3. CONTRAINCENDIOS
6.1 FLUJO DE AIRE NECESARIO
6.1.2 FLUJO DE AIRE PARA LA EVACUACIÓN DE CALOR
The Nigerian government established an institutional framework to tackle environmental
problems via the Federal Environmental Protection Agency (FEPA) Act of 1988 which was
subsequently amended by Decree 59 of 1992. FEPA was empowered to oversee the
environment and undertake measures and policies to expedite environmental protection and
pollution control. Thereafter state governments were also authorised to establish state
environmental protection agencies. FEPA subsequently published the National Environmental
Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulation
1991 wherein EIA was made obligatory, requiring compliance within 90 days. In furtherance
of the UNCED objectives480, Nigeria enacted the Environmental Impact Assessment (EIA)
Act.481 Before the EIA Act, most projects in Nigeria complied with feasibility reports based
on a cost and benefit analysis statement with minimal attention given to the environmental
risks or possible environmental impacts of proposed development projects.482
A closer contemplation of S.1 of the EIA Act reveals the primary intent of the Act, which
stipulates that an EIA must be conducted to determine the likely environmental impacts of a
479 Ibid
480UNCED 1992, See especially, Principle 17 of the Rio Declaration and Agenda 21 481See EIA Act No. 86 of 1992
114
project, and the extent to which the proposed activity would significantly or otherwise affect
the environment or the environmental effect of projects or proposed industrial activities
instigated by individuals, corporate and public entities.483 The EIA Act by virtue of sections 3
and 4 (a-h) also requires that the proponent of a project, obtain the Ministry‘s approval before
proceeding with a project. The EIA Act also sets out the EIA process by the provisions of
sections 16, 17 and 19 of the Act, which commences from an EIA proposal to its approval for
implementation, resulting in the issuance of an Environmental Impact Statement (EIS) and
certificate.484 The EIA stages identified by the Act include screening which entails project
appraisal for potential environmental effects, scoping which sets out the spatial and temporary
dimension of environmental effects including detailed base line studies for determining the
environmental conditions prior to project implementation.485
The Act also gives a detailed definition of the environment to mean the components of the
Earth comprising; (a) Land, water, and air, including all layers of the atmosphere; (b) All
organic and inorganic matter and living organisms; and (c) The interacting natural systems
that include components referred to in paragraphs (a) and (b)486 with the aim of promoting a
broader scope of application. Furthermore, S. 4 of the Act requires an EIA to indicate the
description of the proposed activities, expatiate on the potentially affected environment
including specific information necessary to identify and assess the environmental effects of
the proposed activities, including the details of the practical activities envisaged.
Likewise, S.4 requires an assessment of the likely or potential environmental impacts of the
proposed activity and the outline of alternatives, including the direct or indirect, cumulative,
483 Sections 1 and 2 EIA Act 1992
484 See Part II, Sections 16-19 of the EIA Act (1992) 485 S.63(1) of the EIA Act
115
short-term or long-term effects and available mitigating or palliative measures. The Act also
provides sanctions for noncompliance with the provisions of S.4, which includes the
imposition of a fine or imprisonment but not both.487 Moreover, the Act commendably
prohibits individuals, public and corporate bodies from embarking on or authorizing projects
without consideration of their environmental impacts at the earliest stages. It further provides
that decisions cannot be concluded either against or in support of the proposed activity without
the contribution and opinion of government agencies, experts and members of the public.488
Notwithstanding these commendable attributes of the EIA Act, it is however not flawless. Its
major weakness lies in the fact that it fails to stipulate the need for continuing EIAs through
the lifetime of a development project. In addition, the approval and permits process often
involve undue concurrence with the federal, state and even local government authorities where
the proposed industrial activity is sited. This is highly problematic because the states and local
governments consider the award of permits, approvals and other related EIA certification
procedure to be a revenue generating measure for the ministry or environment departments as
opposed to an environmental protection initiative.489
Frequently, other regulators including State EPAs unnecessarily charged with matching
responsibilities as the FEPA, rather than synchronizing with FEPA, undermine its efforts by
demanding economic benefits from the IOCs as an essential part of EIA certification
procedures. This occurs particularly where FEPA involves them only at the review stage of the
EIA process.490 Quite unfortunately, confusion and bureaucratic delays in implementing
industry related EIAs become unavoidable due to such replication of regulatory agencies,
487 For an individual, the penalty is fine of N100, 000 (approximately £330) or a 5-year jail term. In the case of corporate bodies, penalty is a fine not less than N50, 000 but not more than N1. million.
488 Sections 6 – 11 EIA Act
489 See,Echefu, Nerry, and E. Akpofure. "Environmental Impact Assessment in Nigeria: Regulatory Background and Procedural Framework." EIA Train Resouce Manual (2002): 63-74.
116
leading to enormous cost and unnecessary waste of time. This impacts negatively on the
objectives of the EIA Act and its corresponding performance. Thus, some EIA processes are
often avoided because the penalties for breaching the cumbersome nature of permit approvals
are cheaper and less burdensome than conducting EIAs for every project or environmentally
intrusive activity.
Moreover, the Act fails to stipulate the recruitment of environmentally experienced or expert
personnel to ensure full compliance with the EIA directives. It is clarified that, the use of
experienced EIA consultants is a critical element towards strengthening and optimizing EIAs,
as there exist interlinkages between EIA quality and the expertise of consultants and planning
authorities. Essentially, inexperience on a general level not only hinders decent quality impact
assessments but jeopardises the knowledge and data that is built with experience.491 This
further complicates EIA enforcements as it threatens the ability to generate and accumulate
indispensable data, which should normally provide the technical solutions crucial for
mitigation measures. Likewise, the Nigerian reality portrays the absence of alternative sites for
consideration in EIA applications, should there be negative outcomes of an EIA.492 An
additional unfavourable situation created by the Act is that it places an unhealthy reliance on
the project proponents for provision of environmental information and reports of environmental
studies, thus, its aims are easily circumvented.
