| Nigeria: Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) AHRLR 151 (NgHC 2005) |
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Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) AHRLR 151 (NgHC 2005)
Mr
Jonah Gbemre (for himself and representing Iwherekan Community in Delta
State, Nigeria) v Shell Petroleum Development Company Nigeria Ltd,
Nigerian National Petroleum Corporation and Attorney-General of the
Federation
Federal High Court of Nigeria in the Benin Judicial Division, suit FHC/B/CS/53/05, 14 November 2005
Judge: Nwokorie
Extracts.
Gas flaring in the course of oil extraction violates the right to life and a healthy environment
Environment (right to a healthy environment, 6; environmental impact assessment, 6)
Life (effect of pollution, 6)
[1.] On 21 July 2005 this Court granted leave to the applicants to apply for an order enforcing or securing the enforcement of their fundamental rights to life and dignity of human person as provided by sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria, 1999, and articles 4, 16 and 24 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 vol 1, Laws of the Federation of Nigeria, 2004. By a further leave of Court I permitted the applicant to commence these proceedings for himself and as representing other members, individuals and residents of Iwherekan community in Delta State of Nigeria, in view of the copious unwieldly list of members contained in an earlier application for leave they brought in respect thereof, which was withdrawn by their counsel at the prompting of the Court.
[2.] The reliefs claimed by the applicants in their subsequent motion on notice filed on 29 July 2005 include:
1. A
declaration that the constitutionally guaranteed fundamental rights to
life and dignity of human person provided in sections 33(1) and 34(1) of
the Constitution of Federal Republic of Nigeria, 1999 and reinforced by
articles 4, 16 and 24 of the African Charter on Human and Peoples’
Rights (Ratification and Enforcement) Act, cap A9, vol1, Laws of the
Federation of Nigeria, 2004 inevitably includes the right to clean
poison-free, pollution-free and healthy environment.
2. A
declaration that the actions of the 1st and 2nd respondents in
continuing to flare gas in the course of their exploration and
production activities in the applicant’s community is a violation of
their fundamental rights to life (including healthy environment) and
dignity of human person guaranteed by sections 33(1) and 34(1) of the
Constitution of Federal Republic of Nigeria, 1999 and reinforced by
articles 4, 16 and 24 of the African Charter on Human and Peoples’
Rights (Ratification and Enforcement) Act, cap A9, vol1, Laws of the
Federation of Nigeria 2004.
3. A
declaration 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 is a violation of
section 2(2) of the Environment Impact Assessment Act, cap E12 vol 6
Laws of the Federation of Nigeria, 2004 and contributed to the violation
of the applicant’s said fundamental rights to life and dignity of human
person
4. A
declaration that the provisions of section 3(2)(a), (b) of the
Associated Gas Re-injection Act cap A25 vol 1 Laws of the Federation of
Nigeria, 2004 and Section 1 of the Associated Gas Re-Injection
(continued flaring of gas) Regulations Section 1.43 of 1984, under which
the continued flaring of gas in Nigeria may be allowed are inconsistent
with the applicant’s right to life and/or dignity of human person
enshrined in sections 33(1) and 34(1) of the Constitution of Federal
Republic of Nigeria, 1999 and articles 4, 16 and 24 of the African
Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act,
cap A9 vol 1 Laws of the Federation of Nigeria, 2004 and
are therefore unconstitutional, null and void by virtue of section 1(3)
of the same Constitution.
5. An
order of perpetual injunction restraining the 1st and 2nd respondents
by themselves or by their agents, servants, contractors or workers or
otherwise howsoever form further flaring of gas in the applicants said
community.
[3.] It is the case of the applicants, as shown in the itemized grounds upon which the above-mentioned reliefs are sought that:
a) By
virtue of the provisions of sections 33(1) and 34(1) of the
Constitution of the Federal Republic of Nigeria, 1999 they have a
fundamental right to life and dignity of human person.
b) Also
by virtue of articles 4, 16 and 24 of the African Charter on Human and
Peoples’ [Rights] (Ratification and Enforcement) Act Cap A9, vol 1 Laws
of Federation of Nigeria, 2004, they have the right to respect for their
lives and dignity of their persons and to enjoy the best attainable
state of physical and mental health as well as right to a general
satisfactory environment favourable to their development.
c) That
the gas flaring activities in the community in Delta State of Nigeria
by the 1st and 2nd respondents are a violation of their said fundamental
rights to life and dignity of human person and to a healthy life in a
healthy environment.
d) That
no environmental impact assessment was carried out by the 1st and 2nd
respondents concerning their gas flaring activities in the applicant’s
community as required by section 2(2) of the Environmental Impact
Assessment Act, Cap E 12 vol 6, Laws of the Federation of Nigeria 2004,
and this has contributed to the unrestrained, mindless flaring of gas by
the 1st and 2nd respondents in their community in violation of their
said fundamental rights.
e) That
no valid ministerial gas flaring certificates were obtained by any of
the 1st and 2nd respondents authorizing the gas flaring in the
applicant’s said community in violation of section 3(2) of the
Associated Gas Re-Injection Act, Cap A25 vol 1, Laws of the Federation
of Nigeria, 2004.
f) That
the provisions of section 3(2) of the Associated Gas Re-Injection Act,
Cap A25, vol 1, Laws of the Federation of Nigeria, 2004 and section 1 of
the Associated Re-Injection (Continued Flaring of Gas) Regulations, 43
of 1984, under which gas flaring in Nigeria may be continued are
inconsistent with the provisions of sections 33(1) and 34(1) of the
Constitution of the Federal Republic of Nigeria 1999 and articles 4, 16
and 24 of African Charter on Human and Peoples’ [Rights] (Ratification
and Enforcement) are therefore unconstitutional, null and void.
g) That
the provisions of both sections 21(1) and (2) of the Federal
Environmental Protection Agency Act (FEPA) Cap F10 vol 1 Laws of the
Federation of Nigeria, 2004 makes the gas flaring activities of the 1st
and 2nd respondents a crime, the continuation of which should be
discouraged and restrained by the Court.
[4.]
It is also, in the case of the applicants (as summarised in their
affidavit in verification of all the above-stated facts that they are
bona fide citizens of the Federal Republic of Nigeria [and]
1. That
the 1st and 2nd respondents are oil and gas companies in Nigeria who
are engaged jointly and severally in the exploration and
production of crude oil and other petroleum products in Nigeria.
2. That
in further support of their rights to life and dignity of their persons
they have the right to respect for their lives and dignity of
their persons and to enjoy the best attainable state physical and mental health as well as right to a general satisfactory environment favourable to their development.
3. That the 1st and 2nd respondents have been engaged in massive, relentless and continuous gas flaring in their community and that the
2nd respondent is a joint venture partner with the 1st respondent in its oil exploration and production activities, which includes gas-flaring in Nigeria.
4. That the activities of the 1st and 2nd respondents in continuing to flare gas in their community seriously pollutes the air, causes respiratory
diseases and generally endangers and impairs their health.
5. That the 1st and 2nd respondents have carried
on gas flaring continuously in their community without any regard to
its deleterious and ruinous consequences concentrating only on pursuing
their commercial interest and maximizing profit.
6. That
the 1st and 2nd respondents do not like to find gas together with oil
in their oil-fields (ie associated gas, AG), but prefer to find gas
without it being mixed up with oil - so called non-associated gas (non AG), and that the attitude of the 1st and 2nd respondents whenever they find oil mixed with gas is to dispose of the associated gas in order to profit front the oil (which is the more lucrative component) and this process of gas flaring is unrestrained and mindless.
7. That burning of gas by flaring same in their community gives rise to the following:
a. Poisons and pollutes the environment as it leads to the emission of carbon dioxide, the main green house gas; the flares contain a cocktail of toxins that affect their heath, lives and livelihood.
b. Exposes them to an increased risk of premature death, respiratory illness, asthma and cancer.
c.
Contributes to adverse climate change as it emits carbon dioxide and
methane which causes warming of the environment, pollutes their food and
water.
d. Causes painful breathing chronic bronchitis, decreased lung function and death. e. Reduces crop production and adversely impacts on their food security. f. Causes acid rain, their corrugated house roofs are corroded by the composition of the rain that falls as a result of gas flaring saying that the primary causes of acid rain are emissions of sulphur dioxide and nitrogen oxides which combine with atmospheric moisture to form sulphuric moisture to form sulphuric acid and nitric acid respectively. The acidic rain consequently acidifies their lakes and streams arid damages their vegetation.
8. That
the emissions resulting from the 1st and 2nd respondents burning of
associated gas by flaring in their community in an open uncontrolled
manner is a mixture of smoke more precisely referred to particulate
matter, combustion by-products including sulphur dioxide, nitrogen
dioxides and carcinogenic substances, all of which are very dangerous to
human health and lives in particular.
9. That
no Environmental Impact Assessment (EIA) whatsoever was undertaken by
any of the 1st and 2nd respondents lo ascertain the harmful consequences
of their gas flaring activities in the area to the environment, health,
food, water, development, lives, infrastructure etc.
10. That if the 1st and 2nd respondents
had carried out environmental impact assessment in their community
concerning this gas flaring as required by law, they would have known or
found out that it is most dangerous to their health, life and
environment and refrained from gas flaring and that they deliberately
failed to so out of their selfish economic interest.
11. That
so many natives of the community have died and countless others are
suffering various sicknesses occasioned by the effects of gas flaring by
the 1st and 2nd defendants.
12. That
their community is thereby grossly undeveloped, very poor and without
adequate medical facilities to cope with the adverse and harmful effects
on their health and lives occasioned by the unrestrained gas flaring
activities in the area.
13. That
the 1st and 2nd respondents have not bothered to consider the negative
unhealthy and very damaging impact on their health, lives, and
environment of their persistent gas flaring activities and have made no
arrangements to provide them with adequate medical attention and
facilities to cushion the adverse effects of their gas flaring
activities.
14. That
the constitutional guarantee of right to life and dignity of human
person available to them as citizens of Nigeria includes the right to a
clean, poison-free and pollution-free air and healthy environment conducive for human beings to reside in for our development and full enjoyment of life; and that these rights to life and dignity of human person have been and are being wantonly violated and are continuously threatened with persistent violation by these gas flaring activities.
15. That unless this Court promptly intervenes their said fundamental rights being breached by the 1st and 2nd respondents will continue
unabated and with impunity while its members will continue to suffer various sicknesses, deterioration of health and premature death.
16. And
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,
healthy, pollution-free environment and dignity of human person
Finally,
that the 1st and 2nd respondents have no valid ministerial certificates
authorizing them to flare gas in the applicant’s community.
