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Legal and Judicial EIA Quality Control Mechanisms in Nigeria
Master’s Thesis
Titus Edet Akpan (207874)
University of Eastern Finland
UEF Law School
Environmental Policy and Law
Environmental and Climate Change Law
Supervisors: Prof. Harro van Asselt; Prof. Kati Kulovesi
May 2018
i
Abstract UNIVERSITY OF EASTERN FINLAND
Faculty
Faculty of Social Sciences and Business Studies
Unit
UEF Law School
Author
Titus Edet Akpan
Name of the Thesis
Legal and Judicial EIA Quality Control Mechanisms in Nigeria
Major
Environmental Policy and Law,
Environmental and Climate
Change Law
Description
Master’s thesis
Date
22.05.2018
Pages
83
Abstract
The quest for sustainable development has led to the global acceptance and implementation of the concept of
environmental impact assessment (EIA) as a tool for assessing the impacts of developmental projects on the
environment. Following the adoption of the first EIA legislation by National Environmental Policy Act
(NEPA) in 1969, nearly all countries in the world have constituted some form of legal or administrative
requirements for EIA. EIA legislation was first adopted in Nigeria in 1992, as a fall out of the Koko toxic
waste incident of 1987.
Given that the preparation of high quality EIA reports is one component of an effective translation of EIA
policy into practice, the quality of EIA reports raises serious concerns. However, despite the universal EIA
practice, not much has been said about its quality. Although a significant body of literature has developed on
approaches to evaluate the effectiveness of EIA systems, research specifically focused on EIA quality control
mechanisms are sparse. Built around the notion that the absence or inadequacy of legislative framework
could undermine the quality of EIA practice, this thesis evokes the argument that the provisions of legally
enforceable EIA legislation can act as a quality control mechanism for EIA procedures. Through a qualitative
analysis methodology and based on the concept of EIA quality control mechanisms, this thesis seeks to
investigate the legal and judicial quality control mechanisms inherent in the Nigerian EIA legislation.
The thesis concludes that overall, the Nigerian EIA system exhibits prospects of good performance evident
by institution of specific EIA legislation as codified in the EIA Act of 1992. Assuming proper
implementation, the thesis finds that the legal and judicial quality control mechanisms of the Nigerian EIA
Act, in its current state, could prove to be just average given that the Act offers legal provisions for most EIA
processes according to the ‘Best Practice Operating Principles.’ On the other hand, the analysis reveals that
the Nigerian EIA Act is laden with some deficiencies and as such, current EIA practice in the country does
not guarantee the expectation of high quality EIAs and the EIA system could not harness the full benefits of
EIA yet.
Key words
Environmental Impact Assessment, EIA quality control mechanisms, EIA report quality, Nigerian EIA Act,
EIA legislations, sustainable development.
ii
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xv
Abbreviations
DPR Department of Petroleum Resources
EGAS Environmental Guidelines and Standards
EIA Environmental Impact Assessment
EIR Environmental Impact Report
EIS Environmental Impact Statement
EU European Union
FEPA Federal Environmental Protection Agency
IAIA International Association for Impact Assessment
ICJ International Court of Justice
ITLOS International Tribunal for the Law of the Sea
NEPA National Environmental Policy Act (US)
NESREA National Environmental Standards and Regulations Enforcement Agency
NLNG Nigeria Liquefied Natural Gas
SD Sustainable Development
SEA Strategic Environmental Assessment
SIA Social Impact Assessment
SPDC Shell Petroleum Development Company
TEIA Transboundary Environmental Impact Assessment
ToR Terms of Reference
UN United Nations
UNCED United Nations Conference on Environment and Development
UNCLOS United Nations Convention on the Law of the Sea
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Project
UNFCCC United Nations Framework Convention for Climate Change
WCED World Commission on Environment and Development
WTO World Trade Organisation
xvi
Acknowledgement
I wish to convey my deepest gratitude to my Supervisors for their contribution towards a successful
completion of this thesis. To Prof. Harro van Asselt for his professionalism and high degree of
quality research, and to Prof. Kati Kulovesi, for her valuable suggestions and understanding during
the preparation of this thesis.
My appreciation is also extended to Seita Romppanen (PhD) for her inputs and advice at the onset
of this thesis.
To my family and friends, I appreciate your encouragements and supports. To God Almighty be all
the Glory.
Titus Akpan
xvii
Table of Contents
Abstract ............................................................................................................................................................. i
Bibliography ..................................................................................................................................................... ii
Abbreviations ................................................................................................................................................. xv
Acknowledgement ......................................................................................................................................... xvi
Table of Contents ......................................................................................................................................... xvii
List of Tables ................................................................................................................................................. xix
Chapter 1 .......................................................................................................................................................... 1
Introduction ..................................................................................................................................................... 1
1.1 The Research Problem ............................................................................................................................. 5
1.2 Objectives of Study ................................................................................................................................. 7
1.3 Methodology............................................................................................................................................ 9
1.4 Thesis Structure ..................................................................................................................................... 12
Chapter 2 ........................................................................................................................................................ 14
EIA Legislation and Quality Control Mechanisms .................................................................................... 14
2.1 Frameworks on EIA Legislation in National and International Law..................................................... 14
2.1.1 EIA: From Soft Law to Customary International Law ................................................................... 17
2.2 The Concept of Quality Control in EIA ................................................................................................ 19
2.2.1 EIA Quality Control Mechanisms .................................................................................................. 20
2.2.2 Review of EIA Report as a Quality Control Mechanism ............................................................... 25
2.3 Quality and Effectiveness of EIA .......................................................................................................... 26
Chapter 3 ........................................................................................................................................................ 29
Nigerian EIA System: Evolution and Regulatory Framework ................................................................. 29
3.1 Country Profile: Nigeria ........................................................................................................................ 29
3.2 Evolution of EIA System in Nigeria ...................................................................................................... 30
3.3 Features of the Nigerian EIA System .................................................................................................... 33
3.4 Process and Procedural Framework ...................................................................................................... 34
3.5 Drawbacks of the Nigerian EIA Systems .............................................................................................. 35
Chapter 4 ........................................................................................................................................................ 38
Legal and Judicial Quality Control Mechanisms in Nigerian EIA System .............................................. 38
4.1 Legal Control Mechanisms in Nigerian EIA System ............................................................................ 38
4.1.1 Screening ........................................................................................................................................ 41
4.1.2 Scoping ........................................................................................................................................... 42
4.1.3 Environmental Impact Study .......................................................................................................... 43
4.1.4 Competence of EIA Study Team as Quality Control Mechanism .................................................. 45
xviii
4.1.5 Quality Review ............................................................................................................................... 46
4.1.6 Public Participation and Consultations ........................................................................................... 48
4.1.7 Decision Making............................................................................................................................. 51
4.1.8 Monitoring ...................................................................................................................................... 52
4.1.9 Transboundary Environmental Effect............................................................................................. 53
4.2 Judicial Control Mechanisms in Nigerian EIA System ......................................................................... 54
4.2.1 Judicial Review............................................................................................................................... 55
Chapter 5 ........................................................................................................................................................ 61
Conclusions .................................................................................................................................................... 61
xix
List of Tables
Table 1. Best practice operating principles for the EIA process ..................................................................... 11
1
Chapter 1
Introduction
The quest for sustainable development (SD) has influenced the global acceptance and
implementation of the concept of environmental impact assessment (EIA) which is widely
acknowledged as a pragmatic approach for assessing the impacts of developmental projects on the
environment.1 As a tool for attaining the sustainable development goal,2 EIA adopts both the
preventive and precautionary principles with a requirement for public participation.3 Although the
emphasis of EIA is on prevention,4 Jalava et al. recently affirmed that EIA can also be a good
instrument for implementing the precautionary principle.5 In many jurisdictions nowadays, EIA has
become a mandatory requirement prior to the commencement of developmental projects.
EIA has been defined in several ways. However, at the core of the different definitions is a
consensus that EIA is a formal process used to predict the environmental effects of any
developmental project and is therefore, valuable as a tool for informed decision-making. EIA has
been defined by the International Association for Impact Assessment (IAIA) as, “the process of
identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects
of development proposals prior to major decisions being taken and commitments made.”6
According to United Nations Environmental Programme (UNEP), EIA means “an examination,
analysis and assessment of planned activities with a view to ensuring environmentally sound, and
sustainable development.”7 The United Nations Economic Commission for Europe (UNECE)
1 Glasson J., Therivel R. and Chadwick A. (2012). Introduction to environmental impact assessment. 4th Ed. Routledge,
Oxon. p 7 2 Ibid. p 8 3 Bosjakovic, B. (2001) The UNECE Environmental Conventions: Their Role and Potential to Promote Conflict
Prevention and Settlement of Disputes in Transboundary Environmental Issues. In: Responding to Environmental
Conflicts: Implications for Theory and Practice. Petzold-Bradley, E., Carius, A. and Vincze, A. (eds.) Springer Science,
2001, p 268 4 Supra, see 1 above, p 8 5 Jalava, K; Pölönen, I; Hokkanen, P and Kuitunen, M. (2013) The precautionary principle and management of
uncertainties in EIAs – analysis of waste incineration cases in Finland. Impact Assessment and Project Appraisal, 2013,
31(4): p 280 6 International Association for Impact Assessment (1999) Principles of EIA Best Practice. p 2 7 United Nations Environmental Programme, (UNEP) (1987). The Goals and Principles of Environmental Impact
Assessment UNEP/GC.14/L.37-B (UNEP 1987).
2
concisely define EIA as “an assessment of the likely impacts of a planned activity on the
environment.”8
In addition to predicting the localized impacts, EIA can also prove useful in mitigating global
environmental impacts of development. According to Agrawala et al, there are great prospects for
the application of EIA procedures to boost the stability of projects to climate change-induced
impacts.9 For this purpose, research has been recently geared towards how to factor climate change
into EIA.10 This integration efforts has also received legal backings in some jurisdictions. For
example, paragraph 13 of the Recital of the new EU EIA Directive acknowledges the inevitability
of potential negative environmental and economic impairments in the process of development,
hence, the need to weigh the impact of projects on climate (for example greenhouse gas emissions)
as well as how such projects are susceptible to climate change.11 Article 3 of the same Directive
requires that EIA should attempt to evaluate both the direct and indirect impacts of developmental
projects on various aspects including climate.12
Since the adoption of the United States National Environmental Protection Act (NEPA)13 in 1969,
many EIA systems have been established in different countries, although marked differences exist
in terms of both the scope and quality of practice. These days, EIA has enjoyed an extensive
endorsement as a veritable instrument in environmental management,14 and is said to be the only
environmental management tool with enforceable legal backings and procedural guidelines.15
Following the footsteps of NEPA, nearly all countries in the world have now constituted legal or
administrative requirements for EIA.16 Holder and McGillivray described environmental assessment
as “an almost ubiquitous feature at international, regional and national levels of modern
8 UNECE (United Nations Economic Commission for Europe) 1991. Policies and systems of environmental impact
assessment. Geneva: United Nations, Article 1(vi) 9 Agrawala S., A. M. Kramer, G. Prudent-Richard and M. Sainsbury (2010), “Incorporating climate change impacts and
adaptation in Environmental Impact Assessments: Opportunities and Challenges”, OECD Environmental Working
Paper No. 24, OECD Publishing, © OECD. p 3 10 Kamau, J. W. and Mwaura, F. (2013) "Climate change adaptation and EIA studies in Kenya", International Journal of
Climate Change Strategies and Management, 2013; 5(2): pp.152 – 165; Agrawala S., A. M. Kramer, G. Prudent-
Richard and M. Sainsbury (2010), “Incorporating climate change impacts and adaptation in Environmental Impact
Assessments: Opportunities and Challenges”, OECD Environmental Working Paper No. 24, OECD Publishing, ©
OECD. 11 EU EIA Directive 2014/52/EU: Recital para. 13 12 EU EIA Directive 2014/52/EU: Article 3(a-d) 13 National Environmental Policy Act (NEPA) of 1969 14 Wathern, Peter. (2015). Environmental impact assessment: theory and practice / edited by Peter Wathern. Routledge,
London. 352pp; Donnelly A, Dalal-Clayton D.B. and Hughes R. (1998): A Directory of Impact Assessment Guidelines.
2nd edition. Environmental Planning Group, IIED (available at www.iied.org); Morgan, R. K. (2012), "Environmental
impact assessment: the state of the art", Impact Assessment and Project Appraisal, 1998; 30(1): p 5 15 Saidi, T. A. (2010) Environmental Impact Assessment as a Policy Tool for Integrating Environmental Concerns in
Development. AISA POLICYbrief June 2010; 19: p 3 16 Morgan, R. K. (2012), "Environmental impact assessment: the state of the art", Impact Assessment and Project
Appraisal, 30(1): p 6
3
environmental governance systems…thus becoming the most copied legal concept in the world.”17
On this subject, Hironaka assessed international influence on EIA legislation in less developed
countries and concludes that international environmental organisations, the international
development banks, and the international science community have been major motivating factors in
the diffusion of EIA legislation, more than the contribution of domestic-derived factors.18
The developing world are not left out of the culture of EIA assimilation. Glasson et al. have
observed that, new EIA systems are advancing by taking advantage of experiences of established
systems, and tailoring EIA practices to suit their national policies and interests.19 In view of the
prospects of EIA as an environmental management tool, many developing countries have
constituted some form of EIA framework into their national environmental policies.20 With regard
to the African continent, Campion and Essel note that almost all countries in the continent have
established their own EIA systems using the template and experiences from the developed
countries.21 EIA legislation was first adopted in Nigeria in 1992, apparently as a fall out of the
Koko toxic waste incident of 1987. Nwoko reports that during the pre-EIA Act era in Nigeria,
project assessments were done mostly through “feasibility studies and economic-cost-benefit
analysis without considerations for environmental costs, public opinion, as well as social and
environmental impacts of development projects.”22
Although the main principles and phases of EIA are similar in all jurisdictions, there is no generic
EIA legislation or administration which is applicable in a global context. Differences in legal
requirements and national policies has led to the variations across national EIA jurisdictions.
Ahmad and Sammy noted that it is quite problematic (and probably a futile attempt) to establish a
universal EIA legislation and procedure, due to variations in political administrations, national
policies, natural systems, and cultural values.23 Even within a single-mandate-oriented
supranational organization as the European Union (EU), differences exist in both the threshold and
quality of EIA amongst member states of the EU. For instance, the Netherlands and France have
17 Holder, J and McGillivray, D (Eds.) (2007) Taking Stock of Environmental Assessment: Law, Policy and Practice.
Journal of Environmental Law 2007; 20(2): p 323. 18 Hironaka A. (2002) The Globalization of Environmental Protection: The Case of Environmental Impact Assessment.
International Journal of Comparative Sociology February 2002; 43(1): p 69 19 Glasson J., Therivel R. and Chadwick A. (2012). Introduction to environmental impact assessment. 4th Ed.
Routledge, Oxon. p 340 20 Campion, B. B. and Essel, G. (2013) Environmental Impact Assessment and Sustainable Development in Africa: A
Critical Review. Environment and Natural Resources Research; 2013; 3(2): p 38 21 Ibid. 22 Nwoko, C. O, (2013) Evaluation of Environmental Impact Assessment System in Nigeria. Greener Journal of
Environmental Management and Public Safety. 2013; 2(1): p 23 23 Ahmad, Y. J. and Sammy, G. K. (1999) Guidelines to Environmental Impact Assessment in Developing Countries. p
9
4
had a functioning EIA system long before the coming of EIA regulations in the EU. Also, Pölönen
et al reported that prior to the EU EIA Directive, Finland had a high awareness of EIA and had
transposed the EU EIA directive as far back as 1994 as well as the UNECE Convention on
Environmental Impact Assessment in a Transboundary Context (Espoo Convention).24 Pinho et al.
reported that despite the prescription of a generic screening method by the EU EIA Directive for its
Member States, marked disparities exist in both screening regulations and practices among member
states of the EU.25 The recently amended EU EIA Directive offers member states of the EU a
mandate to simplify their different environmental assessment procedures.26 However, since EIA
process follow some similar fundamental procedures, some generalizations can be made across the
different jurisdictions.
Although it has been contended as unfair to compare EIA systems in different jurisdictions for the
singular purpose of categorizing them into ‘good’ or ‘bad’ systems,27 it is not entirely baseless to
attempt a cursory comparative analysis of EIA quality issues in the developed and developing
world. For obvious reasons, it has been reported that the depth of EIA practice in the developing
countries shows a sharp contrast from EIA practice in the developed countries.28 Whereas EIA
systems in developed countries seems to have mastered their acts, unfortunately, the same cannot be
said for EIA systems in developing countries. Li pointed out that although EIA practice in
developing countries follow similar modalities as in the developed countries, to a greater extent, it
is poorly executed in developing countries.29 While acknowledging this disparity in quality and
advancement of EIA in developed and developing countries, Wood posits that the gains which
developed countries are deriving from EIA will have little impact on global environmental
protection, if developing countries are not reaping comparable benefits from the application of
EIA.30
24 Pölönen, I; Hokkanen, P; Jalava, K. (2011). The effectiveness of the Finnish EIA system — what works, what
doesn't, and what could be improved? Environmental Impact Assessment Review, 2011; 31(2): p 121 25 Pinho, P McCallum, S and Santos Cruz, S (2010) A critical appraisal of EIA screening practice in EU Member States,
Impact Assessment and Project Appraisal, 28:2, p 91 26 EIA Directive 2014/52/EU 27 Weston J, ed. (1997) Planning and environmental impact assessment in practice. Addison Wesley Longman; 1997. p.
180–7; Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental
Impact Assessment Review, Elsevier Journal, Oxford, United Kingdom 2004; 24: p 645 28 Wood, C. (2003) Environmental Impact Assessment in Developing Countries: An Overview. Conference on New
Directions in Impact Assessment for Development: Methods and Practice 24-25 November 2003. p 5 29 Li, J. C. (2008) Environmental Impact Assessments in Developing Countries: An Opportunity for Greater
Environmental Security? Working Paper No. 4, p 1 30 Supra, see 28 above p 3
5
Notwithstanding that the volume of EIA literature has increased in recent decades, research has
focused mainly on its effectiveness.31 There is a dearth of research about EIA quality control
mechanisms as it affects the quality of EIA. Jalava points out that EIA quality research is an
emerging field of EIA research.32 With a view of improving overall EIA quality and EIA report,
many studies have applied one quality criteria or the other to evaluate different EIA systems.33
This thesis examines the Nigerian EIA system, concentrating for the most part on the legislative and
administrative frameworks and specifically on the legal and judicial quality control mechanisms of
the Nigerian EIA legislation, using Leu et al.’s concept of EIA quality control mechanisms.34 In
seeking to investigate the legal and judicial quality control mechanisms inherent in any EIA system,
the clarity and comprehensiveness of legal provisions is a principal consideration. For this reason,
the argument in this thesis is built around the notion that the absence or inadequacy of legislative
framework could undermine the quality of EIA practice and consequently limit the effectiveness of
an EIA system.
1.1 The Research Problem
Several evaluation studies on the quality and effectiveness of EIA practice in developing countries
and Nigeria in particular, have reported perpetual poor performances.35 Since the creation of a
specific EIA legislation in Nigeria through the promulgation of the Nigerian EIA Act in
1992(hereafter, the Act), the practice of EIA in the country has continually been receiving knocks
due to poor performance without regard for the provisions of the Act. For instance, Ingelson and
Chilenye contend that while EIA studies have assumed a legal requisite status for all oil, gas and
31 Sandham, L.A.; Van Heerden, A.J.; Jones, C.E.; Retief, F.P.; Morrison-Saunders, A.N. (2013) Does enhanced
regulation improve EIA report quality? Lessons from South Africa. Environmental Impact Assessment Review 2013;
38: p156 32 Jalava, K. (2014). Quality of Environmental Impact Assessment in Finland. PhD. thesis in the Faculty of
Mathematics and Science, University of Jyväskylä, Finland. September 26, 2014. Jyväskylä Studies in Biological and
Environmental Science 289. p11 33 Fuller K (2009) Quality and Quality Control in EIA in Petts J (ed.) Handbook of Environmental Impact Assessment.
