbema/Ndoni communities respectively can be applicable to other bio-degradable, environmentally hazardous and toxicity of other oil bearing communities across the Niger Delta region of Rivers, Bayelsa and Delta state respectively; where Gas is flared by Multinational Oil Companies. Because geographically, the belt of Niger Delta houses similar and characterized nature of Gas Flaring in all communities, since in terms of terrain, most communities have similar environmental features. It was however noted that, with the scientific reports conducted in Ogba/Egbema/Ndoni communities (see Attached Copy), the study indicated that it can be used interchangeably to forecast effects in other communities in other Niger Delta Ijaw communities where evidence of effects can be collated and sampled.
The adverse effects of Gas Flaring, toxicity level of the emission and on human health and environment namely eye and skin irritations, the impact of acidic and corrosive rain on the accelerated rusting of corrugated roofing sheets and damages to vegetation. These were represented by oral testimonies collected from community residents in all the communities situated near the Gas Flared sites. In our communities, it is a known fact that there is early leakage of our zinc roofs, there is stunted and abnormal growth of crops, with redundant manner of planktons, grasses and other flowers without bearing nourished fruits; and certain strange skin diseases; there is also the presence of Nitrogen gases which attracts parasitic fleas such as sand fleas etc. With the above brief analysis, although it has not been scientifically and medically proven, yet could be the effects of acid rain and radiation from Gas Flares.
As part of the aspiration, the government, through the NNPC, has targeted 2008 as the flare-out date when all gas flaring is expected to stop in all oil and gas fields in Nigeria. With government and its attendant insincerity and deception, Gas Flaring was allegedly stopped in 2003 with government's commitment by his servant (Dr. Imeh) in 1999 conference in Abuja. 2008 has come and gone, 2015 is coming, yet we have no tangible framework in the adherence to stopping gas flaring.
However, with the evident we gathered, it was discovered that; the country's natural gas reserves is put at more than 166 TSCF (trillion standard cubic feet), with her current gas production put at 12 billion scf, which is the associated gas (AG) produced in the course of crude oil production. Current flare figure is put at about 63% of the 2 billion scf daily production of AG in response to government's gas monetization efforts, which had included gas-flare penalties, incentives and tax credits to encourage gas-based projects, virtually all the major players are sure to beat the year 2008 flare-out date. In all of these, the government within its policy has not deemed it fit to compensate and commensurate through developmental projects in communities where these gas are flare, and we believe that this was an act of fraud perpetuated against my community by the FGN, as my community has not directly benefited from the penalty monies.
Nigeria presently stands in the not too highly esteemed position of being the country that flares the most gas in the world. This status has come to be because of the decades of relentless and unchecked gas flaring by unscrupulous oil and gas industry operating in Nigeria, and other factors, such as: the lax regulatory regime, many years of corrupt governments in Nigeria which indulge the oil companies in their flaring, lack of gas utilization infrastructures, lack of ready markets for the commodity amongst others.
Another factor seems to be that most Nigeria's have been almost obvious of the value of natural gas itself and the attendant adverse effects of natural gas flaring. This is possibly one of the reasons why such abject wastefulness of highly valuable resources has been condoned for so long. To many people it would appear that this gas is of no value, and that the oil and gas industry are justified in continuing to it off, but the truth is the contrary.
Nigeria, as a nation gets most of its revenue from the export of oil and indeed the oil and gas industry has enjoyed steady growth and development since oil was first discovered in Oloibiri in 1956. On the other hand, flagrant flaring of gas has been the order of the day. Oil companies in Nigeria led by Shell Petroleum Development Company (SPDC) continue this practice unabated and without conscience for it unwholesome negative effects. They are driven by their lust for profit, which they no doubt consider to be more important than the health and livelihood of those living in the oil producing areas.
There is a general agreement that gas flaring should stop, and in lieu of this, President Olusegun Obasanjo and the Major Multi-national oil producing companies in Nigeria, appear to have agreed to end gas flaring by the year 2008. to achieve this end, the government and the oil companies have initiated various projects, still it seems that much has not been achieved and these projects namely: Nigeria Liquefied Natural Gas (NLNG) venture and the West African Gas pipeline (WAGP) been criticized. However, it must be pointed out that these projects stand a chance at reducing gas flaring if properly utilized.
Also in an attempt to reduce gas flaring, Government has introduced several penalties over the years for the amount of flared by the oil companies. It was first fixed at 0.50 Naira per million cubic feet (MCF), but effective from January 1998, the present fee was fixed at 10 Naira per MCF, which at November 2003 exchange rate was equivalent to US $ 0.076 per MCF. This fine is however grossly insufficient compared with what obtains in developed countries where the fine is about $10, thereby discouraging oil companies over there from flaring of gas.
Although this anomaly called Gas flaring has been a scourge on the environment for close to five decades, definitions on the subject matter are not as extensive. Most authors are quick to criticize the trend, few proffer useful explanations and although a number of definitions can be found, some of them have faulted with technicality. However, a good definition of Gas flaring was given in a newspaper Article, which featured in the Guardian, as ''gas flaring is the burning off of gas found in association with oil in the course of oil production activities''. The Article went on to explain that ''flaring of association Gas from oil production activities is like setting a match to an enormous container of lighter fluid and they are so hot that nothing will grow near them. This gas that is flared is known as Associated Gas (AG), which is found mixed with oil. Oil companies do not like to find gas mixed together with their oil. They prefer to find Non Associated Gas (NAG), which is not mixed up with oil. Therefore, when oil companies encounter Associated Gas, they are quick to burn if off, so that they can get to their much prefer choice (oil). They do this despite other alternatives as re-injecting the gas back into the ground5, using it at the field to generate electricity or using it to produce Liquefied Petroleum Gas (LPO), which can be used for cooking. This is because flaring of Natural Gas comes at virtually no cost to them, while to take the alternative would involve sizable costs.
Another good definition obtained from Exxon Mobil's website reads thus: "Flaring is the burning of natural gas that is produced along with oil during oil production". In an article title: "Nigeria: Grantees Campaign against Gas Flaring" by Tracy Kirkland , the following was said "gas flaring occurs when the natural gas associated with oil deposits is burnt off before the crude oil is refined". She further explained that, oil companies routinely flare gas for safety purposes, or where no infrastructure exits to bring the gas to market. In other Article title, "Gas Flares, Oil Companies and Politics in Nigeria" by Chijioke Evoh, which threw more light was shed on Gas Flaring.
He had this to say, "Associated gases are routinely flared in the course of processing oil. Flaring is a means of safely disposing of waste gases through the use of combustion. With an elevated flare the combustion is carried out through the top of a pipe or stack where the burner or igniter is located".
In an article by Stan Shewuhuk, titled "Gas flaring a mounting environmental concern in Western Canada" another definition reads as follows: "flaring is the controlled burning of the waste natural gas associated with oil production". Also another author, Ike Okonta, in his article "Dance those flares to silence illuminates gas flaring thus: when crude oil is struck and brought to the surface, it usually comes up with gas. This in oil industry parlance is known as associated gas. While the oil burn in the atmosphere". Another Article defines Gas flaring a bit technically in these words. "Flaring is the burning of gas on drilling platforms when testing new wells, and on production platforms outside normal process operations (for example, process start-up and emergency shut-down).
In an Article title: "World Bank: over 150 Billion Cubic Meters of Gas Flared annually, Gas flaring was explained in the following words: "when crude oil is brought to the surface from several kilometers below, gas associated with oil extraction usually comes to the surface as well. If oil is produced in areas of the world, which lack gas infrastructure, or a nearby gas market, a significant portion of this associated gas may be released into the atmosphere, un-ignited (vented) or Ignited (flared).
From the above definition, it is necessary, that a distinction be drawn between flaring and venting. Flaring entails the burning of natural gas; while venting occurs when gas is simply released into the atmosphere without burning. An article defines flaring as the burning of gas that cannot be conserved, and, venting as the release of gas into the atmosphere. These two terms are not synonymous, although they are often used as though they are. Now that a better understanding of gas flaring has been achieved, the next thing to consider is the starting point of gas flaring in Nigeria.
Gas flaring dates back to 1956, about 50 year ago, when oil was first discovered by Shell D' Arcy (now SPDC) at Oloibiri (in what is now Bayelsa State). This practice of flaring Associated Gas was fuelled by British double standards. The British while allowing incessant flaring of gas to take place in Nigeria subsequently took a very different approach towards flaring their own gas when North Sea production started in the 1970's. During the period preceding Nigeria's independence in 1960, the then secretary of state for the colonies, Lord Home was called upon to address the flaring as: those giving advice to the Nigerians (i.e. the British) could be reproached.
The official response given was devoid of any worry and it reads thus
"Until there is this worthwhile market and until there are facilities (e.g. pipelines and storage tanks) to use the gas, it is normal practice to burn off this by - product from the oil wells"
However, the British, back on their own turf, set their face firmly against flaring North Sea gas, with the result Gas flaring was reduced from over 90%, which was the flaring rate at the Crude Oil production) to round 2%. This was achieved over the span of 25 year. Meanwhile, as a result of British double standards and a number of other factors, Nigeria went on to become the '' WORLD's BIGGEST GAS FLARE; flaring an estimate of 2.5 billion cubic feet of gas daily and losing a staggering 2.5 billion U.S. dollars yearly to Gas flaring. At the time the oil industry was born in the Niger Delta, the British knew of the practice of Gas flaring and were well aware of its unacceptability, yet they practically endorsed it with their lack of concern. They were interested in the enormous gain to be made from exploiting Nigeria's vast Crude Oil reserves, and thus were not too eager to spend money on what to them were '' uneconomic methods of using gas''.
The reverse was however the case, back at their own home and their attitude towards Gas flaring is aptly expressed in the following official note
Natural gas has commonly been treated as waste product by the oil companies. Last year for example over 500 million cubic feet a day was flared in Libyan (six) oil fields alone - well over 15% of total U.K. consumption. We have set our face firmly against such waste of a precious resource in the U.K. continental shelf however.
To support this position, a general prohibition to flare UK gas without Ministerial consent was included in Section 12 of the Energy Act 1976.
The Minister of Petroleum during the passage of the bill, made the following comments:
.we would not want extensive flaring at home in the same way as extensive flaring takes place for example in Middle Eastern countries. It is not always in the immediate economic interest of the company not to flare.The clause is mainly for conservation reason but partly...for environmental reasons as well. It is not true to say.that industry would never flare because it is in its own interests not to flare. It may not appear in the immediate economic interests of a company at that particular time without capital investment to use flared gas, but it may well be in the interest of the nation that the secretary of state may refuse an exemption to flare gas in a specific case.
This shows clearly that the British were prepared to refuse a permit to flare gas even though it was in the oil company's interest, as they were determined not to become like other countries where excessive gas flaring was order of the day. They were bent on conserving their Natural gas and did in fact; recognize that Gas flaring was detrimental to the environment. Ironically, the same British, through Shell, are responsible for flaring large volumes of gas in Nigeria. This is also one of the reasons why Shell is being accused of operating double standards. From all that has been said so far, it is thus evident that Gas flaring in Nigeria was instigated by British double standards and they were indeed the Chief catalyst of what geared Nigeria into decades of wasteful flaring.
