Righting the Injustices Within the Nigerian Energy Industry

Abstract

The Niger-Delta of Nigeria is the predominant base for Nigeria’s thriving petroleum industry and provides the bulk of the country’s foreign earnings. Due to the relevance of the petroleum industry to the Nigerian economy, the Nigerian government, in a continuous show of weak political will, fails to adequately regulate the industry. The lax enforcement of laws and regulations has resulted in a situation in which there are numerous oil spills yearly, and the flaring of gas is routinely carried out. Consequently, the Niger-Delta region is one of the most polluted areas globally, and the people living within the region bear a disproportionate burden from petroleum production when compared to other areas in the country. On the other hand, the oil-producing areas of the Niger-Delta suffer from energy poverty generally. The thrust of this work is the application and practice of principles of energy justice to the inequitable burdens borne by the Niger-Delta region. This is done by utilising the recognition justice tenet of energy justice to ensure that the plight of those living within close proximity of exploration and production operations are recognised, addressed and injustices rectified.

1 Introduction

Nigeria is a State immensely rich in natural resources with over 37 billion barrels of proven reserves of oil¹ and 209 trillion cubic feet (TCF) of proven gas reserves.² The revenue derived from the petroleum industry in Nigeria constitutes the largest source of revenue for the country.³ Due to the importance and impact of the petroleum industry in Nigeria, this paper shall concentrate on the oil and gas aspect of the energy sector in making a case for the application of energy justice within the Nigerian energy industry with a view to alleviating the suffering of people living within the Niger-Delta region of Nigeria⁴ and achieving a just energy transition to a low carbon economy.

Having discovered oil in commercial quantities over six decades ago, Nigeria’s devastating ecological records arose not long after. The indigenes and residents of the Niger-Delta region have complained consistently over the decades about the deplorable state of their environment as a result of the exploration and production activities carried out in the region.⁵

In addition to the acknowledged devastation the petroleum industry has wrought on the environment and the disastrous effects of exploration and production activities on the lives of people particularly within close proximity to these activities, the people of the Niger-Delta region wallow in poverty, including energy poverty.⁶ Nevertheless, the Nigerian government lacks the strong political will to put the lives of its people and the protection of the environment before financial gain by consequently firmly clamping down on energy companies operating in the country. It is clear when one views cases like Allar Irou v Shell BP Petroleum Development Company,⁷ where the court refused to grant the injunction sought holding that the refusal was expedient on socio-economic grounds, and Gbemre v Shell Petroleum Development Company Nig. Ltd & Ors.,⁸ wherein the Nigerian government explicitly stated that it would not be obeying the order of the Federal High Court to stop routine gas flaring in Nigeria as it would not be in Nigeria’s interest,⁹ that for decades, the Nigerian government has put the financial interest of the country ahead of the health and well-being of its citizens and the environment.

2 The Role of Energy Justice in Righting Injustices

Despite the role the energy industry in Nigeria plays in contributing about 65% of Nigeria’s total greenhouse gas emissions,¹⁰ the burning issue of climate change is not front and centre on the Nigerian agenda. Although in 2021 at COP26 in Glasgow, Nigeria submitted an updated version of its Nationally Determined Contribution¹¹ under the Paris Agreement, it also signed into law the Petroleum Industry Act 2021, under which gas flaring is still allowed in Nigeria.¹² With the continued flaring of gas¹³ and the lack of prioritisation of the rights, well-being and health of the Nigerian people and the environment, energy justice is poised to play a momentous role in ensuring that the energy industry operates in line with international best practices. This will correspondingly ensure that there is a significant reduction of greenhouse gas emissions emanating from Nigeria.

Energy justice is the concept which seeks to apply justice principles to energy policy, production, systems, consumption, activism, security and climate change.¹⁴ The established tenets of energy justice—distributive, procedural, restorative, recognition and cosmopolitan justice—are all principles which can be individually and collectively applied successfully to the Nigerian oil and gas industry to “bring change through ensuring that citizens’ rights and well-being are protected in today’s modern economy.”¹⁵

It is pertinent that energy justice is not just acknowledged as a sound academic/research concept, but is carried through into policy and ultimately routine practice. For example, the recognition justice tenet of energy justice has the power to kick-start the justice process within the Nigerian petroleum industry in the short to medium term. This is because recognition justice seeks to examine, understand and ultimately address the basis and cause of inequalities in the energy system and advocates that the various needs, rights and experiences of those affected by energy systems and decisions are respected, acknowledged and appreciated.¹⁶

Acknowledging, appreciating and dealing with burning issues within the petroleum industry, which have blighted the existence of people residing in the Niger-Delta, will not only ensure that Nigeria addresses the ecological devastation wrought by the petroleum industry, but also acknowledges that the current modus operandi cannot continue and sustainable energy sources have to be invested in and promoted. This will reduce the over-reliance on oil and gas as the predominant energy source and ensure the Nigerian government is alive to the fact that it cannot continue to put the financial income it receives from the petroleum industry before the lives of its citizens and the environment. Correspondingly, the practical application of recognition justice will ensure the reduction of acts of sabotage and vandalism which oil companies (operating in the Niger-Delta region) continually allege the indigenes of the region of carrying out.¹⁷

3 Conclusion and Next Steps for Energy Justice in Nigeria

The decisions in the cases of Gbemre v Shell Petroleum Development Company Nig. Ltd & Ors.,¹⁸ and Centre for Oil Pollution Watch v. NNPC¹⁹ show the paradigm shift in the judicial attitude towards environmental litigation in Nigeria. In both cases, the courts put the rights, interests, health and well-being of individuals and the environment over revenue and governmental prosecutorial privilege, respectively. Both cases are evidence that the courts now recognise that the rights, health and well-being of people and the environment need to be protected and supersede the pecuniary gains the country receives from the petroleum industry.

With the courts turning their backs on the business-as-usual mode of lax regulation, inadequate industry monitoring and inefficient enforcement of laws/policies by the government, and instead choosing to recognise the failings within the petroleum industry and its negative impacts on people and the environment, they have started clamping down on human rights abuses and non-compliance with laid down laws and policies. Correspondingly, the government is being forced to deal with the concerns raised by complainants, better regulate the petroleum industry operators and invest in other renewable sources of energy to address energy security and poverty issues. This is the power of energy justice through recognition. It has been agreed that the decision of the Supreme Court in COPW v NNPC displays a refreshing shift in the “jurisprudence of the judiciary in Nigeria regarding cases that have significant import for climate change and the stopping of gas flaring in Nigeria.”²⁰ It is also posited that the COPW case “…demonstrates a significant positive paradigm shift in the attitude of the Supreme Court to environmental and climate change-related claims…. and could engender the growth of successful climate change litigation in Nigeria.”²¹

The entrenchment of recognition justice within the Nigerian energy industry will open the door for the courts to apply restorative justice which will see victims compensated, penalties applied by infractions and the consistent practice of remediation and restoration for ecological damage. Consequently, the distributive, procedural and cosmopolitan principles of energy justice will be routinely applied. This will ensure that Nigeria not only moves away from its major reliance on fossil fuels, but also puts in place the requisite investments, processes, measures and systems to enable it to meet its Nationally Determined Contribution quota in a bid to assist the global effort to stop and possibly reverse climate change.