…
[5.]
Upon a thorough evaluation of all the processes, submission, judicial
and statutory authorities as well as the nature of the subject matter
together with the urgency which both parties through their counsel have
observably treated the weighty issued raised in the substantive claim, I
find, myself able to hold as follows (after a thoroughly painstaking
consideration):
1.That
the applicants were properly granted leave to institute these
proceedings in a representative capacity for himself and for each and
every member of the Iweherekan Community in Delta State of Nigeria.
2.That this Court has the inherent jurisdiction to grant leave to the applicants who are bona fide
citizens and residents of the Federal Republic of Nigeria, to apply for
the enforcement of their fundamental rights to life and dignity of the
human person as guaranteed by sections 33 and 34 of the Constitution of
the Federal Republic of Nigeria, 1999.
3.That
these constitutionally guaranteed rights inevitably include the right
to clean, poison-free, pollution-free healthy environment.
4.The
actions of the 1st and 2nd respondents in continuing to flare gas in
the course of their oil exploration and production activities in the
applicants’ community is a gross violation of their fundamental right to
life (including healthy environment) and dignity of human person as
enshrined in the Constitution.
5.Failure
of the 1st and 2nd respondents to carry out environmental impact
assessment in the applicants’ community concerning the effects of their
gas flaring activities is a clear violation of section 2(2) of the
Environmental Impact Assessment Act, cap E12 vol 6, Laws of the
Federation of Nigeria 2004, and has contributed to a further violation
of the said fundamental rights.
6.That
section 3(2)(a) and (b) of the Associated Gas Re-Injection Act and
section 1 of the Associated Gas Re-Injection (Continued Flaring of Gas)
Regulations section 1.43 of 1984, under which gas flaring in Nigeria may
be allowed are inconsistent with the applicant’s rights to life and/or
dignity of human person enshrined in sections 33(1) and 34(1) of the
Constitution of the Federal Republic of Nigeria, 1999 and articles 4, 16
and 24 of the African Charter on Human and Peoples’ Rights
(Ratification and Enforcement) Act, cap A9, vol 1, Laws of the
Federation of Nigeria, 2004) and are therefore unconstitutional, null
and void by virtue of section 1(3) of the same Constitution.
[6.]
Based on the above findings, the reliefs claimed by the applicants as
stated in their motion paper as 1, 2, 3, 4 are hereby granted as I make
and repeat the specific declarations contained there as the final orders
of the Court:
[for reliefs 1-4 see para 2 above – eds]
5. I
hereby order that the 1st and 2nd respondents are accordingly
restrained whether by themselves, their servants or workers or otherwise
from further flaring of gas in applicants’ community and are to take
immediate steps to stop the further flaring of gas in the applicant’s
community
6. The
Honorable Attorney-General of the Federation and Ministry of Justice,
3rd respondent in these proceedings who, regrettably, did not put up any
appearance, and/or defend these proceedings is hereby ordered to
immediately set into motion, after due consultation with the Federal
Executive Council, necessary processes for the Enactment of a Bill for
an Act of the National Assembly for the speedy amendment of the relevant
sections of the Associated Gas Re-Injection Act and the Regulations
made there under to quickly bring them in line with the provisions of
chapter 4 of the Constitution, especially in view of the fact that the
Associated Gas Re-Injection Act even by itself also makes the said
continuous gas flaring a crime having prescribed penalties in respect
thereof. Accordingly, the case as put forward by the 1st
and 2nd respondents as well as their various preliminary objections are
hereby dismissed as lacking merit.
7. This is the final judgment of the Court and I make no award of damages, costs or compensations whatsoever.
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Environmental
Impact Assessment Decree
No 86 of 1992
Laws
of the Federation of Nigeria
10th December1992
The
Federal Military Government hereby decrees as follow: -
Part
I
General
Principles of Environmental Impact Assessment
1.
The objectives of any environmental Impact assessment (hereafter in this Decree
referred to as "the Assessment") shall be -
(a)
to establish before a decision taken by any person, authority corporate
body or unincorporated body including the Government of the Federation, State or
Local Government intending to undertake or authorise the undertaking of any
activity that may likely or to a significant extent affect the environment or
have environmental effects on those activities shall first be taken into
account;
(b)
to promote the implementation of appropriate policy in all Federal Lands
(however acquired) States and Local Government Areas consistent with all laws
and decision making processes through which the goal and objective in paragraph
(a) of this section may be realised;
(c)
to encourage the development of procedures for information exchange,
notification and consultation between organs and persons when proposed
activities are likely to have significant environmental affects on boundary or
trans-state or on the environment of bordering towns and villages.
2.
(1)
The public or private sector of the economy shall not undertake or embark
on public or authorise projects or activities without prior consideration, at an
early stages, or their environmental effects.
(2)
Where the extent, nature or location of a proposed project or activity is
such that is likely to significantly affect the environment, its environmental
impact assessment shall be undertaken in accordance with the provisions of this
Decree.
(3)
The criterion and procedure under this Decree shall be used to determine
whether an activity is likely to significantly affect the environment and is
therefore subject to an environmental impact assessment.
(4)
All agencies, institutions (whether public or private) except exempted
pursuant to this Decree, shall before embarking on the proposed project apply in
writing to the Agency, so that subject activities can be quickly and surely
identified and environmental assessment applied as the activities being planned.
3.
(1)
In identifying the environmental impact assessment process under this
Decree, the relevant significant environmental issues shall be identified and
studied before commencing or embarking on any project or activity covered by the
provisions of this Decree or covered by the Agency or likely to have serious
environmental impact on the Nigerian environment.
(2)
Where appropriate, all efforts shall be made to identify all
environmental issues at an early step in the process.
4.
An environmental impact assessment shall include at least the following
minimum matters, that is -
(a)
a description of the proposed activities;
(b)
a description of the potential affected environment including specific
information necessary to identify and assess the environmental effects of the
proposed activities;
(c)
a description of the practical activities, as appropriate;
(d)
an assessment of the likely or potential environmental impacts on the
proposed activity and the alternatives, including the direct or indirect
cumulative, short-term and tong-term effects:
(e)
an identification and description of measures available to mitigate adverse
environmental impacts of proposed activity and assessment of those measures;
(f)
an indication of gaps in knowledge and uncertainly which may be
encountered in computing the required information:
(g)
an indication of whether the environment of any other State, Local
Government Area or areas outside Nigeria is likely to be affected by the
proposed activity or its alternatives;
(h)
a brief and non technical summary of the information provided under
paragraph (a) to (g) of this section.
5.
The environmental effects in an environmental assessment shall be assessed
with a degree of detail commensuration with their likely environmental
significance.
6.
The information provided as of environmental impact assessment shall be
examined impartially by the Agency prior to any decision to be made thereto
(whether in favour or adverse thereto).
7.
Before the Agency gives a decision on an activity to which an environmental
assessment has been produced, the Agency shall give opportunity to government
agencies, members of the public, experts in any relevant discipline and
interested groups to make comment on environmental impact assessment of the
activity.
8.
The Agency shall not give a decision as to whether a proposed activity
should be authorised or undertaken until appropriate period has elapsed to
consider comments pursuant to sections 7 and 12 of this Decree.
9.
(1)
The Agency's decisions on any proposed activity subject to environmental
impact assessment shall -
(a)
be in writing;
(b)
state the reason therefor;
(c)
include the provisions, if any, to prevent, reduce or instigate damage to
the environment.
(2)
The report of the Agency shall be made available to interested person or
group.
(3)
If no interested person or group requested for the report, it shall be
the duty of the Agency to publish its decision in a manner by which members of
the public or persons interested in the activity shall be notified.
(4)
The Council may determine an appropriate method in which the decision of
the Agency shall be published so as to reach interested persons or groups, in
particular the originators or persons interested in the activity subject of the
decision.
10.
When the Council deems fit and appropriate, a decision on an activity which
has been subject of environmental impact assessment, the activity and its
effects on the environment or the provisions of section 9 of this decree shall
be subject to appropriate supervision.
11.
(1)
When information provided as part of environmental impart assessment
indicates that the Environment within another State in the Federation or a Local
Government Area is likely to be significantly affected by a proposed activity,
the State, the Local Government Area in which the activity is being panned
shall, to the extent possible -
(a)
notify the potentially affected State or Local Government of the proposed
activity;
(b)
transmit to the affected State or Local Government Area any relevant information
of the environmental impact assessment:
(c)
enter into timely consultations with the affected State or Local
Government.
(2)
It shall be the duty of the Agency to see that the provisions of
subsection (1) of this section are complied with and the Agency may cause the
consultations provided pursuant to subsection (1) of this section to take place
in order to investigate any environmental derogation or hazard that may occur
during the construction or process of the activity concerned.
12.
Editorial Note: there is no section 12 within this Decree.
13.
(1)
When a project is described on the Mandatory Study List specified in the
Schedule to this Decree or is referred to mediation or a review panel, no
Federal, State or Local Government or any of their authority or agency Shall
exercise any power or perform any duty or functions that would permit the
project to be carried out in whole or in part until the Agency has taken a cause
of action conducive to its power under the Act establishing it or has taken a
decision or issue an order that the project could be carried out with or without
conditions.
(2)
Where the Agency has given certain conditions before the carrying out of the
project, the conditions shall be fulfilled before any person or authority shall
embark on the project.
Part
II
Environmental
Assessment of Projects
14.
(1) Notwithstanding
the provisions of Part I of this Decree, an environmental impact assessment
shall be required where a Federal, State or Local Government Agency Authority
established by the Federal, State or Local Government Council -
(a)
is the proponent of the project and does any act or thing which commits
the Federal, State or Local Government authority to carrying out the project in
whole or, impact;
(b)
makes or authorises payment or provides a guarantee for a loan or any other form
of financial assistance to the proponent for the purpose of enabling the project
to be carried out in whole or in part, except when the financial assistance is
in the form of any reduction, avoidance, deferral, removed, refund remission or
other form of relief from the payment of any tax, duty or excise under Customs
Tariff (Consolidated) Act or any Order made thereunder, unless that financial
assistance is provided for the purpose of enabling an individual project
specifically named in the enactment, regulation or order that provides the
relief to be carried out;
(c)
has
the administration of Federal, State or Local Government and leases or otherwise
disposes of those lands on or any tests in those lands or transfers the
administration and control of those lands or invest therein in favour of the
Federal Government or its agencies for the purpose of enabling the project to be
carried out in whole or in part.
(d)
under the provisions of any law or enactment, issues a permit or licence, grants
an approval or takes any other action for the purpose of enabling the project to
be carried out in whole or in part.