The Niger Delta is the area in which, majority of oil and gas related activities take place in Nigeria and as a result of this; it is also the area that has suffered most, the attendant environmental pollution and degradation that arises from these activities. Gas flaring is one of such sources of pollution, and is carried out by Oil companies in Nigeria, at the highest rate worldwide. The negative effects of Gas flaring are not limited to the environment only as it is also detrimental to human and animal life, as well as the economy. Studies have shown that Gas flares contain poisonous gases, which are fatal to crops, causes breathing problems in humans and cause acid rain, during the rainy seasons.
So therefore, for the purpose of discussion under this head, gas flaring and it effects will be shown from three viewpoints thus:
(A) Its Effect on the Environment
(B) Its Effect on Humans
(C) Its Effect on the Economy
The third head is included, because Gas Flaring also affects the economy, in terms of all the additional revenue that would have been realized if the Gas was properly utilized and not burned off.
The effects of Gas flaring under this heading are multi faceted. Firstly, it is said to contribute to climate change. This effect, has received the most attention and corrective action worldwide. In January 2004, the UK Government's chief scientist was quoted a saying the following: "Climate change is the most severe problem we are facing today, most serious even than the treat of terrorism. Burning (flaring) of Gas leads to the emission of carbon dioxide, the main greenhouse gas. Also, venting of gas, which occurs without burning, is said to release methane, which is considered to be more lethal than carbon dioxide. These greenhouse gases (carbon dioxide and methane) when emitted into the atmosphere tend to trap heat in the atmosphere, instead of allowing it radiate back into space. This has led to the warming up of the world and is projected to get much, more badly during the course of 21st century. Climate change is particularly grave for developing countries, and Africa as a whole is regarded as highly vulnerable with limited ability to adapt.
The Nigerian Government has even expressed the view that temperature in West Africa has increased over the past decade from 0.2 to 0.3 degree centigrade. Also, the continuous spate of gas flaring, which is being carried on in the Niger Delta, is said to contribute the further desertification of Northern Nigeria. This will arise because of a gradual decline in rainfall in that area.
Flaring contributes more emissions of green house gases (ghg's) than all other sources in Sub-Saharan Africa combined. This has grave implications for the climate conditions in Nigeria. Other countries of the world also contribute their fair share of green house gases (ghg's) and as a result of this fact, the Kyoto Protocol was created. This protocol was agreed to in 1997 under the UNFCC (United Framework Convention on Climate Change) and it imposes legally binding emission cuts on developed country parties. The Kyoto protocol is an agreement among industrialized Nations of the world to reduce emissions of various green house gases over a certain period of time, by harnessing the forces of the global market to protect the environment40. More than a hundred and seventy nations have ratified the treaty. Nigeria also agreed to the Kyoto protocol on 10th December 2004 and it came into force in February 2005.
Another environmental effect is that of acid rain. Residents in the Niger Delta have complained that acid rain corrodes their corrugated roofs, which are mostly made from metal. This acid rain poisons their lakes and streams, and also damages their vegetation. It is also said to accelerate the decay of building materials and paints. What's more, after a rainfall in the Niger Delta, oily hue is often seen collected on rainwater. Several scientific studies have been carried out to substantiate the above claims. For example, in the mid nineties, an ERA team, led by Oronto Douglas, conducted a social impact survey of Iko; a community in the Delta, where Shell had been flaring associated gas for over two decades. It was discovered that Shell had located the flow station from which gas was flared near the homes of local people, and as a result, farmlands had been devastated, the nearby river had been polluted, and the roofs of the house, destroyed by acid rain. The inhabitants themselves were found to be suffering from aliments as a result of the poisoned air and the poisoned river they had been exposed to.
Another study that was intensive enough, a research from the Institute of Oceanography University of Calabar, showed that rain water samples at Ekpene Obo town of Esit Eket Local Government Area, situated close to gas flares in Akwa Ibom State, contained high levels of acidity resulting in corrugation of roofing sheets. The main source of the acids were said to emanate mainly from Mobil Producing Nigeria's gas flaring operations at nearby onshore and offshore locations.
This observation that gas flaring in Nigeria causes acid rain is backed also by the U.S government's Energy Information Administration, which states the following:
The continued process of gas flaring has not only meant a potential energy sources - and source of revenue has gone up in smoke, but it is also a major contributor to air pollution and acid rain.
Flaring is also to create soot, which is deposited on nearby land and buildings, visibility damaging vegetation next to the flare. The most noticeable, yet generally ignored effect of the flares is light pollution. This type of pollution turns night into day and is a predominant feature in many oil-producing regions, where gas flaring is carried out. Local villagers were made to believe that the towering flames resulting from gas and oil burning are inevitable consequences, or environmental risks of oil production. Gas flaring also causes noise pollution and the constant heat being emitted from the flare sites make hard the soil of farms adjacent to it. Also, because of the high intensity of these flare, wildlife and game are usually scared away. It was also reported that snails, which used to be picked by the inhabitants of neighbouring communities in their farms, became extinct. Instead what they found to pick on their farms were the empty shells.
Gas flaring also affects human beings in a variety of ways. Human effects used here, necessarily implies health effect. This is because they are exposed to the cocktail of toxic substances, which come with flaring. Although no comprehensive study is known to have been carried-out into the health impacts of gas flaring on communities in the Niger Delta, these communities believe that flaring is damaging their health, reducing crop production and damaging their homes. Despite the absence of such studies, Environmental Rights Action (ERA) still holds that Gas flaring is harmful to the people, cattle and the environment.
Gas flaring has been said to cause breathing problem amongst humans. There have also been allegations that it causes poor vision, cough and skin diseases. It is also said to cause respiratory problems in younger children, asthma attacks and cancer. These ailment are used by a mix of toxins (e.g. smoke also called: particulate matter), benzene, sulphur dioxide, toluene etc), which are emitted during flaring 63. To substantiate this claim, the United State Environmental Protection Agency (US EPA) has said the following:
Many scientific studies have linked breathing particular matter to a series of significant health problems, including aggravated asthma, increases in respiratory symptoms like coughing and difficult or painful breathing, chronic bronchitis, decreased ling function and premature death
Additionally, the U.S. EPA has also stated that exposure to benzene causes acute leukaemia and a variety of other blood related disorders in humans.
World Bank Information, on the adverse effects of particulate matter, suggests that gas flaring from Bayelsa, alone, would likely cause on a yearly basis, 49 premature deaths, 4,960 respiratory illness among children and 120 asthma attacks. Exposure to such ailment and toxins on such grand scale as is had in the Niger Delta is said to be a violation of their Human Rights.
Aside from effects on the environment/host communities, animals, plant life, and human health, Gas flaring also impact grossly on the economic of a Nation, in terms of the loss of funds and revenue which it could have realized if it had conserved Gas instead of flaring same. Nigeria provides an appalling example of such a loss. Oil companies in Nigeria flare an estimate 2.5 billion cubic feet of gas everyday and this action, amounts to the loss of revenue, estimated at 2.5 billion U.S. dollars yearly. Nigeria was also reported to have lost over 20 billion US dollars to gas flaring in a span of 20 years. If one was to calculate the volume of natural gas that has been flared in Nigeria, from the start of the oil industry in the 1950s, it will become glaring that Nigeria has lost much more than $20bn, stated in that report. The Nigeria Government is currently in a position where large amounts of its gas are still being flared away and it has remained unable to do much about it, notwithstanding its various gas utilization projects and the deadlines, which it had fixed for stopping of gas flaring.
Despite the fact that the Nation is richly blessed with vast oil and gas revenues, it is still a poor country, with about 66% of its population living under the poverty live (which is less than 1 US dollar a day - Transparency International 2005) what is more is the fact that the country and the local communities have not benefited from the vast profits realized from the proceeds of oil sales. According to ERA, this oil has been sold abroad for billions of dollars and has benefited only the Multi-national Oil Companies and the corrupt local elite.
Nigeria's national response to safe-guard and enhance air quality standards and atmospheric protection, could be seen in the policy thrust, legal/legislative and institutional arrangements put in place over years. These are instituted by the government pursuant to Nigeria's obligations under the international instruments and initiative to which she is a member. These are highlighted below
The Nigeria's policy thrust for the proper and efficient regulation of air standard and natural gas conservation is contained in the National policy on the environment (NPE) and the Nigeria National Agenda 21, published by the Federal Ministry of Environment (FMENV) the policy recognizes that atmosphere is very vital for the survival of man and other living animals, and that clean air is essential for health environments. Accordingly, government was committed, to inter alia:
v Designating and mapping National Air control Zones and declaring air quality objectives for each designated Air control zones;
v Promoting regional cooperation aimed at minimizing the atmospheric transportation of pollutants across international boundaries.
v Sustainable (Oil and Gas) exploitation strategy to be adopted nationally will seek to evolve a realistic national conservation policy that ensures optimum economic returns from oil and gas exploration and production, while ensuring adequate provisions for strategic reserves and taking into consideration the welfare of the local inhabitants of the oil and gas producing areas
v Monitor air emissions and gaseous wastes (CO, CO2, NO, N2s, CH4, SO2, etc.) discharged at production platforms, refineries, petrochemical and gas processing facilities, through continual air quality sampling, as well as through daily visual checks for leakages around tanks pumps pipelines and transfer points.
v Promote conservation and restoration of natural formation pressure through elimination of gas flaring and the production of greenhouse gases;
v Promote complete utilization of produced Associated Gas, reduced gas flaring and the production of greenhouse gasses.
This is considered as a very commendable staring point as indicating the government's sense of duty, social responsibility and sensitiveness to people's environment and health concerns. For the policy to benefit the people however, it has to be properly implemented.
The Nation Gas Policy (NGP) first reviewed in 1995 inter alia required subsequent production sharing contracts (PSC, S) signed with oil companies to include gas utilization clauses. Gas producers are to carry gas filed optimization studies on their respective concessions, while the Nation petroleum Investment Management Services (NAPIMS) would be responsible for overall optimization planning of gas field development. Incentives were also offered under the Associated Gas Utilization Fiscal incentives as an effort to put in place investment required to transport gas to interested third parties.
A further review to the said policy was made as the process of deregulating the oil and gas section of Nigeria's economy was taken when the National Council on privatization (NCP) endorsed the National policy on oil and gas. The policy, which covers all aspects of the oil and gas industry, is geared towards securing for the country maximum sustainable value from the strategic industry. The (NCP) said the policy also contracts and Memorandum of Understanding (MOU) governing the operations of the upstream sector.
Again, the research examined the operations of the refineries, pipelines, depots and retail outlets and recommended full deregulation of the downstream sector of the oil and gas industry. Issues of corporate social responsibility, health, safety and environmental responsibilities of all stakeholders, as well as the need to review, amend and harmonize the various laws and regulations governing the industry with a view to producing all-encompassing petroleum legislation for the nation were also well articulated in the document.
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The common wisdom in Nigeria is that the proper and effective tacking of the gas flaring problem is necessary for the successful harnessing and developing of Nigeria's gas resources, As noted earlier also, not only that gas flaring has badly stigmatized Nigeria before the international community, it has been one of the causes of grave environmental degradation and social crises in the Niger Delta region. Hence, gas flaring has been subject of incessant complaints by individuals and group among the inhabitants of the region as well as international non-governmental organizations. The combination of the above and other factors, associated with gas flaring in the Nigeria Delta, it became a subject of numerous litigations against the Federal Government and the multinational oil companies operating in the region.
