Continued from Friday, August 14, 2020
Inadequacies of Nigerian Environmental Regulatory Laws
Governmental intervention to regulate environmental pollution through law, establishment of regulatory agencies and imposition of sanction to deter polluters may to certain extent enhance social welfare. However, these efforts may be inadequate, resulting in failure and sub-optimal environmental results unless adequately complemented with other measures and this has necessitated environmental reform. The reasons for failure are varied, complex and wide.
As explained by Daniel Esty, many regulatory frameworks fail because government lacks necessary information and data to regulate environmental pollution. According to him, government may not have information necessary to intervene appropriately to internalise externalities, or they may lack the incentive structures needed to regulate efficiently.
Government decisions may also be skewed by structural failures that arise because policy-makers systematically exclude from their regulatory cost-benefit calculus some of those who are either causing or suffering harms or those who might have been affected by government action. Regulatory efforts may, furthermore, be distorted by public choice failure. Sometimes outcomes of governmental intervention are manipulated by outright corruption of the decision makers. More often, special interest influence on the decision-making process causes policy choice not to reflect the true will of the people. Some of these regulatory imperfections will be closely examined and they include:
One of the banes of policy formulation and implementation in many developing countries, such as Nigeria, is the absence of reliable data and information to guide policymaker at decision-making. Some degree of uncertainty plagues many areas of government activity, but few face the pervasive information inadequacies that are found in the environmental realm.
In addition to the lack of data and technical capacity, regulatory bodies may operate inefficiently or ineffectively. Bureaucracy in general and government agencies in particular frequently lack incentives to act otherwise. This is so where the functions of agencies overlap, it may create jurisdictional problem. They may refuse to act or cooperate with one another. Even where they act, they may under-regulate or condone polluting activities rather than perform their assignments with full diligence. The practice of under-regulation is well pronounced in the area of planning law but it is becoming a cankerworm in the field of environmental protection. For example, despite the myriad of environmental statutes imposing strict and stringent penalties on polluters, pollution continues on unabated.
Allocation of Environmental Responsibilities
In the celebrated case of Attorney-General of Lagos State v. Attorney General of the Federation, the Supreme Court set a bright-line standard on how Federal and State governments should relate on physical planning matters but failed to set any precise standard on environmental protection. In that case, the Supreme Court held that though physical planning matter is a residual matter for the component states, the protection of the Nigerian environment is a joint responsibility of the Federal, State and Local Government in accordance with provision of Section 20 of the 1999 Constitution. Since then, diverse comments and opinions have been proffered on how best to achieve sustainable environmental governance in Nigeria. Some of these questions border on how we should regulate our environment under the present federal system of government being practiced in Nigeria.
What level of inter-governmental relationship and cooperation do we expect in environmental matters? Which tier of government has the responsibility to regulate the aspect of environmental pollution within the constitutional framework of Nigeria? What happens in cases of conflicts? How should such conflicts be resolved? What level of inter-governmental relationship is required to achieve sustainable development?
Also tangential to this matter is the question of resource control, fiscal federalism and human rights abuse arising from oil exploitation and exploratory activities in Nigeria. This will leads to environmental reform which in turn leads to national development of Nigeria.
Ways of Securing Effective and Efficient Environmental Reform in Nigeria
The ways include the following:
Rule of Law
The use of rule of law as a tool for national development cannot be over-emphasised. However, for rule of law to be continuously relevant in the national development paradigm, there must be a sound legal framework for environmental protection. Environmental rules and standards, whether legislative or administrative in character, should not only be known in advance but they must also apply equally to all those issues addressed by them. Their content should address the genuine social and environmental needs and where appropriate, reflect a pre-existing or emerging public opinion on the matter.
Efficient Government Regulation
Another strategy to achieve environmental reform and compliance is the analysis of governmental regulations in terms of efficiency. Analysis of governmental regulations, however, focuses on the choice of appropriate regulation to achieve the desired result. Therefore, in regulating any medium of environmental pollution a clear assessment of the effect of such regulation on the regulated entities must first be undertaken. It also calls for the choice of appropriate strategies to achieve desired result.
What are the goals of the chosen regulation? Will it achieve the stated goal or standard? If the goal of any environmental regulation is to mobilise or increase government revenue, such additional revenue must be justified against cost incurred by government to provide other environmental services to the citizens.
If the goal of any environment regulation reform is to reduce emission standards, the permissible target must be set. If the object of a reform, for example is to reduce the level of air pollution, the choice of target and effect must be ascertained. The regulator must determine the categories of activities that contribute maximally to the regulated pollution.
Cost and benefit analysis of environmental regulation is understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. In choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impact; and equity).
The need for cost-effectiveness in environmental governance is better appreciated when compared with the cost of implementing regulations. When applied in the context of multiplicity of environmental institutions in Nigeria, the cost implication is obvious. For example, there is Nigerian Agency for Food and Drug Administrator and Control (NAFDAC), Nigerian Environmental Standards and Regulations Enforcement Agency (NESREA), Nigerian Oil Spill Detections and Response Agency (NOSDRA), Biotechnology Agency, Department of Petroleum Resources (DPR), State EPA, Local Governments environmental laws. There is the need to streamline some of these laws to reduce cost and wastage associated with the administration of environmental problems in Nigeria.
An important step to achieve environmental reform is to embrace the concept of cooperative federalism in the nation’s environmental management. Cooperative federalism refers to cooperation among all the tiers of government in the implementation of environmental laws reform and policies affecting the citizens. As opposed to the present confrontation attitudes where Federal, State and Local Governments regard each other as competitors, and jostle for relevance, the administration of the Nigerian state particularly from environmental perspective must be done in a way to promote cooperation among the tiers of government because environmental damage has no trans-boundary hindrance.
The techniques of negotiation and consultation have been used to resolve both domestic and international environmental disputes. At the national level, negotiation is a consultative process through which the regulatory authorities and the regulated person or organisation consider the existing environmental standards, directives and factors militating against effective compliance and the variety of alternative responses with a view to developing mutually acceptable compliance schedules.
Economic techniques involve the use of economic incentives and disincentives, mechanisms such as fines, effluent fees, pollution tax, licenses, user charges, loans and grants, to reduce a level of pollution to the desired standard. This approach is based on the neo-classical economists’ argument that inefficiency in resource allocation is the primary reason for the unacceptable level of environmental degradation.
Another strategy for achieving compliance with environmental reform includes motivating the community and creating public awareness through education and incentives. Environmental education must be integrated into the curricula of primary and secondary schools to enable the citizens inculcate environmental culture at earlier stages of their lives. It will not be out of place if environmental studies are integrated into the curricula of primary and secondary schools.
To this end, what is needed to be done to complement the carrot and stick approach is the infusion of public confidence in environmental reform and national development through continuous environmental education and training.
By Professor Nasiru Medugu Idris (Dean, Faculty of Environmental Science, Nasarawa State University, Keffi, Nigeria)