Blackwell Science Ltd Oxford, UK, 2009; 2: pp 55-82 34 Leu WS, Williams WP, Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: pp 2-12 35 Kakonge, J. (2013) Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections Global
Policy - 5th March 2013
6
mining activities in Nigeria, very little is accomplished regarding dealing with the negative effects
of these extractive activities.36
A few reasons have been advanced to explain the below par performances of EIA in developing
countries. As noted by the World Bank, the large number of developmental projects requiring
mandatory EIAs has warranted many EIA reports to be produced in the face of non-existing
baseline environmental data, resulting in of EIAs of poor quality.37 Mounir attributed the sub-
standard implementations of EIA in sub Saharan Africa to the absence of technical know-how and
ample financial reinforcements to meet the sundry demands of EIA.38 In Nigeria, Ingelson and
Chilenye attributed the poor performance of EIA to the lack of political will to uphold
environmental principles, the shortage of standard data for evaluating the environmental effects of
proposed projects, and non-execution of EIA reports.39 Eneh also reported; “weak institutional
capacity, lack of funding, bad governance, agency capture, and defective system of accreditation of
EIA consultants amongst other factors.”40 The foregoing situation has meant that the expected
motivation behind EIA is defeated as developers complete EIAs merely to fulfil the necessities of
administrative arrangements and secure operational licenses.41
This thesis seeks to add to the body of knowledge aimed at uncovering both the intrinsic and remote
problems militating against having a good quality and effective EIA in Nigeria. This present study
is unique in the sense that it focuses primarily on the quality control potentials of the legislation
governing EIA practice in the country. The 62 Sections of the Nigerian EIA Act provide the
framework and define the objectives for national legislation on EIA. But what does the Act offer
and how does these provisions find applications as quality control measures in the Nigerian EIA
system?
This research scrutinises the legal and judicial quality control mechanisms inherent in the Nigerian
EIA law. Therefore, the main problem necessitating this research borders on the need to investigate
36 Ingelson, Allan and Nwapi, Chilenye (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining
Projects in Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal 2014; 10(1): p. 38 37 The World Bank. (2012). Guidance Notes on Tools for Pollution Management. In Getting to Green: A Sourcebook of
Pollution Management Policy Tools for Growth and Competitiveness. p 156. Available from
http://siteresources.worldbank.org/ENVIRONMENT/Resources/Getting_to_Green_web.pdf 38 Mounir, Z M (2015) Evaluation of the quality of environmental impact assessment reports using Lee and Colley
package in Niger Republic. Modern applied science [1913-1844], 9(1): p 90 39 Ingelson, Allan and Nwapi, Chilenye (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining
Projects in Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal 2014; 10(1): p. 38. 40 Eneh, O. C. (2011). Managing Nigeria’s Environment: The Unresolved Issues. Journal of Environmental Science and
Technology, 2011; 4: p260, 261. 41 Ibid.
7
the adequacy or otherwise, of the statutory provisions for EIA as quality control mechanisms. On
completion of this thesis, the following research questions will be addressed:
i) What severe shortcomings, if any, are there in the Nigerian EIA Act to the extent of
affecting the quality and effectiveness of EIA practice?
ii) Are the legal and judicial quality control mechanisms in the Nigerian EIA Act adequate
to ensure high-quality EIA reports?
1.2 Objectives of Study
The overall objective of this thesis is to analyse, primarily from the legal point of view, the legal
and judicial quality control mechanisms inherent in the Nigerian EIA system within the meaning of
the Nigerian EIA Act which is the enabling EIA legislation for environmental assessment in
Nigeria.
Other objectives include: 1) to review the literature on EIA quality control mechanisms, 2) critically
review the adequacy of the legal and judicial quality control mechanisms in the Nigerian EIA Act
and, 3) to determine whether EIA, as currently practiced in Nigeria, is promoting quality EIA
reports and by extension effectiveness of EIA in Nigeria.
The justification for the topic of this study is inspired by the widely-acknowledged role of
legislation in the development of an effective EIA system. Kennedy reported that, best performance
of EIA is inter alia guaranteed by the existence of a dedicated legislation to guide its
implementation.42 Bekhechi also asserts that an explicit legislation and guidelines is a prerequisite
to ensure effectiveness of EIA.43 According to Leu et al, legislative control is paramount to the
institution and execution of any EIA system.44 In a comparative analysis of the EIA systems in
Egypt, Tunisia and Turkey, Ahmad and Wood devised a criterion based mainly on some legal
requirements for EIA and its implementation framework.45 On the contrary, Briffett has argued that
when there are no distinct applicable legislation and guiding principles, proponents are disposed to
42 Kennedy, W.V. (1988). Environmental Impact Assessment in North America, Western Europe: what has worked
where, how and why? International Environmental Reporter 1988; 11(4): p 262. 43 Bekhechi, M. A. (2003) Legal and Regulatory Framework for Environmental Impact Assessment in African
Countries. In: International Environmental Law and Policy in Africa. Chaytor, B. and Gray, K. R. (eds) p 267 44 Leu WS, Williams WP, Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: p 4 45 Ahmad, B., and Wood, C. (2002). Environmental Impact Assessment in Egypt, Turkey and Tunisia.
Environmental Impact Assessment Review,2002; 22: pp 213-234. http://dx.doi.org/10.1016/S0195-9255(02)00004-5
8
circumvent the EIA procedural requirements, particularly where negligible sanctions are
prescribed.46 Therefore, given the pivotal role of legislation in EIA, the justification to narrow the
choice of topic and scope of this thesis to legal and judicial quality control mechanisms rest on the
argument that instituting adequate and appropriate legal and judicial frameworks can enhance the
quality of EIA. Nigeria was chosen for this study for having a relatively old EIA system in Africa
evident by a long history of instituting a specific EIA legislation. Also, reasons of accessibility of
relevant documents and numerous reports of poor quality of EIA also necessitated the focus on the
Nigerian EIA Act.
The present study is of great significance as it aims to add knowledge towards improving the quality
of EIA practice. Despite the universal EIA practice, not much has been said about its quality. It
appears that the task of fulfilling EIA procedural requirements is often highlighted over the quality
of the outcome document – the EIA report. Consequently, many EIA reports (especially from EIA
systems in developing countries) often fall short of expected standards. Amongst other factors, poor
quality of EIA reports has been identified as possible reason for the continued ineffectiveness of the
EIA process.47 Given the role of EIA in ensuring that well-informed and balanced decisions are
made concerning a project,48 I am particularly of the opinion that a poor-quality EIA is as ‘good’ as
not conducting an EIA at all before commissioning a project that is likely to impact on the
environment and socioeconomic life of the host community. This fact alone could be a substantial
reason for reconsidering issues relating to quality control in EIA systems. Furthermore, recent
developments such as the elevation of EIA to a customary international law status in international
environmental law,49 and the increasing adoption of specific EIA legislations in many countries,50
call for a fresh examination of the regulation of EIA vis-à-vis the quality control mechanisms in
EIA systems. Given that EIA studies primarily aim at making adequate information available for
46 Briffett, C. (1999) Environmental impact assessment in Southeast Asia: fact and fiction? GeoJournal 1999; 49(3): p
336 47 Sandham, L.A.; Van Heerden, A.J.; Jones, C.E.; Retief, F.P.; Morrison-Saunders, A.N. (2013) Does enhanced
regulation improve EIA report quality? Lessons from South Africa. Environmental Impact Assessment Review, January
2013; 38: pp 155–162; Kakonge, J. (2013) Improving Environmental Impact Assessment (EIA) Effectiveness: Some
Reflections Global Policy - 5th March 2013; Jalava, K; Pasanen, S; Mikko Saalasti, M. and Kuitunen, M. (2010)
Quality of Environmental Impact Assessment: Finnish EISs and the opinions of EIA professionals. Impact Assessment
and Project Appraisal, March 2010; 28(1): p. 15 48 Glasson J., Therivel R. and Chadwick A. (2012). Introduction to environmental impact assessment. 4th Ed.
Routledge, Oxon; Jalava, K; Pasanen, S; Mikko Saalasti, M. and Kuitunen, M. (2010) Quality of Environmental Impact
Assessment: Finnish EISs and the opinions of EIA professionals. Impact Assessment and Project Appraisal, March
2010; 28(1): p. 15 49 Pulp Mills Case ICJ judgment 2010, paras 203-219 50 Morgan, R. K. (2012), "Environmental impact assessment: the state of the art", Impact Assessment and Project
Appraisal, 30(1): p 6
9
both decision-makers and concerned stakeholders,51 it is evident that, adoption of poor quality EIA
reports can undermine the overall purpose of EIA.
The scope of this thesis borders only on issues relevant to the quality of EIA. For this purpose, this
thesis is restricted to addressing the research problems and by so doing, help to contribute towards
achieving the objectives of the thesis. Although this thesis can be categorised generally in the field
of EIA evaluation studies, it is different in the sense that it only considers aspects of the EIA
legislation to ascertain its role in improving the quality of EIA practice. Many studies have focused
on the general evaluation of country-specific EIA systems (including the Nigerian EIA system)
using one evaluation model or the other to determine the effectiveness of EIA processes and to
ascertain the overall procedural quality of EIA reports in many EIA systems.52
In this present study, no attempt is made: to evaluate and analyse the effectiveness of the Nigerian
EIA system per se; nor, to propose recommendations for practitioners to improve performance. A
large amount of literatures has already been produced to address that subject. This thesis focuses
instead on systematically examining the legal and judicial provisions, hence the enabling powers
inherent in the Nigerian EIA Act, and the capacities of these provisions in enhancing the overall
quality of EIA practice in the country. Therefore, in this thesis, the legal quality control mechanism
of the Nigerian EIA system is assessed from the viewpoint of legal and judicial contents of the
Nigerian EIA Act vis-à-vis the main stages of the EIA process namely: screening, scoping,
environmental impact study, quality review, consultations, decision making and monitoring.53
1.3 Methodology
This thesis adopts a qualitative research methodology laced with element of comparative remarks to
analyse the provisions of the Nigerian EIA legislation to determine its capacities to function as legal
and judicial quality control mechanisms in the Nigerian EIA system. The comparative elements of
this thesis are considered in its narrow sense and involves merely relating the legal and judicial
provisions of the Nigerian EIA law with the way similar EIA laws are structured in other EIA
systems. This approach basically entailed checking the legal provisions which the Nigerian EIA Act
51 CEC (European Commission of Communities) (2001a) Guidance on EIA: EIS Review. DG XI. Brussels: CEC. p 13 52 Campion, B. B. and Essel, G. (2013) Environmental Impact Assessment and Sustainable Development in Africa: A
Critical Review. Environment and Natural Resources Research, 2013; 3(2): p. 38 53 Hartlik, J. (2008) Requirements on EIA Quality Management. In: Standards and Thresholds for Impact Assessment.
Edited by M. Schmidt, J. Glasson, L. Emmerlin, and H. Helbron. Environmental Protection in the European Union,
Berlin, Heidelberg, 2008; 3: p 90
10
offers (or lacks) for each of the main stages of the EIA process and comparing if such provisions are
found in other EIA jurisdictions and vice versa. This process was useful in shedding light on the
research question as to whether the legal and judicial quality control mechanisms are adequate in
the Nigerian EIA law compared to what obtains in other EIA jurisdictions.
This research extracts and utilizes data and information from both primary and secondary sources.
The primary sources comprise legal documents including various Statutes, Acts, Guidelines and
Policies, and case laws, while the secondary sources of data for this research include published and
unpublished work of scholars relevant to the general subject and theme of the research. These
include books, journals, articles, seminar papers, training manuals and other periodicals. The
methods used to gather the information contained in this thesis is through a desk review of
literatures on quality control in EIA as well as analysis of relevant EIA legislation in Nigeria and
other EIA jurisdictions. Reference data sources are EIA legal framework which contains the
enabling laws on which the EIA system is based, EIA procedural guidelines and environmental
impact statement (EIS) which is the outcome document of the EIA activity. These documents are
useful in providing some insights about the research questions.
The thesis adopted simple review criteria to draw conclusions on how well the Nigerian EIA Act is
endowed with legal and judicial quality control mechanisms in the Nigerian EIA system. The
assessment also provides the basis for comparison of the legal and judicial quality control
mechanisms in the Nigerian EIA system with those in other jurisdictions. For this purpose, a set of
descriptive ‘Best Practice Operating Principles’(BPOPs)54 developed by IAIA were used. The
choice of this criteria arose from the reason that it is simple to use, can be applied to any EIA
jurisdiction and covers all the main stages in the EIA process from screening to decision-making
and monitoring (see table 1).55 Joseph et al also developed additional good practices to improve
EIA and thus extend the existing EIA best practice literature.56 Recently, Arnold and Hanna applied
case studies to illustrate approaches to effective community participation based on available best
practices in environmental assessment.57
54 IAIA (1999) Principles of Environmental Impact Assessment Best Practice, International Association for Impact
Assessment in cooperation with the Institute for Environmental Assessment (UK), IAIA, Fargo, ND, USA. p 4 55 Although no universal EIA system exists, ‘best practice operating principles’ for the EIA process have been identified
and can be applied to all EIA systems. This generic ‘best operating principles’ describes what the EIA process should
specifically provide for in the legislation. Given the importance of this principles, all key elements of the EIA process
should be established in law using explicit, unambiguous and mandatory legal texts. 56 Joseph, C., Gunton, T. and Rutherford, M. (2015) Good practices for environmental assessment, Impact Assessment
and Project Appraisal, 2015; 33(4), pp 238-254 57Arnold, L. and Hanna, K. (2017). Best Practices in Environmental Assessment: Cases Studies and Application to
Mining. Canadian International Resources and Development Institute (CIRDI) Report 2017-003.
11
Table 1: Best practice operating principles for the EIA process.
Screening - to determine whether or not a proposal should be subject to EIA and, if so, at what level of detail.
Scoping - to identify the issues and impacts that are likely to be important and to establish terms of reference for EIA.
Examination of alternatives - to establish the preferred or most environmentally sound and benign option for
achieving proposal objectives.
Impact analysis - to identify and predict the likely environmental, social and other related effects of the proposal.
Mitigation and impact management - to establish the measures that are necessary to avoid, minimize or offset
predicted adverse impacts and, where appropriate, to incorporate these into an environmental management plan or
system.
Evaluation of significance - to determine the relative importance and acceptability of residual impacts (i.e., impacts
that cannot be mitigated).
Preparation of environmental impact report – to document clearly and impartially impacts of the proposal, the
proposed measures for mitigation, the significance of effects, and the concerns of the interested public and the
communities affected by the proposal.
Review of the EIA Report - to determine whether the report meets its terms of reference, provides a satisfactory
assessment of the proposal(s) and contains the information required for decision making.
Decision making - to approve or reject the proposal and to establish the terms and conditions for its implementation.
Follow up - to ensure that the terms and condition of approval are met; to monitor the impacts of development and the
effectiveness of mitigation measures; to strengthen future EIA applications and mitigation measures; and, where
required, to undertake environmental audit and process evaluation to optimize environmental management.
Source: IAIA (1999)
The review of the legal and judicial EIA quality control mechanisms involves assessing how well
the major EIA processes according to the BPOPs have been provided for by law in the given EIA
legislation. Therefore, the review of the legal and judicial EIA quality control mechanism in this
thesis was limited to checking whether EIA procedural requirements are vested in the Nigerian EIA
legislation which is codified in the EIA Act. In other words, the evaluation examines whether there
exist formal legislative bases for EIA procedures, while the comparative aspect was limited to
checking whether such provisions are found in other EIA jurisdictions in developed and developing
countries. The thesis does not however focus on considering whether and to what extent, the legal
and judicial provisions of the Act have been applied in practice as control mechanisms towards the
enhancement of the quality of EIA practice in the Nigerian EIA system.
12
Towards accomplishing the objectives of this thesis and addressing the research questions, the
legislative demands for the main stages of the EIA process were then discussed to clarify the
argument whether the Act provides adequate legal backings, or there are severe deficiencies to the
extent of affecting the quality and by extension, effectiveness of EIA practice in the country.
Through the discussions on the legislative provisions of the Act, the legal and judicial quality
control mechanisms of the Nigerian EIA system can be evaluated in comparison with other EIA
systems based on legislative and administrative procedures for EIA, as well as legal provisions for
the various stages of the EIA process such as screening, scoping, EIA report review, public
participation, mitigation, decision-making and monitoring.
1.4 Thesis Structure
The remainder of this thesis is structured as follows.
Chapter 2 reviews the different levels EIA legislations: the national, regional and international level
of environmental governance and further explains the interrelationships between the different
levels. These discussions help to place domestic EIA in the context of international law and vice
versa. The chapter further traces the evolution of EIA from a soft law instrument to a legal norm at
the international, regional and national levels of environmental governance. An attempt is also
made to synoptically explore existing literature on the concept of quality control in EIA as well as
the role of the various control mechanisms in ensuring EIA reports of high quality. With the
discussions on quality control mechanisms and particularly, legal and judicial mechanisms, this
chapter helps in highlighting these control mechanisms in the Nigerian EIA Act in the discussions
in the subsequent chapters.
Chapter 3 focuses on the domestic EIA system of Nigeria as the country under review. The main
purpose of this chapter is to examine the institutional and legal framework for the EIA system in
Nigeria. It first discusses how the Nigerian EIA system evolved, and then reviews the statutory
regulatory framework for the EIA system in Nigeria, as the foundation for the execution of EIAs in
the country. A further attempt is made to compare EIA system in Nigeria (developing country) with
the system in developed countries mainly in terms of evolution, features, and process of EIA
implementation. The chapter also identifies some shortcomings and strength of the EIA system in
Nigeria.
13
Chapter 4 treats the overall application and discussions of the thesis. Here the perceptions of the
Nigerian EIA legislation are discussed together with the issues earlier noted from the preceding
chapters and the broader literature to analyse whether EIA, as currently practiced in Nigeria, is
promoting quality EIA studies and by extension sustainable development. The chapter juxtaposes
the legal contents of the Nigerian EIA Act and their inherent capacities as EIA quality control
mechanisms. To answer the research questions, the chapter discusses what legal backings, if any,
that the EIA Act is providing at the main stages of the EIA process. In the process of the
discussions, the answers to the research questions are proffered.
Chapter 5 presents the main conclusions of this thesis. Amongst other purposes, the research
questions are answered taking cognizance of the Nigerian EIA legislation and its capacity as a
quality control mechanism in Nigerian EIA system.
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Chapter 2
EIA Legislation and Quality Control Mechanisms
Although the core objectives of EIA are similar, the legislation governing EIA practice exists at
different levels of governance. At the same time, the knowledge that many environmental issues
transcend national borders has meant that the different levels of environmental governance ought to
intersect in their operations. This chapter starts by discussing the legal framework of EIA at
national, regional and international levels of environmental governance and how they possibly
interact. It traces how EIA has evolved to attain a customary international status in international
environmental law and its application in a transboundary context. This discussion on transboundary
EIA (TEIA) is relevant to the scope of this thesis considering that TEIA has been described as “an
extended EIA procedure between territorial states that includes transboundary impact and foreign
actors into the domestic EIA of the origin state.”58 Although the Nigerian EIA legislation is bound
within its national jurisdiction, a discussion on TEIA is relevant given that EIA has become a
requirement by international financial institutions which a developing country like Nigeria has to
satisfy in order to attract development assistance. As the overarching concept in this thesis, EIA
quality control mechanisms are also reviewed generally, prior to the application of the legal and
judicial control mechanisms to evaluate the quality of the Nigerian EIA system in the subsequent
sections.