It is thus the policy of the Government to pursue a phase elimination of gas flaring by the year 2008. 1985 was initially promoted as feasible to end gas flaring. In 1966 however, 2008 was agreed initially with the SPDC and other Operations. Since then however, unfolding socio-political and economic development in the country have caused changes and inconsistencies in government and the oil companies' position about the flare phase-out deadline. Early in the year 2000, in view of the renewed "huge investment" of the government to the flaring phase-out project through the NLND, the government though to end the flare by 2003, while the companies thought 2006 would be more realistic. A compromise was then struck, and it was agree that flares would go off by 2004. The government later though it cold indeed achieve zero flares only by 2006. But, in its 2001report, the SPDC restated its "commitment to ending the unnecessary flaring by the year 2008". It appears therefore that the 2008 date had actually been of the agenda of the oil companies for a very long time, much earlier time that it was announced. In a lecture the SPDC even came up with a program for the phased implementation of the 2008 flaring phase-out deadline.
One striking point indicative in this graph is that up to 2000, 99% of the gas produced by Shell in Nigeria was flared! By 2008 however, it is expected that the gas flaring would 100% be eliminated.
Whether 2008 is a realistic date for flares to terminate or not depends on the Government's commitment and political will, the SPDC and particularly the prospects of the various LNG projects. Already, the past experiences of postponements of the earlier deadline have shaken the confidence of the populace in the government even for the 2008. The question is whether the FG could compel the MNOCs to live up to our expectations even as the SPDC had hinted its inability to end gas flaring from the field by the 2008 deadline? SPDC had cited funding problems to complete project aimed at gathering the flaring gas from oil fields as contributing largely to the postponement. It said the contribution by the NNPC to cover its 55% equity in the joint venture, recorded by 2005 a shortfall of $4 billion over an eight-year period. Thus, the Shell declared: "construction of (gas gathering facilities).will only be completed by the end of 2009, which means that gas flaring from the relevant flow stations will not be eliminated until that time.
It is gratifying however, to note that both the National Assembly (NA) and the Executive recently are re-stating the Nigeria's commitment and resolve to end the flaring by the deadline. The author is of the view that in order to build or restore some public confidence in the government on this issue, the NA should more seriously first address the funding death as claimed by SPDC. NA and the government should note that all economic theories agree that provision of public good (including clean environment) is the primary responsibility of the government, and should not be left to private sector (SPDC or other oil companies). Let the funding issue be properly addressed, and the SPDC will then be left with the reasonability for explaining any failures or delays on the technical aspects of the gas flaring problem. This should be done sooner than later.
The Petroleum Act, 1969 (PA), and the Petroleum (Drilling and Production Regulations 1969
The two principal statues regulating the Nigeria's petroleum exploration and production (E&P) section generally are the Petroleum Act 1969 (PA), and the Petroleum (drilling and Production) regulations 1969 (PDPR) made pursuant thereto. While the PA doe not contain any provisions on gas utilization, the PDPR under Regulation 42, merely required the operators to:
.not later than five years after the commencement of production .submit to the Minister, any feasibility study, program or proposal.for the utilization of an natural gas, whether Associated with oil or not, which has been discovered in the relevant area.
There was not indication showing that the above provision was ever implemented by the Multi-National Oil Companies (MNOC) or enforced by the government in any event, the law itself was inherently fatally followed as it makes no provision for sanctions against non-compliance. This thus contributed to its ineffectiveness. Indeed the two statues above enacted in 1969 are clearly dated law. They require an overhaul, revision and updating to meet up with current developments in the global oil and gas exploration and development industry. The review should incorporate provisions not only requiring zero flares but also general environmental and social responsibility on the part of both government and the oil companies engaged in oil and gas exploration and development.
Associated Gas Re-Injection Act and the Regulation
A subsequent legislation, in 1979, the associated gas Re-injection Act was promulgated ostensibly to fill up some of the vacuum left by earlier legislation. It set the limit of October to April 1980 for the oil companies to develop gas utilization projects and to stop gas flaring by 1984, or face fines. In 1984, the Associated Gas Reinjection (Continued Flaring of Gas) Regulations amended the existing legislation to provide for limited exemptions for flaring in certain circumstances. This was further strengthened in 1985) against the oil companies for each 1000 standard cubic feet (scf) of gas flared. This amount being too meager, even at that time when the Nigeria Naira was still strong did not provide any incentive to induce the companies reduce flaring. These fines thus had to be raised by government in January 1998 to US$11 for every 1000scf of gas flares. Then there can the Associated Gas Re-injection Act 2004 and the Associated Gas Re-injection (Amendment) Act 2004 which obligated all oil producing companies in the country to submit detained plans for gas utilization. It also prohibits the flaring of associated gas without the written permission of the petroleum Resources. All these were not enough as deterrent to the oil companies flaring the gas.
The National Gas Draft Bill (NGDB)
Federal Government has constituted as technical committee on the implementation of the downstream natural gas sector reform. The committee will work out the details and run checks on the natural Gas Draft Bill (NGDB) which is currently going through processes in the National Assembly. The committees will also critically the sections of the bill that relate to taxes and fiscal terms and advise government on the best options for the industry to be on fast track. Other legislation in the pipeline include t he Downstream Gas Act (DGA) which would be aimed more at ensuring liberalization of the gas already received federals executive council approval and has been forwarded to the National Assembly for consideration.
The Federal Environmental protection Agency (FEPA) Act 1988/92
The Federal Environmental protection Agency (FEPA) Act, which established the FEPA, has been the principle framework legislation for environmental management in Nigeria. This Act incorporated most of the Nigeria's national commitments under UNFCCC and other multilateral environmental agreements (MEAs). It also incorporated most of the government's policy and commitments on environmental management as enshrined broadly in the NPE and NA21.
Under Section 17(1) of the FEPA amendment Act of 1992, the FEPA was empowered to:
Establish more criteria, guidelines' specifications and standards to protect and enhance the quality of Nigeria's air resources and to promote the public health or welfare and the normal development and productive capacity of the nation's human, animal or plant life...
This provision seeks to establish and regulate on the minimum essential air quality standards for human plants, and animals control of concentration of substances in the air that may result in damage or determination of property of human, animal or plant health, prevent and combat all forms of atmospheric pollution. Specifically, FEPA was empowered to employ the "use of appropriate means to reduce emission to permissible level". It has been noted earlier that in a re-structuring programme in 1999, FEPA was up-graded to a full-fledged federal ministry.
Environmental Impact Assessment (EIA) Act
Another law, which is very important, is the Environmental Impact Assessment Act (degree No. 86 of 1992) which by its section 2(2) require that an Environmental Impact Assessment (EIA) be carried out: 'where the extent, nature or location of a proposed project activity is such that is likely to significantly affect the environment". Such EIA must also be carried out in accordance with the provisions of the Act Section 2(1) of the EIA Act, also provides the following:
The public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration, at an early stage, of their environment effects.
By virtue of this law, therefore, environmental impact assessments are compulsory in certain cases, including oil and gas fields' development and construction of oil refineries, some pipelines and processing and storage facilities.
Section 4 of the EIA Act prescribes, the minimum content of an EIA, to include the following: a description of the proposed activities; a description of the affected environment including specific information necessary to identify and access the environmental effect of the propose activities; an identification and description of measures available to mitigate adviser environmental impacts of proposed activity and assessment of these measures; amongst others.
The World Bank has said the following regarding the relationship between gas flaring regulations and EIA requirements:
With the implementation of Decree No. 86 of 1992, EIA's have become an integral part of the planning process and are mandatory for the development of oil and gas fields. Permits to flare, are therefore, now granted in the context of EIA procedures, which are overseen by the Federal Environmental Protection Agency (FEPA0 and the DPR. FEPA's EIA guidelines for Exporting and Producing (E& P) projects 1994 State that mitigating measures to pressure air quality must specifically include the minimization of venting during production.
Flowing from the statement above, a ministerial permit may not be granted; if an EIA procedure carried out shows that a proposed activity (whether in connection with oil or gas) would have detrimental effects on the environment.
The Federal Environmental Protection Agency (FEPA) is the body in which jurisdiction over EIA a matter is vest. It however shares this role with the Ministry of Petroleum, which acts through the environmental branch of the Department of Petroleum Resources (DPR). It is said to have a clear and unacceptable conflict of interest in that it is the same Ministry of Petroleum which grants certificates permitting continuous flaring by oil companies, that will also supervise the carrying out of EIA procedures which aims to expose environmentally harmfully activities (such as Flaring Environmental Rights Actions (ERA) in their report has stated concerning the above conflict of interest that, no confidence can be had in the enforcement of gas flaring regulations, and in the adequacy of EIA procedures, for as long as the Ministry of Petroleum continues in its dual roles.
FEPA is charged with the responsibility to issue standards for water, air and land quality, and it also makes regulations which govern environmental standards in the oil and other industries. The DPR, in exercise of its jurisdiction, issues also a set of environmental guidelines and standards for the Petroleum Industry in Nigeria and these standards overlap with and in some cases differ from those issued by FEPA. However, according to Human Rights Watch, the specific standards set are comparable to those in force in Europe or the US.
In Nigeria, there is in practice little enforcement of the requirements to carry out EIA's either by FEPA or by the DPR's regulatory arm, the Petroleum Inspectorate, and virtually no quality control over the assessments are carried out.
Also, with both FEPA and the DPR issuing environmental standards, oil and gas operators are subjected to both provisions without any clear precedence of one over the other. This conflict in jurisdiction between both bodies is presently being addressed and it will be a wiser option to resolve all conflicts in favour of FEPA, because of the Ministry's conflict of interest. It is worth nothing that, neither FEPA nor the DPR has implemented anti-flaring policies for natural gas waste from oil production, nor have they monitored the emissions to ensure compliance with their own regulations.
Nigerian Environmental Management Act (Draft) 2000
The draft Nigerian Management Act (NEQMACT) is prepared by the FMEV, as a framework environmental legislation was meant to repeal the FEPA Act. Of particular interest, is the innovation brought in by the draft Act on gas flaring phase-out policy of the government. It introduced criminal liability for gas flaring against both the responsible oil company as a legal entity, and its management staff individually. Section 20 of the draft Act empowers the ministry to issue a notice in an official gazette, banning gas flaring, but may in circumstances grant special permit to flare for a limited period of time. Sub-section (4) then provides thus:
Any person who violate the provisions of Sub-Section (2) or (3) of this section commits an offence and shall on conviction pay a fine not exceeding N500,000,000.00 (Five Hundred Million Naira).
In addition to the penalty prescribed under subsection (4), subsection (5) provides that ".the Chairman, Managing Director, and the Directors of the body corporate at the time the offence was committed shall be liable to imprisonment for a term not exceeding 10 years each.
