ES001 MOD 2 Overview of the Policy, Legal, and Regulatory Framework in Nigeria PDF

ATBU SPESSE CENTRE OF EXCELLENCE EXECUTIVE SHORT TERM COURSE IN ENVIRONMENTAL STANDARDS TRACK A: A FIVE DAY COURSE FOR ENVIRONMENT AND SOCIAL ASSESSMENT PRACTITIONERS Module 1, Session3 Overview of the Policy, Legal, and...

ATBU SPESSE CENTRE OF EXCELLENCE EXECUTIVE SHORT TERM COURSE IN ENVIRONMENTAL STANDARDS TRACK A: A FIVE DAY COURSE FOR ENVIRONMENT AND SOCIAL ASSESSMENT PRACTITIONERS Module 1, Session3 Overview of the Policy, Legal, and Regulatory Framework in Nigeria With assistance from Dr. Ahmed Chinade Abdullahi Consultant to The Environment Global Practice of the West and Central Africa - SAWE4 1  Course Content The purpose of this course is to present and overview of the policy and framework on environment and environment assessment in Nigeria. The content of this course is the following: The National Policy on the Environment (NPE) of 1989, revised 1999 and 2016 The Environment Impact Assessment Act no 86 of 1992, revised in 2004-now Environmental Impact Assessment (EIA) Act. Cap E12, LFN2004 The National Guidelines and Standards for Environment Pollution Control in Nigeria of 1991, The National Effluents Limitations Regulation, The NEP (Pollution abatement In Industries And Facilities Generating Waste) Regulations The National Environmental Standards and Regulations Enforcement Agency Act 2007 (NESREA Act) Nigeria’s Challenges in Environmental Assessment SPESSE Response to address these challenges 2  Brief Historical Background of EIA in Nigeria Environmental consciousness and need for environmental protection was aroused in Nigeria with the ‘Koko Toxic Dump’ in the then Bendel State in 1987 That event led to creation of the Federal Environmental Protection Agency (FEPA) by decree 58 of 1988 (amended by Decree 59 of 1992). FEPA then produced several sectoral and procedural guidelines on how to carry out EIA in Nigeria FEPA is now absorbed into the Federal Ministry of Environment since its creation in 2003. States were encouraged to establish their own (S)EPA under decree 59 of 1992 3  Nigeria’s EIA Systems The EIA Decree 86 of 1992 was promulgated making EIA a legal requirement by all developers of projects considered to create harm on the environment Department of Petroleum Regulation’s (DPR) Environmental Guidelines and Standards (EGAS) of 1991 which provides guidelines, standards and monitoring procedures for mandatory EIA in the petroleum Industry The Town and Country Planning Decree 88 of 1992 also made EIA a requirement in the estate and property development sectors even though it has not evolved satisfactorily (Ogunba, 2004). 4  The National Policy of the Environment of 1989 revised in 1999 and 2016 The National Policy on Environment, 1989 (revised 1999 and 2016), provides for “a viable national mechanism for cooperation, coordination and regular consultation, as well as harmonious management of the policy formulation and implementation process which requires the establishment of effective institutions and linkages within and among the various tiers of government – federal, state and local government”. The purpose of the 2016 revision of the policy was: “to define a new holistic framework to guide the management of the environment and natural resources of the country…. it prescribes sectoral and cross-sectoral strategic policy statements and actions for the management of the country’s environment for sustainable development” 5  Objectives of the Policy The objective of the policy is to achieve sustainable development in Nigeria and in particular to Secure a quality environment adequate for good health and well being Conserve the environment and natural resources for the benefit of present and future generations. Raise public awareness and promote understanding of the essential linkages between the environment resources and development and encourage individual and community participation in environmental improvement efforts Restore, maintain and enhance the ecosystems and ecological processes essential for the functioning of the biosphere to preserve biological diversity; Co-operate with other countries, international organizations and agencies to achieve optimal use and effective prevention or abatement of trans-boundary environmental degradation 6  The Environmental Impact Assessment Act No. 86, 1992 (FMEnv) (now revised as: EIA Act CapE12 LFN 2004) : Three Parts, 62 Articles and a Schedule The EIA Act gave the Federal Ministry of Environment the implementing mandate and requires that the process of EIA be mandatorily