15.
(1)
An environmental assessment of project shall not be required where -
(a)
in the opinion of the Agency the project is in the list of projects which
the President, Commander-in-Chief of the Armed Forces or the Council is of the
opinion that the environmental effects of the project is likely to be minimal;
(b)
the
project is to be carried out during national emergency for which temporary
measures have been taken by the Government;
(c)
the project is to be carried out in response to circumstances that, in the
opinion of the Agency, the project is in the interest of public health or
safety.
(2)
For
greater certainly, where the Federal, State or Local Government exercises power
or performs a duty or function for the purpose of enabling projects to be
carried out an environmental assessment may not be required if -
(a)
the project has been identified at the time the power is exercised or the duty
or function is performed; and
(b)
the Federal, State, or Local
Government has no power to exercise any duly or perform functions in relation to
the projects after they have been identified.
16.
Whenever the Agency decides, that there is the need for an environmental
assessment on a project before the commencement of the project the environmental
assessment process may include -
(a)
a screening or mandatory study and the preparation of a screening report;
(b)
a
mandatory or assessment by a review panel as provided in section 25 of this
Decree and the preparation of a report;
(c)
the
design and implementation of a follow-up program.
17.
(1)
Every
screening or mandatory study of a project and every mediation or assessment by a
review panel shall include a consideration of the following factors, that is –
(a)
the environmental effects of the project, including the environmental effects of
malfunctions or accidents that may occur in connection with the project and any
cumulative environmental effects that are likely to result from the project in
taking into consideration with other projects, that that have been or will be
carried out;
(b)
the significance or, in the case of projects referred to in section 43 44 or 45,
the seriousness of those effects;
(c)
comments
concerning those effects received from the public, accordance with provisions of
this Decree;
(d)
measures that are technically and economically feasible and that would mitigate
any significant or, in the case of projects referred to in sections 43, 44, or
45 any serious adverse environmental effects of the project.
(2)
In addition to the factors set out in subsection (1) of this Decree every
mandatory study of a project and every mediation or assessment by review panel
shall include a consideration of the following factors, that is –
(a)
the
purpose of the project;
(b)
alternative
means of carrying out the project that are technically and economically feasible
and the environmental effects of any such alternative means;
(c)
the
need for and the requirements of any follow-up program in respect of the
project;
(d)
the short-term or tong term capacity for regeneration of renewal resources that
are likely to be significantly or, in the case of the projects referred to in
sections 43, 44 or 45, seriously affected by the project; and
(e)
any
other matter that the Agency or the Council at the request of the Agency, may re
require.
(3)
For greater certainty, the scope of the factors to be taken into consideration
pursuant to subsection (1) (a), (b) and (d) and subsection (2) (b), (c) and (d)
of this Decree shall be determined –
(a)
by the Agency; or
(b)
where a project is referred to mediation or a review panel, by the Council,
after consulting with the Agency, when fixing the terms of reference of the
mediation or review panel.
(4)
An environmental assessment of a project shall not be required to include a
consideration of the environmental effects that could result from carrying out
the project during the declaration of a national emergency.
18.
(1)
The Agency may delegate any part of the screening or mandatory study of a
project, including the preparation of the screening report or mandatory study
report, but shall not delegate the duly to take a course of action pursuant to
section 16(1) or 34(1) of this Decree.
(2)
For greater certainty, the Agency shall not take a course of action pursuant to
section16 (1) or 34(1) unless it is satisfied that any duty or function
delegated pursuant to subsection (1) thereof has been carried out in accordance
with provisions of this Decree or any relevant enactment.
19.
(1)
Where the Agency is of the opinion that a project is not described in the
mandatory study list or any exclusion list, the Agency shall ensure that –
(a)
a screening of the project is conducted; and
(b)
a screening report is prepared.
(2)
Any available information may be used in conducting the screening of a project,
but where the Agency is of the opinion that the information available is not
adequate to enable it to take a course of action pursuant to section 16(1) of
this Decree it shall ensure that any study and information that it considers
necessary for that purpose are undertaken or collected.
20.
(1)
Where
the Agency receives a screening report and the Agency is of the opinion that the
report could be used as a method of conducting screening of other project within
the same class, the agency may declare the report to be a class screening
report.
(2)
Any
declaration made pursuant to subsection (1) of this Decree shall be published in
the Gazette and the screening report to which it relates shall be made available
to the public at the registry maintained by the Agency.
(3)
Where
in the opinion of the Agency a project or part of a project is within a class in
respect of which a class screening report has been declared, the Agency may use
or permit the use of that report and the screening on which it is based to
whatever extent the Agency considers appropriate for the purpose of complying
with section13 of this Decree.
(4)
Where the Agency uses or permits the use of a class screening report, it shall
ensure that any adjustments are made that in the opinion of Agency are necessary
to take into account Local circumstances and any cumulative environmental
efforts that in the opinion of the Agency are likely to result from the project
in combination with other project that have been or will be carried out.
21.
(1)
Where a proponent proposes to carry out, in whole or in part a project for which
a screening report has been prepared but the project did not proceed or the
manner in which it is to be carried out has subsequently changed or where a
proponent seeks the renewal of a licence, permit or approval referred to in
section 5(d) of this Decree in respect of a project for which a screening report
has been prepared, the Agency may use or permit the use of that report and the
screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section 13 of this Decree.
(2)
Where the Agency uses or permits the use of a screening or screening report
pursuant to subsection (1) of this section, the Agency shall ensure that any
adjustments are made that in its opinion are necessary to take into account any
significant changes in the circumstances of the project.
22.
(1)
After
completion of a screening report in respect of a project, the Agency shall take
one of the following courses of action, that is –
(a)
where, in the opinion of the Agency;
(i)
the project is not likely to cause significant adverse environmental effects, or
(ii)
any such effect can be mitigated,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out and shall ensure that any mitigation
measures that the Agency considers appropriate are implemented;
(b)
where,
in the opinion of the Agency;
(i)
the project is likely to cause significant adverse environmental effects that
may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant it,
the Agency; shall refer the project to the Council for a referral to mediation
or a review panel in accordance with section 25 of this Decree; or
(c)
where,
in the opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated, the Agency shall not exercise
any power or perform any duty or function conferred on it under any enactment
that would permit the project to be carried out in whole or in part.
(2)
For
greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, the Agency shall exercise any power and
perform any duly or function conferred on it by or under any enactment in a
manner that ensure that any mitigation measures that the Agency considers
appropriate in respect of the project are implemented.
(3)
Before
taking a course of action in relation to a project pursuant to subsection (1) of
this section, the Agency shall give the public an opportunity to examine and
comment on the screening report and any record that has been filed in the public
registry established in respect of the project pursuant to section 51 of this
Decree and shall take into consideration any comments that are filed.
23.
Where the Agency is of the opinion that a program is described in the mandatory
study list, the Agency shall –
(a)
ensure that a mandatory study is conducted, and a mandatory study report is
prepared and submitted to the Agency, in accordance with the provisions of this
Decree; or
(b)
refer
the project to the Council for a referral to mediation or a review panel in
accordance with section 25 of this Decree.
24.
(1)
Where a proponent proposes to carry out, in whole or in part, a project for
which a mandatory study report has been prepared but the project did not proceed
or the manner in which it is to be carried out has subsequently changed, or
where a proponent seeks the renewal of a licence, permit or approval referred to
in section 5(d) of this Decree in respect of a project for which a mandatory
study report has been prepared, the Agency may use or permit the use of that
report and the mandatory study on which it is based to whatever extent the
Agency considers appropriate for the purpose of complying with section 17 of
this Decree.
(2)
Where the Agency uses or permits the use of a mandatory study or a mandatory
study report pursuant to subsection (1) of this section, it shall ensure that
any adjustments are made that in its opinion are necessary to take into account
any significant changes i
n the circumstances of the project.
25.
(1)
After receiving a mandatory study report in respect of a project, the Agency
shall, in any manner it considers appropriate, publish in a notice setting out
the following information –
(a)
the
date on which the mandatory study report shall be available to the public;
(b)
the place at which copies of the report may be obtained; and
(c)
the deadline and address for filing comments on the conclusions and
recommendations of the report.
(2)
Prior to the deadline set out in the notice published by the Agency, any person
may file comments with the Agency relating to the conclusions and
recommendations of the mandatory study report.
26.
After taking into consideration the
mandatory study report and any comments filed pursuant to section 19(2), the
Council shall –
(a)
refer the project to mediation or a review panel in accordance with section 25
of this Decree where, in the opinion of the Council -
(i)
the
project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant. it;
or
(b)
refer the project back to the Agency for action to be taken under section
34(l)(a) of this Decree where, in the opinion of the Council –
(i)
the project is not likely to cause significant adverse environmental effects; or
(ii)
any such effects can be mitigated.
27.
Where at any time the Agency is of the opinion that –
(a)
a project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(b)
public concerns respecting the environmental effects of the project warrant it,
the Agency may refer the project to the Council for a referral to mediation or
review panel in accordance with section 25 of this Decree.
28.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 19 of this Decree in relation to a
project that has not been referred to mediation or a review panel, it may
terminate the environmental assessment of that project.
29.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 25 of this Decree in relation to a
project that has been referred to mediation or a review panel, the Council may
terminate the environmental assessment of the project.
30.
Where at any time the Council is of the opinion that –
(a)
a project is likely to cause significant adverse environmental effects that may
not be mitigable, or
(b)
public concerns respecting the environmental effects of the project Warrant it,
the Council may, after consultation with the Agency, refer the project to
mediation or a review panel in accordance with section 25 of this Decree.
31.
Where a project is to be referred to
mediation or a review panel under this Decree, the Council shall, within a
prescribed period, refer the Council project –
(a)
to
mediation, if the Council is satisfied that -
(i)
the parties who are directly affected by or have direct interest in the project
have been identified and are willing to participle in the mediation through
representatives, and
(ii)
the mediation is likely to produce a result that is satisfactory to all of the
parties: or
(b)
to
a review panel, in any other case.
32.
Where a project is referred to mediation, the Council shall, in consultation
with the Agency –
(a)
appoint as mediator any person who, in the opinion of the Council possesses the
required knowledge or experience; and
(b)
fix the terms of reference of the mediation.
33.
(1)
In the case of a dispute respecting the participation of parties in a mediation,
the Council may, on the request of the mediation, determine those parties who
are directly affected by or have a direct interest in the project.
(2)
Any determination by the Council pursuant to subsection (1) of this section
shall be binding
34.