This is the kind of law that is needed if anything serious is to be achieved in the fight against gas flaring and other environmental and social crimes being committed by both oil companies and the Federal government as joint venture partner in the Nigeria's petroleum resources development. This piece of environmental legislation is unprecedented in the Nigeria's legislative history for environmental protection and natural resources management. It was comprehensive in the issues covered, and much professional expertise, both local and foreign was well utilized in producing the document. Indeed, even the World Bank was fascinated by the draft, review by the draft, reviewed and made more inputs in its. The WB then offered to finance three (3) national stakeholder workshops in different parts of Nigeria to sample more opinions observations and comments from wider populace, with a view to standardizing the draft. Curiously however, this piece of draft legislation ended up as a draft, and law is yet to see the light of the day.
But even with a law like the draft NEMACT, it is apparent that the solution to be problem of gas flaring in Nigeria would more than a mere piece of legislation. There will be need for more investment in the technology and facility for gas and utilization.
Even more directly needed, is order to address the problem, is more political will on the part of the government to enforce the law, and to require the MNOC's to live up to their corporate social and environmental responsibilities.
Ministry of Petroleum Resources (MRP)
The MPR, headed by a Minister, is charged with the responsibility of formulating policies relating to oil and gas industry. The MPR performs this onerous responsibility through the Department and Petroleum resources (DPR). The DPR has also issues regulations and standards of the conduct of E & P Operations.
Nigerian National Petroleum Corporation (NNPC)
The NNPC was established by the Nigerian National Petroleum corporation Decree No. 33 of 1973 to assume the responsibilities hitherto performed by the MPR. Broadly, the responsibilities of the NNPC are divided into two: Commercial and Inspectorate functions. It has 12 strategic business units, covering the entire spectrum of oil industry operations. One of these is the Nigerian Gas Company (NGC) by which NNPC handles gas development policies in the country. There is operational sector that handles Nigeria's participatory interest in the various agreements Nigeria signed with the MNOCs.
Federal Ministry of Environment (FMENV)
The FMENV was established in 1999 as the apex authority on the Environment. It assumed the responsibilities of the then FEPA as contained in the FEPA Decree. These instrument that set up the FMENV also specifically transferred to it, the Oil and Gas Pollution Control Unit of the DPR. The FMENV, in response to current demands of Nigeria's international obligations and in accordance with the Nigeria's NEP, drafted the National Environmental Management Act (NEMACT), which inter alia incorporated the current government policy on gas flaring elimination, and the utilization of Nigeria's gas resources.
The Niger Delta development Commission (NDDC)
The NDDC was established by the Niger-Delta Development Commission Act, 2000 as an offshoot of the Oil Mineral Producing Areas Development Commission (OMPADEC) established in 1988. It established pursuant to the government's sensitiveness to the plight of the Niger Delta Oil producing communities. It was established pursuant to the government's sensitiveness to the plight of the Niger Delta oil producing communities. It also addresses the environmental and ecological problems with the E&P activities. The Commission is composed of a Governing Board with members from each of the States constituting the Niger Delta.
NDDC, The Niger Delta Region and Gas Flaring
The relevance of the NDDC to gas flaring phase-out cannot be over-emphasized; all the Nigeria's gas resources are located within the Niger Delta region. Hence, Niger Delta is the Nigeria's environment and peoples most affected by the flaring. This tripartite relationship has been described by Diane Abbot in her article entitled "Think Jamaica is bad? Try Nigeria". Thus "Nigeria's greatest blessing has been oil; but it has also been it greatest curse. It is the sixth biggest oil producer in the world. Oil accounts for 95% of exports by value and 80% of government revenue amounting to billions and billions of pounds. But the discovery of oil has been an ecological disaster for the Niger Delta (one of the most populous parts of the country) where the oil extracted. Shell and other Western Oil Companies have, in collusion with successive military dictatorships, raped the region. Petrol contamination of the water table has made local water undrinkable. Farming and fishing grounds have been ruined and gas flaring in the Delta is cited as Africa's single biggest contribution to greenhouse gas emissions. It is symbolical of the brutally exploitative nature of the oil industry in Niger that the by-product (which other oil producers like Trinidad liquefies and market) is simply burnt in giant flares which causes incalculable environmental damage".
The Niger Delta is located in the Southern part of Nigeria, a geopolitical framework mainly populated by the Ijaw ethnic nationality. Spreading over a total landmass of about 70,00sqkm, the region is inhabited by an estimated population of 30milion Nigerians in 2000 communities as of 2005, accounting for more than 23% of Nigeria's total population. In its present composition, the Niger Delta covers the six states of the South-South, namely, Akwa-Ibom, Bayelsa, Cross River, Delta, Edo and Rivers. This is so even though the definition given the Niger Delta by the Sir Henry Willink commission report of 1957 is much narrower.
However, the legislation on the NDDC, in 2000 has further extended the frontiers of the Niger Delta to include Abia, Imo and Ondo States, thus making the political map of the Niger Delta to comprise nine states. The Niger Delta communities have settled in the area for several millennia, the oldest group having been in the areas for some 7, to 10 thousand years. The primary occupations of the people include fishing, farming, forest product gathering, craft etc usually at subsistence level. However, the region is endowed with enormous natural resources. It has the world's third largest mangrove forest with the most extensive freshwater swamp forest and tropical rainforest characterized by great biological diversity. Alongside the immense potential for agricultural revolution, the Niger Delta region also has vast reserves of non-renewable natural resources include clay pit for burnt brick making in the construction industry, and silica sand for the glass manufacturing industry which have however, remained largely untapped.
The idea of setting up a special government authority for the Niger Delta was first recommended by the Willink Commission Report of 1958. The said Commission observed inter alia that it is not easy for a government or legislature operating from inland to concern itself or even fully understand the problems of a territory where "communications are so difficult, building so expensive and education so scanty in a country which is unlikely ever to be developed. The Commission concluded:
We had no doubt that a feeling of neglect and a lack of understanding was widespread in both Religious (Western and Eastern Deltas). We consider that a case has been made out for special treatment of this area. This is a matter that requires special effort because it is poor, backward and neglected.
This was the prologue to the establishment of the Niger Delta Development Board (NDDB) in 1961: "to consider the problems of the area of the Niger Delta". The practice thereafter ensued by successive governments establishing and renaming similar agencies. These include the Niger Delta Basin Development Authority (NDBDA) in 1976; the OMPADEC in 1992 and the present NDCC in 2000.
Though it is beyond purview of this paper to investigate how these commissions (miss) carried their responsibilities, it is nonetheless rather intriguing and unfortunate to observe that the local population of the Niger Delta are, and have always, ironically, lived in the most despicable environmental and social conditions. This situation was caused or aggravated by the 45 years of exploration and production activities which have been going on without due regard and attention on the part of both the oil companies and the government. It ought be mention however that the Obasanjo administration however, has the credit of committing on the Niger Delta development, within "the past six years of its existence, (the sum of) 210 billion .an amount more than what was spent in the area from 1960 to 1999" 138 That was why people criticize the NDDC with some asking : "Six' years after the creation of the NDDC, there have been no practical steps to restore the destroyed means of livelihood of the people whose farmlands and fishing occupation have cease to be useful due to pollution. One may then be right to add that the sorry state of the Niger Delta environment and its peoples is partly result of corruption on the part of the institutions manned and administered by the Niger Delta indigenous elites whose responsibility it was to better off the life of the people in the area over the years.
Under this head, focus will be on the approach to Gas Flaring in (Alberta, Canda) which has been recommended as a successful way of reducing Gas Flaring. Flaring rates and Gas utilization methods of other countries will also be mentioned, and the approach to Gas Flaring on a Global Level via the Global Gas Flaring Reduction Partnership will also be addressed.
In some counties of the world, Gas flaring has been reduced or almost totally extinguished due to the fact that these countries recognized much earlier, the value of Natural Gas and did indeed pay more than lip - service in ensuring that it was adequately conserved and utilized. This is in contradistinction to the Nigerian position, where Gas flaring was overlooked because the government and the oil companies were more interested in reaping short -term profits from oil production and sale, and were not too keen on expending money on costly Gas re-injection or utilization facilities. This attitude led Nigeria to become the country that ranks highest in Gas Flaring, worldwide and thus, to be more prone to the attendant negative effects it breeds.
However, Nigeria does not stand-along when it comes to flaring, as practically every country, that produces oil and Gas in the world, is guilty of their fair share of gas flaring, although most of them have taken the wiser option of conservation and utilization of Natural Gas. In Western Europe for example, about 99 percent of associated gas is used or re-injected into the ground. In Canada, 92 percent of the gas is conserved or used in some way, while only 8 percent is flared. Also both Canada and America are in the habit of collecting gas for use as fuel.
In Norway, the Norwegian Petroleum Directorate has stated that consumption of Natural Gas produced off-shore has increased in their country. Also, all natural gas burned offshore (consumption and flaring) is subject to a carbon dioxide tax of 0.72 NOK per standard cubic meter). Associated Gas produced in Norway is used in 3 ways, which are as follows:
(1) For Power Generation to drive compressors, pumps and other equipment on an offshore production platform;
(2) The gas is injected into the reservoir to maintain oil production by pressure support, and
(3) The gas is cleaned, compressed and transported by pipeline to a receiving terminal (in Norway or Continental Europe).
Also, non-Associated Gas produced in Norway is put to two uses (Power Generation and pipeline transport).
In 1999, it was reported in the Guardian that Holland had a zero gas flaring profile and that the United States accounted for only 0.6 percent of the total amount of gas flared globally. In the same report, Nigeria's 76 percent flaring of Natural Gas was placed against Libya's 21.0 percent and Algeria 4.0 percent. In another Newspaper Report in 1998, World Bank Energy specialist Mr. Arinze Agbim, a former executive director with Mobil Producing Nigeria Plc, started that while the total production flared and vented in Nigeria has only reduced from 95 percent in the 1970's to about 75 percent in 1998, Malaysia had totally extinguished its flares from a 100 percent level over the same period, and in India, Flaring levels had been slashed in only four years from a 1994 peak of 23 percent, to less than nine percent in 1998.
In the United Kingdom, there is zero tolerance for gas flaring and this is evidence in the way the British successfully reduced flaring from 90 percent to around 2 percent. In the UK, gas flaring is currently being controlled by guidelines set up by the Department of Trade and Industry (DTI). Flares allowances are granted to oil and gas operators and under these guidelines, operators must demonstrate that they have not exceeded their flare allowance, and in order to achieve this, flow meters are used at production platforms and refineries to measure the amount of gas flared. However, because of space and operational constraints, these gas flow meters are sometimes installed in less than ideal configurations and this can lead to increase uncertainty in measurements.
Also under the Energy Act 1976, the Secretary of State for Trade and Industry, for natural gas to be disposed of 9whether at source or elsewhere) by flaring or by releasing it un-ignited into the atmosphere (venting). This applies to all onshore hydrocarbon fields. The main purpose of this requirement is to ensure that gas is conserved where possible by avoiding unnecessary wastage during the production of hydrocarbons. The Department requires that flaring should be kept to the minimum that is technically and economically justified. The over aim is therefore to reduce gas flaring on an annual and basis and the Department has proved successful in reducing flare emissions. Its approach is also reviewed on a regular basis, to ensure that it is integrated fully with Governments policy on green house gas reductions.