applied in all major development projects right from the planning stage to ensure that likely environmental problems, including appropriate mitigation measures to address the inevitable consequences of development are anticipated prior to project implementation and addressed throughout the project cycle. The EIA Act stipulates that all Agencies, Institutions (whether public or private) except exempted by the Act, shall, before embarking on proposed projects, apply in writing to the Federal Ministry of Environment so that subject activities can be quickly identified and allow for the conduct of environmental assessment(s) as the activities are being planned. The Act made provision for all stakeholders (agencies, public, experts, NGOs, communities, etc.) to be notified, consulted and or given the opportunity to make comments on the EIA of a project prior to approval or disapproval. 7  Objectives of the Act The objectives of the EIA Act of 1992 among others include: (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 authorize 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 realized; (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 effects on boundary or trans-state or on the environment of bordering towns and villages. 8  Degree of Environmental Significance and Mandatory Activities Article 5 of the Law states: The environmental effects in an environmental assessment shall be assessed with a degree of detail commensurate with their likely environmental significance. The Federal Ministry of Environment (FMEnv) categorizes mandatory study activities into three categories. based on a listing of projects in schedule 1 of the law as follows: Category I projects will require a full Environmental Impact Assessment (EIA) Category II projects may require only a partial EIA, which will focus on mitigation and environmental planning measures, unless the project is located near an environmentally sensitive area--in which case a full EIA is required. Category III projects are considered to have “essentially beneficial impacts” on the 9  Cases where environmental assessment is required Article 13 state that an environment impact assessment is required whenever the Federal, State or local government agency authority established by the Federal, State or local government council is: (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 (b) makes or authorizes 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 (c) disposes of those lands or any tests in those lands or for the purpose of enabling the project to be carried out (d) grants an approval or takes any other action for the purpose of enabling the project to be carried out 10  Article 2: Restriction on public or private project without prior consideration of the environmental impact (1) The public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration, at an early stage, of their environmental effects. (2) Where the extent, nature or location of a proposed project or activity is such that it is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of this Act. (3) The criterion and procedure under this Act 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 if exempted pursuant to this Act, 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 are being planned. 11  Exceptions to the EIA Article 15. (1) of the law states: 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 are 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. 12 Category of Mandatory EIA.Ref Nerry Echefu and.E Akpofure, 1992, UNEP EIA training manual, Studies of EIA Practice in Developing Countries 13 Procedural and Environmental Framework Ref Nerry Echefu and.E Akpofure, 1992, UNEP EIA training manual, Studies of EIA Practice in Developing Countries The EIA process is the various stages a project undergoes from proposal to approval for implementation, resulting in the issuing of an Environmental Impact Statement (EIS) and certificate. The process encompasses several stages, viz: determining if FMEnv environmental laws/regulations have been triggered; screening a project for potential environmental effects; scoping to determine the spatial and temporary dimension of environmental effects; carrying out detailed base line studies to determine the environmental condition prior to project implementation; preparing a detailed assessment report; carrying out a panel review of the EIA report if this is necessary; and obtaining authorization/approval, where appropriate Ref: Nerry Echefu and.E Akpofure, 1992, UNEP EIA training manual, Studies of EIA Practice in Developing Countries 14 The Nigerian EIA Procedures. Ref Nerry Echefu and.E Akpofure, 1992, UNEP EIA training manual, Studies of EIA Practice in Developing Countries 15 16  Consultation with the Public Article7 states: the Agency shall give opportunity to government agencies, members of the public, experts in any relevant discipline and interested groups to make comment on the environmental impact assessment of the activity. 