Eko Atlantic Environmental
Impact Assessment: Legal Issues
Presentation
By:
Prof. M.T. Okorodudu-Fubara
Faculty of Law, Obafemi Awolowo University, Ile-Ife.
Okorodudu-Fubara, M.T. 2012
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Presented @ Roundtable
• SUSTAINABILITY OF COASTAL ENVIRONMENTS:
THE UNCERTAINTIES AND RISKS OF
INFRASTRUCTURAL DEVELOPMENTS
• Date: Thursday, 27 September, 2012
• Venue: Nigerian Institute for Oceanography
and Marine Research, Victoria Island, Lagos
• Time: 12 noon
Okorodudu-Fubara, M.T. 2012
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Presentation Outline
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The Planned Project
What the EIA Law Requires
The EIA Process/Procedures
Eko Atlantic EIA?
EIA: The Lagos State “Preemptive” Measures
Violations of EIA Statute
Vital Laws Applicable to the Project
The Way Forward
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The Planned Project
• To develop V/I shoreline dredging appx.
90million cubic metres of sand from marine
shelf waters to reclaim 900 hectares of land
for future development of a modern city.
• Location: Phase 1 of the Eko Atlantic City
Development Project will be situate at the
Lagos Bar Beach, Victoria Island, Eti Osa Local
Government Area, Lagos, Nigeria.
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What the EIA Law Requires
• The Environmental Impact Assessment Act, 1992 establishes the
regulatory framework for EIA process in the country.
• The Act prohibits execution of private or public industrial or
development, etc projects falling under the ‘mandatory list’
schedule to the statute without prior consideration of the
environmental consequences of such a proposed action, in the form
of an environmental impact assessment (EIA) and a Certificate in
writing by FME signifying approval to commence. The Statute
legally ‘forbids’ such erring projects. See Sections 2-12; 41 generally
• See S. 13 …cases where environmental assessment is required
• Mandatory Study List 4,9&17…Captures the Eko Atlantic City Project
• It is an offence to fail to comply with the provisions of the Act ….
See S. 61
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FLOW CHART OF FME EIA PROCESS
PROPOSAL
S.2 (Restriction on public or private project without prior consideration of the
environmental impact
Mandatory Study List not to be carried out without the Report of FME..see Lists
4,9&17
FEASIBILITY STUDY OR PROJECT PROPOSAL
Note goal/objectives of the law; Precautionary Principle; Principle of Prevention;
Sustainable Development...S. 1(a)-(c).
Determine if the EIA Law/Regulations have been triggered
FME EIA SECRETARIAT
FME…charged with responsibility for ensuring due compliance with the EIA Act and
overall responsibility of protecting and developing the Nigerian environment
In exercise of its discretionary powers FME may refer any project likely to cause
significant environmental effects that may not be mitigated/or where public concerns
about the project warrant, to the FME Council for mediation or panel review
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INITIAL ENVIRONMENTAL EVALUATION
S.15 Whenever the FME decides that there is need for an EA on a
project b4 commencement of the project the EA process may include
the following:
(a) A screening or mandatory study and the preparation of a screening
report/(b) mandatory assessment by a review panel/(c) design and
implementation of a follow-up program
1.Mandatory: 2.Classified:3.Excluded..projects: 4. Others
The Law categorizes Mandatory activities into three categories
Category 1 activities require full and mandatory EIA; Category 2..unless
within environmentally sensitive area, full EIA is not required; Category
3 have beneficial impacts on the environment
PRELIMINARY ASSESSMENT} {SCREENING
S. 3 Identification, etc of significant environmental issue. See generally
ss. 18-20 on screening a project for potential environmental effects.
See s.4 Minimum content of EIA
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SCOPING} {NO EIA REQUIRED
Scoping to determine the spatial and temporary dimension of
environmental effects
Carry out detailed baseline studies to determine the environmental
condition prior to project implementation
DRAFT EIA REPORT
Prepare a detailed assessment report. See s.4 for minimum contents
of the EIA Report.
PUBLIC HEARING} REVIEW PANEL} MEDIATION
Review methods: In-house; Panel; Public; or Mediation. S.7 provides
for comments by certain groups (..including “members of the public”)
Within 15 working days of the receipt of the draft EIA report, FME
concludes evaluation of the draft and determination of the review
method which it communicates to the proponent in writing
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REVIEW REPORT
Within one month of the review process, review comments
are made available to the proponent
Technically in the review stage the public participates only
when FME’s chosen method of review guarantees public
participation.
PROPONENT
The Proponent must address and proffer answers to review
comments within 6 months to the responsible officer
FME and the Proponent set conditions establishing follow-up
program(mitigation, compliance and monitoring plan), a
monitoring strategy and audit procedure.