Back here in Africa, the Ghanaian Government is promoting the use of LPG (Liquefied Petroleum Gas), which is to be derived from the refinery gas that is often flared in Ghana. The Government recognized that using the gas in this way, would entail a reduction targets set under the Kyoto protocol of the United Nations framework Convention on Climate Change (UNFCC). Due to its high calorific value, LPG is particularly suitable for cooking, heating and lighting in the home. It is also, relatively easy to store and to transport to more remote areas. The people running the Tema Oil Refinery in Ghana took active steps to recover this refinery gas compress and bottle it for distribution as LPG, because they saw it was a way to prevent waste of energy and reduce pollution. The use of LPG was also advocated as an alternative to the use of fuel wood, and its associated problem. The Tema Refinery saw the LPG as ticket to open up a new market for themselves with the potential of increased profits and, they even gave away free stoves to encourage the use of LPG.
Unfortunately, however, these stoves where made in a European design and were unsuitable for use with the traditional rounded pots favoured by most Ghanaians so the market for LPG stalled.
In the United Arab Emirate (UAE), tow projects designed to reduce Gas flaring have been completed by the Abu Dhabi Oil Company (ADOC), and are at present, fully operational. The first is the Sour Gas Injection Project, which was given its final commission in October 2000. This project was created to inject sour gas that was previously flared, into existing oil reservoirs, because environmental pressures made such flaring no longer acceptable. A preliminary Engineering study into the proposed project was undertaken early in 1997, and consultations made with organizations operating sour gas injection facilities in Canada and equipment suppliers, and it was agreed that sour Gas injection was a tenable option to use.
The second project implemented by the ADOC, is the Zero Gas Flaring Project. The ADOC operates three offshore Oil fields namely Mubarraz, Umm Al-Anbar (referred to as AR) and Neewat Al - Ghalan (referred to as GA). This second project was completed in April 2001 and it recovers sour gas flared at Mubarraz offshore Mubarraz Island for injection into the Oil reservoirs of AR and GA fields via sour gas injection facilities
The National Petroleum Construction Company (NPCC) was the Main contractor for both projects and as a result of the combined efforts of both projects, almost all the sour gas produced from ADOC's Oil fields is now being recovered and injected into the oil reservoirs of AR and GA fields. Injection of sour gas in the above fields is also said to have significantly enhanced oil recovery from those fields. Also, Exxon Mobil has disclosed on their website that they have reduced flaring at their Baytown refinery in Texas (United States), by more than 70 percent since 2002.
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At the Global level, the need to reduce Gas flaring via conservative and other methods has been recognized. This is because; Gas flaring is a problem that cuts across continents and countries. Consequently, some Oil and Gas producing countries of the world have joined forces in a Partnership, with a view to reducing Gas flaring. This is because; flaring or burning of gas has a global impact on climate change by adding to green house gas emissions. The Partnership, known as the Global Gas Flaring Reduction (GGFR) Partnership, was launched at the World Summit on Sustainable Development in August 2002, in Johannesburg. It first started as an initiative (The Global Initiative on Natural Gas Flaring Reduction) introduced by the government of Norway and the World Bank Group to investigate and find out the reason why huge volumes of Natural Gas were being flared and vented globally. The World Bank estimated this amount to be over 100 billion cubic meters per year comparable to the combined annual gas consumption of Germany and France - and that it has constantly been so, for the past 20 years (despite efforts made by governments and oil companies to curb it and despite the many successes in reducing Gas Flaring).
The World Bank also gives two reasons which have operated as barriers to the above efforts made and they are as follows:
(1) The increase in Global Oil Production and Association gas production, and
(2) Major constraints hindering the development of gas markets, gas infrastructure, and flaring reduction projects, which often require a collaborator and supportive actions.
As a result of its findings, the initiative was transformed into the GGFR partnership in 2002. This partnership brings around the table, representative of governments of oil producing countries, state-owned oil companies and Major - International Oil Companies so that they can together, overcome the barriers to reducing gas flaring by sharing global best practices and implementing country specific programs in gas flaring countries. This partnership is managed and facilitated by a small team at the World Bank and has numerable partners of which include the following: Algeria (Sonatrach), Angola, Cameroon, Canada (CIDA), Chad, Ecuador, Equatorial Guinea, Indonesia, Kazakhstan, Khanty-Mansijsysk (Russia), Nigeria, Norway, U.K Foreign Commonwealth Office, United States; BP, Chevron, ENI, ExxonMobil, Marathon, NorskHydro, Shell, Statoil, Total; OPEC Secretariat and the World Bank, with other companies and countries expected to join in.
The aim of the partnership is to support national governments and the petroleum industry in their efforts to reduce flaring and venting of gas associated with oil production. In December 2002, the partnership held its first steering committee meeting and a three year work program was approved beginning in January 2003. In its first two years, the partnership plans to focus on Algeria, Angola, Cameroon, Chad, Ecuador, Nigeria and possibly Mexico.
In 2004, the Partnership unveiled the Global Gas Venting and Flaring Reduction Voluntary Standard, at the Second International Gas Flaring Reduction Conference in Algeria on May 10-11. This standard seeks to reduce venting and flaring significantly within 5 to 10 years in the GGFR partnership, which accounts for some 40 percent of Global flaring. It is the belief of the partnership that further reductions will be achieved if additional countries, companies and institutions endorse and implement the standard. The standard will encourage conservation of natural gas, spur the growth of domestic gas markets in less developed countries, reduce barriers to gas markets access elsewhere and reduce greenhouse gas emissions from flaring and venting. It will also encourage prioritization and allocation of resources to operations with the largest potential for venting and flaring reduction globally.
This standard takes a collaborative approach, which is essential to overcome constraints hindering viable flare reduction project. In applying the standard, oil and gas producers and governments will produce implementation plans that support gas utilization. Key stakeholders will be consulted, and these include gas producers, major consumers, and the government. The standard also makes provision for additional stakeholders such as owners of gas infrastructure, financial institutions and representative of Local Communities.
This inclusion of representatives of local communities in the standard is very commendable. This is something that is lacking under Nigerian Law and practice. The manager of GGFR, Bent Svesson, puts it rightly when he said that: "Reducing gas flaring requires a global and concerted effort by governments and Industry, as well as financial Institutions and representatives of Local communities".
The Global Gas Venting Reduction Voluntary Standard is a voluntary one and thus does not carry any formal penalties for non-compliance with its requirements. The standard encourages organizations to self regulate their flaring and venting activities, but it gives also, recommendations for the monitoring of Country's activities and requires transparency, so that feedback on their implementation and performance will be given to the broad range of stakeholders. The partnership recommends the practice in Ablerta Canada, which it lauds as an example of a successful, voluntary approach to reducing gas flaring, and to some extent, the standard took after the Alberta approach to Gas flaring. The practice in Canada will now be examined.
In Alberta Canada, gas flaring has dwindled significantly, and this achievement is attributable to their anti-flaring approach and the fact that there exist in the country, viable alternatives to Gas flaring, which they do indeed use. Flaring of associated gas in Alberta falls under the jurisdiction of the Energy and Utilities Board (EUB), whose goal is to eliminate the routine flaring of associated gas for the benefit of all Albertans. The EUB sets out regulatory requirements and acceptable levels of flaring in the province (Alberta). The Board uses a consensus based approach in determining the appropriate emissions levels, and makes consultations with two multi-stakeholder teams from the Clean Air Strategic Alliance (CASA). CASA in an independent, non-profit organization that brings together all sectors of the economy to discuss issues, and includes environmental, government, industry and health representatives from across Alberta. The above representative make up the (CASA) flaring and venting project team, whose purpose is to develop recommendations on acceptable emission levels and procedures for minimizing flaring CASA then submits these recommendations to the EUB, who will implement them.
This system has received international praise from the World Bank as a highly effective approach to minimizing flaring, so much so that the Global Gas Flaring Initiative had, requested the EUB to submit their approach to them, so that it may be used as a model.
In Alberta, if using a particular technology on a site can eliminate flaring, that technology will be implemented. Where total elimination is not however possible, reduction methods will be resorted and employed it at all possible.
In achieving the above, several factors are considered, and they are as follows:
Firstly, if there are residents nearby, firms that carry out continuous gas flares, will be required to consult with and/or notify such residents and provide them with information concerning the flaring. Notification given by such firms must necessarily include the company's plans for eliminating, reducing or improving the efficiency of the flare. Such residents must also be enlightened as to their right to object to the flare and the process for doing so. An objection should be by a written letter addressed to the EUB field centre, which will then reach a decision that the flaring be discontinued.
Secondly, it will also be considered whether there are economic alternatives to gas flaring. The EUB requires operators to evaluate the economic viability of eliminating flaring on an on-going basis. Flaring is thus to eliminated or reduced if it is deemed to be economic to do so. As at 2002, conservation of gas in Alberta was mandatory and thus deemed to be economic, when the incremental economic of gas conservation generates a net present value (NPV), before tax greater than zero. However, by virtue of the recommendations given by the Flaring and Venting Tema for 2006 the position above has been taken a step further. The position now is that conserving gas is mandatory even if the NPV of undertaking the necessary changes overall, costs the drilling company $50,000. This clearly evidence Alberta's strong commitment to reducing flaring.
Thirdly, the environmental impacts of reducing or eliminating flaring will be considered and whether it would be greater than the economic benefits. It will also be considered if the technologies to be employed in reducing flaring will create new sorts of environmental problems that would cause greater damage than the flaring. Thus, where it is better to flare, so as to avert some environmental dangers, flaring may continue. But where it is more environmentally beneficial to stop or reduce flaring, then it will be done.
Not all flaring in Alberta is however, outlawed, as there is a fixed maximum amount that may be flared annually. This is set at 670 million cubic meters, and this figure represents a 50% decline in Alberta's flaring levels from 1996. If flaring exceeds this amount the EUB will be entitled to impose restrictions on individual drilling sites until the total is below 670 million cubic meters.
Also all amounts of Gas Flared must be reported monthly to the Petroleum Registry of Alberta. The EUB must be provided with evidence that will support the calculations arrived at by individual firms, and is at liberty to request a re-evaluation if it feels these numbers were inappropriately determined.
If reduction of flaring still not possible after all these questions and economic outlooks have been considered, then the EUB will lay out performance requirements that must be adhered to by flaring companies. The requirements are contained in Guide 60: Upstream Petroleum Industry and Flaring, Incinerating and Venting, Section 7.
Some of these requirements stipulate that oil companies are to:
(a) Design flare so that emission do not exceed the Alberta Ambient Air quality Guidelines.
(b) Utilize best engineering practices on the design and operation of flare systems.
(c) Design ways to reduce odor and visible smoke emissions, amongst others.
Flaring in Alberta has declined greatly, owing to the commitment shown by all concerned, towards ensuring its reduction. The Vice President of CASA, Tom Marling had this to say of the Albertan approach.
A process like this is not quick, but the high level of commitment of everyone around the table makes success possible. As a result, tremendous progress has been achieved and Albertan should anticipate further reductions as industry turns its attention to the remaining flares 227.