(1)
A mediator shall not proceed with a mediation unless the mediator is satisfied
that all of the information required for a mediation is available to all of the
participants.
(2)
A mediation shall, in accordance with the provisions of this Decree, and the
terms of reference of the mediation –
(a)
help
the participants to reach a consensus on
(i)
the environmental effects that are likely to result from the project,
(ii)
any measures that would mitigate any significant adverse environmental effects,
and
(iii)
an appropriate follow-up program;
(b)
prepare a report setting out the conclusions and recommendations of the
participants; and
(c)
submit the report to the Council and the Agency.
35.
Where at any time after a project has been referred to mediation the Council is
of the opinion that the mediation is not likely to produce a result that is
"satisfactory to all parties, the Council may terminate the mediation and
refer the project to a review panel.
36.
Where
a project is referred to a review panel, the Council shall, in consultation with
the Agency –
(a)
appoint as members of the panel including the Chairman thereof, persons who, in
the opinion of the Council, possess the required knowledge or experience; and
(b)
fix the term of reference of the panel.
37.
A review panel shall, in accordance with the provisions of this Decree and its
terms of reference –
(a)
ensure that the information required for an assessment by a review panel is
obtained and made available to the public;
(b)
hold
hearing in a manner that offers the public an opportunity to participate in the
assessment;
(c)
Prepare a report setting out –
(i)
the conclusions and recommendations of the panel relating to the environmental
effects of the project and any mitigation measures or follow-up program, and
(ii)
a summary of any comments received from the public; and
(d)
Submit the report to the Council and the Agency.
38.
(1)
A
review panel shall be the power of summoning any person to appear as witness
before the panel and or ordering the witness to –
(a)
give evidence, orally or in writing; and
(b)
produce such documents or things as the panel consider necessary for conducting
its assessment of the project.
(2)
A review panel shall have the same power to enforce the attendance of witnesses
and to compel them to give evidence and produce documents and other things as is
vested in the Federal High Court or a High Court of a State.
(3)
A hearing by review panel shall be in public unless the panel is satisfied after
representation made by a witness that specific, direct and substantial harm
would be caused to the witness by the disclosure of the evidence, documents or
other things that the witness is ordered to give or produce pursuant to
subsection (1) of this section.
(4)
Where a review panel is satisfied that the disclosure of evidence documents or
other things would cause specific, direct and substantial harm, to a witness,
the evidence, documents or things shall be privileged and shall not, without the
authorization of the witness, knowingly be or be permitted to be communicated,
disclosed or made available by any person who has obtained the evidence,
documents or other things pursuant to this Decree.
(5)
Any summons issued or order made by a review panel pursuant to subsection (1) of
this section may, for the purposes of enforcement, be made a summons or order of
the Federal High Court by following the usual practice and procedure.
39.
On
receiving a report submitted by a mediator or a review panel, the Agency shall
make the report available to the public in any manner the Council considers
appropriate and shall advise the public that the report is available.
40.
(1)
Following
the submission of a report by a mediator or a review panel or the referral of a
project back to the Agency pursuant to section 30(b) of this Decree, the Agency
shall take one of the following courses of action in relation to the project,
that is –
(a)
where in the opinion of the Agency -
(i)
the
project is not likely to cause significant adverse environmental effect, or
(ii)
any
such effect can be mitigated or justified in the circumstances,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out in whole or in part and shall ensure that
any mitigation measures that the Agency considers appropriate are implemented;
or
(b)
where,
in the opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated and cannot be justified in the
circumstances, the Agency shall not exercise any power or perform any duty or
function conferred on it by or under any enactment that would permit the project
to be carried out in whole or in part.
(2)
For greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, it shall exercise any power and perform any
duty or function conferred on it by or under any enactment in a manner that
ensures that any mitigation measure that the Agency considers appropriate in
respect of the project is implemented.
Environmental
Impact Assessment Decree No. 86 1992
Commencement.
10th December1992
The
Federal Military Government hereby decrees as follow: -
Part
I
General
Principles of Environmental Impact Assessment
1.
The objectives of any environmental Impact assessment (hereafter in this Decree
referred to as "the Assessment") shall be -
(a)
to establish before a decision taken by any person, authority corporate
body or unincorporated body including the Government of the Federation, State or
Local Government intending to undertake or authorise the undertaking of any
activity that may likely or to a significant extent affect the environment or
have environmental effects on those activities shall first be taken into
account;
(b)
to promote the implementation of appropriate policy in all Federal Lands
(however acquired) States and Local Government Areas consistent with all laws
and decision making processes through which the goal and objective in paragraph
(a) of this section may be realised;
(c)
to encourage the development of procedures for information exchange,
notification and consultation between organs and persons when proposed
activities are likely to have significant environmental affects on boundary or
trans-state or on the environment of bordering towns and villages.
2.
(1)
The public or private sector of the economy shall not undertake or embark
on public or authorise projects or activities without prior consideration, at an
early stages, or their environmental effects.
(2)
Where the extent, nature or location of a proposed project or activity is
such that is likely to significantly affect the environment, its environmental
impact assessment shall be undertaken in accordance with the provisions of this
Decree.
(3)
The criterion and procedure under this Decree shall be used to determine
whether an activity is likely to significantly affect the environment and is
therefore subject to an environmental impact assessment.
(4)
All agencies, institutions (whether public or private) except exempted
pursuant to this Decree, shall before embarking on the proposed project apply in
writing to the Agency, so that subject activities can be quickly and surely
identified and environmental assessment applied as the activities being planned.
3.
(1)
In identifying the environmental impact assessment process under this
Decree, the relevant significant environmental issues shall be identified and
studied before commencing or embarking on any project or activity covered by the
provisions of this Decree or covered by the Agency or likely to have serious
environmental impact on the Nigerian environment.
(2)
Where appropriate, all efforts shall be made to identify all
environmental issues at an early step in the process.
4.
An environmental impact assessment shall include at least the following
minimum matters, that is -
(a)
a description of the proposed activities;
(b)
a description of the potential affected environment including specific
information necessary to identify and assess the environmental effects of the
proposed activities;
(c)
a description of the practical activities, as appropriate;
(d)
an assessment of the likely or potential environmental impacts on the
proposed activity and the alternatives, including the direct or indirect
cumulative, short-term and tong-term effects:
(e)
an identification and description of measures available to mitigate adverse
environmental impacts of proposed activity and assessment of those measures;
(f)
an indication of gaps in knowledge and uncertainly which may be
encountered in computing the required information:
(g)
an indication of whether the environment of any other State, Local
Government Area or areas outside Nigeria is likely to be affected by the
proposed activity or its alternatives;
(h)
a brief and non technical summary of the information provided under
paragraph (a) to (g) of this section.
5.
The environmental effects in an environmental assessment shall be assessed
with a degree of detail commensuration with their likely environmental
significance.
6.
The information provided as of environmental impact assessment shall be
examined impartially by the Agency prior to any decision to be made thereto
(whether in favour or adverse thereto).
7.
Before the Agency gives a decision on an activity to which an environmental
assessment has been produced, the Agency shall give opportunity to government
agencies, members of the public, experts in any relevant discipline and
interested groups to make comment on environmental impact assessment of the
activity.
8.
The Agency shall not give a decision as to whether a proposed activity
should be authorised or undertaken until appropriate period has elapsed to
consider comments pursuant to sections 7 and 12 of this Decree.
9.
(1)
The Agency's decisions on any proposed activity subject to environmental
impact assessment shall -
(a)
be in writing;
(b)
state the reason therefor;
(c)
include the provisions, if any, to prevent, reduce or instigate damage to
the environment.
(2)
The report of the Agency shall be made available to interested person or
group.
(3)
If no interested person or group requested for the report, it shall be
the duty of the Agency to publish its decision in a manner by which members of
the public or persons interested in the activity shall be notified.
(4)
The Council may determine an appropriate method in which the decision of
the Agency shall be published so as to reach interested persons or groups, in
particular the originators or persons interested in the activity subject of the
decision.
10.
When the Council deems fit and appropriate, a decision on an activity which
has been subject of environmental impact assessment, the activity and its
effects on the environment or the provisions of section 9 of this decree shall
be subject to appropriate supervision.
11.
(1)
When information provided as part of environmental impart assessment
indicates that the Environment within another State in the Federation or a Local
Government Area is likely to be significantly affected by a proposed activity,
the State, the Local Government Area in which the activity is being panned
shall, to the extent possible -
(a)
notify the potentially affected State or Local Government of the proposed
activity;
(b)
transmit to the affected State or Local Government Area any relevant information
of the environmental impact assessment:
(c)
enter into timely consultations with the affected State or Local
Government.
(2)
It shall be the duty of the Agency to see that the provisions of
subsection (1) of this section are complied with and the Agency may cause the
consultations provided pursuant to subsection (1) of this section to take place
in order to investigate any environmental derogation or hazard that may occur
during the construction or process of the activity concerned.
12.
Editorial Note: there is no section 12 within this Decree.
13.
(1)
When a project is described on the Mandatory Study List specified in the
Schedule to this Decree or is referred to mediation or a review panel, no
Federal, State or Local Government or any of their authority or agency Shall
exercise any power or perform any duty or functions that would permit the
project to be carried out in whole or in part until the Agency has taken a cause
of action conducive to its power under the Act establishing it or has taken a
decision or issue an order that the project could be carried out with or without
conditions.
(2)
Where the Agency has given certain conditions before the carrying out of the
project, the conditions shall be fulfilled before any person or authority shall
embark on the project.
Part
II
Environmental
Assessment of Projects
14.
(1) Notwithstanding
the provisions of Part I of this Decree, an environmental impact assessment
shall be required where a Federal, State or Local Government Agency Authority
established by the Federal, State or Local Government Council -
(a)
is the proponent of the project and does any act or thing which commits
the Federal, State or Local Government authority to carrying out the project in
whole or, impact;
(b)
makes or authorises payment or provides a guarantee for a loan or any other form
of financial assistance to the proponent for the purpose of enabling the project
to be carried out in whole or in part, except when the financial assistance is
in the form of any reduction, avoidance, deferral, removed, refund remission or
other form of relief from the payment of any tax, duty or excise under Customs
Tariff (Consolidated) Act or any Order made thereunder, unless that financial
assistance is provided for the purpose of enabling an individual project
specifically named in the enactment, regulation or order that provides the
relief to be carried out;
(c)
has
the administration of Federal, State or Local Government and leases or otherwise
disposes of those lands on or any tests in those lands or transfers the
administration and control of those lands or invest therein in favour of the
Federal Government or its agencies for the purpose of enabling the project to be
carried out in whole or in part.