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 17  Disclosure of the Mandatory Report ( EIA) Article 24 of the Law states that 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. Article 38 states: 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 18  Transboundary Effects Article 48(1) states: Where a project, for which an environmental assessment is not required under section 5 of this Act, is to be carried out in Nigeria or on Federal lands and the President 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 for Foreign Affairs may establish a review panel to conduct an assessment of the international environmental effects of the project. 19  Penalties Article 62 states 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 (US$ 263) fine or to five years imprisonment and in the case of a firm or corporation to a fine of not less than N 50,000 (US$ 132)and not more than N 1,000,0000 (US$2630). 20  The National Environmental Standards and Regulations Enforcement Agency Act 2007 (NESREA Act). Ref : https://www.nesrea.gov.ng/about-us After the repealing of the Federal Environmental Protection Act of 1988, the NESREA Act, 2007 became the major statutory regulation or instrument guiding environmental matters in Nigeria.. Its Vision is to ensure a cleaner and healthier environment for Nigerians. Its Mission is to inspire personal and collective responsibility in building an environmentally conscious society for the achievement of sustainable development in Nigeria. Its Mandate is the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines. The NESREA Act empowers the Agency to be responsible for enforcing all environmental laws, guidelines, policies, standards and regulations in Nigeria, as well as enforcing compliance with provisions of international agreements, protocols, conventions and treaties on the environment to which Nigeria is a signatory. 21  Sector Guidelines. https://www.nesrea.gov.ng/ NESREA has issued since 2009 , 33 sector guidelines. The most relevant are:  National Environmental (Wetlands, River Banks and Lake Shores) Regulations, S. I. No. 26, 2009.  National Environmental (Watershed, Mountainous, Hilly and Catchments Areas) Regulations, S. I. No. 27, 2009. National Environmental (Sanitation and Wastes Control) Regulations, S. I. No. 28, 2009. National Environmental (Ozone Layer Protection) Regulations, S. I. No. 32, 2009. National Environmental (Noise Standards and Control) Regulations, S. I. No. 35, 2009. National Environmental (Chemicals, Pharmaceuticals, Soap and Detergent Manufacturing Industries) Regulations, S. I. No. 36, 2009..National Environmental (Soil Erosion and Flood Control) Regulations, S. I. No. 12, 2011. National Environmental (Desertification Control and Drought Mitigation) Regulations, S. I. No. 13, 2011. National Environmental (Protection of Endangered Species in International Trade) Regulations, S. I. No. 16, 2011. 22  Sector Guidelines ( ctd)  National Environmental (Coastal and Marine Area Protection) Regulations, S. I. No 18, 2011. National Environmental (Construction Sector) Regulations, S. I. No. 19, 2011. National Environmental (Control of Vehicular Emissions from Petrol and Diesel Engines) Regulations, S. I. No. 20, 2011. National Environmental (Surface and Groundwater Quality Control) Regulations, S. I. No. 22, 2011. National Environmental (Control of Alien and Invasive Species) Regulations, S. I. No 32, 2013 National Environmental (Air Quality Control) Regulations, S. I. No 64, 2014. National Environmental (Control of Charcoal Production and Export) Regulations, S. I. No National Environmental (Dams and Reservoirs) Regulations, S. I. No 66, 2014. National Environmental (Hazardous Chemicals and Pesticides) Regulations, S. I. No 65, 2014. National Environmental (Energy Sector) Regulations, S. I. No 63, 2014.62, 2014. 