By consensus, CASA stakeholders agree to a voluntary approach with annual targets, supported by regulatory requirements. This consensus-based approach is said to be the direct reason for the province-wide reduction in flaring by 53 percent, which occurred between the years 1996 and 2001. The EUB also stated in 2002, that flaring had been reduced by 62 percent since 1996. Whatever the actual rate of reduction it is evident that much has been achieved in Canada, where it is now reported that about 92 percent of Gas is conserved or used in some way, and only 8 percent is flared. What is more is the fact that, all stakeholders are seriously dedicated to reducing gas flaring.
In Nigeria, such commitment is lacking. This is shown clearly by the several shifts in deadline dates and the fact that major projects designed to utilized Nigeria's vast natural resources were not constructed until recently. We will now examine the development of natural gas resources and the various projects in the next group.
''Natural gas'' generally refers to gaseous form of petroleum consisting of mixtures of hydrocarbon gases and vapors, the more important of which are methane, propane, butane, pentane and hexane. The term is generically used for both Associated and Non-Associated gas, the former being that ''which occurs with oil in the same reservoir'', and the latter that occurs alone in a reservoir''. Associated gas either re-injected into the oil wells to enhance oil recovery where the situation of the reservoir permits it, or gathered and ''liquefied' to provide alternative energy source for domestic use or electricity generation. According to the stakeholders at a recent oil and gas sector stakeholders workshop organized under the auspices of the GGFR Partnership, Nigeria gas well over 187 trillion of proven, and trillion ''undiscovered but recoverable'' scf of gas reserve. This was also noted by the workshop to represent 50% of Africa's gas reserve. Nigeria thus is the 7th largest world gas province.
Indeed, Nigeria's gas reserves could, according to recent revelation be underestimated, suggesting that Nigeria' true gas reserves could be some 660 tcf compared to the current declared figure of 166 tcf, which ''represents only about 25% of what many experts believe to be true potential of some 660 tcf'. The ''huge disparity between actual and expectation is in itself the result of many years of bias against gas, where presumed gas-prone prospects were actively and deliberately left untested''. Gas production is expected to increase significantly over the next few years as gas flaring is phased out and new projects such as the West African Gas Pipeline project and the remaining three NLNG trains come on stream. According to SPDC, on the average, about 1,000 scf of gas is produced in Nigeria with every barrel of oil. Thus with 2.8 million barrels per day (bpd), about 2.8 billion scf of Associated gas is also produced daily.
Unfortunately, before 1999, up to 79% of the Associated gas in flared (ignited) or vented (unignited). This is equivalent to the value of about 500,000 barrels of oil for each day's generation. Thus, Nigeria fares more than any other country, accounting for ''a quarter of the gas flared in the entire world''.
The statistics above, however, according to the special adviser to the President Obasanjo on petroleum and Energy, Dr. Edmund Daukoru, became brighter in 2004, because of the progress so far made by Nigeria in its war against gas flaring. He said '' only 43% of the Nation's Associated Natural Gas is currently flared as against the 70% flared in 1999''.
Gas flaring has indeed become one of the major environmental concern of the industry. Flaring has been traditionally blamed of lack technology to harness the gas, on the one hand, and until the 70's after the 1st oil shock, absence of the market for the gas as an alternative source of energy. Equally relevant is the fact that in the 1960s and 70s, there was little or no environmental consciousness in Nigeria. As a matter of fact, it was not until 1980 before global warming became an issue. The gas thus was flared into the atmosphere without regard to the environmental consequences.
One should not lose sight of the economic intricacies of gas flaring versus utilization. Algeria, for instance, has worked hard to reducer flaring and venting, it still occurs at location deep in the dessert where no local market exist and there is no way to bring the gas to the cost. As succinctly stated by Worika, the economics of associated gas utilization cost ten times as Non-Associated gas or re-injection is more expensive than flaring. Thus, the oil companies choose the cheaper option of flaring. Indeed, it sounds rather paradoxical, and as Worika puts it, "if gas has not been flared, the oil could not have been produced economically". This then strengthens the assertion that the gap between people who are looking for gas and those who have excess gas and routinely flares it, is "infrastructural lapse' .(and) the driver for building infrastructure is the price for which the gas will be sold. If the gas will not be sold at competitive price, which will enable investors get good returns for their investment, there will be no incentive to invest in these gas infrastructures and facilities". On the whole, considering the new status of gas in the global energy security debate, coupled with the associated environmental and social considerations, the economics of gas utilization is incomparably more favourable and viable for Nigeria than flaring it.
Nigeria, according to a World Bank estimate is currently losing on the average more than $2.5 billion (N332.5 billion) annually to gas flaring. At about 57% of the daily production of over 2bn cf, the volume of gas flared is said to be capable of generating up to 6GW of electric power annually. Nigeria could earn about $12 billion annually from natural gas export by 2009 when projects designed to end the burning of gas associated with oil extraction come on stream.
In a very recent report, Nigeria is stated is having the 7th largest gas reserves in the world, which is estimated at some 160 trillion cubic feet (equivalent to about 27 billion barrels of confronted by the enormity of its Gas reserves, the Nigeria Government and the oil companies were finally prompted into doing something about utilizing Natural Gas, as an alternative to the incessant Gas flaring which was prevalent in the country. This need to take active step in harnessing Nigeria's Gas Reserves was made even more expedient, because the Anti-flaring laws in Nigeria had failed to achieve the desire result. The oil companies and the government had previously shied away from investing in the Natural Gas Industry, because of its Capital Intensive Nature.
Other factors, which delayed adequate exploitation of Nigeria's Gas reserves, are that: the domestic demand for gas was not high enough and nether was international demand for the commodity firm enough to guarantee that investments by the oil companies will yield short-terms profits. Concerning the capital intensive Nature of the Natural Gas Industry, Philip Swanson an economic and flaring consultant for the World Bank had this to say: "Associated gas is unpredictable and difficult to collect, requiring huge investments in infrastructure that oil companies don't find profitable".
Nonetheless, the Nigerian Government in partnership with oil companies has geared some projects toward exploiting Natural Gas and thus reducing Gas Flaring. One of them is the Nigeria Liquefied Natural Gas (NLNG) venture, which is the almost publicized and possibly the largest of them all. In furtherance of this venture, a company Nigeria LNG limited, has been registered with the Nigeria National Petroleum Corporate (NNPC). The Nigeria LNG is a Joint Venture Company owned by the Federal Republic of Nigeria, represented by the NNPC, which owns 49% of its shares and other companies, such as Shell, which owns 25.6%, Totalfina Elf, which owns 15% and Agip, which owns 10.4%.
The entire LNG project is said to cost about 3.8 billion and has already commenced operations, with exports of LNG from the complete liquefaction plant, located at Finima, in Bonny Local Government of Rivers State. This venture is not a recent phenomenon as it has been at some stage of planning or implementation since the 70's. The Nigeria LNG Limited purchases and liquefies Natural Gas for export to overseas Markets Long term Natural Gas supplies have been secured by the company from its shareholders and in addition, four LNG ships have been bought with three of them currently hired out. There has also upfront sale of LNG expected from the plant; to buyers in Europe and USA fro 22.5 years starting from 199 (the expected date of commencement of production of liquefied natural gas). The company is exporting to the following European buyers: ENEL (Italy), ENAGAS (Spain), Botas (Turkey), Gaz de France (France) and Transgas (Portugal).
As was said earlier, the Nigeria (LNG) venture has an estimated cost of $3.8 billion. This is owning to the fact that such a project involves huge capital investments and huge risks. For instance, the cost of building the LNG ship which that will carry the liquefied gas is estimated at almost $200 million. Also, LNG ships are peculiar in the fact that they cannot carry any other commodity except LNG. This is because it is specially designed, and thus, an LNG venture cannot be without an LNG ship. It also takes huge amounts of capital to develop, construct and acquire LNG equipment, production installations, and distribution facilities.
As at the end of September 1995 only $1.36 billion had been contributed by the shareholders as equity and deposited in an escrow account. The company thus has the daunting task of raising the remaining amount either from International sources, or from further equity contributions by the shareholders. The Nigerian Government is also very earnest in its desire that the LNG venture meets with success. LNG project is expected to earn Nigeria $37 billion in 30 years, starting from 1999, and because of its huge economic prospects the Nigeria Government has gone to some extent, to attract and secure foreign investors in the venture and has even enacted a law that spells out the benefits and granted to the Nigeria LNG limited.
This law is known as the Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Decree no 39 of 1990 (hereafter, the Decree/ Act). This Act grants Fiscal incentives and investment protection to investors. Some of the fiscal incentives are as follows:
a) The status of pioneer company for taxation purposes is conferred on the company by virtue of the Act
b) The Company is granted tax relief for a period of 10 years commencing from the date of commercial delivery of LGN to Purchaser
c) Section 7 of the Decree/ Act exempts the Company and its contractors or sub-contractors from payment of import duties or other duties in respect of all necessary imports of plant, machinery, goods and material s to be used in the construction of, or incorporation in the plant, jetties, shipping, transmission facilities and ancillary work used in the company's business; amongst others.
The second schedule to the Decree contains the guarantee assurances and undertakings made by the government of Nigeria, to Nigeria LNG limited and its shareholders and it granted these guarantees in recognition of the huge investments, which have been made by the company to carry out purposes. These guarantees have effect from the 24th of April 1980 and will remain in force so long as the company exist and is carrying on the business of liquefying and selling LNG.
The Decree/ Act also provides for stabilization clauses, which are designed to reassure the foreign shareholders that there will be no unilateral changes in the fiscal and legal regime governing their contracts. This is welcomed by multinational oil companies who are more concerned with stability in their contractual relations with government as opposed to flexible contractual relation which may expose them to sporadic changes in the law of the host country.
Gas supply to the LNG project is to come initially from non-associated gas reserves and then it is expected that Associated Gas (AG) will fully used. However it has been alleged that the former is still being put to more use than the latter, despite the fact that the LNG project was originally designed to utilize Associated Gas that was being constantly flared away. As a matter of fact, it was only in November 2002 that the LNG plant was able to utilize 100% AG, but the amount of AG utilized since then has dropped far below that figure.
Oil companies in Nigeria are being accused of using as much associated gas as they can get away with while only a barely significant amount of AG is actually sold. Shell, for instance has stated that only 17.6% of Associated Gas was sold to the Nigeria LNG ltd, between the years of 2002 and 2003, and that the 17.6% represents 350 MMSCF/D, which constitutes a small portion only of the total amount of 1982 MMSCF/d of gas sold to the company, during that time.
This state of Affairs totally defeats the purpose for which the LNG project was created, as the implication of using more none-Associated Gas than A.G is to further encourage flaring of the latter. It has thus, suggested that a legal obligation to use AG, be imposed on the Oil Companies as it believed that they will not supply AG to the LNG project, where such a legislation is absent.
The next promoted as viable means of reducing gas flaring is the West African Gas Pipeline 9WAGP). This project has received even more criticism that the LNG project.
The West African Gas pipeline, like the LNG project is one that has been in the works for sometime (about 25 years), but actual construction work on the project only began in August of 2005. A feasibility report, prepared by the World Bank in 1992, determined that a natural gas pipeline originating from Nigeria to Benin, Togo to Ghana would be commercially feasible. The (WAGP) project aims to deliver Gas from Nigeria (via an approximately 680 kilometre pipelines) to Benin, Ghana and Togo. The World Bank gave support to this project in November 2004, when it guaranteed US$125 million for the construction of the pipeline. The project is estimated to cost about $590 million and is being promoted (by Chevron and Shell) as a gas flare reduction project. According to the US government: "the major positive environment impact of WAGP will be the development and use of gas currently flared in Nigeria.
