Climate Change Litigation in Nigeria: Holding Corporations Accountable

CONTRIBUTED BY: A.A. AKEJELU ESQ

INTRODUCTION

Litigation in Nigeria is an essential tool in making corporate actors assume responsibility for the harmful environmental effects of their activities. Nigeria’s judiciary has built a solid jurisprudence around environmental litigation. Moreover, the government has carved out procedural and institutional mechanisms to ensure access to justice for the enforcement of environmental rights and the attainment of a sustainable environment. The Court system in Nigeria is classified into superior and inferior Courts. The superior Courts are established under the Constitution while the inferior Courts are established by the National Assembly^[1].

The superior Courts are the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, the High Courts of the States and Sharia Courts of Appeal of the States that apply the sharia law and the Customary Courts of Appeal of the States that apply the customary law^[2]. As such, Nigeria being a common law jurisdiction, judicial decisions are binding on the inferior Courts by a higher Court. The doctrine of judicial precedent basically provides that a decision given by a superior Court shall be followed in subsequent similar cases^[3]. These features of the Nigerian Court system give credence to the judiciary as an important arm of government in the effort to address environmental issues.

The position of the Courts has been such that a person can institute an action under the fundamental rights (enforcement procedure) rules for any act of a public authority which affects the enjoyment of a right for which the rules do not provide a specific remedy^[4]. The emergence of climate change cases lends credence to this position. It is provided in the constitution that every individual has a right to life and the environment is so fundamentally connected to the right to life. Every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference^[5]. It is this kind of case of the fundamental rights approach to environmental litigation that climate change cases seem to be patterned upon.

LEGAL FRAMEWORK OF CLIMATE CHANGE LITIGATION IN NIGERIA

As Nigeria grapples with the impacts of climate change, there is a growing need to hold corporations accountable for their contribution to environmental degradation. The legal framework for climate change litigation in Nigeria encompasses various environmental laws and regulations aimed at protecting the environment and ensuring corporate accountability.

1. Environmental Impact Assessment Act

The Environmental Impact Assessment (EIA)^[6] Act is a crucial piece of legislation in Nigeria’s legal framework aimed at regulating the environmental impact of development projects, including those initiated by corporations. Under this act, corporations are required to conduct an environmental impact assessment before embarking on projects that could have significant environmental implications^[7]. This process ensures that corporations identify potential environmental risks and propose mitigation measures, thereby holding them accountable for the environmental consequences of their activities^[8].

1. National Environmental Standards and Regulations Enforcement Agency (NESREA) Act

The National Environmental Standards and Regulations Enforcement Agency (NESREA) Act^[9] establishes NESREA as the primary regulatory body responsible for enforcing environmental standards and regulations in Nigeria. NESREA has the authority to monitor and regulate the activities of corporations to ensure compliance with environmental laws and standards.

The National Environmental Standards and Regulations Enforcement Agency (NESREA) Act empowers the Agency to be responsible for enforcing all environmental laws, guidelines, policies, standards and regulations in Nigeria, as well as enforcing compliance with provisions of international agreements, protocols, conventions and treaties on the environment to which Nigeria is a signatory^[10].

NESREA is responsible for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology. Including coordination, and liaison with relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.

Some functions of the Agency, among others, include to:

1. Enforce compliance with guidelines, and legislation on sustainable management of the ecosystem, biodiversity conservation and the development of Nigeria’s natural resources^[11];
2. Conduct an environmental audit and establish a data bank on regulatory and enforcement mechanisms of environmental standards other than in the oil and gas sector^[12];
3. Create public awareness and provide environmental education on sustainable environmental management, promote private sector compliance with environmental regulations other than in the oil and gas sector and publish general scientific or other data resulting from the performance of its functions; and carry out such activities as are necessary or expedient for the performance of its functions^[13].
4. Oil Pipelines Act

The Oil Pipelines Act^[14] regulates the construction, maintenance, and operation of oil pipelines in Nigeria. This legislation is particularly relevant to climate change litigation as it addresses issues such as oil spills and environmental pollution resulting from the activities of oil corporations^[15].

The act imposes liability on corporations for damages caused by oil spills and requires them to take measures to prevent and remediate environmental harm. Through the Oil Pipelines Act, corporations are held accountable for the environmental consequences of their operations in the oil and gas sector^[16].

CORPORATE RESPONSIBILITY

In recent years, the discourse surrounding climate change has evolved to include discussions on corporate responsibility. Corporations, particularly those in industries contributing significantly to greenhouse gas emissions, are increasingly being held accountable for their role in exacerbating climate change. In Nigeria, where the impacts of climate change are becoming more pronounced, there is a growing recognition of the need to address corporate accountability through legal avenues.

Corporate Responsibility in Climate Change Litigation in Nigeria

Nigeria has a legal framework that provides avenues for addressing environmental issues, including those related to climate change. The Constitution of the Federal Republic of Nigeria 1999 (as amended) recognizes the right to a clean and healthy environment and imposes a duty on the government and citizens to protect and preserve the environment for present and future generations^[17].

Additionally, Nigeria is a part of various international environmental treaties and agreements, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, which place obligations on the government to take action to mitigate and adapt to climate change.

Corporate Responsibility under Nigerian Law

Under Nigerian law, corporations are subject to various regulations and laws that impose responsibilities regarding environmental protection and sustainability. The Companies and Allied Matters Act (CAMA) 2020 requires companies to operate in an environmentally responsible manner and to disclose their environmental impact in their annual reports^[18].