(d)
under the provisions of any law or enactment, issues a permit or licence, grants
an approval or takes any other action for the purpose of enabling the project to
be carried out in whole or in part.
15.
(1)
An environmental assessment of project shall not be required where -
(a)
in the opinion of the Agency the project is in the list of projects which
the President, Commander-in-Chief of the Armed Forces or the Council is of the
opinion that the environmental effects of the project is likely to be minimal;
(b)
the
project is to be carried out during national emergency for which temporary
measures have been taken by the Government;
(c)
the project is to be carried out in response to circumstances that, in the
opinion of the Agency, the project is in the interest of public health or
safety.
(2)
For
greater certainly, where the Federal, State or Local Government exercises power
or performs a duty or function for the purpose of enabling projects to be
carried out an environmental assessment may not be required if -
(a)
the project has been identified at the time the power is exercised or the duty
or function is performed; and
(b)
the Federal, State, or Local
Government has no power to exercise any duly or perform functions in relation to
the projects after they have been identified.
16.
Whenever the Agency decides, that there is the need for an environmental
assessment on a project before the commencement of the project the environmental
assessment process may include -
(a)
a screening or mandatory study and the preparation of a screening report;
(b)
a
mandatory or assessment by a review panel as provided in section 25 of this
Decree and the preparation of a report;
(c)
the
design and implementation of a follow-up program.
17.
(1)
Every
screening or mandatory study of a project and every mediation or assessment by a
review panel shall include a consideration of the following factors, that is –
(a)
the environmental effects of the project, including the environmental effects of
malfunctions or accidents that may occur in connection with the project and any
cumulative environmental effects that are likely to result from the project in
taking into consideration with other projects, that that have been or will be
carried out;
(b)
the significance or, in the case of projects referred to in section 43 44 or 45,
the seriousness of those effects;
(c)
comments
concerning those effects received from the public, accordance with provisions of
this Decree;
(d)
measures that are technically and economically feasible and that would mitigate
any significant or, in the case of projects referred to in sections 43, 44, or
45 any serious adverse environmental effects of the project.
(2)
In addition to the factors set out in subsection (1) of this Decree every
mandatory study of a project and every mediation or assessment by review panel
shall include a consideration of the following factors, that is –
(a)
the
purpose of the project;
(b)
alternative
means of carrying out the project that are technically and economically feasible
and the environmental effects of any such alternative means;
(c)
the
need for and the requirements of any follow-up program in respect of the
project;
(d)
the short-term or tong term capacity for regeneration of renewal resources that
are likely to be significantly or, in the case of the projects referred to in
sections 43, 44 or 45, seriously affected by the project; and
(e)
any
other matter that the Agency or the Council at the request of the Agency, may re
require.
(3)
For greater certainty, the scope of the factors to be taken into consideration
pursuant to subsection (1) (a), (b) and (d) and subsection (2) (b), (c) and (d)
of this Decree shall be determined –
(a)
by the Agency; or
(b)
where a project is referred to mediation or a review panel, by the Council,
after consulting with the Agency, when fixing the terms of reference of the
mediation or review panel.
(4)
An environmental assessment of a project shall not be required to include a
consideration of the environmental effects that could result from carrying out
the project during the declaration of a national emergency.
18.
(1)
The Agency may delegate any part of the screening or mandatory study of a
project, including the preparation of the screening report or mandatory study
report, but shall not delegate the duly to take a course of action pursuant to
section 16(1) or 34(1) of this Decree.
(2)
For greater certainty, the Agency shall not take a course of action pursuant to
section16 (1) or 34(1) unless it is satisfied that any duty or function
delegated pursuant to subsection (1) thereof has been carried out in accordance
with provisions of this Decree or any relevant enactment.
19.
(1)
Where the Agency is of the opinion that a project is not described in the
mandatory study list or any exclusion list, the Agency shall ensure that –
(a)
a screening of the project is conducted; and
(b)
a screening report is prepared.
(2)
Any available information may be used in conducting the screening of a project,
but where the Agency is of the opinion that the information available is not
adequate to enable it to take a course of action pursuant to section 16(1) of
this Decree it shall ensure that any study and information that it considers
necessary for that purpose are undertaken or collected.
20.
(1)
Where
the Agency receives a screening report and the Agency is of the opinion that the
report could be used as a method of conducting screening of other project within
the same class, the agency may declare the report to be a class screening
report.
(2)
Any
declaration made pursuant to subsection (1) of this Decree shall be published in
the Gazette and the screening report to which it relates shall be made available
to the public at the registry maintained by the Agency.
(3)
Where
in the opinion of the Agency a project or part of a project is within a class in
respect of which a class screening report has been declared, the Agency may use
or permit the use of that report and the screening on which it is based to
whatever extent the Agency considers appropriate for the purpose of complying
with section13 of this Decree.
(4)
Where the Agency uses or permits the use of a class screening report, it shall
ensure that any adjustments are made that in the opinion of Agency are necessary
to take into account Local circumstances and any cumulative environmental
efforts that in the opinion of the Agency are likely to result from the project
in combination with other project that have been or will be carried out.
21.
(1)
Where a proponent proposes to carry out, in whole or in part a project for which
a screening report has been prepared but the project did not proceed or the
manner in which it is to be carried out has subsequently changed or where a
proponent seeks the renewal of a licence, permit or approval referred to in
section 5(d) of this Decree in respect of a project for which a screening report
has been prepared, the Agency may use or permit the use of that report and the
screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section 13 of this Decree.
(2)
Where the Agency uses or permits the use of a screening or screening report
pursuant to subsection (1) of this section, the Agency shall ensure that any
adjustments are made that in its opinion are necessary to take into account any
significant changes in the circumstances of the project.
22.
(1)
After
completion of a screening report in respect of a project, the Agency shall take
one of the following courses of action, that is –
(a)
where, in the opinion of the Agency;
(i)
the project is not likely to cause significant adverse environmental effects, or
(ii)
any such effect can be mitigated,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out and shall ensure that any mitigation
measures that the Agency considers appropriate are implemented;
(b)
where,
in the opinion of the Agency;
(i)
the project is likely to cause significant adverse environmental effects that
may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant it,
the Agency; shall refer the project to the Council for a referral to mediation
or a review panel in accordance with section 25 of this Decree; or
(c)
where,
in the opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated, the Agency shall not exercise
any power or perform any duty or function conferred on it under any enactment
that would permit the project to be carried out in whole or in part.
(2)
For
greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, the Agency shall exercise any power and
perform any duly or function conferred on it by or under any enactment in a
manner that ensure that any mitigation measures that the Agency considers
appropriate in respect of the project are implemented.
(3)
Before
taking a course of action in relation to a project pursuant to subsection (1) of
this section, the Agency shall give the public an opportunity to examine and
comment on the screening report and any record that has been filed in the public
registry established in respect of the project pursuant to section 51 of this
Decree and shall take into consideration any comments that are filed.
23.
Where the Agency is of the opinion that a program is described in the mandatory
study list, the Agency shall –
(a)
ensure that a mandatory study is conducted, and a mandatory study report is
prepared and submitted to the Agency, in accordance with the provisions of this
Decree; or
(b)
refer
the project to the Council for a referral to mediation or a review panel in
accordance with section 25 of this Decree.
24.
(1)
Where a proponent proposes to carry out, in whole or in part, a project for
which a mandatory study report has been prepared but the project did not proceed
or the manner in which it is to be carried out has subsequently changed, or
where a proponent seeks the renewal of a licence, permit or approval referred to
in section 5(d) of this Decree in respect of a project for which a mandatory
study report has been prepared, the Agency may use or permit the use of that
report and the mandatory study on which it is based to whatever extent the
Agency considers appropriate for the purpose of complying with section 17 of
this Decree.
(2)
Where the Agency uses or permits the use of a mandatory study or a mandatory
study report pursuant to subsection (1) of this section, it shall ensure that
any adjustments are made that in its opinion are necessary to take into account
any significant changes i
n the circumstances of the project.
25.
(1)
After receiving a mandatory study report in respect of a project, the Agency
shall, in any manner it considers appropriate, publish in a notice setting out
the following information –
(a)
the
date on which the mandatory study report shall be available to the public;
(b)
the place at which copies of the report may be obtained; and
(c)
the deadline and address for filing comments on the conclusions and
recommendations of the report.
(2)
Prior to the deadline set out in the notice published by the Agency, any person
may file comments with the Agency relating to the conclusions and
recommendations of the mandatory study report.
26.
After taking into consideration the
mandatory study report and any comments filed pursuant to section 19(2), the
Council shall –
(a)
refer the project to mediation or a review panel in accordance with section 25
of this Decree where, in the opinion of the Council -
(i)
the
project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant. it;
or
(b)
refer the project back to the Agency for action to be taken under section
34(l)(a) of this Decree where, in the opinion of the Council –
(i)
the project is not likely to cause significant adverse environmental effects; or
(ii)
any such effects can be mitigated.
27.
Where at any time the Agency is of the opinion that –
(a)
a project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(b)
public concerns respecting the environmental effects of the project warrant it,
the Agency may refer the project to the Council for a referral to mediation or
review panel in accordance with section 25 of this Decree.
28.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 19 of this Decree in relation to a
project that has not been referred to mediation or a review panel, it may
terminate the environmental assessment of that project.
29.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 25 of this Decree in relation to a
project that has been referred to mediation or a review panel, the Council may
terminate the environmental assessment of the project.
30.
Where at any time the Council is of the opinion that –
(a)
a project is likely to cause significant adverse environmental effects that may
not be mitigable, or
(b)
public concerns respecting the environmental effects of the project Warrant it,
the Council may, after consultation with the Agency, refer the project to
mediation or a review panel in accordance with section 25 of this Decree.
31.
Where a project is to be referred to
mediation or a review panel under this Decree, the Council shall, within a
prescribed period, refer the Council project –
(a)
to
mediation, if the Council is satisfied that -
(i)
the parties who are directly affected by or have direct interest in the project
have been identified and are willing to participle in the mediation through
representatives, and
(ii)
the mediation is likely to produce a result that is satisfactory to all of the
parties: or
(b)
to
a review panel, in any other case.
32.
Where a project is referred to mediation, the Council shall, in consultation
with the Agency –
(a)
appoint as mediator any person who, in the opinion of the Council possesses the
required knowledge or experience; and
(b)
fix the terms of reference of the mediation.
33.
(1)
In the case of a dispute respecting the participation of parties in a mediation,
the Council may, on the request of the mediation, determine those parties who
are directly affected by or have a direct interest in the project.
