Gas Flaring in Nigeria: an Assessment of Its Environmental and Human Rights Implication

ABSTRACT

Gas flaring is one menace that plagues Nigeria. Gas has been flared continuously for several years because it is cheaper to flare gas because proper infrastructure is not in place to utilize associated gas. Associated gas is gas that is discovered alongside crude oil when a well has been opened. Flaring of gas asides being cheaper is pure waste of natural resources and it also damages the environment and can be considered to infringe on human rights. This paper aims to shed light on the concept of gas flaring and its impact on the environment and human beings at large. In doing so, the legislations that bar and ban gas flaring have been examined pointing out the inadequacies in the laws and what can be done.

Keywords: Gas, Flaring, Pollution, Reutilization, Legal Framework.

Introduction

Gas flaring in Nigeria is not a new incident in Nigeria. Gas flared in association with the production of crude oil began in Nigeria under the British Colonial rule when Shell began oil production in 1958, and with the increasing production of oil, the volume of gas flared in the process of oil production increased. Nigeria is one of the countries that flare the most gas in the world.[1]For many years after the discovery of oil in commercial quantities in Nigeria, most of the associated gas is flared, with its attendant environmental consequences on the health of the people. In Western Europe 99% of associated gas is used or re-injected into the ground[2].

In Nigeria alone, gas flaring amounts to about 23 billion cubic metres per annum of the gas generated in association with crude oil production in over 100 flare sites, constituting over 13 percent of global gas flaring out of the over 150 billion cubic metres of natural gas flared and vented annually. This translates to greenhouse gas emission of 45 million tons of CO2 out of the global total of 400 million tons annually. Consequently, Nigeria lost about $72 billion in revenue between 1970 and 2006 due to gas flaring. Currently, Nigeria loses about $2.5 billion annually for flaring associated gas.[3] Flaring of associated gas emits a Green-House Gas (GHG) which contributes to global warming and climate change with flaring emissions currently estimated at about 400 million tons of carbon dioxide into the atmosphere each year. The paradox is that the volume of gas flared annually in Nigeria can match the country’s energy need and resolve the energy crisis.[4]

Gas flaring is highly problematic due to the fact that it is associated with emissions of high amounts of carbon dioxide into the atmosphere contributing to global warming, vegetation burns, and crops cease to grow and nearby inhabited areas complain of lung ailments[5]. Gas Flaring wastes a potentially valuable source of energy which is natural gas.

Legal Framework for Gas Flaring

 While considering the legal framework for gas flaring in Nigeria, one must consider the following legislations;

  1. The Petroleum Act of 1969
  2. The Associated Gas Reinjection Act of 1979
  3. Associated Gas Re-Injection (Continued Flaring of Gas) Regulation of 1984
  4. Petroleum Industry Bill
  5. The Flare Gas Reduction (Prevention of Waste and Pollution) Regulation 2018

The Petroleum Act 1969

The Petroleum Act is the primary law regulating the oil and gas exploration activities in Nigeria. The Petroleum (Drilling and Production)  Regulation 1979 which is pursuant to the Petroleum Act, provides that the licensee or lessee of an Oil Mining Lice nce (OML) shall, not later than five years after the commencement of production, submit to the Minister of Petroleum Resources, a feasibility study, programme or proposals that it may have for the utilisation of any natural gas that has been discovered in the relevant area.[6] However, it is quite ridiculous to discover that the provision of the law which requires oil companies to submit their strategies for gas utilisation was not considered a mandatory requirement and no penalty is provided to punish  defaulters, therefore encouraging oil companies to flare gas without any fear of punishment.[7]

Due to this lacuna which did not obviously put an end to the flaring of associated gas, a concrete step to regulate gas flaring in Nigeria was reached in 1979 with the enactment of the Associated Gas Re-Injection Act.

The Associated Gas Re-Injection Act 1979 (as amended)

This Act became the first anti-gas flaring regulatory framework in Nigeria. The primary intent and purpose of the Act is to phase out gas flaring in Nigeria completely. The Associated Gas Re-Injection Act was the statutory response to the environmental impacts of gas flare, it is stated to be an Act to compel every company producing oil and gas in Nigeria to submit preliminary programme for gas re-injections and detail plans for gas re-injection.[8]

Section 1 of the Act states thus; ‘Notwithstanding the provisions of Regulation 42 of the Petroleum (Drilling and Production) Regulations made under the Petroleum Act, every company producing oil and gas in Nigeria, shall not later than 1 April, 1980 submit to the Minister a preliminary programme for;

  1. schemes for the viable utilisation of all associated gas produced from a field or groups of fields;
  2. project or projects to re-inject all gas produced in association with oil but not utilised in an industrial project’.