Promoters of the project also claim that it will reduce carbon emission, produce chapter, more reliable and environmentally friendly energy and foster economic development and integration in Ghana, Togo, Benin and Nigeria. The WAGP project is to be built, owned and operated by a new company called: the West African Gas Pipeline Company (WAPC). This Company is to be owned by Chevron Nigeria Limited (36.7%, NNOC (25%), SPDC (18%) Volta River Authority of Ghana (16.3%) Society Beninoise de Gaz ((2%) and Societe Togolaise de Gaz S. A. (2%). This project, has however met with stiff oppositions from host communities, and severe criticisms from environmental and civil society groups.
Firstly, it has been argued that sponsors of this project have not been able to show just how; the pipelines would reduce flaring of associated gas in the Western Niger Delta region. The pipeline will be connected to the Escravos Lagos Gas pipeline, which was built to transport unflared non-associated gas, and was constructed without an environmental impact assessment (EIA). Also as concerns this project there are no means by which the use of AG can be enforced and so it seems that WAGP will end up another non-AG project (like its Predecessor, the LNG project).
Secondly, although the promoters of WAGP claim that the project is West African by origin and meant to address the needs of the people from that region, WAPCo, the company that will manage the WAGP is not registered in any West African country. It is rather registered in Bermuda, and will operate as an offshore company with major fiscal, environmental and social exemptions specifically allowed by the WAGP treaty and Enabling legislation.
Also in a bid to protect themselves from future liabilities, and compensations, the project proponents have demanded that, a West African Gas Pipeline Project Enabling Legislation be enacted at the National Assembly. The legislation will exempt WAPCo from compliance with Nigerian Laws that will guarantee good corporate practice and environmental protection. This move by the promoters has been criticized as a poly to subvert the sovereignty of Nigeria, because if such a Bill is passed it will have the effect of robbing the Government of the right and power to prosecute them.
Thirdly, Ghana's Energy Commission has stated that the WAGP project will not be economically viable for the people in Ghana. This is because, the Ghanaian Government will be committed under its terms to buy WAGP's gas at a set price for twenty years, impacting on the countries budget and ruling out possible future alternative energy sources.
A Fourth ground for criticism of the project, is based on the fact that, the local people through whose communities the pipelines will pass know very little about the projects. Representatives from communities living near the pipeline route in Nigeria and Ghana report that they have not been properly consulted, suggesting that the World Bank, one of the main project financiers of the WAGP, would be violating its own commitment to invest only in projects that have broad community support. It is also alleged that only a few land owners have been approached by Chevron's agents and some have been paid a very small compensation of $20 for their land
Fifthly, it is maintained by civil society groups that the pipeline project risks prolonging ongoing conflicts in the oil and gas - rich Niger Delta. Representatives of these groups do not also believe that the pipeline would provide cheap energy or promote regional integration. Prominent amongst all these criticisms and oppositions however, is the fact that the WAGP project will seemingly use more non-associated gas and this render ineffective the claims made by the promoters that the pipeline will channel away associated gas' from existing oil fields where it is currently being burned, and thus contribute to putting an end to dangerous Gas Flaring in Nigeria.
This is a fundamental flaw in the Project, which takes after its predecessor (the LNG project) once again. These problems which have been associated with the above project, make it all the more doubtful that Government will be able to make its 2008 deadline. Apart from the NLNG and WAGP, there are other projects designed for gas utilization in Nigeria.
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One of such projects is the Escravos gas project. This project is the first major project to gather and utilize Nigeria's offshore gas for both local and export use. It is a joint venture between NNPC (60%) and Chevron Texaco (40%) to recover associated gas from offshore fields. The project is located at Escravos, Delta State, Nigeria and it will extract Liquefied Petroleum Gas (LNG) from AG, and exports it via pipeline, to an offshore floating and offloading vessel (FSO). It commenced operations in 1997 and its first shipment of LPG was in September of the same year.
Another project is the Oso NGL Project. It is a joint venture between NNPC (49%) and Exxon Mobil (51%). The project will convert associated wet gas into natural gas liquids (NGLs) and its current production capacity is 50,000 barrels per day. There is also the Trans-Saharan Gas pipeline, which will be 4,000km long, and will link Nigerian Gas fields through Mail to Ben-Saf on the Algerian coast. Gas produced from the field will be sold to the European Market. The cost of the project is estimated at $7 billion, and is expected to develop the Natural Gas market and infrastructure in the Northern part of Nigeria.
Another one is the East Area Gas Project (EAGP) owned by Mobil Producing Nigeria. The EAGP will gather all gas produced from the East area fields, for re-injection and storage. Liquids will also be extracted from the gas, by an offshore NGL plant before it is re-injected.
The above-mentioned projects are only some of the natural gas projects in Nigeria. It is very important therefore, that more gas projects are developed existing ones improved and also something should be done about the shortcomings of the NLNG and WAGP. This is because it will help the efforts by the Government and oil companies to end gas flaring.
In the next detailed research, discussion was restricted to dealing with fundamental questions of Human Rights and Unprecedented Ruling of the Federal High Court in Nigeria.
The practice of gas flaring has been attacked by various writers and, is deemed to b against the human rights of the people living next to them. This is because it breeds grave environmental and health risks to these people and their communities. Gas flaring in Nigeria operates on a much larger scale, than is done anywhere else in the world, and the trend is not without its negative effects.
Flaring in Nigeria is said to contribute more greenhouse gas emissions than all other sources in sub-Saharan Africa combined, which as a result leads to global warming. Peter Roderick, Co-director of the Climate Justice Program, is quoted as saying the following ".The appalling waste or greenhouse gases in one of the world's poorest countries are a violation of Human Rights of those living subjected to the flaring.
Other effects of gas flaring are that, it exposes Niger Delta residents to an increased risk of premature deaths, child respiratory illness, asthma and cancer. Human Rights are used here to mean the Fundamental Rights of the people, guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (hereafter the 1999 Constitution). In a newspaper report, the following was said;
Fundamental rights are those inalienable rights of individuals which has been recognized, accepted and entrenched in the constitutions of civilized nations. It is the minimal accepted standard of respect for individuals that cannot be arbitrarily denied or deprived them of without consequences.
In Nigeria, these rights are contained in Chapter 4 of the 1999 Constitution, and their provisions can be enforced against violators in any law court in Nigeria. These rights have also been recognized by international instruments e.g. The African Charter on Human and Peoples Right (which provides for the right to a clean and healthy environment), the Universal Declaration of Human Rights etc.
Nigeria has incorporated into its law the African Charter on Human and People's Right. The law is known as the African Charter on Human and People's Right (Ratifications and Enforcement) Act Cap A9, Vol. 1 Laws of the Federation of Nigeria 2004. It is important, in that, it unequivocally provides for rights that protect the environment and human rights, these rights are justifiable in Nigerian courts. Section 20 of the 1999 constitution, which has similar provisions, states the following: "The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria". This section and the entire discussant under which it falls, is however non-justifiable. A citizen cannot bring an action for the breach of its provisions.
It is interesting to note that, there had been no judgment in Nigeria, which pronounced upon the legality of Gas flaring or the human rights of affected persons (to their benefit) , until recently. In the Next section, we will examine the judgment and some relevant laws, which affirm the Human/Fundamental rights of citizens living in communities scourged by Gas Flaring.
This judgment, (the first of it's kind) was given by the Benin Federal High Court, on November 14th 2005, in the case of Mr. Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd, Nigerian National Petroleum Corporation and Attorney General of the Federation ( hereinafter called the Jonah Gbemre case).
This case was filed by communities from across the Niger Delta, in the Federal High court of Nigeria, against Shell, Exxon Mobil, Chevron Texaco, Totalfina (Elf) and Agip Joint Venture Companies, the NNPC and the Nigerian Government, to stop gas flaring". However because of the copious unwieldy list of members, the court granted leave to the applicant (Mr. Jonah Gbemre) to commence the proceedings for himself and as representing the other members, individuals and residents of Iwherekan community in Delta State of Nigeria.
The applicants sought an order enforcing or securing the enforcement of their fundamental rights to life and dignity of human person, as provided for by sections 33(1) and 34(1) of the 1999 Constitution, and Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
Section 33 (1) of the 1999 Constitution, states the following:
Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
Section 34 (1) of the 1999 Constitution, provides as follows:
"every individual is entitled to respect for the dignity of his person and accordingly:
(a) no person shall be subjected to torture or to inhuman or degrading treatment.
(b) no person shall be subjected to torture or to inhuman or degrading treatment.
(c) no person shall be held slavery or servitude
(d) no person shall b required to perform forced or compulsory labour.
Both section 33 and above fall under chapter 4 of the 1999 constitution. Section 46(1) of the 1999 Constitution and under the same chapter provides as follows:
Any person who alleges that any of the provisions of this chapter been, is being or likely to be contravened in any state in relation to him, may apply to a High Court in that state for redress.
Article (4) of the African Charter (supra) also provides the following:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
Article (16) of the African Charter states the following:
Every individual shall have the right to enjoy the best attainable state of physical and mental health. State parties to the present charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Article 24 of the African Charter provides: "All people shall have the right to a general satisfactory environment favourable to their development". The applicant sought a declaration that the above laws included their right to a clean poison free, pollution free and healthy environment. They also sought a declaration on the following:
(a) That the actions of the 1st and 2nd respondents in continuing to flare gas in applicant's community constitutes a violation of their fundamental rights guaranteed in the above mentioned laws (i.e. the 1999 constitution and the African charter).
(b) That the failure of the 1st and 2nd respondents to carry out environmental impact assessment in the Applicant's community concerning the effects of their gas flaring activities was a violation of section 2 (2) of the Environmental Impact Assessment Act. The said section requires that an environmental impact assessment be done in accordance with the provisions of the Act, where a proposed project activity is likely to significantly affect the environment.
(c) That no valid ministerial certificates have been obtained by the 1st and 2nd respondents, authorizing their gas flaring, and that accordingly, they were acting in violation of section 3(2) of the Associated Gas Re-injection Act.
(d) That the provisions of section 3 (2) (supra) and section (1) of the Associated Gas Re-injection (Continued Flaring of Gas Regulations); under which gas flaring may be continued, are inconsistent with the provisions of the African Charter and the 1999 Constitution, mentioned above.
(e) That the 1st and 2nd respondents in continuing to flare gas in their community, exposes them to serious ailments such as respiratory disease, premature death, asthma, and such negative impacts on the environment as, climate change, Acid rain etc.
(f) That the 1st and 2nd Respondents have no right to continue to engage in gas flaring, in violation of their right to life and to a clean and healthy environment.
Counsel for the Applicant (B.E.I Nwofor, SAN) argued that section 33(1) of the 1999 Constitution guaranteed the right to life and proceeded to the Black's Law Dictionary for the definition of life, since the constitution does not provide for such a definition, and neither does the Interpretation Act in any of its sections.
The Black Law Dictionary defines life as follows:
(a) The sum of all the forces by which death is resisted.