(2)
Any determination by the Council pursuant to subsection (1) of this section
shall be binding
34.
(1)
A mediator shall not proceed with a mediation unless the mediator is satisfied
that all of the information required for a mediation is available to all of the
participants.
(2)
A mediation shall, in accordance with the provisions of this Decree, and the
terms of reference of the mediation –
(a)
help
the participants to reach a consensus on
(i)
the environmental effects that are likely to result from the project,
(ii)
any measures that would mitigate any significant adverse environmental effects,
and
(iii)
an appropriate follow-up program;
(b)
prepare a report setting out the conclusions and recommendations of the
participants; and
(c)
submit the report to the Council and the Agency.
35.
Where at any time after a project has been referred to mediation the Council is
of the opinion that the mediation is not likely to produce a result that is
"satisfactory to all parties, the Council may terminate the mediation and
refer the project to a review panel.
36.
Where
a project is referred to a review panel, the Council shall, in consultation with
the Agency –
(a)
appoint as members of the panel including the Chairman thereof, persons who, in
the opinion of the Council, possess the required knowledge or experience; and
(b)
fix the term of reference of the panel.
37.
A review panel shall, in accordance with the provisions of this Decree and its
terms of reference –
(a)
ensure that the information required for an assessment by a review panel is
obtained and made available to the public;
(b)
hold
hearing in a manner that offers the public an opportunity to participate in the
assessment;
(c)
Prepare a report setting out –
(i)
the conclusions and recommendations of the panel relating to the environmental
effects of the project and any mitigation measures or follow-up program, and
(ii)
a summary of any comments received from the public; and
(d)
Submit the report to the Council and the Agency.
38.
(1)
A
review panel shall be the power of summoning any person to appear as witness
before the panel and or ordering the witness to –
(a)
give evidence, orally or in writing; and
(b)
produce such documents or things as the panel consider necessary for conducting
its assessment of the project.
(2)
A review panel shall have the same power to enforce the attendance of witnesses
and to compel them to give evidence and produce documents and other things as is
vested in the Federal High Court or a High Court of a State.
(3)
A hearing by review panel shall be in public unless the panel is satisfied after
representation made by a witness that specific, direct and substantial harm
would be caused to the witness by the disclosure of the evidence, documents or
other things that the witness is ordered to give or produce pursuant to
subsection (1) of this section.
(4)
Where a review panel is satisfied that the disclosure of evidence documents or
other things would cause specific, direct and substantial harm, to a witness,
the evidence, documents or things shall be privileged and shall not, without the
authorization of the witness, knowingly be or be permitted to be communicated,
disclosed or made available by any person who has obtained the evidence,
documents or other things pursuant to this Decree.
(5)
Any summons issued or order made by a review panel pursuant to subsection (1) of
this section may, for the purposes of enforcement, be made a summons or order of
the Federal High Court by following the usual practice and procedure.
39.
On
receiving a report submitted by a mediator or a review panel, the Agency shall
make the report available to the public in any manner the Council considers
appropriate and shall advise the public that the report is available.
40.
(1)
Following
the submission of a report by a mediator or a review panel or the referral of a
project back to the Agency pursuant to section 30(b) of this Decree, the Agency
shall take one of the following courses of action in relation to the project,
that is –
(a)
where in the opinion of the Agency -
(i)
the
project is not likely to cause significant adverse environmental effect, or
(ii)
any
such effect can be mitigated or justified in the circumstances,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out in whole or in part and shall ensure that
any mitigation measures that the Agency considers appropriate are implemented;
or
(b)
where,
in the opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated and cannot be justified in the
circumstances, the Agency shall not exercise any power or perform any duty or
function conferred on it by or under any enactment that would permit the project
to be carried out in whole or in part.
(2)
For greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, it shall exercise any power and perform any
duty or function conferred on it by or under any enactment in a manner that
ensures that any mitigation measure that the Agency considers appropriate in
respect of the project is implemented.
41.
(1)
Where the Agency takes a course of action pursuant to section 40(1)(a) of this
Decree it shall, in accordance with this Decree, design any follow-up programme
that it considers appropriate for the project and arrange for the implementation
of that one.
(2)
The Agency shall advise the
public of –
(a)
its course of action in
relation to the project;
(b)
any mitigation measure to be
implemented with respect to the adverse environmental effects of the project;
(c)
the extent which the
recommendations set out in any report submitted by a mediator or a review panel
have been adopted; and
(d)
any follow-up program one
designed for or in the pursuant to subsection (1) of this section.
42.
A certificate stating that an environmental assessment of a project has been
completed, and signed by the Agency that exercises a power or performs a duty or
function referred to in section 35(c) of this Decree in relation to the project,
is in the absence to the contrary, proof of the matter stated in the
certificate.
43.
(1)
For the purposes of this Decree
"jurisdiction" includes
(a)
a
Federal authority;
(b)
the government of a State;
(c)
any other agency or body established pursuant to a Decree, Act, Law, Edict or
Bye-law or the legislature of a State and having powers, duties or functions in
relation to an assessment of the environmental effects of a project;
(d)
any body established pursuant to a comprehensive land claims agreement and
having powers, duties or functions in relation to an assessment of the
environmental effects of a project;
(e)
a government of a foreign State
or of a subdivision of a foreign Sate, or any institution of a such a
government; and
(f)
an international organisation of States or any institution of such an
organisation.
(2)
Subject to section 38 of this
Decree, where the referral of a project to a review panel is required or
permitted by this Decree and a jurisdiction referred to in subsection (1) (e) or
(f) of this section, has a responsibility on an authority to conduct an
assessment of the environmental effects of the project or any part of it, the
Council and the Council of External Affairs may establish a review panel jointly
with that jurisdiction.
44.
The Council shall not establish a review panel jointly with a jurisdiction
referred to in subsection 37(1) of this Decree unless the Council is satisfied
that –
(a)
the Council may appoint or approve the appointment of the Chairman or a
co-Chairman and one or more other members of the panel;
(b)
the Council may fix or approve
the terms of reference for the panel;
(c)
the
public shall be given an opportunity to participate in the assessment conducted
by the panel;
(d)
on completion of the
assessment, the report of the panel shall be submitted to the Council; and
(e)
the panel's report shall be
published.
45.
Where the Council establishes a review
panel jointly with a jurisdiction referred to in subsection 37(1) of this
Decree, the assessment conducted by that panel shall be deemed to satisfy any
requirements of this Decree, respecting assessment by a review panel.
46.
(1)
Where the referral of a project
to a review panel is required or permitted by this Decree and the Council is of
the opinion that a process for assessing the environmental effects of projects
that is followed by a Federal authority under a Decree or an Act of Parliament
other than this Decree or by a body referred to in section 37(1)(d) of this
Decree would be appropriate substitute, the Council may approve the substitution
of that process for an environmental assessment by a review panel under this
Decree.
(2)
An approval of the Council
pursuant to subsection (1) of this section shall be in writing and may be given
in respect of a project or a class of projects.
47.
The Council shall not approve a
substitution pursuant to subsection 46(1) of this Degree unless the Council is
satisfied that –
(a)
the
process to be substituted includes a consideration of the factors referred to in
section 11 of this Decree;
(b)
the
public has been given an opportunity to participate in the assessment;
(c)
at the end of the assessment, a
report has been submitted to the Council; and
(d)
the report has been published.
48.
Where the Council approves a
substitution of a process pursuant to section 46(1) of this Decree, an
assessment that is conducted in accordance with that process shall be deemed to
satisfy any requirements of this Decree, in respect of assessment by a panel.
49.
(1)
Where
a project for which an environmental assessment is not required under section 5
of this Decree, is to be carried out in a State and the President,
Commander-in-Chief of the Armed Forces is of the opinion that the project is
likely to have serious environmental effects in another State, the Council may
establish a review panel, to conduct an assessment of the inter-State
environmental effects of the project.
(2)
The Council shall not establish
a review panel pursuant to subsection (1) of this section where the President,
Commander-in-Chief of the Armed Forces and the governments of all interested
States have agreed on another panel of conducting an assessment of the inter
State environmental effects of the project.
(3)
A
review panel may be established pursuant to subsection (1) of this section on
the President, Commander-in-Chief of the Armed Forces initiative of the
President, Commander-in-Chief of the Armed Forces or at the request of the
government of any interested State.
(4)
At east ten days, before
establishing a review panel pursuant to subsection (1) of this section, the
President, Commander-in-Chief or the Armed Forces shall give notice of the
intention to establish a panel to the proponent of the project and to the State
or all interested States.
(5)
For the put of this traction
and section 45(3) of this Decree, "interested State" means
(a)
a State in which the project is
to be carried out; or
(b)
a
State that claims that serious adverse environmental effects are likely to occur
in that State as a result of the project.
50.
(1)
Where a project for which an
environmental assessment required under section 5 of this Decree is to be
carried out in Nigeria or on federal lands and the President, Commander-in Chief
of the Armed Forces is of the opinion that the project is likely to cause
serious adverse environmental effects outside Nigeria and those Federal lands,
the Agency and the Minister of Foreign Affairs may establish a review panel to
conduct an assessment of the international environmental effects of the project.
(2)
At least ten days before
establishing a review panel pursuant to subsection (1) or (2) of this section,
the Agency shall give notice of the intention to establish a panel to –
(a)
the proponent of the project;
(b)
the governments of any
interested States in which the project is to be carried out; and
(c)
the
government of any foreign State in which in the opinion of the Minister of
Foreign Affairs, serious adverse environmental effects are likely to occur as a
result of the project.
51.
(1)
Where a project for which an
environmental assessment is not required under section 15 of this Decree is to
be carried out in Nigeria and the Agency or the President, Commander-in-Chief of
the Armed Forces is of the opinion that the project is likely to cause serious
adverse environmental effect on Federal Lands or on lands in respect of which a
State or Local Government has interests, the Agency or the President may
establish a review panel to conduct an assessment of the environmental effects
of the project on those lands.
(2)
Where a project for which an
environmental assessment is not required under section 5 of this Decree, is to
be carried out on lands in a Local Government land or on lands that have been
set aside for the use and benefit of certain class of persons pursuant to
legislation and the Agency is of the opinion that the project is likely to cause
serious environmental effects outside those lands, the Agency may establish a
review panel to conduct an assessment of the environmental effects of the
project outside those lands.