2.1 Frameworks on EIA Legislation in National and International Law
EIA studies have become mandatory requirements in national, regional and international
legislations which a project proponent must satisfy prior to commissioning of a planned project.
Bekhechi notes that a prerequisite requirement to ensure effectiveness of EIA entails that an EIA
system should be built on explicit and enforceable legislation and guidelines with the rights and
obligations of stakeholders made distinct and correctly.59 The requirement of states to conduct an
EIA prior to commissioning of proposed projects that are likely to cause substantial negative
58 Koivurova, T. (2011) Transboundary EIA in International Environmental Law. In: Transboundary Environmental
Impact Assessment in the European Union: The Espoo Convention and its Kiev Protocol on Strategic Environmental
Assessment, Simon Marsden and Timo Koivurova (eds.), Earthscan, 59 Bekhechi, M. A (2003) Legal and Regulatory Framework for Environmental Impact Assessment in African
Countries. In International Environmental Law and Policy in Africa. Environment & Policy Vol. 36, 2003, p 267
15
environmental effect was resonated in Principle 17 of the 1992 Rio Declaration: “Environmental
impact assessment, as a national instrument, shall be undertaken for proposed activities that are
likely to have a significant adverse impact on the environment and are subject to a decision of a
competent national authority.”60 It is very encouraging to note that the global community has
heeded this call by establishing one form of national EIA system or the other.
But environmental protection has become a cross-border issue as environmental problems are not
confined by territorial boundaries. EIA is increasingly finding application regarding activities that
may cause environmental effects across the national borders. To avert transboundary environmental
effects from domestic activities, States have a duty to notify and consult each other on all major
proposed projects likely to cause adverse environmental impact across national frontiers pursuant to
Principle 19 of the Rio Declaration:
States shall provide prior and timely notification and relevant information to
potentially affected States on activities that may have a significant adverse
transboundary environmental effect and shall consult with those States at an early
stage and in good faith.61
However, the obligation to notify and consult neighbouring states on environmental matters has
remained a contentious issue amongst nations.
The duty of States to prevent its domestic activities from causing environmental harm to its
neighbours has been in existence prior to the 1992 Rio Declaration, in the “No Harm Principle.”
This is a recognized principle of customary international law which places an obligation on a state
to prevent causing environmental harm to other states.62 In the light of this Principle, a State is
required to avoid as much as possible, causing significant damage to the environment of another
State while pursuing developmental activities within its national jurisdiction.63
Given that the effective application of transboundary EIA rest on the development of national
EIAs,64 the above-mentioned principles have abetted the diffusion of EIA practice in many
60 UNCED. (1992). Rio Declaration, Principle 17 61 UNCED. (1992). Rio Declaration, Principle 19 62 Brownlie, I. (2008) Principles of Public International Law, 7th ed., 2008, pp.275-285; Patricia Birnie, Alan Boyle and
Catherine Redgwell, International Law and the Environment, 3rd ed., Oxford 2009, pp.143-152 63 UNCED. (1992). Rio Declaration, Principle 2 64 Koivurova, T. (2011) Transboundary EIA in International Environmental Law. In: Transboundary Environmental
Impact Assessment in the European Union: The Espoo Convention and its Kiev Protocol on Strategic Environmental
Assessment, Simon Marsden and Timo Koivurova (eds.), Earthscan,
16
countries.65 At the same time, it can also be argued that the proliferation of national EIA procedures
has facilitated the creation of transnational EIA regulation via bilateral and multilateral agreements
including the United Nations Convention on the Law of the Sea (UNCLOS) and the Espoo
Convention. On this subject, Kersten has noted that most transnational EIA regimes have developed
from the domestic EIA policies of their members.66 In fact, the Espoo Convention defines EIA as,
“a national procedure for evaluating the likely impact of a proposed activity on the environment.”67
Bearing this in mind, it is becoming difficult to totally evade TEIA considerations in national EIA
discourse and vice versa. Gillespie has noted that the outcome of domestic EIA activity may in
some cases be commented upon by interested international bodies.68
The adoption of a European Union Directive on EIA (EU EIA Directive) in 1985, was one of the
pioneering efforts at establishing an EIA legislation with extensive territorial scope of application.69
Being the first explicitly regional instrument on EIAs, this Directive made the enactment of EIA
legislation mandatory in member states of the European Union, as well as the European Economic
area (EEA).70 Also, the Espoo Convention which was adopted in 1991, provides a framework for
EIA in a Transboundary Context. Although it is a United Nations Economic Commission for
Europe (UNECE) Convention developed specifically for the Economic Commission for Europe, the
Espoo Convention sets out the first comprehensive transboundary EIA procedure in an international
treaty.71 With the amendment in 2001, non UNECE member States that are members of the UN,
now have the possibility to accede to the Convention on TEIA.72 The Convention obligates parties
to prevent, reduce and control significant adverse transboundary environmental effect arising from
proposed activities. Article 2(3) of the Convention provides that: “The Party of origin shall ensure
that…an EIA is undertaken prior to a decision to authorize or undertake a proposed activity…that is
likely to cause a significant adverse transboundary impact.”73
65 Donnelly A, Dalal-Clayton D.B. & Hughes R. (1998): A Directory of Impact Assessment Guidelines. 2nd edition.
Environmental Planning Group, IIED (available at www.iied.org). 66 Kersten, C. M. (2009) Rethinking Transboundary Environmental Impact Assessment, Yale J. Int'l Law. (2009) 34:
p176 67 UN ECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) 1991
Article 1(vi) 68 Gillespie, A. (2008) Environmental Impact Assessments in International Law, RECIEL 17 (2) p 226 69 Bremer, N. (2017) Post-environmental Impact Assessment Monitoring of Measures or Activities with Significant
Transboundary Impact: An Assessment of Customary International Law, RECIEL 26 (1) 2017. p 81 70 EU EIA Directive 85/337/EEC. 71 Bastmeijer, C. J. and Koivurova, T. (2008) Theory and Practice of Transboundary Environmental Impact Assessment.
Legal Aspects of Sustainable Development, Bastmeijer, C. J. and Koivurova, T. (eds.) p 11 72 Given this development, in my opinion, the Espoo Convention has a high prospect of metamorphosing into an
International EIA Convention. 73 UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) 1991
Article 2(3)
17
The above discussions have juxtaposed domestic and transboundary EIA regimes. Although both
operate on different frameworks, the interactions between the regimes cannot be over-emphasized.
According to Knox:
If the regional transboundary EIA agreements only require domestic EIA procedures
to apply without discrimination to extraterritorial effects ... then their effectiveness at
preventing transboundary environmental harm would seem to depend on how
effective domestic EIA is at preventing domestic environmental harm.74
2.1.1 EIA: From Soft Law to Customary International Law
EIA has gone through significant transformation from a soft law instrument75 to assume a status in
international environmental law. This is partly attributable to the development of multilateral
international treaties with concerns for environmental issues76 and the fact that the International
Court of Justice (ICJ), and other international dispute settlement bodies such as the International
Tribunal for the Law of the Sea (ITLOS), have become more receptive to environmental matters.
As noted above, EIA commitments have long been found in declarations such as the Rio
Declaration, albeit, their provisions are not legally binding. The UNEP EIA Goals and Principles
also contained non-legally binding EIA commitments, though it conveys a strong persuasive value.
The duty to comply with EIA obligations are also contained in some international treaties such as
the Convention for Biological Diversity (CBD), as well as UNCLOS with its provisions for the
protection and preservation of the marine environment. EIA was established as Article 206 of the
UNCLOS.77
Interestingly, the evolution of EIA from soft law to customary international law status has come
through case laws, although mostly in a transboundary context. In as far back as 1938 in the Trail
Smelter Arbitration (United States v Canada), the Arbitral Tribunal found that, “under the principles
of international law…no State has the right to use or permit the use of its territory in such a manner
as to cause injury…in or to the territory of another or the properties or persons therein.”78 Also, in
74 Knox, J. H. (2002) The Myth and Reality of Transboundary Environmental Impact Assessment, American Journal of
International Law. 2002; 96: p 316 75 Soft laws are characterised by their non-binding nature despite their persuasive normative significance. These
instruments are not law in the sense used by Article 38 (1) of the ICJ Statue, though they have legal relevance.; Craik,
N. (2008) The International Law of Environmental Impact Assessment. Cambridge University Press. 2008, pp 87 -131 76 Craik, N. (2015) Principle 17: Environmental Impact Assessment. In: The Rio Declaration on Environment and
Development: A Commentary, Jorge E. Viñuales (ed.), Oxford. 2015, p 463 77 United Nations Convention on the Law of the Sea (UNCLOS), Article 206 78 Trail Smelter Arbitration, United States v Canada, UN Reports of International Arbitral Awards (UNRIAA), 16 April
1938 and 11 March 1941, Vol. III, p. 1965
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the Lake Lanoux Arbitration (Spain v France), the Arbitration Panel established that a state is at
liberty to carry out all developmental activities on its territory,79 so long as it does not harm the
interest of a neighbouring state.80
In the second Nuclear Test case, New Zealand had argued that it is unlawful for France to conduct a
nuclear test before it has undertaken an EIA according to accepted international standards.81 In his
dissenting opinion regarding this case, Judge Sir Geoffrey Palmer commented regarding EIA that, it
is an international legal duty to pre-ascertain the level of environmental risk of a planned activity
prior to its commissioning, adding that EIA facilitates a process to comply with that legal
obligation.82 It is obvious that this comment is applicable to both domestic and international EIA
practices.
The importance of the transboundary environmental impact assessment (TEIA) was recognized by
the ICJ judgment in the landmark Case Concerning Pulp Mills on the River Uruguay (Pulp Mills
Case).83 Prior to the Pulp Mills Case judgment, the ICJ had acknowledged as being ‘good practice’,
that concerned parties should jointly assess the probable environmental effects, and the obligation to
avoid causing harm to the environment of other States. For instance, in the Gabcikovo Nagymaros
Case, the ICJ stated that, “… the existence of a general obligation of States to ensure that activities
within their jurisdiction and control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relating to the environment.”84 In his
concurring opinion in Gabcikovo Nagymaros, Justice C. G. Weeramantry noted that sustainable
development requires the assessment of environmental impacts of certain projects prior to
implementation. He went further to stressed that a complete EIA study must be conducted prior to
the implementation of any proposed project.85
In contrast to the ICJ ruling in Gabcikovo Nagymaros where the Court seemed to be cautious
regarding scientific issues in EIA, in the Pulp Mills Case, the Court was more emphatic on its
position concerning EIA in international law with its formal pronouncement that TEIA is a
79 Lake Lanoux Arbitration (France v. Spain) (1957) 12 R.I.A.A. 281 Lake Lanoux Arbitration (France v. Spain), 16
November 1957, para 13 80 Ibid, at para 22 81 Nuclear Tests Case (New Zealand v France) 1995 82 Nuclear Tests Case (New Zealand v France) 1995: Dissenting Opinion of Judge Sir Geoffrey Palmer, para 87 83 Pulp Mills Case ICJ judgment 2010 84 Case Concerning the Gabcikovo - Nagymaros Project: (Hung. v. Slovak.), (25 Sept 1997) ICJ Reports 1997 p.7 85 Case Concerning the Gabcikovo - Nagymaros Project: Separate Opinion of Justice Weeramantry (Hung. v. Slovak.),
ICJ Reports 1997.p 108
19
requirement of customary international law.86 The legal effect of this ruling is vast, and many
analysts have acknowledged its contribution to the development of international environmental
law.87 According to Merkouris, with this judgment, the obligation to undertake EIAs has been
explicitly acknowledged as customary international law, which is ground-breaking for the field of
international environmental law.88
2.2 The Concept of Quality Control in EIA
The question of quality of EIA studies raises serious concerns considering the objectives of EIA.
Amongst other components, a high-quality EIA report is crucial for making EIA policy a reality,
because it properly informs the public and the decision-makers about the significant environmental
effects of projects.89 Lee and Colley noted that, amongst other factors, the total accomplishment of
the EIA process is contingent upon the quality of the EIS.90 The quality of EIS is in turn dependent
on national legislation and the quality of impact assessment.
National approaches to EIA quality control vary considerably given differences in technological
development, national policy interest,91 as well as economic wherewithal amongst nations. A
critical look at a few of the different strategies aimed at EIA quality control reveals some strengths
and weaknesses. The use of independent external review by experts in the Netherlands may ensure
unbiased review.92 Canada also relies on review by independent panel or mediator to ensure quality
in EIA practice. Pölönen reported that in Finland, EIA quality control is executed by “regional
environment centers, acting as coordinating authorities, to supervise the enforcement of the EIA Act
86 Pulp Mills Case ICJ judgment 2010, paras 204; Anton, D. K., (2010) Case Concerning Pulp Mills on the River
Uruguay (Argentina v. Uruguay) (Judgment) [2010] (November 8, 2010). Australian International Law Journal, 2010;
ANU College of Law Research Paper No. 10-84. p 214 87 Anton, D. K., (2010) Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) [2010]
(November 8, 2010). Australian International Law Journal, 2010; ANU College of Law Research Paper No. 10-84. p
223; Boyle, A (2010) Pulp Mills Case: A Commentary 88 Panos Merkouris (2010) Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay): Of
Environmental Impact Assessments and “Phantom” Experts, The Hague Justice Portal, p 2
http://www.haguejusticeportal.net/eCache/DEF/11/878.html 89 Ortolano, L. and Shepherd, A. (1995) Environmental Impact Assessment: Challenges and Opportunities, Impact
Assessment, 13:1, p 4 90 Lee, N. and Colley, R (1992) Reviewing the Quality of Environmental Statements Occasional Paper Number 24
(Second Edition 1992) p 1 91 National policy interest differs. While some countries have a strong environmental protection policy, others may
relegate environmental matters to the background or treat environmental matters with levity. 92 Scholten J (1997) Reviewing EISs/EA reports in Report of the EIA Process Strengthening Workshop (pp. 61-90)
Environment Protection Agency, Canberra.
20
in their respective regions.”93 This specific EIA authority model in Finland, may seem to deliver a
robust quality control administration,94 although, this approach seems like a duplication of the EIA
process and can also be costly. The active role of the court in the United States with the creation of
incentives95 can motivate a high-quality EIA, although the system comes with a high litigation costs
for all stakeholders.
Post-auditing studies can also be used to assess the quality of different elements in the EIA process.
However, it differs from quality control studies in that they are post-decision procedures performed
after projects have been commissioned.96 In many developing countries’ EIA systems, accreditation
of consultants that conduct EIA is a more common method of ensuring quality EIS. In the Nigerian
EIA system, for instance, the regulatory authorities recommend in the guidelines that only
accredited consultants should be engaged by proponents to conduct EIA studies. In the Tanzanian
EIA system, the engagement of experts to conduct EIA study is a legal requirement enshrined in the
EIA legislation.97 However, the mere engagement of expert consultants to conduct EIA studies does
not ordinarily guarantee a robust quality control method for EIA for the simple reason that
consultants can be influenced by the proponents who engaged them. Likened to the case of
“regulatory capture,” this situation is rampant in many developing countries with high level of
corruption. Also, it is difficult to regulate EIA practitioners because of the wide and interrelated
disciplines that are needed to undertake a typical EIA study.98 Unfortunately, in many EIA systems
especially in developing economies, robust EIA quality control mechanisms are often lacking or not
effective. In such scenarios, the absence of EIA quality control mechanisms leaves the quality of the
EIA process to be highly questionable. The next section considers quality control mechanisms that
can be applied to improve the quality of EIA practice.
2.2.1 EIA Quality Control Mechanisms
93 Pölönen, I (2006) Quality control and the substantive influence of environmental impact assessment in Finland
Environmental Impact Assessment Review 2006; 26: p 485 94 Ibid. 95 Wood, C. (2003), Environmental Impact Assessment: A Comparative Review, Harlow, Prentice Hall, 2nd edition 405
pp; Judith Petts (2009) In Handbook of Environmental Impact Assessment: Vol. 2: Impact and Limitations Judith Petts
(ed.) John Wiley & Sons, p 4 96 Lee, N. and Colley, R (1992) Reviewing the Quality of Environmental Statements Occasional Paper Number 24
(Second Edition 1992) p 8 97 Tanzania Environmental Impact Assessment and Audit Regulations, 2005, Section 14 98 DEAT (2004) Review in Environmental Impact Assessment, Integrated Environmental Management, Information
Series 13, Department of Environmental Affairs and Tourism (DEAT), Pretoria. p 7
21
Research specifically focused on EIA quality control mechanisms is sparse, although a substantial
research work has been done on methods to evaluate the effectiveness of EIA systems. To ensure
that EIA is performed to a high standard, it is a common practice that some procedures and
mechanisms are applied during the EIA process. The use of the term and concept of ‘control
mechanisms’ in the context of EIA to evaluate the effectiveness of EIA systems was introduced by
Ortolano et al.99 and Leu et al.100 Ortolano and his colleagues refer to control mechanisms as,
“intra-organisational and inter-organisational processes and structures intended to ensure that the
lead agencies account for environmental impacts in planning and decision making.”101 Adapting
from the proposal of their earlier studies, Ortolano later introduced six control mechanisms which
he defined as factors that could inspire project proponents to conduct quality EIA.102 These control
mechanisms are: procedural, judicial, evaluative, development aid agency, professional and direct
public and agency control.103
In a sequential analysis to appraise the influence of various mechanisms of control, Leu et al also
proposed nine categories of quality control mechanisms which can be used to boost the quality and
effectiveness of EIA systems.104 The hierarchical order of the quality control mechanisms according
to Leu and his colleagues are: legislative, procedural, evaluative, professional, public/relevant
agency, administrative, judicial, follow-up and international.105
Legislative control is paramount to the institution of any EIA system thus justifying its top position
in Leu et al’s hierarchy of control mechanisms. EIA requires a clear legal and institutional
framework for its implementation.106 An enabling EIA legislation does not only form the basis for
the lawful establishment and execution of the EIA system,107 but it also confers legitimacy on the
regulatory authority. Leu et al noted that, accessible and appropriate environmental policies and
99 Ortolano, L, Jenkins, B, and Abracosa, R. P. (1987), 'Speculations on when and why EIA is effective", Environmental
lmpact Assessment Review, 1987; 7(4): pp 285-292 100 Leu, W. S., Williams, W. P., Bark, A.W. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: pp 2–12; Leu, W. S., Williams, W. P., Bark,
A. W. Evaluation of environmental impact assessment in three Southeast Asian nations. Proj Appraisal 1997; 12: pp
89–100. 101 Supra, see 97 above p 286 102 Ortolano, L. (1993), 'Controls on project proponents and environmental impact assessment effectiveness', The
Environmental Professional, 1993; 15(4): pp 352-363. 103 Ibid. 104 Leu, W. S., Williams, W. P., Bark, A.W. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: p 4 105 Ibid. 106 Bekhechi, M. A (2003) Legal and Regulatory Framework for Environmental Impact Assessment in African
Countries. In International Environmental Law and Policy in Africa. Environment & Policy 2003; 36: p 267 107 Leu, W. S., Williams, W. P., Bark, A.W. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: p 4
22
regulations are vital considerations if EIA is to be lawfully administered.108 This could, to some
extent, explain the uniqueness of every EIA jurisdiction, as a reflection of the political system of a
country.109 It therefore implies that differences in the legal requirements enshrined in the enabling
EIA legislation accounts for variations in performance of EIA systems in different countries. An
enabling EIA legislation also forms the basis for judicial actions including environmental litigation,
appeals and dispute settlement.110
The provisions of legally enforceable EIA legislation can act as a quality control mechanism for
EIA procedures. According to Leu et al, EIA legislations are “useful for providing guidance to
actors in respect of screening, scoping, preparation of EIA reports, public consultation, EIA review,
appeals and dispute settlement, as well as compliance and enforcement.”111 This means that EIA
legislation is not just about enactment of enabling laws on EIA implementation, but that every
aspect of the EIA process should have some legal backings.