23  The National Effluents Limitations Regulations of August 1991: Ref : http://extwprlegs1.fao.org/docs/pdf/nig120290.pdf This instrument makes it mandatory that industrial facilities install anti- pollution equipment, make provision for further effluent treatment, prescribe maximum limit of effluent parameters allowed for discharge, and spell out penalties for contravention. It also provides that all industries in Nigeria should be operated on the basis of Best Available Technology (BAT); and the Best Practical Technology (BPT) or the Uniform Effluent Standard The First Schedule describes the important waste water parameters for 23 industrial classifications such as Aluminum industry, Sugar Cane; Fertilizers, Cement, inorganic Chemicals, Leather Tanning, Petroleum refining, etc The Second Schedule provides Effluent limitation guidelines in Nigeria for all categories of industries The third Schedule provides National , Effluent Limitations and Gaseous Emissions Guidelines in Nigeria for Specific Industries 24  The National Environmental Protection (NEP) : (Pollution Abatement In Industries And Facilities Generating Waste) Regulations. Ref: http://extwprlegs1.fao.org/docs/pdf/nig120294.pdf The Regulations requires that no industry or facility shall release hazardous or toxic substances into the air, water or land of Nigeria's ecosystems beyond limits approved by the Agency. It also requires that any discharge, including solid, gaseous and liquid waste from any industry or facility shall be analyzed and reported to the nearest office of the Agency every month, through a Discharge Monitoring Report and (1) no person or body corporate shall engage in the storage treatment and transportation of harmful toxic waste within Nigeria without a permit issued by the Agency No effluent with constituents beyond permissible limits shall be discharged into public drains, rivers, lakes, sea or underground injection without a permit issued by the Agency or any organization designated by the Agency. And No oil, in any form, shall be discharged into public drains, rivers, lakes, sea, or underground injection without a permit issued by the Agency or any organization designated by the Agency . 25  The Management of Solid and Hazardous Wastes Regulations (1991) ref: http://extwprlegs1.fao.org/docs/pdf/nig120295.pdf The objectives of solid and hazardous waste management are to‐ (a) identify solid, toxic and extremely hazardous wastes dangerous to public health and environment; (b) provide for surveillance and monitoring of dangerous and extremely hazardous wastes and substances until they are detoxified and safely disposed of; (c) provide guidelines necessary to establish a system of proper record keeping, sampling and labelling of dangerous and extremely hazardous wastes; (d) establish suitable and provide necessary requirements to facilitate the disposal of hazardous wastes; (e) research into possible re‐use and recycling of hazardous waste. These Regulations, made under section 37 under the Federal Environmental Protection Agency Act, have made provision with respect to the handling and management of solid, radioactive and (infectious) hazardous waste. They define the objectives of management of solid and hazardous waste, the functions of appropriate Governmental agencies and the obligations of industries. They also classify waste and make provision for contingency plan and emergency procedure, groundwater protection, ground water monitoring require and give the comprehensive list of chemicals and chemical waste by toxicity categories. 26  The National Environmental (Air Quality Control) Regulation, S.I. No 64 of 2014 Ref: https://www.nesrea.gov.ng/wp-content/uploads/2020/02/air_quality_c ontrol.pdf The purpose of this Regulation is to provide for improved control of the nation’s air quality to such an extent that would enhance the protection of flora and fauna, human, health and other resources affected by air quality deteriorations among other things. Under Regulation 38, the agency shall have the power to enter and seal any facility or premises found contravening any of the provisions of these Regulations. Any person who violates any of the provisions of these Regulations commits an offence and shall on conviction be liable to a fine of not less than N100,000 (US$ 263) or to imprisonment for a term not less than six months or to both, and an additional fine of not less than N10,000 US$ 26.3) for every day the offence subsists for individual offenders; and where the offence is committed by a body corporate, it shall upon conviction be liable to a fine not less than N1,000,000 (US$ 2,630) and an additional fine of N50,000( US$ 132) for every day the offence subsists. . 