(3)
At least ten days before a
review panel is established pursuant to subsection (1) or (2) of this section,
the Agency shall give notice of the intention to establish a panel to the
proponent of the project and to the governments of all interested States and if,
in the case of a project that is to be carried out the Agency is of the opinion
that
(a)
is likely to cause or have
serious adverse environmental effects on lands in a reserve that is set apart
for the use and benefit of a certain class of persons, to that class of persons;
(b)
on settlement lands described
in comprehensive land claims agreement referred to in subsection (2) if this
section to the party to the agreement; and
(c)
on lands that have been set
aside for the use and benefit of certain class of persons to that class of
persons
(4)
For the purposes of this
Decree, a reference to any land areas or reserves includes a reference to all
waters on and air above those lands, areas or reserves.
52.
Sections 30 to 33 and 37 to 39 of this
Decree shall apply, with such modifications as the circumstances require, to
review panel established pursuant to sections 43(1), 44(1) or 45(1) or (2) of
this Decree.
53.
(1)
Where
the Agency after the appraisal of the President, Commander-in-Chief of the Armed
Forces' assessment of the environmental effects of a project referred to in
sections 43(1), 44(1) or 45(1) or (2) of this Decree the President,
Commander-in-Chief of the Armed Forces may, by order published in the Gazette,
prohibit the proponent of the project from doing any act or thing that would
commit the proponent to ensuring the project is carried out in whole or in part
until the assessment is completed and the Agency is satisfied that the project
is not likely to cause any serious adverse environmental effects or that any
such effects shall be mitigated or are justified in the circumstances.
(2)
Where
a review panel established to access the environmental effects of a project
referred to in subsection 43(1), 44(1) or 45(1) or (2) of this Decree submits a
report to the Agency indicating that the project is likely to cause any serious
adverse environmental effects, the Agency may prohibit the proponent of the
project from doing any act or thing that would commit the proponent to ensuring
that the project is carried out in whole or in part until the Agency is
satisfied that such effects have been mitigated.
54.
(1)
Where, on the application of
the Agency, it appears to court of competent jurisdiction that a prohibition
made under section 47 of this Decree in respect of a project has been, is about
to be or is likely to be contravened, the court may issue an injunction ordering
any person named in the application to refrain from doing any act or thing that
would commit the proponent to ensuring that the project or any part thereof is
carried out until –
(a)
with respect to a
prohibition made pursuant to section 47(1) of this Decree the assessment of the
environmental effects of the project referred to in sections 43(1), 44(1) or
45(1) or (2) of this Decree completed and the Agency satisfied that the project
is not likely to cause any serious adverse environmental effects or any such
effects shall be mitigated or are justified in the circumstances; and
(b)
with respect to a prohibition made pursuant
to section 47(2), of this Decree the Agency is satisfied that the serious
adverse environmental effects referred to in that subsection had been mitigated.
(2)
At least forty-eight hours before an
injunction is issued under subsection (1) of this section, notice of the
application shall be given to the persons named in the application unless the
urgency of the situation is such that the delay involved in giving such notice
would not be in the public interest.
55.
(1)
Any
prohibition under section 47 of this Decree shall come into force on the day it
is made.
(2)
The prohibition shall cease to
have effect fourteen days after it is made unless within that period, it is
approved by the President, Commander- in -Chief of the Armed Forces.
Agreements
and Arrangements
56.
(1)
Where a Federal authority or
the Government of Nigeria on behalf of a Federal authority enters into agreement
or arrangement with the government of a State or any institution of such a
government under which a Federal authority exercises a power or performs a Duty
or function referred to in section 15(b) or (c) of this Decree in relation to
projects –
(a)
that have not been identified
at the time power is exercised or the duly or function is performed; and
(b)
in respect of which the
Government of Nigeria or the federal authority as the case may be, shall have no
power to exercise or duty or function to perform when the projects are
identified,
the
Government of Nigeria or the Federal authority concerned shall ensure that the
agreement or arrangement provides for the assessment of the environmental
effects of those projects and that the assessment shall he carried out as early
as practicable in the planning stages those projects.
(2)
Where a Federal authority or
the Government of Nigeria on behalf of a Federal authority enters into an
agreement with the government of a Foreign State or of a subdivision of a
foreign State, an international organisation of a foreign States, any
institution of such a government or organisation, under which a Federal
authority exercises a power or performs a duty or function referred to in
section 5(b) or (c) of this Decree in relation to the projects
(a)
that have not been identified
at the time the power is exercised or the duty or function is performed, and
(b)
in respect of which the
Government of Nigeria or the Federal authority, as the case may be, shall have
no power to exercise or duty or function to perform when the projects are
identified.
the
Government of Nigeria or the Federal authority shall ensure that the agreement
or arrangement provides for the assessment of the environmental effects of those
projects and that the assessment shall be carried out as early as practicable in
the planning stages of those projects.
Access
to Information
57.
(1)
For
the purpose of facilitating public access to records relating to environmental
assessments, a public registry shall be established and operated in accordance
with the provisions of this Decree in respect of every project for which an
environmental assessment is conducted.
(2)
The public registry in respect
of a project shall be maintained
(a)
by the Agency from the
commencement of the environmental assessment until any follow-up program in
respect of the project is completed; and
(b)
where the project is referred
to mediation or review panel, by the Agency from the appointment of the mediator
or the members of the review panel until the report of the mediator or review
panel is submitted to the Agency or the Secretary to the Government of the
Federation as the case may be.
(3)
Subject to subsection (4) of
this section, a public registry shall contain all records and information
produces, collected or submitted with respect to the environmental assessment of
the project, including
(a)
any report relating to the
assessment;
(b)
any comments filed by the
public in relation to the assessment; and
(c)
any record prepared by the
Agency for the purposes of section 35 of this Decree.
(4)
A public registry shall contain a record referred to in subsection (3) of this
section if the record falls within one of the following categories-
(a)
records that have otherwise
been made available to the public carrying out the assessment pursuant to this
Decree and any additional records, that have otherwise been made publicly
available;
(b)
any record or part of a record
that the Agency, in the case of a record in its possession, or any other
Ministry or government agency determines would have been disclosed to the public
if a request had been made in respect of that record at The time the record was
filed with the registry, including any record that would be disclosed in the
public interest;
(c)
any record or part of a record,
except a record or part containing third party information, if The President in
the case of a record in the Agency's possession, or the President believes on
reasonable grounds that its disclosure would be in the public interest because
it is required in order for the public to participate effectively in the
assessment,
(5)
Notwithstanding
any other enactment, no civil or criminal proceedings shall lie against the
Agency, or against any person acting on behalf of or under the direction of, and
no proceedings shall lie against the State or any of its agencies for the
disclosure in good faith of any record or any part of a record pursuant to this
Decree, for any consequences that flow from that disclosure, for the failure to
give any notice if reasonable care is taken to give the required notice.
(6)
For the purposes of this
section, "third party information" means –
(a)
trade secrets of a third party;
(b)
financial, commercial, scientific or technical information that is confidential
information supplied to a government institution by a third party and is treated
consistently in a confidential manner by the third party;
(c)
information the disclosure of
which could reasonably be expected to result in material financial loss or gain
to, or could reasonably be expected to prejudice the competitive position of a
third party; and
(d)
information the disclosure of
which could reasonably be expected to interfere with contractual or other
negotiations of a third party.
58.
(1)
During each year, the Agency
shall maintain a statistical summary of all the environmental assessments
undertaken or directed by it and all courses of action taken, and all decisions
made, in relation to the environmental effects of the project after the
assessments were completed.
(2)
The Agency shall ensure that
the summary for each year is compiled and completed within one month after the
end of that year.
59.
An application for judicial review
in connection with any matter under this Decree shall be refused when. the sole
ground for relief established in the application is a is a defect in form or a
technical irregularity.
Part
III
Miscellaneous
60.
(1)
For
the purposes of this Decree, the Agency may-
(a)
issue guidelines and codes of
practice to assist in conducting assessment. of the environmental effects of
projects;
(b)
establish research and advisory
bodies;
(c)
enter into agreements or
arrangements with any jurisdiction within the meaning of section37(1)(a), (b),
(c) or (d) respecting assessments of environmental effects;
(d)
enter into agreements or arrangements with States for the purposes of
coordination, consultation, and exchange of information in relation to The
assessment of the environmental effects of projects of common interest;
(e)
recommend the appointment of members to bodies established by federal
authorities or to bodies referred to in section 37(1)(d) of this Decree on a
temporary basis, for the purpose of facilitating a substitution pursuant to
section 40 of this Decree;
(f)
establish criteria for the
appointment of mediators and members of review panels; and
(g)
establish criteria for the
approval of a substitution pursuant to section 40 of this Decree.
61.
The Agency, with
the approval of the President, Commander-in Chief of the Armed Forces may make
regulations, published in the Gazette-
(a)
respecting the procedures and
requirements of, and the time or period relating to the environmental assessment
process set out in or including the conduct of assessment by review panels
established pursuant to section 37 of this Decree:
(b)
prescribing a list of projects
or classes of projects for which an environmental assessment is not required,
where the Council with the approval of the President, Commander-in-Chief of the
Armed Forces is of the opinion that the environmental effects of the projects
are likely to be negligible;
(c)
prescribing a list of projects
or classes of projects not covered by, the best of mandatory study list in the
Schedule to this Decree for which a mandatory study is required where the
Council is of the, opinion that the projects are likely to have significant
adverse environmental effects;
(d)
prescribing a list of projects or classes of projects for which or environmental
assessment is not required, when, the Council is of the opinion that the
contribution of the Agency to powers or the performance of its duties or
functions is minimal;
(e)
prescribing a list For which an
environment assessment is required, where the Council is of the opinion that an
environmental assessment of the projects would be inappropriate for reasons of
national security
62.
Any person who fails to comply with the
provisions of this Decree shall be guilty of an offence under this Decree and on
conviction in the case of an individual to N 100,000 fine or to five years
imprisonment and in the case of a firm or corporation to a fine of not less than
N50,000 and not more than N 1,000,000
63.