Procedural control aims at making sure that the specified stages of the EIA process are taken into
consideration by all actors and that the tasks are performed in line with the procedural requirements
of the EIA process.112 Given that EIA activities are highly procedural, it follows that innovations in
procedural provisions (in terms of obligations to actors) will have profound effects on the quality of
environmental assessments in EIA systems. Leu et al highlight the relevance of procedural control
while comparing and evaluating the EIA systems of three countries in Southeast Asia, (Taiwan,
Malaysia and Indonesia) and conclude that a straightforward and exhaustive procedure could serve
as an instrument for EIA administration as well as offer avenues for the other parties and
stakeholders to participate in the EIA process.113
Procedural guidelines inherent in most EIA systems are of significant value in ensuring the quality
of an EIA system. According to Leu et al, such guidelines often “include requirements of screening,
scoping, site visits, EIA report preparation, public consultation, EIA review, decision-making, and
appeals and dispute settlement.”114 In this context, it is useful to view EIA studies as sets of
organizational procedures that systematically analyse the composite of a proposed project prior to
108 Ibid. 109 United Nations Environment Programme (2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p 137 110 Leu, W. S., Williams, W. P., Bark, A.W. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: p 4 111 Ibid. 112 Ibid. 113 Leu, WS, Williams, WP and Bark AW. (1997) Evaluation of environmental impact assessment in three Southeast
Asian nations. Proj Appraisal 1997; 12: p 92 114 Leu, W. S., Williams, W. P., Bark, A.W. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: p 4
23
the commissioning of the project. Such studies follow laid down standard procedures in sequence to
achieve the desired results. Therefore, the quality of the procedural contents is an important
attribute of an effective EIA System. However, according to Ahmad and Wood, it takes more than
just the quality of the procedural content, but also other implementation-related factors should be
considered to ensure effective guidelines.115
Evaluative control concerns, “the total assessment of the proposed project before, during and after
its EIA study, as well as the auditing of the EIA system itself.”116 This control mechanism functions
by assessing the decisions at the different stages of the EIA process with a view of determining if
the required tasks have been duly completed. It is also believed that experiences gained from such
systematic appraisal of the EIA system could enhance performance.117
Professional control measures emphasize the relevant competences of the major actors in the EIA
process and how their skills and experiences are useful to EIA.118 Thus, professional control
mechanism seeks to determine the technical know-how of all persons involved in conducting and
implementing EIA.119 Considering that EIA studies are characterized by technical and complex
procedures, the competence of all actors is necessary to produce quality EIA report. This implies
that, in addition to having competent professionals to perform the task of impact prediction,
reviewers and decision makers should also have appropriate competences to be able to identify
flaws in an EIA report and make best use of the completed EIA study.120 For this reason, Leu et al
also stressed the importance of adequate EIA training and appropriate academic requirement for
those directly involved in executing the EIA process.121 Fuller further emphasized that adequate
training of the key actors involved in the EIA process is critical to the effectiveness of EIA and to
raising the standard of practice even in mature EIA systems.122 Many EIA systems, rely on expert
consultants in conducting EIA studies as a more common method of ensuring quality EIA report.
115 Ahmad B. and Wood, C. (2002) A comparative evaluation of the EIA systems in Egypt, Turkey and Tunisia.
Environmental Impact Assessment Review 2002; 22: p 226 116 Leu, WS, Williams, WP and Bark AW. (1997) Evaluation of environmental impact assessment in three Southeast
Asian nations. Proj Appraisal 1997; 12: p 4 117 Ibid 118 Ibid 119 Ibid 120 Fuller K. (1999) Quality and quality control in environmental impact assessment. In: Petts J, editor. Handbook of
environmental impact assessment, vol. 2. Oxford: Blackwell, 1999. pp. 35–70; Wood C. Comparative evaluation of
environmental impact assessment systems. In: Petts J, editor. Handbook of environmental impact assessment, vol. 2.
Oxford: Blackwell, 1999. p71 121 Leu WS, Williams WP, Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996;11: p 4 122 Fuller K. (1999) Quality and quality control in environmental impact assessment. In: Petts J, editor. Hand- book of
environmental impact assessment, vol. 2. Oxford: Blackwell, 1999. pp. 10–34.
24
This issue of professional competence is of significant value as a quality control mechanism and is
further discussed in detail in chapter 4.
Public/relevant agency control has to do with the extent to which interested parties and public are
given opportunity to influence the quality of the whole EIA process by way of their inputs.123 In
addition to exerting pressure on proponents and relevant agencies, involving the public at every
stage of the EIA process, can also help to build up trust among the stakeholders and manage
conflicts from the onset of the EIA process.124
Judicial control seeks to provide avenues for settling petitions from aggrieved stakeholders and
public on matters arising from the EIA process and at the same time uphold the legitimacy and
justification for EIA study.125 In addition to resolving disputes and interpreting the regulations, the
involvement of the judicial agencies is also necessary as a compliance-forcing mechanism of EIA
legal requirements on the actors in the EIA process.126
International control relates to how external factors affects the manner which EIA is implemented in
domestic EIA systems.127 This type of control mechanism is rampant in developing countries’ EIA
systems. Through their demands and financial assistances, international organisations and donor
agencies exert pressure on national EIA systems to ensure that formal procedures of EIA are
established and adhered.128 According to Leu et al, such pressures could be “political, financial,
technical and manpower,” emanating from some treaties affiliations or as prerequisites conditions
that has to be satisfied before getting the needed assistance from donor organisations.129 For
instance, with reference to donor funded projects in Bangladesh, Momtaz acknowledged that donor
organisations such as the World Bank and the Asian Development Bank have played a vital role in
ensuring good quality EIS in Bangladesh.130
Leu et al’s nine categories of EIA quality control mechanisms have been discussed in this section.
However, explicit as these proposed control mechanisms are, it is important to understand that none
of the control mechanisms can suffice as a stand-alone EIA control mechanism. Instead, their
interrelationships should be stressed. For instance, Leu et al emphasized the interrelationships of
123 Leu WS, Williams WP, and Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: p 4 124 ibid p 4 125 Ibid 126 Ibid 127 Ibid. 128 ibid 129 Ibid at p 5 130 Momtaz, S. (2005) Institutionalizing Social Impact Assessment in Bangladesh resource management: limitations
and opportunities, Environmental Impact Assessment Review, 2005; 25: p 41.
25
procedural, evaluative, professional and public/relevant agency control mechanisms in the EIA
process.131
2.2.2 Review of EIA Report as a Quality Control Mechanism
The review stage of the EIA process has been extensively studied as a recognised step for checking
the quality of the EIA report.132 A formal review of the draft EIA report allows some verifications
to be carried out to ascertain the validity of the proponent’s impact assessment of the project.133
According to UNEP, the key objectives of EIA review are to: “check adequacy and quality of an
EIA report; take account of public comment; determine if the information is sufficient for a final
decision-making; and identify the deficiencies that must be addressed prior to submission of the
report.”134 Given that one of the key objectives of EIA review is to take account of public
comments, the review stage presents a major opportunity for public to contribute to the EIA process
in Nigeria and indeed in many EIA systems.135
To safeguard fairness, the review of the adequacy of EIA report should be governed by
environmental assessment review criteria.136 For this purpose, a variety of review criteria have been
developed and are commonly used to evaluate the quality and adequacy of EIA reports.137 Of all
available review packages, the Lee and Colley’s138 EIA review package has remained the most
commonly applied package by various researchers,139 albeit, often with some modifications and
131 Leu WS, Williams WP, and Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: p 4 132 Fuller K (2009) Quality and Quality Control in EIA in Petts J (ed.) Handbook of Environmental Impact Assessment.
Vol. 2. Blackwell Science Ltd Oxford, UK. pp 71, 73 133 United Nations Environment Programme (2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p352 134 Ibid. p 351 135 Ibid. 136 Ibid. p 353 137 Sandham, L.A.; Van Heerden, A.J.; Jones, C.E.; Retief, F.P.; Morrison-Saunders, A.N. (2013) Does enhanced
regulation improve EIA report quality? Lessons from South Africa. Environmental Impact Assessment Review, January
2013; 38: p155–162; Peterson, K. (2010) Quality of environmental impact statements and variability of scrutiny by
reviewers. Environmental Impact Assessment Review, 2010; 30: pp169-176; Canelas, L. Almansa, P. Merchan, M. and
Cifuentes, P. (2005) Quality of environmental impact statements in Portugal and Spain Environmental Impact
Assessment Review April 2005; 25(3): pp 217–225 138 Lee, N. and Colley, R (1992) Reviewing the Quality of Environmental Statements Occasional Paper Number 24, 2nd
edition. Manchester: Dept. of Planning and Landscape, University of Manchester.; Lee and Colley developed a
hierarchical review framework to evaluate the quality of EIA reports, by scoring the entire report with grades ranging
from A: well-performed and complete at the top of the hierarchy, through to F: very unsatisfactory at the bottom of the
hierarchy. 139 Lee, N., Colley, R., Bonde, J. and Simpson, J. (1999) Reviewing the quality of environmental statements and
environmental appraisals. Occ. Paper No 55. EIA Centre, Dept. of Planning and Landscape, University of Manchester,
1999.
26
adaptions.140 Also, frequently used by researchers for EIA evaluation studies, is the European
Commission review criteria141 which has been likened to Lee and Colley’s package, but uses a
longer list of specific questions.142 Still, there are quite a number of other modified review criteria.
2.3 Quality and Effectiveness of EIA
Although EIA effectiveness is not the focus of this thesis, it is however, necessary to take a cursory
look at the quality and effectiveness of EIA and their relationships. In the context of environmental
assessment, the concept of EIA quality entails that EIA study is undertaken to a high standard as
stipulated by the criteria set by the regulatory authority. According to Jalava, usually in evaluation
studies “the criteria for quality are mainly constructed on the procedural and content requirements
which are expressed in EIA legislation and related soft-law guidance.”143 On the other hand,
effectiveness has been defined as “how well something works or whether it works as intended and
meets the purposes for which it is designed.”144 According to Sandham et al, effectiveness:
“essentially refers to whether an EIA system achieves its objectives, at least cost with minimum
delay and without bias or prejudice.”145 Applied in a legal context, “effectiveness” of EIA can be
understood as a measure of how successful law is in solving the problem it was designed to address
through environmental assessment.
According to Takyi, the effectiveness of EIA depends on having “a clearly defined conceptual
framework, institutional structures and legal backings.”146 Unlike in quality assessment, “the
effectiveness of EIA does not rely on the stages in the EIA process but based on the political will,
institutional, logistical and community capacity.”147 In their study of the EIA quality in Finland,
Jalava et al found that the greatest impediment to having an effective EIA occur during decision-
140 Supra. see 133 above 141 CEC (European Commission of Communities) (2001a) Guidance on EIA: EIS Review. DG XI. Brussels: CEC. 142 Glasson J., Therivel R. and Chadwick A. (2012). Introduction to environmental impact assessment. 4th Ed.
Routledge, Oxon, 2012, p 184 143 Jalava, K. (2014). Quality of Environmental Impact Assessment in Finland. PhD. thesis in the Faculty of
Mathematics and Science, University of Jyväskylä, Finland. September 26, 2014. Jyväskylä Studies in Biological and
Environmental Science 289. p 17 144 Sadler, B (1996). International Study of the Effectiveness of Environmental Assessment. Environmental
Assessment in a Changing World: Evaluating Practice to Improve Performance. p 37 145 Sandham, L.A.; Van Heerden, A.J.; Jones, C.E.; Retief, F.P.; Morrison-Saunders, A.N. (2013) Does enhanced
regulation improve EIA report quality? Lessons from South Africa. Environmental Impact Assessment Review, January
2013; 38: pp155–162 146 Takyi, S. A. (2012) Review of Environmental Impact Assessment (EIA): Approach, Process and Challenges, p9 147 Ibid. at p 10
27
making, where other factors than quality of the EIS may influence the final decision.148 This finding
is in concord with Cashmore et al, who emphasized that intricacies of politics and power play
should be given prominent attention during the process of developing a theory for measuring
effectiveness.149 While acknowledging that the concept of effectiveness as applied to environmental
regimes is complex and subject to a variety of formulations, Young admits that emphasis should be
placed on the extent to which regulatory tools have aided in resolving the issues that inspired the
establishment of the tools in the first place.150
The foregoing descriptive distinction notwithstanding, it should be noted that the quality and
effectiveness of EIA are inextricably related, and both properties are vital to realizing the objectives
of EIA.151 For instance, the quality of an EIS, which is the outcome of an EIA process, is
acknowledged to exert a major influence on the effectiveness of EIA.152 In line with this reasoning,
Leu et al, proposed that good quality control mechanisms in the EIA process are prerequisites to
EIA effectiveness.153 However, a few questions and issues needs some clarifications regarding the
relationship between the quality and effectiveness of EIA. Firstly, does a quality EIA always
translate to an effective EIA? Maybe not a cast-iron certainty. Nonetheless, although quality status
does not absolutely describe its effectiveness, it is generally assumed to be inherent in any effective
system and vice versa.
Secondly, does enhanced regulation improve EIA report quality? Divergent views are being
expressed to address this question. For instance, while Pinho et al attributed the observable
improvement in EIA quality to new legislation in Portugal,154 in South Africa, however, Sandham et
al found no influence of new regulations on the quality of the EIA report.155 In their study,
148 Jalava, K. (2014). Quality of Environmental Impact Assessment in Finland. PhD. thesis in the Faculty of
Mathematics and Science, University of Jyväskylä, Finland. September 26, 2014. Jyväskylä Studies in Biological and
Environmental Science 289. p 30 149 Cashmore M., Richardson T., Hilding-Rydevik T., and Emmelin L. (2010). Evaluating the effectiveness of impact
assessment instruments: Theorising the nature and implications of their political constitution. Environmental Impact
Assessment Review 2010; 30: pp371–379 150 Young, O. R. (2011) Effectiveness of international environmental regimes: Existing knowledge, cutting-edge
themes, and research strategies. PNAS December 13, 2011; 108(50): p19853–19860 19854 Available at:
www.pnas.org/cgi/doi/10.1073/pnas.1111690108 151 Jalava, K. (2014). Quality of Environmental Impact Assessment in Finland. PhD. thesis in the Faculty of
Mathematics and Science, University of Jyväskylä, Finland. September 26, 2014. Jyväskylä Studies in Biological and
Environmental Science 289. p 15 152 Ibid. 153 Leu WS, Williams WP and Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: pp 2–12 154 Pinho, P, Rodrigo, M and Monterosso, A. (2007). The quality of Portuguese Environmental Impact Studies: The
case of small hydropower projects. Environmental Impact Assessment Review 2007; 27: p189–205. 155 Sandham, L.A.; Van Heerden, A.J.; Jones, C.E.; Retief, F.P.; Morrison-Saunders, A.N. (2013) Does enhanced
regulation improve EIA report quality? Lessons from South Africa. Environmental Impact Assessment Review, January
2013; 38: p155–162
28
Sandham and his colleagues reported that despite major reforms of the South African EIA
regulations in 2006, the quality of the EIA report has dropped slightly from what it was under the
previous regulations.156 On the other hand, while studying how the contents and scope of EIA have
evolved over time in Brazil, Landin and Sanchez reported that “the main driver of change has been
new legislation, better regulation and administrative control exerted by the environmental
agencies.”157 To add to this argument, I am of the opinion that when effectively enforced, robust
EIA legislation may have an important catalytic effect and may establish norms of conduct towards
improving the overall quality of EIA studies. In jurisdictions where environmental laws are
religiously enforced, the fear of litigation could be the beginning of wisdom to erring proponents
and regulatory authorities.
In conclusion, the pursuit of the SD agenda has accentuated a growing need to curtail the negative
impacts of developmental projects on the environment. This has led to widespread acceptance and
institution of EIA systems in many countries to the extent that EIA studies have become mandatory
regulatory requirements in both national and international legislations. Since the introduction of the
first EIA legislation in the USA in 1969, EIA has evolved from a soft law instrument to assume a
status in international environmental law. The quality of EIA is paramount to having an effective
EIA. To this end, several quality control mechanisms have been proposed aimed at improving the
quality and effectiveness of EIA practice. Several evaluation criteria have also been developed to
determine effectiveness of an EIA system, while the review stage of the EIA process is recognised
as a formal step for checking the quality of the EIA report. The next chapter takes a closer look at
the evolution, current practice and challenges facing the Nigerian EIA system.
156 Ibid 157 Landim, SNT and Sa´nchez, L. E. (2010) The contents and scope of environmental impact statements: how do they
evolve over time? Impact Assessment and Project Appraisal December 2012; 30(4): p226
29
Chapter 3
Nigerian EIA System: Evolution and Regulatory Framework
This chapter focuses on domestic EIA legislation and practice in the country under study. Prior to
assessing the legal and judicial EIA quality control mechanisms in the Nigerian EIA Act, this
chapter first presents a general outlook on how the Nigerian EIA system has evolved and current
state of EIA practice in the country. The aim of this chapter is to review the Nigerian EIA system by
tracing its evolution and how the legal and regulatory framework governing EIA practice in the
country has metamorphosed to date. It begins by presenting the country profile and how
unsustainable activities in Nigeria’s mono-product economic system has impacted on the
environment. Having identified the legal and regulatory framework, the rest of the chapter will seek
to discuss the peculiar feature of the Nigerian EIA system, and ends by pointing out some
prominent strong-points and drawbacks of the bundled nature of EIA system in the country. These
discussions help in providing insight into the modus operandi of the Nigerian EIA with the
possibility of identifying quality-promoting procedures or otherwise.
3.1 Country Profile: Nigeria
Nigeria is Africa’s most populous nation with a population of over 180 million (2016 estimate). The
country is endowed with a variety of ecosystems, ranging from the rainforest in the south to dry
savannah in the north, with topographical progression from flat coastal plains through plateaus to
highlands.158 According to the US Energy Information Administration, Nigeria has the second-
largest amount of proved crude oil reserves in Africa and is currently the largest oil producer in
Africa.159 With over 90 percent of GDP coming from crude oil alone, the Nigerian economy typifies
a mono-product economy.160 Following the discovery of oil, other sectors of the economy such as
agriculture, solid mineral mining, manufacturing, tourism etc. have been neglected. Recent
158 Draft Objectives and Strategies for Nigeria’s Agenda 21, UNDP Support Environment and Natural Resources
Management Programme for Nigeria (NIR\C3) p 3 159 The U.S. Energy Information Administration, May 6, 2016, Available at:
https://www.eia.gov/beta/international/analysis_includes/countries_long/Nigeria/nigeria.pdf 160 Dode, R. O (2012) Nigeria, Mono-Product Economy & the Global Economic Recession: Problems & Prospects.