Additionally, sector-specific regulations, such as those governing the oil and gas industry, impose obligations on corporations to adhere to environmental standards and obtain permits for their activities.

MECHANISMS FOR HOLDING CORPORATIONS ACCOUNTABLE;

1. Civil Litigation: Affected communities and individuals have the right to seek legal redress through civil litigation for harm caused by corporations’ activities. This can include seeking compensation for environmental damage, loss of livelihoods, and health impacts resulting from pollution and environmental degradation. Notable cases in Nigeria include litigation against multinational oil corporations for oil spills and environmental pollution in the Niger Delta region.
2. Public Interest Litigation: Public interest litigation can be initiated by civil society organizations and non-governmental organizations (NGOs) on behalf of affected communities to address environmental issues, including climate change. These lawsuits aim to hold corporations and government agencies accountable for their actions or in-actions that contribute to environmental harm.
3. Regulatory Enforcement: Government agencies responsible for environmental regulation and enforcement play a crucial role in holding corporations accountable. By ensuring compliance with environmental laws and regulations through monitoring, inspection, and enforcement actions, these agencies can deter corporations from engaging in environmentally harmful activities.

CHALLENGES IN CLIMATE CHANGE LITIGATION IN NIGERIA

1. Lack of Awareness: One of the primary challenges faced in climate change litigation in Nigeria is the lack of awareness among affected communities regarding their legal rights and avenues for seeking redress. Many communities, especially those in rural areas where the impacts of climate change are most acutely felt, may not be aware of the legal mechanisms available to hold corporations accountable for environmental damages. This lack of awareness can prevent affected communities from initiating legal proceedings or seeking assistance from legal practitioners and civil society organizations.
2. Resource Constraints: Resource constraints pose a significant challenge to climate change litigation in Nigeria. Affected communities often lack the financial resources to pursue legal action against powerful corporations, which can involve significant costs associated with legal fees, court proceedings, and expert witnesses. Additionally, legal practitioners and civil society organizations supporting these communities may face resource constraints in terms of funding and capacity, limiting their ability to provide legal assistance and representation.
3. Legal Hurdles: Navigating the legal system in Nigeria presents its own set of challenges for climate change litigation. The legal framework governing environmental issues and corporate accountability may be inadequate or outdated, making it difficult to hold corporations accountable for their actions. Furthermore, procedural hurdles and delays within the judicial system can impede the timely resolution of cases, prolonging the suffering of affected communities and undermining their access to justice.
4. International Support: While there is growing recognition of the need for international support in addressing climate change, the extent of support available for climate change litigation in Nigeria may be limited. International legal frameworks and mechanisms for addressing transboundary environmental issues exist, but accessing these mechanisms and securing international support for climate change litigation in Nigeria can be challenging. Additionally, multinational corporations operating in Nigeria may benefit from legal protections and support from their home countries, further complicating efforts to hold them accountable through litigation.

RECOMMENDATIONS

1. Strengthening Legal Frameworks: Nigerian authorities must strengthen legal frameworks related to environmental protection and corporate accountability. This includes improvements to the already existing enacted legislations that clearly define corporations’ responsibilities regarding climate change mitigation and adaptation, as well as establishing mechanisms for holding them accountable for environmental damages.

Additionally, ensuring that legal processes are accessible and efficient for affected communities is essential to facilitate climate change litigation.

1. Capacity Building and Support for Affected Communities: Providing support and capacity building for communities affected by the impacts of climate change and corporate activities is essential. This includes legal assistance, training, and resources to empower communities to pursue climate change litigation effectively. Collaborating with civil society organizations, legal practitioners, and other stakeholders can help build a network of support for affected communities and strengthen their ability to hold corporations accountable through legal means.

Additionally, raising awareness about environmental rights and promoting community-driven initiatives can empower communities to advocate for their interests and demand corporate accountability effectively.

CONCLUSION

Climate change litigation in Nigeria holds the potential to hold corporations accountable for their contribution to environmental degradation and climate change. By leveraging the existing legal framework and mechanisms for seeking redress, affected communities and civil society organizations can demand accountability from corporations and government agencies responsible for regulating their activities.

Moving forward, it is essential to address the challenges facing climate change litigation in Nigeria and strengthen efforts to hold corporations accountable for their environmental responsibilities in line with national and international legal standards.

1. Section 6 CFRN 1999 (as amended) ↑
2. Ibid ↑
3. Adeleke V Oyetola (2023) 11 NWLR (Pt. 1894) 71 CA ↑
4. NPG Prop. & Const. Works Ltd. v. Zenith Bank Plc (2023) 15 NWLR (Pt. 1908) 423 CA ↑
5. Chapter IV CFRN 1999 (as amended) ↑
6. Decree 88 of 1992 ↑
7. Sections 1 & 2 EIA Act 1992 ↑
8. Section 3 EIA Act 1992 ↑
9.  2007 (No. 25 of 2007). ↑
10. Section 1 NESREA Act 2007 ↑
11. Section 2 NESREA Act 2007 ↑
12. Section 7 NESREA Act 2007 ↑
13. Section 8 NESREA Act 2007 ↑
14. 1956 ↑
15. Section 11 Oil Pipelines Act ↑
16. Section 14 Oil Pipelines Act ↑
17. Chapter IV CFRN 1999 (as amended) ↑
18. Section 81 CAMA 2020 ↑