The Act placed a duty on oil companies to submit detailed programmes and plans for implementation of gas re-injection not later than 1st October 1980,[9] however, it is of vitality to bring to fore that no oil company has complied with the provisions of the Associated Gas Re-Injection Act and there is no evidence indicating that the Minister has ever insisted that the oil companies complied with it. [10]

The Associated Gas Re-Injection Act 1979 did not quite achieve its aim speedily and as a result the Minister implemented the Associated Gas Re-Injection (Continued Flaring of Gas) Regulations 1984 which provides for exemptions to the earlier general ban on flaring. Sadly, the monetary penalty for continued flaring of gas by oil companies under the Act is grossly inadequate and is preferred by the oil companies as opposed to complying with the phase-out of gas flaring.[11]

The Associated Gas Re-Injection Act has been criticized for not paying attention to very salient issues on gas re-injection. Apart from making provision for a feasibility report by oil companies interested in natural gas production, the Act made no mention anywhere about related penalties for gas flaring. Indirectly, it may not be out of place to conclude that the law does not make gas flaring illegal.[12]

Associated Gas Re-Injection (Continued Flaring of Gas) Regulation

Pursuant to the Regulations which became effective from 1st of January, 1985 the issuance of certificate for continued flaring of gas is subject to any one or more of the following conditions;

  1. Where more than seventy-five percent of the produced gas is effectively utilised or conserved such failures.
  2. Where the produced gas contains more than fifteen percent impurities which render the gas unsuitable for industrial purposes.
  3. Where an on-going utilisation programme is interrupted by equipment failure. Provided they are not considered too frequent by the minister and that the period of any one interruption is not more than 3 months.
  4. Where the ratio of the volume of gas produced per day to the distance from the nearest gas line or possible utilisation point is less than 50,000SCF/KM. Provided that the gas to oil ratio of the field is less than 3,500 SCF/BB1 and that it is not technically advisable to re-inject the gas in that field.
  5. Where the minister in appropriate cases as he may deem fit orders the production of oil from a field that does not satisfy any of the conditions specified in the regulations.[13]

It follows from the above that the Associated Gas Re-injection (Continued Flaring of Gas) Regulation which replaced the Associated Gas Re-Injection Act, empowered the Minister to allow gas flaring where more than 75 percent of the produced gas is effectively utilised or conserved; where the produced gas contains more than 75 percent impurities, rendering it unsuitable for industrial purpose; where an ongoing utilisation programme is interrupted by equipment failure; and where the ratio of the volume of gas produced per day to the distance of the field from the nearest gas line of a possible point is more than 50,000SCF/KM.

The Regulation reversed the original intention of the Associated Gas Re-Injection Act, which was intended to prohibit gas flaring as a measure for environmental protection. One Striking feature of the Act is the permission given to oil companies to continue to flare gas on the payment of minimal fees.

Petroleum Industry Bill

The Nigerian government made a significant legislative effort to combat the menace of gas flaring in Nigeria through the Petroleum Industry Bill in 2012. The Bill seeks to consolidate all existing oil and gas in the country into one piece of legislation by addressing certain fundamental issues as the dichotomy between oil and gas regimes; progressive acreage management, among others. [14]

The Petroleum Industry Bill is an Act that provides for the establishment of legal, fiscal, and regulatory framework for the Petroleum industry in Nigeria and for other related matters. Part 1 of the Act lists a few objectives which include the creation of conducive business environment for petroleum operations, enhancement of exploration and exploitation of petroleum resources in Nigeria for the benefit of the Nigerian people, creation of efficient and effective regulatory agencies, among many others. Of particular interest is the provision of Part 1, Section 1, Subsection (j) which enumerates another objective of the Act as being to ‘protect health, safety and the environment in the course of petroleum operations; for the benefit of the Nigerian people’. Regrettably, this provision is a contradiction to what is obtainable in the sense that it still offers no protection on the health of citizens in vulnerable locations where gas flaring persists.[15]

A comparison of the petroleum industry bill and the Associated Gas Re-Injection Act of 1979 reveals a similarity between the two legislation as the proposed Petroleum Industry Bill does not outrightly prohibit gas flaring in Nigeria. Rather, the Bill makes provision for the payment of penalties for gas flaring violations, a mere replication of the earlier Acts. Specifically, Section 201 of the Bill stipulates that the ‘lessee shall pay such gas flaring penalties as the Minister may determine from time to time’. There is also an added obligation on the part of the lessee to install all such measurement equipment as ordered by the Inspectorate to properly measure the amount of gas being flared.