Global Journal of Human Social Science Sociology, Economics & Political Science 2012; 12(11) Version 1.0
http://globaljournals.org/GJHSS_Volume12/6-Nigeria-Mono-Product-Economy.pdf
30
economic policy reforms have stressed the diversification of Nigerian economy. According to the
latest GDP rebase report, Nigeria ranks number one economy in Africa.161
Huge financial resources notwithstanding, Nigeria also faces major social and environmental
problems attributable to poor and unregulated development policies. For instance, Orubu et al noted
that regardless of the economic benefits, petroleum exploration has concomitantly caused severe
environmental and social problems especially in the host communities where the crude oil reserves
are found.162 In other sectors, the absence of a strict development policy exacerbated by weak
regulation has encouraged unsustainable mining activities and unorganised urban development.163
In addition, Echefu and Akpofure reported that, ‘uncontrolled population growth, deforestation and
desertification,’ have aggravated the myriad of environmental problems in the country.164
3.2 Evolution of EIA System in Nigeria
Although the history of environmental policy in Nigeria can be traced to as far back as 1914 with
the enactment of the Minerals Ordinance by the colonial administration,165 it was not until 1992 that
EIA legislation was formally incorporated into the Nigerian environmental regulatory system. In
contrast to the Ordinance which focused only on extractive industries, the present EIA legislation
has a wider scope and is envisioned to have a general applicability in all sectors that impact on the
environment. The EIA Act of 1992 is the dominant legislation on EIA implementation regarding
proposed developmental projects in Nigeria, and its birth is said to be influenced by the provisions
of Principle 17 of Rio Declaration.166
Unlike in most of the developed world, evolution of EIA in Nigeria (and possibly in many African
countries) involved a build-up stage which has been described by Ogunba an essential component
161 National Bureau of Statistics (2014) Rebasing / re-benchmarking of Nigeria’s Gross Domestic Product 162 Orubu CO, Odusola A, Ehugreime W (2004). The Nigeria Oil Industry: Environment Strategies and Need for
Community Involvement. J. Hum. Ecol. 2004; 3: p 203; The host communities are mostly within the Niger Delta region
which comprise Abia, Akwa-Ibom, Bayelsa, Cross River, Delta, Edo, Imo, Ondo and Rivers States of the Federal
Republic of Nigeria. 163 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual p 64 164 Ibid. 165 Orubu CO, Odusola A, Ehugreime W (2004). The Nigeria Oil Industry: Environment Strategies and Need for
Community Involvement. J. Hum. Ecol. 2004; 3: p 207 166 Eneh, O. C. (2011). Managing Nigeria’s Environment: The Unresolved Issues. Journal of Environmental Science
and Technology, 2011; 4: pp 250 - 263.
31
of the EIA transformative process.167 Prior to the institution of a distinct EIA legislation in Nigeria
through the promulgation of the EIA Act in 1992, there existed some institutional frameworks for
the purpose of environmental management.168 In this regard, the Federal Environmental Protection
Agency (FEPA) was created by Decree 58 of 1988 and given the responsibility to formulate
policies and regulate the Nigerian environment.169 With the principal regulatory mandate bestowed
on FEPA, the Nigerian EIA Act of 1992 made EIA a mandatory requirement for all developmental
projects with few exceptions of those that fall in the exclusive list.170
Earlier studies have reported that previous attempts at environmental regulation in Nigeria was
concentrated on the petroleum industry.171 According to Ogunba, this narrow view was based on the
assumption that only the petroleum sector could pose serious environmental threats and therefore
adequate attention should be given to activities in the sector.172 Consequently, under the Petroleum
Act of 1969, a few petroleum-related regulations were enacted with a view of controlling adverse
environmental impacts from the sector.173 Based on Gibson’s model of the transition of EIA
systems,174 Ogunba concluded that these earlier sectoral regulations in Nigeria were “more reactive
than proactive,”175 in the sense that it entailed a direct response to environmental problems that
occurred because of petroleum exploration activities. As it were, there existed no environmental
legislations in other sectors of the economy apart from the petroleum industry, until in the early
1990s.176
The absence of mandatory requirements for EIA in Nigeria prior to the adoption of the EIA Act
means that EIA was not conducted for proposed projects irrespective of their environmental
impacts. Ingelson and Nwapi criticise a lack of moral obligation particularly by the international oil
167 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact
Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p. 648 168 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual p 65 169 Ibid. 170 Ibid. 171 Okorodudu-Fabura M T (1988). Law of environmental protection materials and text. Ibadan, Nigeria: Caltop
Publications; Isichei AO (2000). Environmental impact assessment and environmental evaluation reports. Paper
presented at the Workshop of the Nigerian Corrosion Association, Warri (27th March 2000) 172 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact
Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p 647 173 Ibid. 174 Gibson R. B. (2002) From Wreck Cove to Voisey’s Bay: the evolution of federal environmental assessment in
Canada. Impact Assessment and Project Appraisal 2002; 20(3): pp 151 - 159 175 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact
Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p. 648 176 Ibid.
32
companies (IOC) to carry out EIAs regardless of non-existing regulation.177 I find this expectation
from Ingelson and Nwapi reasonable considering their argument of double standard application by
the same international oil companies who were conducting EIAs in other countries but refused to do
the same in Nigeria owing to the absence of legislation.178 Perhaps this goes further to emphasize
the role of legislation as a quality control mechanism in EIA practice as this thesis intends to
reinforce.
Bearing in mind the prime contribution of petroleum exploration to the Nigerian economy, industry-
specific standards and guidelines were set out to regulate activities within this sector.179 This
culminated in the establishment of Environmental Guidelines and Standards (EGAS) of 1991 by the
Department of Petroleum Resources (DPR). Established solely for the regulation of the petroleum
industry, EGAS is a detailed guideline dedicated for environmental protection of the Niger Delta
region where the bulk of the exploration activities takes place.180
The impetus for the formal enactment of Nigeria’s environmental policies was intensified after the
Koko incident in 1987 in which hazardous waste from Italy was dumped in Koko - a small town in
Bendel State (now Delta State) of Nigeria. The incident prompted the Nigerian government to enact
the Harmful Waste (Special Criminal Provision etc.)181 Decree 42 which provides the legal
framework for the effective control of the disposal of toxic and hazardous waste within the Nigerian
territory. With the Harmful Waste Decree, it became a criminal act which upon conviction could
fetch life imprisonment,182 “to carry, deposit, transport, import, sell, buy or negotiate in trade of
harmful waste within Nigerian territory.”183 Additionally, as a fall out of the Koko incident, FEPA
was created and charged with the mandate to protect the Nigerian environment by way of
regulation.184
Following FEPA’s publication of its national policy on the environment in 1989, EIA was formally
acknowledged as an essential requirement for the actualization of the goals of the national policy on
the environment.185 Subsequently, EIA assumed the status of mandatory requirement for all
177 Ingelson, A. and Nwapi, C. (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining Projects in
Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal (2014); 10(1): p.44 178 Ibid. 179 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual p. 63 180 Ibid. 181 Harmful Waste (Special Criminal Provisions, etc.) Act 1988. Revised edition of Decree No. 42 of 1988 182 See Section 6, Harmful Waste (Special Criminal Provisions) Act, Cap H1, LFN 2004 183 Ibid. see Section 1(2) 184 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact
Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p. 648 185 Ibid.
33
developmental projects from 1991.186 This pronouncement was subsequently given a legal backing
by the enactment of the Nigerian EIA Act in 1992. Furthermore, industrial establishments were
mandated to carry out environmental auditing and FEPA was given the responsibility to develop
nationwide procedural guidelines for all its domestic operations.187
Today, with the demise of FEPA and its Act in 2007, the National Environmental Standards and
Regulations Enforcement Agency (NESREA) Act188 has become the principal legislation on
environmental law in Nigeria.189 Amongst other obligations, NESREA’s mandate includes the
following: “enforcement of environmental standards, regulations, laws, policies and guidelines;
biodiversity conservation and sustainable development in Nigeria;190 liaison with relevant
stakeholders within and outside Nigeria.”191
3.3 Features of the Nigerian EIA System
The Nigerian EIA system comprises three autonomous EIA systems namely: the EIA Act (1992),
the Town and Country Planning Decree 88 (1992) and the Petroleum Act (1969).192 In contrast,
most national EIA systems are embodied in a single authority system thus giving the system
cohesion and eliminate multiplicity of efforts. Although the Nigerian EIA system is a bundle of
three distinct national EIA systems, the EIA Act of 1992 remains the apex legal framework
regarding EIA practice in the country, thus placing all proponents (both public and private) under an
obligation to conduct EIA prior to commissioning of all proposed developmental projects.193 This
EIA Act has three main objectives pursuant to Section 1(a), (b) and (c) of the Act:
To determine the environmental effects of proposed activities that may likely or
significantly affect the environment prior to approval and commissioning;194 To
186 Ibid, at p. 649 187 Ibid. 188 NESREA was established by an Act of the National Assembly in 2007. The Act repealed FEPA Act of 1988 which
was hitherto, the nation’s apex regulatory body. As a parastatal of the Ministry of Environment, NESREA is charged
with the responsibility of enforcing environmental Laws (including EIA law), regulations and standards with the aim of
protecting the Nigerian environment. 189 Ladan, M.T. (2012) Review of NESREA Act 2007 and Regulations 2009-2011: A New Dawn in Environmental
Compliance and Enforcement in Nigeria, 8/1 Law, Environment and Development Journal (2012); 8(1): p. 119 190 National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007 No. 25. Section
7 (a) 191 Ibid. section 7 (b) 192 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact
Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p. 643 193 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual p 66 194 EIA Act of 1992, Section 1 (a)
34
promote the implementation of appropriate procedures at all levels of governance;195
To encourage the procedures for notification, information exchange and consultation
in activities likely to have significant trans-state (boundary) environmental effects.196
The EIA Act further prescribes in Section 2 (1 - 4) that a mandatory assessment be carried out at the
very early stages of all public and private initiated projects (except exempted by the Act), to
ascertain the probable environmental effects of projects prior to commissioning of the projects.197
Pursuant to section 12 of the EIA Act, FEPA groups the mandatory study activities into three
categories depending on whether: mandatory EIA is requited (Category 1), full EIA is not
mandatory (except activity falls within the environmentally sensitive area) (Category 2), and EIA
not required (Category 3). For clarity purpose, a comprehensive list of what constitutes a mandatory
study project is attached as a schedule to section 12 of the Act. Section 4 (a) – (h) of the EIA Act
spell out what constitutes the minimum contents for an EIA report198
3.4 Process and Procedural Framework
The EIA procedural framework defines the different steps which a proposed activity must pass
through to ascertain its environmental consequences before approval for implementation.199 The
Nigerian EIA Act provides that prior to the implementation of any project in Nigeria, certain
procedures must be followed, particularly if the project requires mandatory EIA studies. For this
purpose, a procedural guideline (although not legally binding) was issued by FEPA, the erstwhile
regulatory agency, to serve as the link between the Act and its implementation.
In the Nigerian EIA system, the prescribed EIA procedural guidelines involve the following steps;
“notification of proposed project, initial environmental examination (IEE), screening, scoping, EIA
study, review, decision-making, monitoring and auditing.”200 Given that EIA studies and report
preparation are the responsibilities of the project proponent, the proponent notifies the competent
195 Ibid. section 1 (b) 196 Ibid. section 1 (c) 197 EIA Act of 1992, Section 2(1) – (4) 198 EIA Act of 1992, Section 4(a) – (h) 199 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual p 68 200 Ibid.
35
authorities of the intent for development of a project and furnishes the authorities with detailed
information relating to the project in question.201
Following the notification of the proposal, an initial environmental examination (IEE) is conducted
by the main regulatory authority (currently NESREA), to determine if the mandatory study clause
has been triggered.202 In the event where no adverse environmental effects are established,203 the
project is approved for commissioning, taking into consideration any recommended mitigation and
monitoring measures.204 If on the other hand, the possibility of adverse environmental effects is
established, then the proponent is directed to embark on scoping exercise and the preparation of
Terms of Reference (ToR).205 Thereafter, a full EIA study is conducted by the proponent, and a
draft EIA report is submitted to the authorities for review.
In the Nigerian EIA system, the review process is usually carried out in-house by the regulatory
authority through a review panel and the result is made available to interested person(s) or group(s).
The proponent is expected to address all the issues raised during the review process prior to the
submission of the final report to the main regulatory agency which is also responsible for decision-
making.206 A successful EIA activity ends in the issuance of an EIS. Post-EIS certification requires
monitoring of the commissioned project to ensure that its operation conforms with approved
conditions and mitigation measures.207
3.5 Drawbacks of the Nigerian EIA Systems
Earlier report by Echefu and Akpofure had cited the duplication of functions and overlapping
responsibilities in the processes and procedures guiding the execution of the various impact
assessment tasks in the Nigerian EIA system.208 This situation is caused by the running of parallel
EIA agencies with similar functions and power as those bestowed on the apex regulatory agency.
201 Ibid. at p 69 202 Ibid 203 This is generally true for activities in category 3 of the mandatory EIA study categories. However, the lead agency
has emphasised that category 3 could become catergory 2, and catergory 2 can assume category 1 status if the projects
are to be sited in environmentally sensitive areas. 204 Supra, see 198 above 205 Ibid. 206 Ibid. 207 Ibid. at p 70 208 Ibid. at p 71
36
This has led to serious bottlenecks and bureaucratic confusion being created in the EIA process.209
Ogunba also noted that the application of three autonomous EIA systems concurrently, has led to
pointless duplication of EIA preparation with considerable time and money costs.210
Another apparent shortcoming of the Nigerian EIA system lies in the total absence of an
independent review process as quality control mechanism. This means that control mechanism is
highly centralised in the Nigerian EIA system and resides solely in the domain of the principal
regulatory authority.211 Yet the importance of decentralised quality control in EIA process has been
reported. For example, Pölönen reported that in Finland EIA quality control is executed by regional
environment centers bestowed with supervisory competence for the implementation of EIA law in
their respective regions212
The above-mentioned drawbacks notwithstanding, the bundled nature of the Nigerian EIA system is
not without any benefit. A notable strength of this bundled EIA system is that it enhances
specialisation and professionalism since certain environmental assessments are handled by distinct
competent regulatory authorities. On paper, this would ensure proper analysis of EIA reports by
personnels who are very competent in that sector. However, it cannot be clearly stated if this
expectation is realized considering reports of rivalries among the regulators.
To conclude, this chapter focused on the history of EIA, regulatory and procedural framework of
EIA in Nigeria. The EIA system in Nigeria has evolved following a reactive rather than a proactive
model. By the enactment of the EIA Act and the procedural guidelines, Nigeria has demonstrated
seriousness towards effective environmental management strategies and by extension advancement
of sustainable development principles. Quite peculiar, Nigeria operates a bundled EIA system
comprising three autonomous EIA systems. This array of regulatory authorities with similar
responsibilities has been argued to be counterproductive most times. In terms of institutional and
administrative framework, the weaknesses in EIA procedure in Nigeria has been attributed to inter
alia lack of co-operation and co-ordination between the different tiers of environmental governance,
and existence of numerous overlapping regulatory bodies and functions. Therefore, there is a need
to clarify areas of competences to avoid conflict of interests amongst the competing regulatory
authorities particularly NESREA (formerly FEPA) and DPR. In the next chapter, the Nigerian EIA
209 Ogunba, O. (2004). EIA Systems in Nigeria: Evolution, Current Practice and Shortcomings Environmental Impact Assessment Review, Elsevier Journal, Oxford, United Kingdom. 2004; 24: p. 656 210 Ibid. 211 Ibid. p 655 212 Pölönen, I (2006) Quality control and the substantive influence of environmental impact assessment in Finland
Environmental Impact Assessment Review 2006; 26: p. 485
37
Act (which is the main EIA legislation in the country), is analysed within the context of its
provisions and capacities as quality control mechanisms in EIA practice.
38
Chapter 4
Legal and Judicial Quality Control Mechanisms in Nigerian EIA
System
Law has been acknowledged as a necessary instrument for the regulation and management of
environmental problems.213 Fagbogun and Nlerum have reported that law establishes models for
proper public conduct by way of rules, policies and the setting up of administrative frameworks
with ability for execution.214 As a quality control mechanism in EIA systems, the role of law should
go beyond mere setting of standards, but it should also cater for its enforcement and sanctions to
defaulters. Kakonge notes that there is no compulsion to conduct EIA unless it is required by law,
with enforcement obligations.215 This implies that the legal requirements enshrined in the enabling
EIA legislation could account for variations in strength of different EIA systems.
By checking the legal backings in the main stages of the EIA process, this chapter will consider the
legal and judicial quality control mechanisms in the Nigerian EIA system in the light of the
provisions of the EIA Act of 1992, which is the main legislation governing EIA activities in the
country. In the ensuing discussions, as much as possible, frequent comparisons will be drawn where
necessary between Nigeria and other EIA jurisdictions in both developed and developing countries
to the establish an argument and help to shed some light on the question regarding whether the legal
and judicial control mechanisms of the EIA Act are adequate.
4.1 Legal Control Mechanisms in Nigerian EIA System
213 Ladan, M.T. (2009) The Role of the Judiciary in Environmental Governance in Nigeria. In: The Role of the Judiciary
in Environmental Governance: Comparative Perspectives, Louis J. Kotzé and Alexander R. Paterson (eds.) Kluver Law
International, 2009; p 528; Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating
Deforestation and Desertification in Nigeria. p 11; Bekhechi, M. A. (2003) Legal and Regulatory Framework for
Environmental Impact Assessment in African Countries. In: International Environmental Law and Policy in Africa.
Chaytor, B. and Gray, K. R. (eds) p 278 214 Fagbogun O. and Nlerum, F. E. (2011) Implementing an Effective Scheme for Climate Change in Nigeria: The Role
of Law. NIALS Journal of Environmental Law, 2011; 1: p 267 215 Kakonge, J. (2013) Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections Global
Policy - 5th March 2013
39
It has been noted that legal controls not only offer the foundation for the pursuit of environmental
protection goals, but it is also a motivating instrument for accomplishing those goals.216 It is the
basis on which all stakeholders can function in an EIA study. Ikoni asserts that a robust legal system
enhances public participation in implementing environmental standards through both non-court and
court-based mechanisms.217
Most work on the quality and effectiveness of EIA have centered on the review step of the EIA
procedure. However, as Hartlik notes, EIA quality management procedures are not restricted to
assessing only the environmental studies but should be inclusive of all major steps in the EIA
process.218 Jalava also points out that, an EIS review should be holistic by assessing the quality and
outcome of the entire EIA process instead of just looking at the completeness and adequacy of
contents of the report.219 In line with the objective of this thesis, the legal quality control
mechanisms of the Nigerian EIA system are assessed from the viewpoint of legal contents of the
EIA Act vis-à-vis the main stages of the EIA process: screening, scoping, environmental impact
study, quality review, consultations, decision making and monitoring.
Lohani et al have expressed the view that, the extent to which a country is dedicated to having an
effective EIA system is predicated on the strength of legislative backing given to EIA
institutions.220 In the same manner, the robustness of a national legislation and administration on
EIA is an indication of the extent to which a country is determined to deliver an effective EIA,221
just as an unclear legislation could lead to costly and wrong implementation of EIA. Thus, a strong
environmental legislation on the EIA process could improve its effectiveness.222 This underlines the
necessity to scan the current Nigerian EIA legislative arrangements and the provisions for the
various EIA processes. Therefore, in the following sections, the major EIA processes are reviewed
in the eye of the enabling EIA Act to establish the level of legal backings which the Nigerian EIA
Act has to offer.
216 Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria p. 17 217 Ibid. 218 Hartlik, J. (2008) Requirements on EIA Quality Management. In: Standards and Thresholds for Impact Assessment.
Edited by M. Schmidt, J. Glasson, L. Emmerlin, and H. Helbron. Environmental Protection in the European Union,
Berlin, Heidelberg, 2008. Vol. 3 p 90 219 Jalava, K; Pasanen, S; Mikko Saalasti, M. and Kuitunen, M. (2010) Quality of Environmental Impact Assessment:
Finnish EISs and the opinions of EIA professionals. Impact Assessment and Project Appraisal, March 2010; 28(1): p 15 220 Lohani, BN, Evans, JW, Everitt, RR, Ludwig, H, Carpenter, RA and Tu, S (1997) Environmental impact assessment
for developing countries in Asia, vol. 1, Asian Development Bank, Manila, p. 2-1(27) 221 Zobaidul Kabir, S. M. (2012) A critical evaluation of the environmental impact assessment system in Bangladesh
using a holistic approach 222 Jay, S., Jones, C., Slinn, P. and Wood, C. 2007. Environmental impact assessment: Retrospect and prospect.