Furthermore, a visible and relevant flaw of EIA processes conducted under the Act relates to
the issue of public participation during EIAs and the difficulties experienced by private persons
in ensuring EIA performance via judicial process.493 These foregoing factors formed the crux
491 Kakonge, John O., and Anthony M. Imevbore. "Constraints on Implementing Environmental Impact Assessments in Africa." Environmental Impact Assessment Review 13, no. 5 (1993): 299-309.
492 See,Kakonge, John O. "EIA And Good Governance: Issues and Lessons from Africa." Environmental Impact Assessment
Review 18, no. 3 (1998): 289-305.
493 Public participation as an aspect of EIA is mentioned under this subheading, however it will be adequately discussed under the Public Participation sub-heading which forms a social development tool of sustainable development.
117
of the controversy in the case of Oronto Douglas v. Shell Petroleum Development Company
and Ors.494 The appellants in this case filed an action against the respondents whowere jointly engaged in a liquefied natural gas project. Before commencing the project, the respondents
failed to conduct an environmental impact assessment, thereby infringing the provisions of the
Act. The appellant contended that the respondents had failed to comply with statutory
provisions and sought declaratory and injunctive reliefs restraining the respondents from
continuing and/or carrying on with the liquefied Natural Gas project until a proper
environmental impact assessment has been conducted strictly in accordance with the terms of
the EIA Act. The trial court (Federal High Court Lagos) rather than considering the merits of
the case in accordance with the EIA Act to determine issues affecting the alleged statutory
infringements, dismissed the suit based on the preliminary objections raised by the respondents
who contended that the Appellants lacked locus standi and that the mode of commencement of
the action was procedurally defective. The Court maintained that, in the absence of the plaintiff
showing that he had suffered a personal loss by the failure to conduct the environmental impact
assessment, his suit could not be sustained.495
The suit was thus frustrated at the trial stage by an extremely strict or narrow construction of
standing or locus standi, to deny the plaintiffs access to remedy. Thus, procedural technicalities
and rules of court relating to the form of application stalled the enforcement of a core aspect of
the EIA Act, relating to EIA performance, or associated public consultations, before
commencement of an environmentally invasive activity. However, the Court of Appeal
upturned this decision and ordered a re-trial.496 Regrettably, and in a rather unexpected turn of
events, a re-trial proved to be impossible as the “Res” or subject matter of the litigation, the
494Oronto Douglas V. Shell Petroleum Development Company Ltd. & Ors (1998) (Unreported) CA/L/143/97
495 Ibid. See also, Obiora Chinedu OkaforI, Basil Ugochukwu, “Raising legal giants: The agency of the poor in the human rights jurisprudence of the Nigerian Appellate Courts”, Afr. hum. rights law j. vol.15 n.2 Pretoria 2015 1990-2011.
496 See Appeal Court decision in Oronto Douglas v. Shell (1999) 2NWLR at 475, the court of Appeal thereafter set aside the decision of the learned trial Judge. Belgore, C.J, on the 17th day of February 1997.
118
Liquified Natural Gas (LNG) project had been completed in the Niger-Delta and commissioned
before the commencement and determination of the Appeal in Lagos, effectively foreclosing
any chance of a properly executed EIA for such an high risk, environmentally intrusive project.
Also, in accordance with Nigeria’s objectives for improving environmental policy in the
petroleum industry, the DPR was empowered by the PA to make regulations for pollution
prevention and abatement. Consequently, the DPR created and endorsed the Environmental
Guidelines and Standards for the Petroleum Industry (EGASPIN) in 1991 with a view to
enforcing EIAs in the oil industry. However, these provisions also duplicate those of the earlier
mentioned EIA Act and creates undue replication of similar objectives. Moreover, the
EGASPIN is responsible for ensuring proper environmental management and averting threats
posed by oil exploratory equipment and installations.497 Part VIII, Section A of the EGASPIN
governs EIA processes, while Articles 1.3 and 1.6 stipulate the performance of EIA studies
prior to exploratory and operational activity to protect and enhance environmental resources
in an eco-efficient manner. Article 1.4 makes the EIA report an essential part of the EIA.
The EGASPIN further promotes protection of the environment via, the Environmental
Evaluation (post-impact) Report (EER) which is a systematic process, requiring a project
proponent or operator to provide the preliminary assessment of impacts through a screening
process before an initial report is submitted to DPR. It is only when significant impacts are
identified for a project or activity that full EIA studies and report preparation is authorised.
The EGASPIN is however flawed in that it fails to mandate EIAs in circumstances where
petroleum wastes from exploration and production require transfer from one site location to
497 See, Nerry Echefu and E Akpofure, Environmental impact assessment in Nigeria: regulatory background and procedural framework.
119
another production facility for disposal. This is an important but currently overlooked area as
it poses serious environmental hazards.498 This is because, some oil production facilities
classified as off-shore locations like the Forcados and Escravos oil terminals are inextricably
linked with the Niger-delta inland waterways and environment, thus the failure or non-
performance of an environmental risk assessment before transfers and disposal of petroleum
wastes generates significant environmental problems.499 This omission thus proves
detrimental to optimizing the aims or targets of goals 14 and 15 of the SDGs in securing aquatic
and terrestrial systems protection during oil exploitation to prevent environmentally adverse
impacts.