Although the above regulations have contributed to the drastic reduction of the proportion of natural gas flared which was 90-99% prior to 1980, it is worth mentioning that the provision of Section 201, which arrogates to the Minister the sole responsibility of determining the penalties for violations, is too open-ended and subject to the whims and caprices of the Minister. In a country where corruption is endemic, the power so granted to the Minister is likely to be abused.[16]

The Flare Gas Reduction (Prevention of Waste and Pollution)   Regulation 2018

The Flare Gas Reduction (Prevention of Waste and Pollution) Regulation 2018, signed in early July 2018, and currently being gazetted is expected to lead to a government takeover of fields where flaring takes place and bid round of some of such fields before the end of 2018.

The legal framework focuses on the reduction of environmental/social impact caused by the flaring of gas, protection of the environment, prevention of waste of natural resources and creation of social and economic benefits from flare gas capture. The document affirmed the right of the government, under Section 9 of the Petroleum Act, to take natural gas produced with crude oil free of cost at the flare site and without payment of royalty. The provision of this regulation is applicable to all petroleum licences, including marginal fields. It also outlined bid processes and the penalties for supply of inaccurate data by a producer of flared gas.

According to the Flare Gas Reduction (Prevention of Waste and Pollution) Regulation 2018, the minister may, by a permit to access flare gas, authorise a qualified applicant selected further to competitive bid processes conducted by the Federal Government, to take flare gas on behalf of the government at any flare site as specified in the permit. Any producer may apply to the Minister to utilise flare gas for commercialisation, provided that such application shall; (a) exclude any flare gas volume that is being offered in a bid process conducted by the Federal Government or has been assigned to a permit holder, (b) be made by the producer on behalf of a midstream subsidiary corporate entity, either existing or to be incorporated. Nigeria is said to flare an excess of 800 million standard cubic feet, scf, of gas a day from 178 flare sites, according to the Ministry of Petroleum Resources.[17] The country’s power sector, however, struggles to get enough gas to fire the turbine capacity of 7,000MW. The government is hoping to use the regulation to bring more investment into the natural gas market. The new regulation contains higher penalty for gas flaring than currently obtains and contains a large number of references to “The Qualified Applicant” and “Permit Holder” of flare gas sites, two entities that are largely unknown in extant Nigerian petroleum ecosystem.[18]

The regulation stated that the Department of Petroleum Resources (DPR), may request a producer to provide flare gas data and when that request is made, the producer shall provide such flare gas data in the format required within 30 calendar days of the date of the request. In the last 18 months, the DPR has called for data twice from flare gas producers. “The ministry will call again for data after the regulation has been gazetted.[19] Any individual in any company that signs a letter conveying the data has a duty to ensure that the data is accurate.” Any person acting on behalf of a producer, who supplies inaccurate or incomplete Flare Gas Data to the DPR, or any other duly empowered lawful authority, will be liable to criminal prosecution”.[20]

The Environmental Impacts of Gas Flaring

Gas flaring has negative effects on the immediate or local environment. For example, flares contains as many as 250 toxins and flares emit particulate matters including sulfur dioxide, nitrogen dioxide and carcinogenic substance as well as unburned fuel hydrogen sulfide, several of which can cause aggravated asthma, cough, chronic bronchitis, decreased lung functions, difficult or painful breathing and premature death.[21]

Flares create acid rain corrosive to metal roof, acidifies lakes and streams and kills vegetation. Flaring gas within the vicinity of human dwellings is conducive to acid rains, and causes devastation of farmland and fishing waters, deforestation and destruction of wildlife and as well threatens resource flows and livelihoods.

According to the World Bank,[22] by 2002, flaring in the country had contributed more greenhouse gases to the Earth’s atmosphere than all other sources in sub-Saharan Africa combined. Yet this gas is not being used as a fuel, as such, it is a serious but unnecessary contributor to climate change, the impact of which are already being felt in the region with food insecurity, increasing risk of disease and rising costs of extreme weather damage. The flares also contain widely recognized toxins such as benzene, toluene, xylene and hydrogen sulfide, which pollute the air.[23]

Gas Flaring as an Act of Human Rights Violation

It is important to note that gas flaring in Nigeria with respect to environmental rights issues is a violation of the fundamental human rights[24] and the environmental rights of Nigerian citizens. It is important to note at this point that there is no law protecting the environment against the impacts of gas flaring except judicial pronouncement that sought to outlaw gas flaring in Nigeria.