27  Challenges Relating to Operationalization of National Environmental Regulations. Environmental legislation for EIA has been an important factor in whole process. Without proper policies and environmental legislation it would have been impossible to enforce any mitigation measure. The regulations appear robust From the letters and objectives of the Regulations, one would admit them as a good step in enhancing the sanctity of Nigeria’s environment. It is one thing to have a plethora of regulations; it is another thing to have them implemented or enforced. However, the question remains how many of these Regulations are effectively enforced? How many of these Regulations are known to the Nigerian public who are stakeholders and beneficiaries of the environment? Major challenges of NESREA is to strengthen the enforcement of these Regulations as their tools are lacking “The environment has been politicized; as such it was seen as the private property of certain individuals who own and control large industries in the country” Ref: Ref: Nerry Echefu and.E Akpofure, 1992, UNEP EIA training manual, Studies of EIA Practice in Developing Countries;Raphael Oladele ADEOLUWA, 2018, appraisal of the operationalization of National Environmental regulations In Nigeria and Suleiman Romoke Monsurat, 2,3Raimi Morufu Olalekan and 3 Sawyerr Henry Olawale , 2019,A Deep Dive into the Review of National Environmental Standards and Regulations Enforcement Agency (NESREA) Act, International Research Journal of Applied Sciences 28  The Way to Move Ahead Massive publicity and environmental awareness creation: FMEnv/NESREA should increase their public awareness and create a synergy of knowledge or information between regulators and the regulated and maximizing advocacy Increase proactive management and enforcement team: FMEnv/NESREA should devote its efforts toward enforcement of these national environmental regulations, without serious enforcement; violation of environmental rules will continue unabated Increase in adequate manpower: Nigeria government should increase the number of technical staff; this will enhance the agency’s efficiency in carrying out its duties and enforcement Cooperation and collaboration with other agencies: It was necessary for FMEnv/NESREA to effectively cooperate and collaborate with various stakeholders The FMEnv/NESREA Acts do not regulate the oil and gas sector. These act should be amended to give it oversight over the entire environment including the oil and gas sector REF: Raphael Oladele ADEOLUWA, 2018, appraisal of the operationalization of National Environmental regulations In Nigeria Suleiman Romoke Monsurat, 2,3Raimi Morufu Olalekan and 3 Sawyerr Henry Olawale , 2019,A Deep Dive into the Review of National Environmental Standards and Regulations Enforcement Agency (NESREA) Act, Internationsl Research Journal of Applied Sciences 29  SPESSE WILL CONTRIBUTE TO ADDRESS THE ENVIRONMENTAL CHALLENGES The SPESSE Project Appraisal Document states: 1. Nigeria encounters several challenges including: (i) delays in E&S management instruments implementation; (ii) non- compliance with the Environmental and Social Management Plans (ESMPs) and other E&S instruments; (iii) insufficient supervision and monitoring; and (iv) inadequate capacity among client institutions. Many E&S management measures are poorly implemented, pointing to a need for improving the technical capacity of clients to identify, monitor, and regularly report on implementation. Despite the existence of EIA and the World Bank’s Operational Policies (OPs) for investment project lending, there is a growing concern over the scarcity of personnel with appropriate Environment and Social (E&S) skills, knowledge and institutional mandate to anchor and drive environmental and social standards’ functions in a coherent and coordinated manner 30 SPESSE INTERVENTIONS IN ADDESSING THESE CHALLENGES The following areas of intervention have been identified: (i) improving the quality of E&S management instruments; enhancing implementation capacity and effectiveness of social development institutions; (ii) improving the monitoring and reporting of E&S management; (iii) strengthening client’s capacity to understand the key objectives and provisions of the ESF; adapt to the changes in improving the Environmental and Social Impact Assessment (ESIA) which entails the inclusion of Labor influx, Gender Based Violence (GBV), Sexual Exploitation Assessment (SEA) and Environmental, Social Health and Safety assessments; and (iv) developing human resources and capacities in managing E&S risks and impacts, including public and private sector institutions, consulting communities and education facilities where long-term academic E&S curriculum would be developed and delivered 31  ANY QUESTIONS THANK YOU FOR YOUR PATIENCE 32