Environmental Impact Assessment Review, 2007; 27(4): pp 287–300
40
Theoretically, the Nigerian EIA system is endowed with an array of legislative frameworks ranging
from the Constitution to a specific EIA legislation. The Nigerian Constitution acknowledges the
need to safeguard the environment, if its provisions in Section 20 of the Constitution is anything to
go by. As the basis of environmental policy in Nigeria, Section 20 of the Constitution provides that,
“the state shall protect and improve the environment and safeguard the water, air and land, forest
and wildlife of Nigeria.”223 Although this provision is laudable, it suffers constraint by the simple
reason that it is argued to be non-justiciable.224 Section 12 of the same Constitution mandates the
Nigerian States and citizenry to uphold international treaties to which Nigeria is a party225 and
Section 19(b), further pledges the country’s readiness to show “respect for international law and
treaty obligations as well as the seeking of settlement of international disputes by negotiation,
mediation, conciliation, arbitration and adjudication.”226 These constitutional provisions convey
Nigeria’s disposition to implement international environmental laws to which it is a party.
However, with regards to EIA, the legislative significance of this provision is void as Nigeria is not
a party to the UN Convention on Environmental Impact Assessment in a Transboundary Context
(Espoo Convention). Fortunately, the provisions for EIA abound in many other MEAs to which
Nigeria is a signatory.
The Nigerian EIA Act is a specific EIA legislation. To begin with, it is important that the objectives
of EIA is clearly enshrined in the enabling legislation. In this way the main actors and
stakeholders227 are aware of what is at stake and what is required of them to attain those goals.
Section 1 of the EIA Act outlines the objectives of EIA practice in the country as follows:
“determination of environmental impacts of all projects likely to negatively affect the
environment;228 promotion of implementation instruments at the three tiers of government;229 and to
encourage notification, consultations and exchange of information regarding transboundary
environmental effects.”230 The Nigerian EIA legislation stipulates as a mandatory requirement for
EIA to be carried out at the onset of all public and private sector-initiated projects.231 This implies
that assessment ought to be made from the inception of hatching a plan to start any developmental
223 The Constitution of the Federal Republic of Nigeria, 1999. Section 20 224 Akpambang, Enobong M. (2016) Promoting the Right to A Healthy Environment Through Constitutionalism in
Nigeria. International Journal of Environment and Pollution Research, 2016; 4(3): p. 50 225 The Constitution of the Federal Republic of Nigeria, 1999. Section 12 226 Ibid. Section 19 227 This includes; the regulatory agencies, proponents and the concerned public 228 See Section 1(a) EIA Act, Cap E12, LFN 2004 229 Ibid at Section 1(b) 230 Ibid at Section 1(c) 231 Ibid at Section 2(1)
41
activity. In the following sections, I discuss the legal provisions of the EIA Act at the major stages
of the EIA process.
4.1.1 Screening
The relevance of screening as a first important step toward improving the quality of an EIA has
been reported.232 As pointed out by Wood and Becker, screening is a critical decision-stage of the
EIA process used to find out whether a developmental project should be subjected to EIA.233
Screening helps to determine the need and extent to which a proposal should be subjected to EIA
studies. Whereas the initial environmental examination is performed by the regulatory agency itself,
the main screening exercise is conducted by the proponent.
Generally, the requirements for screening are explicitly enshrined in EIA legislation or guidelines,
while the competence for its implementation is usually bestowed on the relevant regulatory
authority.234 For instance, in the EU EIA legislation screening practices are set by the requirements
of Directive 97/11/EC which lists in Annexes I and II projects that are subject to EIA. Similarly, the
Nigerian EIA Act requires that screening exercise should be conducted in every circumstances
where an environmental assessment is required prior to the commencement of the project. Section
16 (a) of the Act requires that the environmental assessment process, should include a mandatory
screening activity and the preparation of a screening report.235 This implies that screening exercise
is a mandatory requirement in every case where a planned project requires an EIA study prior to its
commissioning. Further provisions on screening is enshrined in Section 18 of the Act which
stipulates screening and screening report even for projects that are not listed in the mandatory study
or exclusion list.236
A highly interesting conception regarding screening procedure can be found in Section 19 (1-4) of
the Nigerian EIA Act, where it recommends using a previous screening report as a method in
232 Pinho, P. McCallum, S and Santos Cruz, S (2010) A critical appraisal of EIA screening practice in EU Member
States, Impact Assessment and Project Appraisal, 2010; 28(2): pp 91-107; Woods, G and Becker, J (2005).
Discretionary judgement in local planning authority decision making: screening development proposals for
environmental impact assessment. Journal of Environmental Planning and Management, 2005; 48(3): pp 349–371. 233 Woods, G and Becker, J (2005). Discretionary judgement in local planning authority decision making: screening
development proposals for environmental impact assessment. Journal of Environmental Planning and Management,
2005; 48(3): pp 349–371. 234 Mwalyosi, R., Hughes, R. and Howlett, D.J.B. (1999). Orientation to the Use of Environmental Impact Assessment
in Tanzania: Resource Handbook. International Institute for Environment and Development and Institute for Resource
Assessment. p 100 235 Ibid. at Section 16 (a) 236 See Section 18 EIA Act, Cap E12, LFN 2004
42
conducting screening of other projects within the same class. Labelled as ‘declaration of class
screening report,’ Section 19 (1) provides that when the agency finds that a previous screening
report could be applied for the screening of other projects within the same category, such report
could be declared as a class screening report.237 In Section 19 (2), the Act further provides that
pursuant to the declaration of class screening report, any declaration made shall be published in the
Gazette and the screening report to which it relates shall be made available to the public at the
registry.238
Given that the cost of conducting an EIA study is borne primarily on the proponent, I find the idea
behind the class screening declaration very interesting in the sense that it could serve to mitigate the
operational cost and duration on EIA studies. Kakonge reports that quite often proponents are more
worried about the high financial burden of EIA studies and the duration before getting the
regulatory authority’s approval for their developmental projects, and as result, compliance with
some of the EIA procedural requirements are neglected.239 To avoid possible wrongful application
of the class screening declaration, the EIA Act, pursuant to Section 19 (4), requires that when a
class screening report is applied, appropriate modifications should be made taking into
consideration current situations of the project and any cumulative environmental effects.240
4.1.2 Scoping
In simple terms, scoping is conducted to identify the issues and impacts that are likely to be
important and to establish terms of reference for EIA.241 Though scoping is a pre-EIA study stage, it
is a very critical phase of the procedural requirement of EIA process.242 Although the Nigerian EIA
procedural guidelines require that scoping activities be carried out, the Nigerian EIA Act contains
no dedicated legal provision on scoping. Section 2 (1 - 4) of the Act merely provides that a
mandatory assessment should be carried out at the very early stages of all public and private-
initiated projects (except exempted by the Act), to ascertain the probable environmental effects of
projects prior to commissioning of the projects.243 As it is, the term “scoping” is completely missing
237 See Section 19 (1) EIA Act, Cap E12, LFN 2004 238 See Section 19 (2) a-f EIA Act, Cap E12, LFN 2004 239 Kakonge, J. (2013) Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections Global
Policy - 5th March 2013 240 See Section 19 (4) EIA Act, Cap E12, LFN 2004 241 United Nations Environment Programme (2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p 227 242 Ibid, 243 See Section 2 (1) EIA Act, Cap E12, LFN 2004
43
in the wordings of this provision of the Nigerian EIA Act. The deficiency of an explicit legal
provision on scoping can undermine the quality of EIA given the critical contribution of scoping in
EIA studies. In the Tanzanian EIA law, for example, the requirement for scoping activity is clearly
enshrined in Article 13 (1-4) which reads, “an environmental impact assessment shall be conducted
in accordance with scoping and the terms of reference developed during the scoping exercise by the
developer or proponent.”244 Incomplete EIA legislation (e.g. no scoping obligations) has been
reported as an indicator of weak EIA systems in low and medium income countries (LMCs).245 As
noted in the EIA Handbook, although scoping is widely recognised as ‘good practice,’ its execution
requires proper validation in many systems to make it successful.246
4.1.3 Environmental Impact Study
The Nigerian EIA Act expressly makes it mandatory for the application of EIA to developmental
projects in the private and public sectors of the economy according to Section 2(1) of the Act.
Additionally, proponents regardless whether public or private (except so exempted) are required
furtherance to Section 2(4), to before embarking on the proposed project, communicate their intents
in writing to the appropriate authorities. This requirement is of relevance so that proposed projects
can be correctly identified, and the appropriate environmental assessment applied.247
It has been reported that notwithstanding the mandatory requirement for the completion of EIA
studies prior to commissioning developmental projects, EIA studies are rarely carried out in
Nigeria.248 In a study investigating the EIA challenges in Nigeria, Yusuf et al, found that no EIA
report had been submitted in the mining sector, despite decades of mining operations in the
country.249 The same study also found that mostly infrastructural projects including road
244 Tanzania Environmental Impact Assessment and Audit Regulations, 2005, section 13 (a-d) 245 De Jong, A. A.; Runhaar, H. A. C., Runhaar, P. R. Arend J. Kolhoff, A. J; Driessen, P. P. J. (2012) Promoting
system-level learning from project-level lessons: An analysis of donor-driven ‘indirect’ learning about EIA systems in
Ghana and the Maldives. Environmental Impact Assessment Review 2012; 33: p 23 246 Handbook of Environmental Impact Assessment: Vol. 2: Impact and Limitations Editor Judith Petts. John Wiley &
Sons, 2009, 464pp 247 See Section 2(1) EIA Act, Cap E12, LFN 2004 248 Ingelson, Allan and Nwapi, Chilenye (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining
Projects in Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal (2014); 10(1): p. 38 249 Yusuf, R. O; Agarry, S. E. and Durojaiye, A. O. (2007) ‘Environmental Impact Assessment Challenge in Nigeria’
2/2 J Environ Sc & Technol. 2007; 2(2): p78.
44
construction, borehole drilling and communication mast are regularly commissioned without pre-
assessment of their environmental impacts.250
A violation of this mandatory EIA requirement was found in the Gbemre v Shell Petroleum
Development Company Nigeria Limited and Others Case.251 Amongst other issues, the applicant
Jonah Gbemre complained, “that no EIA was undertaken by any of the respondents to ascertain the
harmful consequences of their gas flaring activities to the environment, health, food, water,
development, lives, and infrastructures of the local community.”252 The Court stated that “failure of
the respondents to carry out EIA…concerning the effects of their gas flaring activities is a clear
violation of section 2(2) of the EIA Act.”253
In addition to the violation of not conducting mandatory EIA studies, the timing of carrying out the
exercise is another issue of concern capable of undermining the quality of EIA. Ironically,
government at all levels has been implicated as major defaulters in the untimely implementation of
mandatory EIA studies, as they regularly approve projects prior to impact assessment irrespective of
whether such projects falls within the mandatory study list.254 Anajo further reports that many EIA
reports in Nigeria are belated and manufactured merely to fulfil requirement and douse
confrontations from concerned stakeholders.255 While analysing the Nigerian EIA system, Yusuf
lamented the corrupt tendencies of the regulatory authorities and their use of authority without
restraint, resulting in blatant disregard for EIA regulations.256 These scenarios underscore the
significance of the rule of law which serves to restrain authorities and safeguard against arbitrary
governance. If the objectives of EIA are to be realised, then all proponents (including the powers
that be) should comply with the obligation to conduct EIA studies prior to commissioning all
projects in the mandatory EIA category.
The EIA Act also provides for an ‘exclusion clause’ where certain projects are exempt from a
mandatory EIA study. Section 15 (1 a, b, c) of the Act stipulates that, “an environmental assessment
of project shall not be required where the project is in the list of projects whose environmental
250 Ibid. 251 Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) AHRLR 151 (NgHC 2005),
Available at: http://www1.chr.up.ac.za/index.php/browse-by-subject/418-nigeria-gbemre-v-shell-petroleum-
development-company-nigeria-limited-and-others-2005-ahrlr-151-nghc-2005.html 252 Ibid. at para 4 (9) 253 Ibid. at para 5 (5) 254 Anago, I. (2002) Environmental Impact Assessment as a Tool for Sustainable Development: The Nigerian
Experience FIG XXII International Congress Washington, D.C. USA, April 19-26, 2002, p 11 255 Ibid. 256 Yusuf, T. A. (2008). “The Environmental Impact Assessment Practice in Nigeria: The Journey So Far.” Available
from http://www.nigeriansinamerica.com/articles/3105/1/The-Environmental-Impact-Assessment-Practice-In-Nigeria-
The-Journey-So-Far-/Page1.html
45
effects is likely to be minimal; or the project is to be carried out during national emergency; or in
response to circumstances that is in the interest of public health or safety.”257 The successful
application of the exclusion clause has raised doubts for obvious reasons. Firstly, defining what
constitutes ‘minimal environmental effects’ is problematic, and the EIA Act has failed to proffer a
definition. Secondly, there are fears that the clause might be abused by the authorities.258 For
instance, Olokesusi has argued that if not for government influence, the Nigerian liquefied natural
gas (NLNG) project would not have seen the light of the day, considering the attendant crisis that
plagued the host community during that period.259 Another typical example is the Abuja national
stadium project which was commissioned without an EIA study,260 regardless that the project falls
directly under the mandatory list for EIA and caused significant loss of natural habitat.
4.1.4 Competence of EIA Study Team as Quality Control Mechanism
EIA is a technical and multi-discipline process. Therefore, it is a good practice that the EIA study is
performed by a multi-disciplinary team of experts, that uses an interdisciplinary approach for
impact assessments to provide accurate data and information in the EIA report.261 Jalava et al note
that due to the broad and comprehensive nature of EIA, a diversity of expertise is required for its
implementation.262 Bearing this in mind, it is common practice that, only accredited consultants
should be engaged by proponents to conduct EIA studies. In some EIA systems, the lead regulatory
body certifies qualified experts/consultants of proven competence to perform the EIA survey or act
as reviewers of the EIA report.263
Contrary to what obtains in some EIA systems, there is no legal provision in the Nigerian EIA Act
which stipulates (by law) that the EIA shall be conducted by experts264 who have been duly certified
by the competent authorities. Although the lead regulatory agency recommends in the EIA
guidelines, that proponents engage experts in EIA studies, such procedural provision is not
257 See Section 15 (1 a, b, c) EIA Act, Cap E12, LFN 2004 258 Olokesusi, F. (1998) Legal and Institutional Framework of Environmental Impact Assessment In Nigeria: An Initial
Assessment, Environ Impact Asses Rev 1998; 18(2): p 171 259 Ibid. 260 Eneh, O. C. (2011). Managing Nigeria’s Environment: The Unresolved Issues. Journal of Environmental Science
and Technology, 2011; 4: p 258 261 Echefu, N and Akpofure, E. (2012) Environmental impact assessment in Nigeria: regulatory background and
procedural framework. UNEP EIA Training Resource Manual, p 70 262 Jalava, K., Haakana, Anne-Mari and Kuitunen, M. (2015) The rationale for and practice of EIA follow-up: an
analysis of Finnish road projects, Impact Assessment and Project Appraisal, 2015; 33(4): p 256 263 Supra. See 256 above 264 These experts are usually consultants with expert knowledge in their respective fields.
46
enshrined in the specific EIA legislation and is, therefore, of no legal consequence, given that EIA
guidelines are not legally binding.265 In my view, owing to its non-legally binding status, this
recommendation cannot function as an effective quality control mechanism, as it would, if it were
explicitly a mandatory legal requirement enshrined in the EIA legislation. My reasoning is in
conformity with Saidi’s assertion that EIA legislation is not just about enactment of enabling laws
on EIA implementation, but that every aspect of the EIA process should have some legal
backings.266 Given that the “effectiveness of guidelines depends not only on the quality of their
content but on other accompanying implementation measures”267including legal backing and
enforcement, the mere recommendation in the guidelines, that proponents engage experts for EIA
studies, may prove to be inadequate in ensuring that quality EIA reports are produced.
As already discussed in this thesis, accreditation of consultants that conduct EIA is a more common
method of ensuring quality EIS especially in developing countries. Although this requirement may
seem like a simple procedure, its potentials as a quality control mechanism in EIA studies is huge,
especially when it is given legal backing. For instance, the Tanzanian EIA clearly stipulates in
Section 14 of the EIA and Audit Regulations that; “EIA shall be conducted by experts or firms of
experts whose names have been duly certified and registered in accordance with the provisions of
the environmental regulations.”268 Similarly, in paragraph 33 of the recital and Article 5(3), the
revised EU EIA Directive introduces, as a quality control mechanism, a requirement that EIA
reports be prepared by experts who are qualified and competent.269 The revised EU EIA Directive
goes further to require that, decision-makers must ensure they have sufficient expertise to analyze
the EIA report and satisfy themselves that the information provided by the proponent is complete
and of high quality.270 In this way, the regulatory authorities and all stakeholders can find the EIA
report reliable.
4.1.5 Quality Review
265 Pinho, P., McCallum, S and Santos Cruz, S (2010) A critical appraisal of EIA screening practice in EU Member
States, Impact Assessment and Project Appraisal, 2010; 28(2): p 95 266 Saidi, T. A. (2010) Environmental Impact Assessment as a Policy Tool for Integrating Environmental Concerns in
Development. AISA POLICYbrief June 2010; 19: p 3 267 Ahmad B. and Wood, C. (2002) A comparative evaluation of the EIA systems in Egypt, Turkey and Tunisia.