Nigeria is a party to the 1981 African Charter on Human and People’s Rights and has incorporated the Charter into its laws via the African Charter on Human and People’s Rights (Ratification and Enforcement) Act 1990.[25] Article 16 of the Act provides that “every individual shall have the right to the best attainable state of physical and mental health”. The same article also enjoins state parties to the charter to take necessary measures to ensure the safety of the health of its citizens.

In the celebrated case of Gbemre v Shell[26] the plaintiff Jonah Gbemre for himself and as representing Iweherekan community in the Niger Delta, sought to enforce their fundamental human right against Shell, Nigeria National Petroleum Corporation and the Attorney General of the Federation as defendants. In a declaratory claim, the plaintiffs alleged that the action of the 1st and 2nd respondents in continuing to flare gas in the course of their oil exploration and production activities is a violation of their right to life and dignity under the 1999 constitution and supported by Articles 4,16, 24 of the African Charter on Human and people’s rights.[27]

In addition, the plaintiff claimed a declaration that the provisions of sections 3(2) (a) (b) of the Associated Gas Re-injection Act and section 1 of the Associated Gas Re- Injection (Continued Flaring of Gas) Regulations under which the continued flaring of gas in Nigeria may be allowed are inconsistent with the applicants rights aforesaid. Consequently, the applicant prayed the court for an order of perpetual injunction restraining the respondents from further gas flaring in their community. In its judgment the Federal High Court held that 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 applicant’s community is a gross violation of the applicants’ fundamental right to life including healthy environment and dignity of human person as enshrined in the constitution. The court further held that Section 3(2) (a) and (b) of the Associated Gas Re-injection Act and Section 1 of the Associated Gas Re-injection (Continuing Flaring of Gas) Regulation are null and void for being inconsistent with the applicants’ rights to life and dignity of human person as enshrined in the constitution.[28]

The court finally made an order restraining the Respondents from further flaring of gas and ordered them to take immediate steps to stop the further flaring of gas in the applicants’ community. It was further ordered by the court that the Attorney General of the Federation should initiate the process for an Act of the National Assembly for the speedy amendment of the relevant sections of the Associated Gas Re-injection Act Regulations.

Conclusion and Recommendation

The practice of gas flaring has continued for a long time despite the deleterious effects on the environment, human and plant life and the loss of revenue to both the government and the oil producing companies. Although the government has made efforts through legislation to control gas flaring, the laws in place have not been effective in controlling gas flaring in Nigeria. The reason is attributable to the gaps in the existing gas legislation, one of such being the permission given to oil companies to continue flaring gas in so far as they pay such penalties as would be determined by the Minister. There must be a concerted effort on the part of the government to end gas flaring in Nigeria.

This paper having analysed the issue of gas flaring in Nigeria recommends a better framework that encourages and makes compulsory the utilization of associated gas. Some economies in developed countries thrive and succeed basically on gas and Nigeria can make better use of the excess gas. The excess gas can be produced during the drilling and extraction of oil. This “associated gas”, a waste bye product under these circumstances, can be used to generate electricity and can be utilised for many other beneficial purposes. Furthermore, flared gas can be processed and produced into cooking/domestic gas. According to Goldberg, the natural gas currently flared in Nigeria can serve the cooking needs of 320 million people not served by modern fuels.

About the Author(s)

* Dele-Yaro, Daniel LL.B. (in view), Associate Member of the Nigerian Institute of Chartered Arbitrators, deleyaroda[email protected], College of Law, Afe Babalola University, Ado-Ekiti, Ekiti State.

**Oniyire, Oluwadamilola E. LL.B. (in view), Associate Member of the Nigerian Institute of Chartered Arbitrators, [email protected], College of Law, Afe Babalola University, Ado-Ekiti, Ekiti State.

References

1 D. Olawuyi, The Principles of Nigerian Environmental Law (Revised Edition Afe Babalola University Press), 186.

[2] I. N. Adaora, Gas Flaring in Nigeria: ‘An abridgement of human rights’<www.foe Co.uk/campaigns/climate>accessed on 4 February 2020.