FINAL EIA REPORT
Within one month
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(Not Approved) TECHNICAL COMMITTEE (Decision making committee)
S. 9…FME decision on the effect of an EIA to be in writing
A ‘no project’ decision is communicated to the proponent if the review
comments are adverse and/or improperly addressed in the final report and the
final EIA report is unsatisfactory.
(Approved) ENVIRONMENTAL IMPACT STATEMENT (EIS) & CERTIFICATION
Within one month of receipt of a final EIA report adjudged satisfactory, FME
approves and issues the Environmental Impact Statement (EIS)
SECTION 41 EIA Act 1992
“A certificate stating that an environmental assessment of a project has been
completed, and signed by the FME that exercises a power or performs a duty or
function referred to it in S.35(c) of this in relation to the project, is in the absence
to the contrary, proof of the matter stated in the certificate”.
Note… there is no S.35(c) under the statute. There are S. 35 (a)&(b).
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ENVIRONMENTAL IMPACT MONITORING }
PROJECT IMPLEMENTATION
COMMISSION
AUDIT
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Eko Atlantic City EIA?
• Is the Eko Atlantic City Project EIA Act, 1992
compliant?
• This is the trillion dollar question!
• There doesn't seem to be an unequivocal
answer to this question.
• All indications point to the fact that the
answer is no.
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Eko Atlantic City EIA?
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Earlier information obtained…
Dredging commenced on the site in 2009
A public meeting was held on January 21, 2011.
“Eko Atlantic City EIA” was completed in April,
2011 and placed on display for comments from
July 13 to August 10, 2011.
• Record of meetings between SENL and different
groups in Lagos State between 2009 and 2011…
All these do not add up to the required “Federal
EIA Act compliance.”
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Eko Atlantic City EIA?
• Reliable information obtained recently…
• Source LS government:
• “Federal Govt. has withdrawn the draft impact
assessment viewed by Mr. Ako Amadi
• Reason: “..they had too many reservations
about it”
• Position now is: “..there is no EIA at all at the
moment..”
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EIA: The Lagos State “Preemptive”
Measures
• 2008…Lagos State House of Assembly passed Bill for a law
to provide for regulation of waterfront infrastructure, sand
dealing and dredging operations in the state.
• The Lagos State Waterfront Infrastructure Development
Law, 2009 (LAWID).
• LAWID empowers the LS Ministry of Waterfront
Infrastructure Development to grant permit for sand
dredging or dealing within, around and on waterfronts and
embankments.
• Possibly LS passed the LAWID Law to facilitate
commencement of the Eko Atlantic City Project and other
coastline alteration projects in lieu of EIA certification from
the FME.
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Violations of EIA Statute
S. 61…Offence and Penalty
“Any person who fails to comply with
the provisions of this Act shall be guilty
of an offence under this Act and on
conviction in the case of an individual
to N100,000 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.”
S.I. No. 18 Reg. 20…’….(2)Any
corporate body which violates any of
the provisions under these Regs shall
be guilty of an offence and shall on
conviction be liable to a fine not less
than Five Million Naira (N5,000,000)
and an additional fine of Fifty
Thousand Naira (N50,000) for every
day the offence subsists. (3) In
addition to the penalty provided..a
person/body corporate found guilty
shall be required to carry out
remediation work.’
• The Eko Atlantic Project is a clear violation
of extant EIA Statute and Regulations
• LAWID is not a substitute for the EIA Act,
1992..s. 2 which prohibits listed public or
private projects without prior consideration
of the environmental effects
• Eko Atlantic Project did not comply with the
provisions of the EIA Act and the National
Environmental (Coastal and Marine Area
Protection) Regulations, 2011 S. I. No.
18…the latter prescribes ‘guidelines for
development activities’/Reg. 10 and
‘requirements for permit’/Reg. 12. ‘It shall
be an offence for a person or body
corporate to (1) Contravene any of the
stipulated procedures and guidelines as
stated under regs. 10 & 12 of these Regs.(2)
Carry out any act listed under the prohibited
activities under reg. 6…’
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Violations: Statutory Options (without
prejudice to obvious drafting gaps)
S. 52 Power to Prohibit
Proponent
S. 53 Injunction
• ‘…(2) Where a review panel
established to assess
environmental effects .. Submits
a report to FME indicating that
the project is likely to cause any
serious adverse environmental
effects, FME may prohibit the
proponent of the project from
doing any act or thing that would
commit the proponent to
ensuring that the project is
carried out in whole or in part
until FME is satisfied that such
effects have been mitigated.’