Environmental Impact Assessment Review 2002; 22: p 226 268 Tanzania Environmental Impact Assessment and Audit Regulations, 2005, section 14 269 Directive 2014/52/EU of the European Parliament and of the Council, para 33: Article 5 (3) a 270 Directive 2014/52/EU of the European Parliament and of the Council, para 33: Article 5(3) b
47
The review process of an EIA study has been a focus of much research as an important quality
control mechanism. Campion and Essel assert that EIA review process can reveal whether the
impact assessment study provides adequate information which are useful for decision-making.271
Although the term “review” is not defined in the Nigerian EIA Act, it is generally taken to mean a
process of verifying that an EIA report meets the legal requirements and is adequate for use in
decision-making process. The legal basis for review of the EIA process in Nigerian EIA system is
found in Section 37 of the EIA Act which requires the EIA report to be subjected to a review
panel,272 while the public is given an opportunity to participate in the assessment.273
Generally, in the Nigerian EIA system, there is an absence of an independent review body outside
the competent authority, to assess the overall quality of the EIA reports. This deficiency assumes
that the lead regulatory agency has necessary competence, hence the confidence in placing the sole
responsibility of EIA review on the regulatory authority itself. Ordinarily, this absence of an
independent review procedure should not render the Nigerian EIA Act ineffective. According to the
UNEP EIA manual, either the lead agency, or committee or an independent body can be tasked to
conduct the EIA review process.274 Notwithstanding the differences in terms of who undertakes the
review process, the common goal of the process is to ascertain whether the draft EIA report meets
the stipulated requirements and is sufficient for informed decision-making process.275
Although the absence of an independent review process is a common feature of many EIA
systems,276 I tend to critique this system for the sole reason that the responsible authority could have
a biased view in the review process, especially when personal interest is at stake. Moreover,
independent peer review of EIA report can increase public confidence, reduce bias in the evaluation
process, enhance credibility and is therefore considered as a mechanism for quality control in
EIA.277 It has been argued that to safeguard accuracy and adequacy of information, it is good
practice to have the EIA draft report reviewed by the public and independent authorities prior to
decision-making.278 The issue of conflict of interest is to be expected in every EIA system and
should be properly handled. The newly reviewed EU EIA Directive clearly stipulates that, “where
271 Campion, B. B. and Essel, G. (2013) Environmental Impact Assessment and Sustainable Development in Africa: A
Critical Review. Environment and Natural Resources Research; 2013; 3(2): p 43 272 EIA Act Section 37 a, b. 273 Ibid. at Section 36 b 274 United Nations Environment Programme (2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p 352 275 Ibid. 276 DEAT (2004) Review in Environmental Impact Assessment, Integrated Environmental Management, Information
Series 13, Department of Environmental Affairs and Tourism (DEAT), Pretoria. p 7 277 Ibid. p 4 278 Weaver, A. (2003) EIA and sustainable development: Key concepts and tools. In: Southern Africa Institute for
Environmental Assessment Environmental Impact Assessment in Southern Africa. Windhoek. SAIEA, p 3
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the competent authority is also the developer…member states shall at least implement, an
appropriate separation between conflicting functions.”279
4.1.6 Public Participation and Consultations
The need to have the public participate in EIA procedures has been recognised as a vital part of the
EIA processes in most EIA systems in different jurisdictions.280 Not surprising, public participation
is now given prominence in EIA literatures.281 Bekhechi asserts that the significance of public
involvement in decision-making processes is widely recognised as one important means of ensuring
the soundness of the EIA.282 It has also been reported that public participation in an EIA process can
confer a major influence on quality assurance,283 in that they present a platform and forum for
concerned stakeholders to express their views on the various issues emanating from the EIA
studies.284
Ironically, perhaps no aspect of the EIA process is widely criticized for its shortcomings than public
participation and consultations. The reasons may not be far-fetched. Although the provisions for
public participation exists in many EIA legislations, the process of application has remained elusive
due to the lack of clear and detailed implementation procedures. Bekhechi notes that the scope and
purpose of the public participation are sometimes too broad and thus, are not useful for determining
the tangible impact of public participation in the EIA decision-making process.285
Regrettably, the Nigeria EIA system in its current state, is not immune to the public participation
critique. The provisions of Nigerian EIA Act for public participation is inadequate when compared
to what is obtained in some EIA systems. Although public participation is formally entrenched in
the statutory provisions of the Nigerian EIA Act pursuant to Sections 7 and 22(3) of the Act, the
extent of application of the provisions within the meaning of the Act has not been encouraging. For
279 EU EIA Directive 2014/52/EU, Article 9a 280 Appiah-Opoku S (2001) Environmental impact assessment in developing countries: the case of Ghana. Environ
Impact Assess Rev. 2001; 21: pp 59–71 281 Morgan, R. K. (2012), "Environmental impact assessment: the state of the art", Impact Assessment and Project
Appraisal, 2012; 30(1): p 9 282 Bekhechi, M. A. (2003) Legal and Regulatory Framework for Environmental Impact Assessment in African
Countries. In: International Environmental Law and Policy in Africa. Chaytor, B. and Gray, K. R. (eds) p 278 283 Morrison-Saunders, A, D Annandale and J Cappelluti 2001. Practitioner perspectives on what influences EIA
quality. Impact Assessment and Project Appraisal, 2001; 19 (4): p 325; United Nations Environment Programme
(2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p 359 284 United Nations Environment Programme (2002), UNEP EIA Training Resource Manual, Nairobi: UNEP. p 359 285 Bekhechi, M. A. (2003) Legal and Regulatory Framework for Environmental Impact Assessment in African
Countries. In: International Environmental Law and Policy in Africa. Chaytor, B. and Gray, K. R. (eds) p 277
49
instance, although there is provision for public access and comments on the screening report of any
projects, the actual implementation of the provision is negated as the public are given no chance to
participate in the EIA screening process. Also, Ingelson and Nwapi have lamented the total absence
of legal requirement in the EIA Act, obligating the proponent to involve the affected public in its
self-assessment of the EIA report prior to submission to the regulatory authorities.286 As noted by
Fagbohun, in practice the public exerts very limited influence in matters of environmental
governance in Nigeria.287
It has also been reported that public participation is not timely, as it quite often occurs too late in the
EIA process. For instance, Olokesusi decries a lack of opportunity for public scrutiny of the
screening report which occurs early in the EIA process.288 A common practice in the Nigerian EIA
system, is that the forum for public participation occurs after the submission of the draft final EIA
report, when the public are allowed to examine the report and communicate their observations to the
relevant authorities within the stipulated period.289 The opportunity for comments by interested
parties is set out in Section 7 of the Act which provides that prior to making final decision,
government agencies, the public, and interested groups should be accorded the opportunity to
comment on EIA of the proposed activity.290 A closer look at the wordings of this provision is
suggestive of the fact that the public are given the opportunity to participate very late in the EIA
process, just before the final decision is made by the regulatory authority. Ortolano and Shepard
have asserted that a chronic problem militating against many EIA programmes is that the chance for
public participation comes too late such that EIA process cannot benefit from the vital information
which the public can provide regarding the projects.291
Antecedents point out that the hype about public participation provisions in the Nigerian EIA
system, is merely to fulfill all righteousness. And this is generally the same problem in majority of
EIA systems in developing countries. For instance, in the study of the involvement of local
stakeholders in the EIA processes of Ghana’s first off-shore oil fields, Bawole argues that the
public participation processes were ‘cosmetic and rhetoric,’ merely to satisfy legal requirements
286 Ingelson, Allan and Nwapi, Chilenye (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining
Projects in Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal 2014; 10(1): p 50 287 Fagbohun, O. (2012) Mournful Remedies, Endless Conflicts and Inconsistencies in Nigeria’s Quest for
Environmental Governance: Rethinking the Legal Possibilities for Sustainability NIALS Press, Abuja p 84 288 Olokesusi, F. (1998) Legal and Institutional Framework of Environmental Impact Assessment in Nigeria: An Initial
Assessment. Environmental Impact Assessment Review 1998; 18(2): p 171 289 Ibid. 290 EIA Act Section 7 291 Ortolano, L. and Shepherd, A. (1995) Environmental Impact Assessment: Challenges and Opportunities, Impact
Assessment, 1995; 13(1): p 19
50
instead of a genuine effort in harnessing public and local community inputs.292 Also while citing the
Eko Atlantic city development project in Lagos, Nigeria as an example, Fagbohun stressed that
public participation are often staged as a defense for an action that has been concluded or to make
the public feel relevant by requesting from them ideas that are never taken into consideration.293
From the foregoing, there is very little evidence to support an argument that the Nigerian EIA
system, by way of its EIA Act, has significantly encouraged public participation in environmental
assessment and decision-making. Rather, this thesis supports the observations that public
participation in Nigeria’s EIA process is still very low. The absence of an encouraging public
participation provisions coupled with a general apathy has meant that judicial proceedings is rarely
instituted to challenge and address environmental grievances.
Concerns have also been expressed over the manner of communicating decisions to the public and
this has been implicated as one reason for poor quality of EIA studies in developing countries.294 In
the Nigerian EIA system, Section 39 of the EIA Act places a requirement on the regulatory
authorities to publish the report of the review panel in “any manner the council considers
appropriate,” and advise the public that the report is available.295 It can be argued that this provision
is inexplicit and inadequate in the sense that there are no formal requirements concerning the
formats for the systematic communication of EIAs to the stakeholders and the public. As part of the
amendment, the new EU EIA Directive explicitly enshrines in Article 6 (b, c) of the EIA legislation,
the different formats of communicating EIA reports and decision to the public.296 The format of
presenting EIA reports is equally an important consideration for public awareness and
participation.297 Earlier studies have affirmed that, the singular fact that EIA reports are published
for public inspection is not alone sufficient as a means of communicating the substance of the
EIA.298
292 Bawole, J. N. (2013) Public Hearing or ‘Hearing Public’? An Evaluation of the Participation of Local Stakeholders
in Environmental Impact Assessment of Ghana’s Jubilee Oil Fields. Environmental Management, 2013; 52(2): p 385 293 Fagbohun, O. (2012) Mournful Remedies, Endless Conflicts and Inconsistencies in Nigeria’s Quest for
Environmental Governance: Rethinking the Legal Possibilities for Sustainability NIALS Press, Abuja p 84. It is very
dismal to recall that in the said Eko Atlantic city development project, the EIA report was submitted three years after
the commencement of dredging activities, regardless of the huge environmental significance of the project advertised as
a model public-private-partnership to protect Lagos from flooding and ocean surge, and to offer new habitable space for
residents and business among others benefits. 294 Kakonge, J. (2013) Communicating the Findings and Recommendations of Environmental Impact Assessment (EIA)
Reports in Africa: Some Observations, Global Media Journal, African Edition 2013; 7(1): pp 1-12 295 EIA Act Section 39 296 EU EIA Directive 2014/52/EU, Article 6 (b, c) 297 Kakonge, J. (2013) Communicating the Findings and Recommendations of Environmental Impact Assessment (EIA)
Reports in Africa: Some Observations, Global Media Journal, African Edition 2013; 7(1): p 8 298 Ibid.
51
Furthermore, the issue of appropriate language of communicating the EIA report has remained a
problem in many developing EIA systems.299 Kakonge noted that, most EIA reports fail to
communicate their findings to the public because they are presented in large volumes written in
technical language which most of the local population and interested stakeholders cannot
comprehend.300 The result is that EIA loses both its quality and value and ends up being merely a
fulfillment of legal requirement.301 Fortunately, there is a legal provision in Section 4 (h) of the
Nigerian EIA Act requiring the proponent to include a brief and non-technical summary of the
information in the report. This provision which is consistent with what obtains in most EIA
jurisdictions, is of relevance in that it might just be the only part of the EIA report that decision
makers and the public are likely to read. For instance, Article 5(e) of the newly reviewed EU EIA
Directive requires the provision of non-technical summary in the EIA report.
4.1.7 Decision Making
It is one thing having a robust EIA system with adequate legal provisions, and capabilities to deliver
high quality EIA study, but it is another thing that the results of an EIA study find its application or
incorporation into decision-making process. This aspect of the EIA process, together with
communication of results, have often attracted a lot of concerns.302 Although decision-making
process has enjoyed great attention in EIA research literatures, actual practices remains a far cry
from its intended goals. Morgan stressed that generally in EIA practice, there is a great disparity
between the best practice in theory and the actual implementation of EIA.303
Surprisingly, even the EIA systems in the developed countries are not absolved from these
concerns. Earlier, Wood and Jones studied the effectiveness of EIA in the UK by examining 40
planning applications, and found that EIA influenced the decision in only one out of the 40 cases
under examination.304 Similarly, in the study on quality control and the substantive influence of EIA
in Finland, Pölönen affirmed that there is no assurance from the EIA legislation (in the EU and
299 Ibid. at p 4, 6 and 7 300 Ibid. p 5 301 Wood, C. (2003) Environmental Impact Assessment in Developing Countries: An Overview. Conference on New
Directions in Impact Assessment for Development: Methods and Practice 24-25 November 2003; Kakonge, J. (2013)
Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections Global Policy - 5th March 2013 302 Jay, S., Jones, C., Slinn, P. and Woods, C. (2007). Environmental impact assessment: Retrospect and prospect.
Environmental Impact Assessment Review, 2007; 27: pp 287–300 303 Morgan, R. K. (2012), "Environmental impact assessment: the state of the art", Impact Assessment and Project
Appraisal, 2012; 30(1): p. 11 304 Wood, C. and Jones, C. (1997). The Effect of Environmental Assessment on UK Local Planning Authority
Decisions. Urban Studies, 1997; 34(8): pp.1237–1257.
52
Finland) that the information obtained from EIA studies will find application in decision-making.305
The question then would be, what is the essence of conducting EIA if the outcome is not to be taken
into cognizance?
Although Section 7 of the EIA Act provides for all stakeholders, including agencies, public, experts,
NGOs, communities, etc, to be notified, consulted or given the opportunity to make comments on
the EIA of a project prior to decision, argument exists that such public inputs are hardly taken into
consideration by decision-making authorities. Also, even though Section 58 (1) and (2) of the EIA
Act mandates the regulatory authority to collate a statistical summary of all projects that have gone
through the EIA process, there is no explicit provision in the Nigerian EIA Act aimed at
incorporating experiences and lessons learned during the EIA process into existing processes.
Jalava identified the deficiency of dedicated legal provisions in the decision-making stage as a
reason for poor consideration of EIA findings during the decision-making process.306
4.1.8 Monitoring (Follow-up)
According to Morrison-Saunders et al, EIA follow-up is a broad term relating to “the monitoring,
evaluation, management and communication of the environmental performance of a project or
plan.”307 Therefore, monitoring is a subset of follow-up program. Monitoring is an essential process
in EIA system and the lack of legal provision and sufficient implementation of this mechanism has
been identified as one of the weaknesses of the EIA process.308 In Jalava et al’s opinion, monitoring
is the weakest part of the EIA processes,309 notwithstanding that adequate follow-up mechanisms
are indispensable to having useful and purposeful EIAs since it enables the process of learning from
experience.310 It is obvious that without appropriate legal provision to enforce monitoring, the
resulting EIA studies cannot be adjudged to be of good quality. Pölönen suggested that
requirements in legislation concerning follow-up should be more specific and should include an
305 Pölönen, I (2006) Quality control and the substantive influence of environmental impact assessment in Finland.
Environmental Impact Assessment Review 2006; 26: p. 481 306 Jalava, K. (2014). Quality of Environmental Impact Assessment in Finland. PhD. thesis in the Faculty of
Mathematics and Science, University of Jyväskylä, Finland. September 26, 2014. Jyväskylä Studies in Biological and
Environmental Science 289 p 30 307 Morrison-Saunders, A., Marshall, R. and Arts, J. 2007 EIA Follow-Up International Best Practice Principles. Special
Publication Series No. 6. Fargo, USA: International Association for Impact Assessment. p 1 308 Kakonge, J. (2013) Improving Environmental Impact Assessment (EIA) Effectiveness: Some Reflections. Global
Policy Journal, 5th March 2013 309 Jalava, K; Pasanen, S; Mikko Saalasti, M. and Kuitunen, M. (2010) Quality of Environmental Impact Assessment:
Finnish EISs and the opinions of EIA professionals. Impact Assessment and Proj. Appraisal, March 2010; 28(1): p. 15 310 Jalava, K., Haakana, Anne-Mari and Kuitunen, M. (2015) The rationale for and practice of EIA follow-up: an
analysis of Finnish road projects, Impact Assessment and Project Appraisal, 2015; 33(4): p 256
53
obligation for follow-up.311 Among other benefits, monitoring is also intended to assess how well
commitments captured in EIA reports are addressed during the various phases of project
implementations.312
Undoubtedly, the Nigerian EIA Act is not silent regarding the provisions for post-EIA monitoring.
The Nigerian EIA Act provides for monitoring plans details pursuant to Section 16(c) of the Act
which stipulates that whenever there is the need for an EIA on a proposed project, the EIA process
should include the plan and implementation of a monitoring program.313 Section 17 of the Act
further clarifies that every mandatory study must include a discussion of “the need for and the
requirements of any follow-up program in respect of the project.”314 The fact that monitoring is
mentioned in many sections of the Act is indicative that the regulatory authority is fully
appreciative of the relevance of this process towards assessing the quality and effectiveness of an
EIA study.
For clarity, the term ‘follow-up program’ is defined in Section 16 (a) and (b) of the EIA Act as a
program for: “verifying the accuracy of the environmental assessment of a project; and determining
the effectiveness of any measures taken to mitigate the adverse environmental effects of the
project.”315 Although the Nigerian EIA Act contains legal provisions for post-EIA monitoring,
again, the actual implementation of this legal requirement has been discretionary and discouraging.
For instance, in a 2007 study of EIA challenges in Nigeria, Yusuf et al, reported that while a total of
187 (60%) of submitted EIAs were approved between 1995 - 2003, only 99 (31%) of the projects
were being monitored.316 This could be attributed to institutional malfunctioning rather than a lack
of legal obligation. My submission is that, monitoring is very weak in the Nigerian EIA system.
4.1.9 Transboundary Environmental Effect
Although Nigeria is not a party to the Espoo Convention, it is interesting to note that the Nigerian
EIA Act recognises the need to take precautions against international environmental effects of
developmental projects carried out within the Nigerian territory. Section 48(1) of the EIA Act
311 Pölönen, I (2006) Quality control and the substantive influence of environmental impact assessment in Finland
Environmental Impact Assessment Review 2006; 26: pp 481 – 491 312 Nwoko, C. O, (2013) Evaluation of Environmental Impact Assessment System in Nigeria. Greener Journal of
Environmental Management and Public Safety. 2013; 2 (1): p 27 313 See Section 16 a EIA Act, Cap E12, LFN 2004 314 Ibid. Section 17 315 Ibid. Section 16 (a) and (b) 316 Yusuf, R. O; Agarry, S. E. and Durojaiye, A. O. (2007) ‘Environmental Impact Assessment Challenge in Nigeria’
2/2 J Environ Sc & Technol, 2007; 2(2): p79
54
places a requirement on the regulatory authority to assess the international environmental effects of
projects carried out in Nigeria regardless whether an EIA is not required. This provision entails that
when a transboundary environmental effect of a project is possible, an EIA should be carried out
even if such developmental projects fall within the “exempted list.”
Thus Section 48(1) of the EIA Act requires Nigeria to ensure that activities carried out within its
jurisdiction do not cause significant damage to other States. This provision is consistent with
Section 4 (g) of the Act which further stipulates that an EIA study should include an indication of
“whether the environment of…areas outside Nigeria is likely to be affected by the proposed activity
or its alternatives.”317 Bearing in mind the threat posed by international environmental disputes to
peace in the global community,318 this legal provision of the Nigerian EIA Act, is laudable and falls
in line with the no harm principle in international environmental law.
Thus, Nigeria’s non-ratification of the Convention on TEIA notwithstanding, it is still under an
obligation to consider transboundary environmental impact of projects, courtesy of it being a party
to many other international conventions which have recognised EIA.319 Moreover, the application
of transboundary EIA has been linked to national EIA procedures. Koivurova and Pölönen explain
that, to apply the Espoo Convention to the Baltic Sea Gas Pipeline (BSGP) transboundary EIA, the
Russian Federation consented to the application of the Espoo Convention within the ambit of its
domestic legislation.320
4.2 Judicial Control Mechanisms in Nigerian EIA System
If the legal control mechanisms in Nigerian EIA system is encouraging, the same cannot be said for
the judicial control mechanisms. As already explained in this thesis (see chapter 2), judicial control
mechanism can constitute a major motivation for project proponents to adopt good EIA practices to
avoid threat of prosecutions and sanctions against failure to carry out adequate EIA procedures.
According to Leu et al, judicial control presents the platform for settling grievances that may arise
317 See Section 4 (g) EIA Act, Cap E12, LFN 2004 318 Brack, D. (2001) International Environmental Disputes. International forums for non-compliance and dispute
settlement in environment-related cases, Royal Institute of International Affairs, London, UK. pp 1 - 17 319 These include: The Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters; the United Nations Convention on the Law of the Sea; the Convention on Wetlands
of International Importance and the United Nations Framework Convention on Climate Change, to name a few. 320 Koivurova T. and Pölönen I. (2010). Transboundary environmental impact assessment in the case of the Baltic Sea
gas pipeline. International Journal of Marine and Coastal Law, 2010; 25: p160
55
from the EIA process, and by so doing, ensure justice and uphold legitimacy of administering
EIA.321
The Nigerian EIA Act does not only endow the lead agency with the power to facilitate
environmental assessment322 and make regulations,323 but it also confers on the agency the
competence to prosecute any non-compliance with the requirements of the EIA Act. Section 60 of
the EIA Act prescribes penalties for any non-compliance with the requirements of the EIA Act by
stating:
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
N100,000 (Nigerian Naira) 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 N1,000,000.”324
According to the wordings of Section 52(1) of the Act, it implies that only the regulatory agency
has the express power to institute judicial proceedings against any non-compliance, thereby
neglecting the role of public litigation in environmental governance. It is also not clear from this
provision if upon conviction and payment of the appropriate penalties, the requirement of EIA is
overlooked. It has been argued that the legal liability accompanying a breach of the Act is paltry,
hence a review of the Act is overdue.