[3] [3] I. N.Adaora, Gas Flaring in Nigeria: ‘An abridgement of human rights’<www.foe Co.uk/campaigns/climate>accessed on 4 February 2020.

[4] A. O. Ajugwo, ‘Negative Effects of Gas Flaring: The Nigerian Experience’, [2013] (1) (1), Journal of Environmental Pollution and Human Health, p.6

[5]Nigeria Strategic gas plan < http://wwwesmap.org/filez/pubs/58200861713> accessed 4 February 2020.

[6] D. Otiotio, ‘Gas Flaring Regulation in the Oil and Gas Industry: A Comparative Analysis of Nigeria and Texas Regulations’ (University of Tulsa College of Law, Oklahoma, 2013), P.25

[7] I. Nwamaka, Gas Flaring in Nigeria: An abridgement of human; <rights<file:///F:/__/Article%20materials/Gas_flaring_in_Nigeria_an_abridgment_of.pdf> Accessed 14 February 2020.

[8] E.T. Aniche, ‘An assessment of the role of the Nigerian state in enforcing  zero-gas flare regime’< file:///F:/__/article%20materials/an%20assessment%20of%20the%20role%20of%20nigerian%20state%20in%20enforcing%20%20zero-gas%20flare%20regime%20the%20imperatives%20of%20environmental%20diplomacy%20%20.pdf> accessed 24 January 2020.

[9] The Associated Gas Re-Injection Act of 1979.

[10] B.U., Ihugba ‘Evaluation of the legal framework for promoting sustainable development in the extractive host communities in Nigeria’< file:///F:/__/Article%20materials/Evaluation%20of%20the%20legal%20framework%20for%20promoting%20sustainable%20development%20in%20the%20extractive%20host%20communities%20in%20nigeria.pdf> accessed 16 February 2020.

[11] E.T. Aniche, ‘The Imperatives of Environmental Diplomacy’ [2015] (7) (12) Civil and Environmental Research, 15.

[12] Ibid.

[13] Associated Gas ReInjection Act S.3 (2)

[14] Nwamaka Iguh, ‘Gas Flaring in Nigeria’ <https://www.researchgate.net/publication/317076913_Gas_flaring_in_nigeria_an_abridgment_of_human_fundamental_rights> accessed 24 February 2020.

[15] Ibid.

[16] D.U. Udok, ‘Gas flaring in Nigeria: problems and prospects’ [2017] Global Journal of Politics and Law Research (5) (1), pp.16-28.

[17] E.B. Akpan, ‘Gas Flaring in Nigeria: Problems and prospects’ <file:///F:/__/Article%20materials/Gas-flaring-in-Nigeria-Problems-and-Prospects.pdf> accessed 11 February 2020.

[18] A.O Ajugwo, ‘Negative Effects of Gas Flaring: The Nigerian Experience’, [2013] (1) (1), Journal of Environmental Pollution and Human Health, p.6.

[19] A.O Ajugwo, ‘Negative Effects of Gas Flaring: The Nigerian Experience’, [2013] (1) (1), Journal of Environmental Pollution and Human Health, p.6.

[20] The Flare Gas Reduction (Prevention of Waste and Pollution) Regulation 2018.

[21] I. Okukpon, ‘Phasing out Gas Flaring in Nigeria’< file:///F:/__/Article%20materials/thesis_law_2010_okukpon_i.pdf> accessed 12 February 2020.

[22] Word Bank. ‘Gas Flaring and its Impact’<www friends of Earth International. com.> accessed on 4 February 2020.

[23]Obi Ogbalu ‘Environmental regulation in Nigeria’ [2014] Oil and Gas Law & Taxation Review (1) (6).

[24]The African Charter on Human and Peoples’ Right of 1981.

[25] Cap A9, LFN 2004.

[26]Unreported (Suit No FHC/B/CS/53/05) Federal High Court Benin Judicial Division 14th Nov. 200

[27]Article 4.

[28] N.G. Ezeabasili, ‘Corporate Social Responsibility (CSR): A Tool in Environmental Enhancement in the oil industry in Nigeria’[2011] Journal of Public & Private Law, Unizik Awka (4) P. 197-19

Author: ABUAD Law Review

The ABUAD Law Review (ALR), is a Journal published by the Afe Babalola University Law Students’ Society. It aim is to contribute to law and policy reform, not just in Nigeria, but the world at large by fostering rapid dissemination of preliminary research results by students, legal practitioners, teaching and research scholars.

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