(b) The state of the humans in which its organs are capable of performing their functions
(c) All personal rights and the enjoyment of the faculties.
He submitted that this definition gives a wide meaning to the right to life, and not just a narrow meaning of the right. He stated further that the right is not just to have one's head cut or guillotined, but also more significantly, that it includes the right of a human being to have his organs function properly and to enjoyment of all his facilities. He argued that the 1st and 2nd Respondents were engaged in massive gas flaring in the Applicants community (Iwherekan), and that this flaring poisons and pollutes the air, water, food and vegetation in that community and cause terminal diseases as chronic bronchitis, cancer, painful breathing etc. He also argued that the right to life will only have meaning if the things that endanger it are removed and that this massive flaring has the effect of endangering and diminishing life and does not lead to its full enjoyment, and that accordingly the Respondents by their actions have violated the right to life of the Applicants. Learned counsel for the Applicants also insisted that the 1st and 2nd Respondents had no valid ministerial certificates, permitting them to flare gas and that their actions are thus punishable under section 4 of the Associated Gas Re-injection Act (supra), which makes such act an offence and the violators liable to necessary penalties prescribed thereof.
On the issue of breach of the right to dignity of the human person, the learned counsel for the Applicants referred to section 34(1) of the 1999 constitution which came up for interpretation by the court in the case of Uzuokwu v. Ezeonu which came and submitted that the right to dignity of human person indulges the right not to inflict any inhuman or degrading treatment - which includes infliction of not only severe bodily harm, but also, mental anguish and suffering. Tobi JCA in the above case defined the word "inhuman" as "the opposite of "human" and that if followed that inhuman treatment is a barbarous, uncouth and cruel treatment, which has no human feeling on the part of the person inflicting the barbarity or cruelty".
The word dignity conveys the meaning or connotation or being degraded at least in one's exalted estimation of his societal status or societal standing.
.And that the court has jurisdiction to give broad and liberal interpretation to the constitution, particularly when the rights of the individual are involved in respect of matters provided for in the constitution.
Nasir J.C.A, in the same case made the following statements:
The phrase "inhuman treatment" means in my opinion, any barbarous or cruel act, or acting without feelings for suffering of the other and the "person" includes not only the physical body but includes the "psyche" and other mental attributes.
The learned SAN, also contended, that section 3 of the Associated Gas Re-injection Act as well as the Regulations made under, are inconsistent with the rights to life and dignity as guaranteed in section 33 and 34 of the 1999 constitution respectively. He also stated that where there is inconsistency of any Act with the provisions of the constitution will prevail and the Act would be null and void to the extent of its inconsistence. Counsel for the Applicants stated further that this inconsistency lies in the fact that the constitution having guaranteed rights to life, (which includes rights to a healthy environment) some cannot be whittled down by an Act of the National Assembly, which allows for continuation of gas flaring which pollutes the air, water and food. He argues that both statues could not stand side by side. The learned counsel stated also that the Honourabe Attorney General of the Federation and Minister of Justice (3rd Respondents) was joined in the suit t come and explain and justify the constitutionality of the above enactment. The AG did not however turn up and so the learned SAN thereby urged the court to declare the Associated Gas Re-injection Act null and void.
The Respondents on their own part, denied practically, all the claims made by the respondents and in turn made various claims against them, which include the following that Mr. Jonah Gbemre, did not have authority to represent members of the Iwherekan community, that Fundamental Rights Enforcement Proceedings are applicable only to an injured individual, and not to one who is well and healthy, that the 1st Respondents do not flare gas at Iwherekan, and that the only facilities they have there are pipelines, that the activities of the Respondents in Relation to gas, exploration and processing has not caused any pollution of the air or any of such ailments as claimed by the appellants, that their operations have in no way affected the fundamental rights of the Applicant alleged and that these oil and gas activities are carried out in accordance with good oil field practice as permitted by the laws of the Federal Republic of Nigeria, that at the time they commenced operations in the area, they were not required by law in force to carry out environmental impact assessment and that there has been no oil and gas development in the community that would warrant such, that the first Respondent has a flare certificate wherever it has a flare site, and that they do not have a flare site in Iwherekan amongst others.
The learned counsel for the Respondents, Chief T. J. Okpoko, SAN and his assistants, however failed to adequately defend the claims they made and they kept requesting several adjournment's and even filed different motions on Notice for stay of proceedings at the Court of Appeal, Benin Division. All these they did in a bid to frustrate the High Court and delay it, in rendering justice in the case.
The Federal High Court in Benin, acting through its learned judge, Justice C.V. Nwokorie denied the Respondents their last application for adjournment, whereupon the lead counsel for the 1st and 2nd Respondent and all his junior Assistants walked out of the court, without observing the usual courtesy of bowing to the Bench.
Owing to the reaction of the Respondents, the learned judge adjourned the case for judgment. This judgment was then given on the 14th day of November 2005. Justice C.V. Nwokorie declared Nigerian Law to be unconstitutional, and ordered the Attorney General to meet with the federal Executive council, in order to bring the law into line with present day practice, rules and regulations governing oil and gas activities. The Federal High Court also ordered the Oil Companies and their workers to stop gas flaring the Nigeria Delta as it violates guaranteed constitutional rights to life and dignity.
The judge also held the following:
(a) That Mr. Jonah Gbemre had authority to represent himself and the community;
(b) That the fundamental rights to life and dignity of the human person, as guaranteed by sections 33 and 34, respectively of the 1999 constitution inevitably includes the rights to clean, poison free pollution - free healthy environment.
(c) That the Respondents continuous Act of gas flaring amounted to a gross violation of their (the communities) fundamental rights to life (including healthy environment) and dignity of human person as enshrined in the constitution.
(d) That failure of the respondents to carry out Environmental Impact Assessment in the Applicants community amounted to a clear violation of section 2 (2) of the Environmental Impact Assessment Act (supra) and also contributes to a further violation of their human rights.
(e) The court, apart from holding that specific sections of the Associated Gas Re-Injection Act and of the Regulations made under it, were inconsistent with the Applicants rights to life and dignity guaranteed under the constitution, also declared that the above laws were inconsistent with the African Charter on Human and peoples Rights (Ratification and enforcement) Act supra.
This decision by the Federal High Court, follows the unprecedented Ruling given by the African Commission on Human and peoples Right, in the case of, the social and Economic Rights Action Center for Economic and social Rights v. Nigeria, where Nigeria was found to have breached the rights to environment under Article (24) to life under Article (4) to health under Article (16), amongst other.
The provisions of the African charter (supra), reinforce the provisions of the 1999 constitution, in relation to the rights to life and dignity. The judge, also put a restraint upon the Respondents, their servant or workers, from engaging in further flaring of Gas in the Applicant's community and stated that they are to take immediate steps to stop further flaring of gas in that community. The judge therefore dismissed the case put forwarded by the 1st and 2nd Respondents, as well as their various preliminary objections, and declared that they lacked merit.
This judgment is an Oasis, because of the fact that it is unprecedented, and is a Major Victory for the host communities that have for long been exposed to the negative impacts of flaring. Rev. Nnimmo Bassey, Executive Director of Environmental Rights Actions (ERA) has said this of the judgment:
For the first time, a court of competence has boldly declared that Shell, Chevron, and the other Oil Corporations have been engaged in illegal activities here for decades.we expect this judgment to be respected and that for once the oil corporations will accept the truth and bring their sinful flaring activities to a halt.
Peter Roderick, Co-director of the Climate Justice Programme has also commented on the Judgment as follows:
This is a Landmark judgment.we applaud the courage of the judge in giving a clear message that flaring is outdated practice that is not acceptable in Nigeria, we also applaud the courts decision to apply rights guaranteed by the Nigerian constitution to an environmental case for the first time in Nigeria, in line with other countries.
The Federal High Court also summoned the Attorney General and Minister of Justice, the Ministry of State for Petroleum resources as well as the Managing Directors of NNPC, SPDC, and NDDC amongst others, to appear before him on May 31, 2006 to show just how they intend stop gas flaring. The court had also ordered Shell to stop gas flaring in the Iwherekan by April 30, 2007.
This order has however been overturned by the Court of Appeal, on an application by Shell. The said court ordered that no such hearing should take place on that day (May 31st) or any other day, and it granted a stay of execution in that respect thereof.
The Affected communities have however field a notice of appeal against the above ruling of the Court of Appeal, and this is the present state of affairs. Shell has also filed a notice of Appeal challenging the ruling of the Benin High Court, and its action has met with severe criticism and disapproval from Environmental Rights Action (ERA). According to its executive director, Nnimmo Bassey:
This is typical of Shell. It is not known to respect human rights or act in anyway to protect the environment. This is a landmark judgment that confirms its operations have been violating fundamental human rights and the Rights of its host to a dignified life.
The notice of appeal does not however affect the judgment of the Federal High Court, which remains the position until a contrary judgment is given. It is now the hope of many that where such an appeal is before the appellate court, it will hasten to dismiss it and thus reaffirm the position stated by the court of first instance.
It is worth noting, however if this case were to have been brought against Shell (and by extension, other oil companies operating in Nigeria) in more advanced countries, which are totally unbending when it comes to gas flaring, the position would have been different. This point is given strength by a case brought against Shell in the United States. This case is known as United States of America v. Shell Offshore INC and Shell Exploration and Production Company. This case was instituted at the United States District Court, in the Western District of Louisiana (particularly, at the Lafayette-Opelousas Division). Both parties arrived at a Stipulated Civil Settlement and Shell admitted to the claims/allegations made against it by the United States of America that, it had engage in Unauthorized flaring and /or venting of natural gas in excess of small volumes (much of which was economically recoverable) at different locations in the country.
The amounts of Gas alleged to be flared by Shell range from Fifty Thousand Cubic Feet per day to about Six Million Cubic Feet a day, between the years 1975 and 1999. Shell acknowledged that it undertook such flaring and venting without first obtaining permission from Appropriate Authority and that it also failed to state accurately the amounts of natural gas flared or vented from its various units 345. Shell also admitted that it failed to accurately and timely calculate and pay royalties on the natural gas flared and/or vented until it was told to do so. Shell, consequently agree to pay the United State of America Forty-Nine Million Dollars ($49,000,000) minus a credit of One Million, Six Hundred Seventy-Eight Thousand, One Hundred Twenty-four Dollars ($1,678,124) for royalties already paid in full final and complete settlement of all possible claims against it, amongst others.
This attitude expressed by Shell in America, is at odds with the way it is presently acting in Nigeria, in quite similar circumstances, Shell admitted to all claims made by the US government and agreement and agreed to pay it the above enormous amount for breaching its laws. Meanwhile, in Nigeria, all claims made by the communities against Shell were vehemently denied. Shell has chosen not to respect the judgment of the Federal High court and has accordingly filed a notice of appeal against it. It is also quite unimaginable that Shell would show the same respect to the Nigerian Government and admit that it has not paid royalties die or that it did not accurately calculate the amounts of gas, which it flared.
Nonetheless, it is a fervent hope every Nigerian must carry, that some day, Shell and other oil Companies operating in the country, will own up to their liabilities and misdeeds, and indeed be genuinely concerned about reducing gas flaring.