4.2.1 Judicial Review
It is widely held that having the right to petition EIA decisions is a vital element of an effective EIA
process.325 The provisions for appeal by the developer or the public against decisions, is one of the
systemic measures in Ahmad and Woods’ EIA evaluation criteria.326 By way of contrast to what
obtains in some EIA legislations, the Nigerian EIA Act does not provide any judicial channel
necessary to enable an appeal against the agency’s decisions on EIA cases. For instance, although
321 Leu WS, Williams WP, Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj Appraisal 1996; 11: p 4 322 See Section 58 (1) a-f EIA Act, Cap E12, LFN 2004 323 See Section 59 EIA Act, Cap E12, LFN 2004 324 See Section 60 EIA Act, Cap E12, LFN 2004. 325 Ingelson, Allan and Nwapi, Chilenye (2014) ‘Environmental Impact Assessment Process for Oil, Gas and Mining
Projects in Nigeria: A Critical Analysis’, 10/1 Law, Environment and Development Journal 2014; 10(1): p. 52,
available at http://www.lead-journal.org/content/14035.pdf 326 Ahmad B. and Wood, C. (2002) A comparative evaluation of the EIA systems in Egypt, Turkey and Tunisia.
Environmental Impact Assessment Review 2002; 22: p 216
56
judicial review process has the potential to act as a check and balance, the Nigerian EIA Act
expressis verbis take a hard stand against judicial review process. The Act explicitly stipulates in
Section 57 that, “an application for judicial review relating to any matter under this Act shall be
refused where the sole ground for relief established on the application is a defect in form or a
technical irregularity.”327 On the contrary, while the Nigerian EIA Act frowns at judicial review, the
EU EIA Directive generously provides for public access to justice. Pursuant to Article 15(a) of the
EU EIA Directive, members of the public with sufficient interest should be given “access to a
review procedure before a court of law…to challenge the substantive or procedural legality of
decisions, acts or omissions subject to the public participation provisions of this Directive.”328
It constitutes a severe deficiency that the Nigerian EIA Act does not establish a formal recognition
of the notion of judicial review in the EIA process. The absence of such provision in the Act means
that interest groups or aggrieved communities and stakeholders must swallow the content of an EIA
report hook-line-and-sinker. Ordinarily, agitations and judicial appeals can serve to put pressure on
both the proponents and regulatory agencies to deliver quality EIA. Fatona et al, note that, in the
developed world, the best approach to ensuring regulatory compliance is through combined
enforcement efforts of governmental regulatory authorities with active community pressure on the
developers and government agencies.329 In that way, the public can act to stop gaps in government
enforcement.330 Nonetheless, it appears that the deficiency of efficient judicial procedure is rampant
in EIA systems and it cut across both the developed and developing world. While analyzing quality
control and the substantive influence of EIA in Finland, Pölönen found that a “significant problem
of the Finnish EIA system is the lack of efficient access to a judicial procedure to challenge the
quality and completeness of an EIS.”331
As in other aspects of law, Ikoni asserts that enforcement of environmental laws through legal
actions could help to compel compliance and impose sanctions for non-compliance.332 But
infringement proceedings on environmental issues is a frustrating process in the Nigerian judicial
system. Amongst other factors, Mmadu identified locus standi, pre-action notice and limitation of
327 See Section 57 EIA Act, Cap E12, LFN 2004 328 EU EIA Directive 2003/35/EC, Article 15 (a) 329 Fatona Pius Olugbenga, Adetayo Olumide, Adesanwo Adeola. (2015) Environmental Impact Assessment (EIA) Law
and Practice in Nigeria: How Far? How Well? American Journal of Environmental Policy and Management. 2015; 1(1):
p. 13. 330 Madebwe, T. (2015) ‘Carving out a Greater Role for Civil Litigation as an Environmental Law Enforcement Tool in
Zimbabwe’s 2013 Constitution’, 11/2 Law, Environment and Development Journal 2015; 11(2): p. 110 331 Pölönen, I (2006) Quality control and the substantive influence of environmental impact assessment in Finland.
Environmental Impact Assessment Review 2006; 26: p 481 332 Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria. Academia Online. p 13
57
action as the prominent legal and technical challenges militating against environmental litigants in
Nigeria.333 As if these are not enough impediments, the burden of proof to present scientific and
technical evidence required to prove environmental cases in the court and the high costs of litigation
have compounded the problems faced by environmental litigants.334 Even when there exists the
possibility for judicial proceedings, quite often, the Nigerian courts are said to be less inclined to
environmental issues,335 thus making environmental litigation an exercise in futility.
A highly interesting example of the barrier to environmental litigation posed by locus standi336 is
found in the Oronto Douglas v. Shell Petroleum Development Company(SPDC) Limited Case.337 In
Douglas v. Shell, the applicant contested the non-compliance of the defendants with the provisions
of the EIA Act which requires a mandatory EIA study for such activities like the Nigeria Liquefied
Natural Gas (NLNG) project. Pursuant to Section 2(2) of the EIA Act, proponents are required to
undertake an EIA study where a proposed project is likely to significantly affect the environment.338
Amongst other reasons, the court struck out the case arguing that the applicant had no standing to
institute the case. Ako argues that the locus standi requirement should have been met in this case, in
view of the fact that the applicant hails from one of the projects’ host-communities and is also a
renowned environmentalist.339 Also, Section 7 of the EIA Act requires the agency to “give
opportunity to government agencies, members of the public, experts in any relevant discipline and
interested groups to make comments on environmental impact assessment of any activity.”340
Moreover, the NLNG project is one of the projects that require mandatory EIA as provided in
section 13 of the EIA Act and so does not require proof of locus standi.341
333 Mmadu, R. A. (2013) Judicial Attitude to Environmental Litigation and Access to Environmental Justice in Nigeria:
Lessons from Kiobel. Afe Babalola University: Journal of Sustainable Development Law and Policy 2013; 2(1): p. 150 334 Ojo, G. U. and Tokunbor, N. (2016) Access to Environmental Justice in Nigeria: The Case for a Global
Environmental Court of Justice, Friends of the Earth International, p. 4 335 Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria. Academia Online. p 13; Okonkwo, T. (2018) Remedies for Environmental Damage Under
the National Environmental Standards and Regulations Enforcement Agency (NESREA) (Establishment) Act 2007 and
the Harmful Waste (Special Criminal Provisions, Etc) Act 1988, NAUJILJ, 2018; 9(1): p. 136 336 Locus standi demands that a litigant should have sufficient interest to institute any proceedings in a competent court
of law. Inability of the Applicant to establish sufficient interest in the matter, means that no legal action can be
instituted. 337 Suit No. FHC/2CS/573 Oronto Douglas v. Shell Petroleum Development Company Limited I 338 See Section 2 EIA Act, Cap E12, LFN 2004 339 Ako, R. T. (2010) The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives
from Nigeria and India. NUJS LAW REVIEW 3 NUJS L. REV. 2010; 3: p. 439 340 See Section 7 EIA Act, Cap E12, LFN 2004 341 Supra see 318 above
58
There appears to be inadequate judicial control over the Nigerian EIA system and the court tends to
be more sympathetic with the government.342 As Ako sums it, the Douglas case “suggests
government interference in the enforcement of environmental right.”343 A similar pro-government
court ruling in Alar Iroh v Shell Petroleum Development Company(SPDC) Limited further adds to
confirm Ako’s earlier assertion. In Allar Iroh v SPDC,344 the applicant sought an injunction against
SPDC whose operations brought about incessant contamination of the applicant’s land and fish
pond. The court denied the applicant’s plea arguing solely on economic reasons that if the
injunction was granted, it could jeopardise the defendant’s economic goal, cause loss of jobs and
affect the country’s revenue. This ruling suggests that the Court places economic benefits over
environmental concerns, which is against the principles of sustainable development that
recommends balancing of the different aspects of developments. These scenarios create litigation
apathy as the public has lost interests and confidence in judicial redress to the effect that
irregularities in EIA go unchecked.345
With reference to impediments posed by locus standi, Ikoni notes that the disposition of the courts
can be a major determinant factor on the outcome of public environmental litigation.346 In order to
curtail this impediment, Mmadu recommends a more positive role of the Nigerian judiciary in
delivering environmental justice to the ordinary citizenry.347 In his view, judicial activism can
provide the impetus for public regulation of the environment.348 Given the benefit that an
understanding judiciary can boost a sense of public involvement and increase public confidence in
the enforcement system,349 it is, therefore, hard to imagine a quality EIA without the provisions for
proper judicial review in the EIA Act.
Perhaps there are more interesting matters arising from the Douglas Case other than locus standi. In
addition to showing the impediment to successful environmental litigation in general, the Douglas
342 It should be noted that the project at stake in the Douglas case was a multi-billion-dollar investment owned by the
Federal Republic of Nigeria, represented by the Nigeria National Petroleum Corporation (NNPC), and other
multinational oil companies including Shell, Totalfina Elf, and Agip. 343 Ako, R. T. (2010) The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives
from Nigeria and India. NUJS LAW REVIEW 3 NUJS L. REV. 2010; 3: p. 438 344 Allar Iron v. Shell BP [2012] unreported suit No. w/89/71190 345 Ladan, M.T. (2009) The Role of the Judiciary in Environmental Governance in Nigeria. In: The Role of the Judiciary
in Environmental Governance: Comparative Perspectives, Louis J. Kotzé and Alexander R. Paterson (eds.) Kluver Law
International, 2009; p 550 346 Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria Academia Online. p 16 347 Mmadu, R. A. (2013) Judicial Attitude to Environmental Litigation and Access to Environmental Justice in Nigeria:
Lessons from Kiobel. Afe Babalola University: Journal of Sustainable Development Law and Policy 2013; 2(1): p 150 348 Ibid 349 Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria Academia Online. p 16
59
Case further revealed the questionable quality of EIA and the role of FEPA which was as at then the
lead agency with the mandate to certify EIA surveys. Amongst other issues in Douglas, the
applicant had argued that the EIA was not strictly applied in the execution of the NLNG project,
and that adequate opportunity was not provided for public comments on the EIA report of the gas
project in question, contrary to the provisions of Section 7 of the EIA Act.350
Although environmental litigation is not directly a quality control mechanism within the meaning of
legal and judicial EIA quality control mechanisms, it flows from the provisions of judicial review
process which is an established EIA quality control mechanism.351 In addition to being an effective
mechanism for seeking environmental justices by aggrieved stakeholders, litigation is also a tool for
compelling environmental compliance.352 Following a successful litigation, it is reasoned that the
financial cost required to settle significant awards could have desirable deterrent effect on cutting
corners in EIA practices. Litigation can checkmate inadequacies in EIA practices. For instance, in
the Douglas case,353 the poor quality of EIA report for the NLNG project was brought to the fore
through public litigation.354 In this way, litigation can serve to remedy or restrain a breach of
environmental legislation and improves the quality of EIA practice.
Environmental litigation in EIA can ensue when there is a high threshold of environmental
awareness by the citizenry, and adequate opportunities for judicial review in the EIA legislation.
Public litigation has been advocated as a complementary tool to state-led environmental law
enforcement efforts in Zimbabwe.355 This is based on the presumption that “state-led enforcement
of environmental law is prone to being compromised by conflicting interests.”356 Although legal
liability for non-compliance is clearly enshrined in the EIA Act,357 it is rather disappointing to note
that the provisions to address environmental justice through public environmental litigation is
conspicuously missing in the Nigerian EIA law. Most environmental justices are sought by
350 Section 7 EIA Act 351 Leu WS, Williams WP, Bark AW. (1996) Quality control mechanisms and environmental impact assessment
effectiveness with special reference to the UK. Proj. Appraisal 1996; 11: p 4 352 Ijaiya, H., and Joseph, O. T. (2014). Rethinking Environmental Law Enforcement in Nigeria. Beijing Law Review,
5: p 318; Ikoni, U. D. (2016) An Analysis of the Legal and Administrative Challenges to combating Deforestation and
Desertification in Nigeria. Academia Online. p 13 353 Suit No. FHC/2CS/573 Oronto Douglas v. Shell Petroleum Development Company Limited I 354 The applicant - Mr. Douglas, had contested a violation of Section 7 of the Nigerian EIA Act which intends to give
members of the public and stakeholders the right to make comments on EIA surveys. 355 Madebwe, T. (2015) ‘Carving out a Greater Role for Civil Litigation as an Environmental Law Enforcement Tool in
Zimbabwe’s 2013 Constitution’, 11/2 Law, Environment and Development Journal 2015; 11(2): p. 110, available at
http://www.lead-journal.org/content/15106.pdf 356 Ibid. p 110 357 See Section 60 EIA Act, Cap E12, LFN 2004
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concerned applicants mainly on the grounds of fundamental human rights, since the judiciary has
established “the link between human rights and the environment.”358
In summary, this analysis agrees that the Nigerian EIA Act provides the legal basis on which
actions can be taken by all stakeholders in an EIA study. However, although a specific legislation
exists to regulate EIA practice in the country, the EIA legislation does not clearly outline the
requirements for some key stages of the EIA process. For instance, as a legal quality control
mechanism, the current legislation does not clearly define scoping which is considered as one of the
key stages of the EIA process according to the ‘best practice operating principles.’ The Act also
lacks due provisions for judicial review, which is a vital process for addressing grievances that may
emanate from the EIA process. Also, the requirement for the engagement of experts to conduct EIA
studies is not enshrined in the legislation, just as public participation is grossly inadequate. On the
positive side, the legal provisions for screening activities is laudable, especially the requirement for
the so called “class screening report” which recommends the use of a previous screening report in
the screening of other projects within the same category. Also commendable is the requirement for
environmental assessment of potential transboundary environmental effects of domestic projects.
This analysis concludes that, while the Nigerian EIA Act confers some legal and judicial quality
control mechanisms, more improvements are required to address the deficiencies in the EIA
legislation. The main research questions are answered in the next chapter which also presents the
main conclusions of this thesis.
358 Ladan, M.T. (2009) The Role of the Judiciary in Environmental Governance in Nigeria. In: The Role of the Judiciary
in Environmental Governance: Comparative Perspectives, Louis J. Kotzé and Alexander R. Paterson (eds.) Kluver Law
International, 2009; p 550
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Chapter 5
Conclusions
The quality of EIA report is paramount to realising the goals of EIA, while EIA is considered as a
vital tool in the process of implementing sustainable development agendas. Nigeria has a specific
EIA legislation that establishes an independent EIA system in the country. The Nigerian EIA Act of
1992 (as amended 2004), is the dominant legislation on EIA implementation in Nigeria and the Act
draws inspiration from the provisions of Principle 17 of Rio Declaration. But whether the Act
delivers the goods remain to be seen. In this thesis, I have reviewed the legal contents of the
Nigerian EIA Act with a view to assessing its potentials as legal and judicial EIA quality control
mechanisms.
Overall, the EIA system in Nigeria exhibits prospects of good performance evident by institution of
specific EIA legislation. Ordinarily, given that Nigeria is privileged to have enacted specific
legislation on EIA over two and a half decades ago, the expectation of high quality EIA is obvious.
Sadly though, current practice of environmental assessment in the country does not guarantee this
expectation and the EIA system is yet to satisfy best practice requirements. There are reports of
inconsistencies between laudable legal requirements and actual implementations of the EIA Act.
This only goes to confirm a widely-held assessment that, Nigeria, like most developing countries,
has excellent legislations on environmental protection but lacks compliance-forcing capacity to see
to its implementation.
In answering to the sub-research question regarding what severe deficiencies (if any) are in the
Nigerian EIA Act to the extent of affecting the quality of EIA practice in the country, my analysis
reveals that the Act is laden with some deficiencies. Notably, the Act does not contain explicit legal
provision(s) dealing with scoping activities despite the importance of the scoping process in EIA
studies. Amongst other reasons, scoping activities ensure that alternatives are explored and
addressed accordingly in the terms of reference for the entire EIA process. Another conspicuous
deficiency in the Act, is the lack of opportunity for judicial review of the EIA report by concerned
stakeholders and public. Given that there exist no provisions under the Nigerian EIA Act for an
appeal against a post-decision EIA report, is suggestive that the decision of the EIA review panel is
final and cannot be contested. This, in my opinion, cast the greatest doubt on the EIA Act from a
quality control perspective. Adding to this list of deficiencies is the observation that the Act does
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not include a legal obligation for proponents to engage only duly qualified experts/consultants to
conduct EIA studies, although such requirement is stipulated in the EIA guidelines. Also, public
participation is grossly inadequate as public access is restricted to the final EIA reports.
Furthermore, the Act suffers another minus in that it does not provide for an independent review
process outside the regulatory authority. Therefore, in the absence of an independent robust review
process and an effective institutional judicial review framework, EIA quality control in Nigeria is
weak.
The institution of relevant legislation on EIA notwithstanding, the process of seeking legal justice to
redress anomalies in EIA procedures remains a huge challenge. Environmental litigants in Nigeria
still have some hurdles to surmount in the process of seeking environmental justice in court
including such technical legal challenges as, locus standi, pre-action notice and limitation of action.
This has resulted in a general judicial apathy among the populace to the extent that EIA quality
control through public enforcement is eroded. Not only is there little information about EIA, but
also there is little interest in reviewing the operation of the system owing to poor public
involvement in the EIA process. I see this as more of an institutional and procedural ineffectiveness
rather than a deficiency in the EIA legislation, my reasoning being that, if institutional and
procedural effectiveness are adequate, even the paltry public involvement provisions would suffice.
Notwithstanding the above-mentioned shortcomings, it is not all woes in the Nigerian EIA system.
The simple fact that there exists a specific EIA legislation with the aim of mitigating environmental
impact of developmental projects within the country, is a positive contribution towards
environmental governance. I also consider it a plus for the EIA Act in its provision for the so called
“class screening report,” which aims at reducing time and financial cost of EIA studies. It is also
commendable that although the Nigerian EIA Act is a national legislation on EIA, it explicitly
provides for the consideration of EIA in a transboundary context. In addressing the main research
question, I found that when properly implemented, the legal and judicial quality control
mechanisms of the Nigerian EIA Act, in its current state, could prove to be just average based on
IAIA’s best practice operating principles for the EIA process.
The deductive reasoning from this review is that, Nigeria could not harness the full benefits of EIA
yet without adequate EIA control mechanisms in place to ensure that high-quality EIA studies are
conducted. In the 25 years of its existence, the EIA Act has been amended in two instances only;
1999 and 2004, with the last amendment 14 years ago. But law is dynamic, and the EIA legislation
is no exemption. It is therefore, obvious that the Act needs serious updating to correct any
deficiencies. The fact that the Nigerian EIA Act is static is indicative of a lack of seriousness
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attached to environmental protection, as well as implementation and monitoring of commissioned
projects.
There is no doubt that Nigeria needs to improve its EIA system, especially considering the legal and
judicial EIA quality control mechanisms inherent in the current EIA Act. Nonetheless, as earlier
discussed in this thesis, although legal and judicial control mechanisms are very central to ensuring
the quality of EIA, there are however, a host of other control mechanisms which work in unison to
affect EIA quality. It is also worthy to reiterate that rather than being mutually exclusive, these
control mechanisms are complimentary and function collectively rather than as stand-alone
mechanisms.