(1)
In this Decree, unless the context otherwise provides
"Agency" means the Nigerian Environmental Protection Agency
established by the Federal Environmental Protection Act;
"assessment by a review panel" means an environmental assessment that
is conducted by a review panel appointed pursuant to section 30 and that
includes a consideration of the factors set out in subsections 11(1) and (20) of
this Decree
"Council" means the Federal Environmental Protection Council
established by the Federal Environmental Protection Agency Act;
"environment" means the components of the Earth, and includes-
(a)
land, water and air, including all layers of the atmosphere,
(b)
all organic and inorganic
matter and living organisms, and
(c)
the interacting natural systems
that include components referred to in paragraphs (a) and (b);
"Environmental assessment" means, in respect of a project, an
assessment of the environmental effects of the project that is conducted in
accordance with this Decree and any regulations made thereunder;
"environmental effect" means, in respect of a project,
(a)
any change that the project may
cause to the environment,
(b)
any change the project may cause to the environment, whether any such change
occurs within or outside Nigeria, and includes any effect of any such change on
health and socio-economic conditions;
"exclusion list" means any list prescribed pursuant to paragraph
55(1)(b), (d) or (e) or section 55(2) of this Decree;
"federal authority" means -
(a)
a Minister of the Government of
the Federation of Nigeria;
(b)
any agency of the Government of
Nigeria or other body established by or pursuant to an Act, Decree, Law or Edict
that is ultimately accountable through a Governor of the State of Nigeria in the
conduct of its affairs;
(c)
any other prescribed body, but
does not include the Commissioner in a Local Government;
"Federal Lands" means -
(a)
lands that belong to the Federal Government of Nigeria in which Nigeria has a
right thereon or has the power to dispose of and all waters on and air space
above those land
(b)
the following lands and areas
namely,
(i)
the
internal waters of Nigeria within the meaning of the Sea Fisheries Decree 1992,
including the sealed and subsoil below and the airspace above those waters,
(ii)
the territorial sea of Nigeria as
determined in accordance with the Nigerian Territorial Waters Act, including the
seabed and subsoil below and the airspace above that sea,
(iii)
any fishing zone of Nigeria
prescribed under The Sea Fisheries Decree 1992;
(iv)
any exclusive economic zone that may be created by the Government of Nigeria;
and
(v)
the continental shelf, consisting of the seabed and subsoil of the submarine
areas that extend beyond the territorial sea throughout the natural prolongation
of the land territory of Nigeria to the outer edge of the continental margin or
to a distance of two hundred nautical miles from the inner limits as may be
prescribed pursuant to a Decree or an Act, and
(c)
reserves, surrendered lands and any other lands that are set apart for the use
and benefit of a class of Nigerians by the Federal Government of Nigeria and all
waters on and airspace above those reserves or surrendered lands:
"follow-up program" means a program for -
(a)
verifying the accuracy of the
environmental assessment of a project; and
(b)
determining the effectiveness
of any measures taken to mitigate the adverse environmental effects of the
project;
"mandatory study" means an environmental assessment that is conducted
pursuant to, section 17 and that includes a consideration of the factors set in
subsection 11(1) and (2) of this Decree;
"mandatory study list" means the list in the Schedule to this Decree
and those that may be prescribed pursuant to section 55(l)(c) of this Decree;
"mandatory study report" means a report of a mandatory study that is
prepared in accordance with the provisions of this Decree or any regulations
made thereunder;
"mediation" means an environmental assessment that is conducted with
the assistance of a mediator appointed pursuant to section 26 of this Decree and
that includes a consideration of the factors set out in section 11(1) and (2) of
this Decree;
"mitigation" means, in respect of a project, the elimination,
reduction or control of the adverse environmental effects of the project, and
includes restitution for any damage to the environment caused by such effects
through replacement restoration, compensation or any other means;
"prescribed" means prescribed by regulations;
"project" means a physical work that a proponent proposes to
construct, operate, modify, decommission, abandon or otherwise carry out or a
physical activity that a proponent proposes to undertake or otherwise carry out;
"proponent", in respect of a project, means the person, body or
federal authority that proposes the project;
"record" includes any correspondence, memorandum, book, plan, map
drawing, diagram, pictorial or graphic work, photograph, film, microform, sound
recording, videotape, machine readable record, and any other documentary
material, regardless of physical form or characteristics, and any copy thereof;
"responsible authority" in relation to a project, means a Federal
authority that is required pursuant to subsection 7(1) of this Decree to ensure
that an environmental assessment of the project is conducted;
"responsible Minister" means, in respect of a responsible authority,
(a)
in
the case of a department or ministry of State, The Minister or Commissioner
presiding over that department or ministry, and
(b)
in any other case, such member of the National Executive Council or State
Executive Council as is designated as the responsible Minister or Commissioner
for that responsible authority;
"screening"
means an environmental assessment that is conducted pursuant to section13 of
this Decree and that includes a consideration of the factors set out in section
11(1) of this Decree:
"screening report" means a report that summarises the results of a
screening.
(2)
For the purposes of this
Decree, a company is controlled by another company if -
(a)
securities of the corporation
to which are attached more than fifty per cent of the votes that may be cast to
elect directors of the corporation are held, other than by way of security only,
by or for the benefit of that corporation; and
(b)
the votes attached to those
securities are sufficient, if exercised, to elect a majority of the directors of
the corporation.
64.
This Decree may be cited as the
Environmental Impact Assessment Decree 1992
Schedule
Mandatory
Study Activities
1.
Agriculture
(a)
Land development schemes
covering an area of 500 hectares or more to bring forest and into agricultural
production.
(b)
Agricultural programmes
necessitating the resettlement of 100 families or more.
(c)
Development of agricultural
estates covering an area of 500 hectares or more involving changer in type of
agricultural use.
2.
Airport
(a)
Construction of airports
(having an airstrip of 2,500 metres or more
(b)
Airstrip development in State
and national parks.
3.
Drainage and Irrigation
(a)
Construction of dams and
man-made lakes and artificial enlargement of lakes with surface areas of 200
hectares or more.
(b)
Drainage of wetland, wild-life
habitat or of virgin forest covering an area of 100 hectares or more.
(c)
Irrigation schemes covering an
area of 5,000 hectares or more.
4.
Land
Reclamation
(a)
Coastal reclamation involving
an area of 50 hectares or more.
5.
Fisheries
(a)
Construction
of fishing harbours.
(b)
Harbour expansion involving an increase of 50 per cent or more in fish landing
capacity per annum.
(c)
Land based aquaculture projects
accompanied by clearing of mangrove swamp forests covering an area of 50
hectares or more.
6.
Forestry
(a)
Conversion of hill forest land
to other land use covering an area of 50 hectares or more.
(b)
Logging or conversion of forest
land to other land use within the catchment area of reservoirs used for
municipal water supply, irrigation or hydro power generation or in areas
adjacent to state and national parks and national marine parks.
(c)
Logging
covering an area of 500 hectares or more.
(d)
Conversion of mangrove swamps
for industrial, housing or agricultural use covering an area of 50 hectares or
more.
(e)
Clearing of mangrove swamps on
islands adjacent to national marine parks.
7.
Housing
8.
Industry
(a)
Chemical
Where
production capacity of each product or of combined products is greater than 100
tonnes/day,
(b)
Petrochemicals
all sizes.
(c)
Non-ferrous primary smelting
Aluminium - all sizes
Copper
- all sizes
Others
- producing [50?] tonnes/day and above of product
(d)
Non-metallic
-
Cement - for clinker throughput of 30 tonnes/hour and above
- Lime
- 100 tonnes/day and above burnt lime rotary kiln or 50 tonnes/day and above
vertical kiln.
(e)
Iron and steel
-
Require iron ore as raw materials for production greater than 100 tonnes/day; or
- Using
scrap iron as raw materials for production greater than 200 tonnes per day.
(f)
Shipyards
- Dead
Weight Tonnage greater than 5000 tonnes.
(g)
Pulp and paper industry
-
Production capacity greater than 50 tonnes/day
9.
Infrastructure
(a)
Construction of hospitals with outfall into beachfronts used for, recreational
purposes.
(b)
Industrial estate development for medium and heavy industry covering an area of
50 hectares or more.
(c)
Construction of Expressways.
(d)
Construction of national
highway.
(e)
Construction of new townships.
10.
Ports
(a)
Construction of ports.
(b)
Port
expansion involving an increase of 50 percent or more in handling capacity per
annum.
11.
Mining
(a)
Mining of materials in new
areas where the mining lease covers a total area in excess of 250 hectares.
(b)
Ore processing, including
concentrating for aluminium, copper, gold or tantalum.
(c)
Sand dredging involving an area of 50 hectares or more.
12.
Petroleum
(a)
Oil and gas fields development.
(b)
Construction of off-shore
pipelines in exceed of 50 kilometres in length.
(c)
Construction of oil and gas
separation, processing, handling, and storage facilities.
(d)
Construction of oil refineries.
(e)
Construction of product depots
for the storage of petrol, gas or diesel (excluding service stations) which are
located within 3 kilometres of any commercial, industrial or residential areas
and which have a combined storage capacity of 60,000 barrels or more.
13.
Power Generation and Transmission
(a)
Construction of steam generated power stations burning fossil fuels and having a
capacity of more than 10 megawatts.
(b)
Dams and hydroelectric power
schemes with either or both of the following.
(i)
dams over 15 metres high and
ancillary structures covering a total area in excess of 40 hectares;
(ii)
reservoirs with a surface area in excess of 400 hectares;
(c)
Construction of combined cycle
power stations.
(d)
Construction of nuclear-fueled
power stations.
14.
Quarries
Proposed quarrying of aggregate, limestone, silica, quartzite, sandstone marble
and, decorative building stone within 3 kilometeres of any existing residential,
commercial or industrial areas, or any area for which a licence, permit or
approval has been granted for residential, commercial or industrial development.
15.
Railways
(a)
Construction of new routes.
(b)
Construction of branch lines.
16.
Transportation
17.
Resort
and Recreat1onal Development
(a)
Construction of coastal resort-facilities or hotels with more than 80 rooms.
(b)
Hill station resort or hotel
development covering an area of 50 hectares or more.
(c)
Development
of tourist or recreational facilities in national parks.
(d)
Development of tourist or
recreational facilities, on islands in surrounding waters which may be declared
as national marine parks.
18.
Waste Treatment and
Disposal
(a)
Toxic and Hazardous Waste
(i)
Construction of incineration
plant.
(ii)
Construction of recovery plant
(off-site)
(iii)
Construction of waste water treatment plant
(off-site).
(iv)
Construction of secure landfill facility.
(v)
Construction of storage facility (off-site).
(b)
Municipal Solid Waste
(i)
Construction of incineration
plant.
(ii).
Construction
of composing plant.
(iii)
Construction
of recovery/recycling plant.
(iv)
Construction of municipal solid waste
landfill facility.
(c)
Municipal Sewage
(i)
Construction of waste water treatment plant.
(ii)
Construction of marine outfall.
19.
Water
Supply
(a)
Construction of dams,
impounding reservoir with a surface area of 200 hectares or more.
(b)
Groundwater development for
industrial, agricultural or urban water supply of greater than 4,500 cubic
metres per day.
Made
at Abuja this 10th day of December 1992.
General
I. B. Babangida,
President,
Commander-in Chief of the Armed Forces
Federal
Republic of Nigeria
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