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‘Where on the application of FME,
it appears to court of competent
jurisdiction that a prohibition made
under… this Act in respect of a
project has been, is about to be or
is likely to be contravened, the
court may issue an injunction
ordering any person named in the
application to refrain from doing
any act or thing that would commit
the proponent to ensuring that the
project or any part thereof is
carried out until…’
NOTE.. Prohibition is not indefinite..
S. 54(2)
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Some Vital Laws Applicable to the
Project
Att. Gen. Fed. V. Att. Gen. Abia & 35 ors
(200) Sup. Ct. ‘..the continental shelf is not
part of the territory of a state contiguous to
it.’
Exclusive Economic Zone Act, 1978. S.2…
sovereign and exclusive rights with respect
to the exploration and exploitation of the
natural resources of the seabed, subsoil and
superjacent waters of the exclusive
Economic Zone shall vest in the Federal
Republic of Nigeria and such rights shall be
exercisable by the Federal Government…’
Environmental Impact Assessment Act,
1992. S. 61 Note definition of “Federal
Lands”(a) lands that belong to the Federal
Government of Nigeria in which Nigeria has
a right thereon or has the power to dispose
of and all waters on and air space above
those lands:
Territorial Waters Act, 2004. S. 1….powers of the
Federal Government to make, with respect to any
matter, laws applying to any part of the territorial
waters in Nigeria.’
Water Resources Act, 2004. S.1 ‘Vesting of rights and
control in the Federal Government’ S.5 ‘….ensuring
that the possible consequences of particular
development proposals on the environment are
properly investigated and considered before each
proposal is approved.’ S.20 Note definition of
“Watercourse”
(i) The internal waters of Nigeria within the meaning
of the Sea Fisheries Act, including the sea bed and
subsoil below and the airspace above those waters;
(ii) the territorial sea of Nigeria as determined in
accordance with the Territorial Waters Act, including
the sea bed and subsoil below and the airspace above
the sea;(iii) any fishing zone of Nigeria prescribed
under the Sea Fisheries Act; (iv) any exclusive
economic zone that may be created by the
Government of Nigeria, and
The Constitution of the Federal Republic of Nigeria,
1999, Second Schedule Exclusive Legislative List, Item
64 ‘Water from such sources as may be declared by
the National Assembly to be sources affecting more
than one State.’
National Environmental (Coastal and Marine Area
Protection) Regulations, 2011, S.I No. 18 Regs. 6…land
reclamation, bounding or disturbing the natural
course of sea water are prohibited except..;
Reclamation for commercial purposes such as
shopping and housing complexes, hotels and
entertainment activities shall not be permissible..’
Reg. 10 ‘..guidelines for specified development
activities…’
(v) The continental shelf, consisting of the sea bed and
subsoil of the submarine areas that extend beyond
the territorial sea throughout the natural prolongation
of the land territory of Nigeria to the outer edge of
the continental margin or to a distance of 200 nautical
miles from the inner limits as may be prescribed
pursuant to an Act; and (b) reserves, surrendered
lands and any other lands that are set apart for the
use and benefit of a class of Nigerians by the Federal
Govt. of Nigeria and all waters on and airspace above
those reserves or surrendered lands.’
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The Way Forward
• Eko Atlantic City Project… A Fantastic Idea… But triggers of a wide range of
extant critical Statutes and Regulations
• The Proponents must be brought back to conformity and compliance in
accordance with due process of law and executive /administrative
processes.
• This presentation sheds light on what the laws of the country stipulate, in
general, and in particular the statutory framework for the EIA process, and
if at all the Eko Atlantic City Project and its proponents are compliant.
• The conclusion is that the individuals and firms involved in the Eko Atlantic
City Project may be found guilty of offences under s. 61 EIA Act, 1992, and
Reg. 20 National Environmental (Coastal and Marine Area Protection)
Regulations, 2011.
• It is recommended that an Executive/Administrative order of prohibition
be placed on the proponents pending due compliance with all applicable
laws relevant to the project.
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Way Forward - Options
• Legal Action
• Examine civil or criminal
violations of extant laws triggered
by the Eko Atlantic Project
• Thorough investigation of
individuals and firms involved and
prosecute if found culpable
• OR: Make a U-Turn to start all
over simply impose “prohibition
order” on the proponents and
compel ‘total compliance with
the EIA Act, 1992 & S.I. 18, 2011’
• No further action until an
approval “Certificate” is issued by
FME in accordance with S. 41 EIA
Act.
• Political Solution
• Mediation by FG and LSG
authorities
• Reasonable resolution of the
matter between FG and LSG
• Must be against the backdrop of
the applicable laws..essentially
the Constitution and all
applicable Federal laws
• Avoid reckless violation of extant
laws.
• Carry all stakeholders along in the
overall public interest.
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