GAS FLARING IN NIGERIA AND THE CONUNDRUM OF LEGISLATIVE

INTERVENTION

BY

TOLULOPE OGBORU1

INTRODUCTION

Gas flaring refers to the burning of natural gas that is

associated with crude oil when it is pumped up from the ground.2

In petroleum‐producing areas where insufficient investment was

made in infrastructure to utilize natural gas, flaring is

employed to dispose of this associated gas. In the course of oil

exploration, natural gas is usually produced. This associated gas

found with oil is often burnt off in order to increase crude

production and the act of burning off the gas is referred to as

gas flaring. Roughly 2.5 billion cubic feet of gas associated

with crude oil is flared in this way every day.3 This is said to

1 Lecturer at the Faculty of Law, University of Jos, Jos. E-mail address: ogboruit@yahoo.com

2 Gas Flaring in Nigeria: An Overview, A publication of Justice in Nigeria Now, April 2010, p.2 Web, accessed on 9th March, 2011, p.2

1

be equal to 40% of all Africa’s natural gas consumption in 2001.4

In 2004, the World Bank stated that Nigeria was flaring 75

percent of the gas it produces.5 This made it the focus of the

Global Gas Flaring Reduction Initiative promoted by the World

Bank. As at 2010, it was reported that Nigeria was the second

largest flarer after Russia, in terms of the total volume of gas

flared. 6 As a result, Nigeria contributes more greenhouse gases

than all of Sub-Saharan Africa combined.7 Additionally, gas

flaring cost Nigeria US $2.5 billion annually.8

The flares have contributed substantially to climate change

as it is a main source of greenhouse gas which causes global

warming. They contain a mix of toxins that affect the health,

3 Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Montrosity, A publication of the Environmental Rights Action and The Climate Justice Programme, June 2005. Web. Accessed on 18th January, 2011.

4 Ibid.

5 Ibid, p.11

6 Justice in Nigeria Now,op.cit.

7 Memorandum of the President of the International Development Association andthe International Finance Corporation to the Executive Directors on an InterimStrategy Update for the Federal Republic of Nigeria, February 13, 2002. ReportNo 23633-UNI (World Bank Joint Interim Strategy Update), page 4, paragraph 15.

8 ibid2

livelihood and environment of local communities. In Nigeria, the

residents of the Niger Delta and other States in the South-South

have been exposed to premature deaths and increased health risks.

Natural gas does not have to be flared off as there are other

options for managing it.9 Technologies to capture or use the

associated natural gas exists as viable alternatives to flaring.

For example, it can be re-injected - which boosts oil production

and contains the gas; transported via gas pipelines; converted to

liquids that can be more readily transported; used on site or

conserved for use as a source of energy by local communities.10

Despite these options, the multinational oil companies continue

to flare gas.

Some attempts have been made to bring gas flaring to an end.

One of such attempts is the promulgation of the Associated Gas

re-injection Act11 which made gas flaring illegal after 1984.

Unfortunately, gas flaring continues till date. The focus of this

work therefore, is to ascertain why gas flaring has continued 9 Gas Flaring: Will it ever end in Nigeria? National Mirror, Wednesday February 2, 2011 p.23

10 Justice in Nigeria Now, op.cit.

11 Cap A 25 Laws of the Federation of Nigeria, 2004 3

despite the existence of the Act. It will also assess whether the

Act can bring gas flaring to an end in Nigeria.

HISTORY OF GAS FLARING

Gas flaring began during the colonial era. Shell Petroleum

Development Company and BP started exploring for oil in the

Niger-Delta in the 1930s. The first field was found in 1956 and

the first export was made in 1958.12 Shell Petroleum Development

Company (the largest oil producer in the country), Exxon Mobil,

Chevron/Texaco, Agip and TotalfinaElf, in joint ventures with the

Nigerian National Petroleum Corporation (NNPC), have been

fingered as the worst offenders.13 In the run-up to independence

in 1960, the Secretary of State for the colonies, Lord Home, was

asked to address the flaring. His response was that until there

is a worthwhile market and until there are facilities14 to use

the gas, it is normal practice to burn off the gas from the oil

well.15 Sadly, this appears to be the attitude many years after 12 Gas flaring in Nigeria, op.cit p.6

13 Adekunbi, Ero, Gone With the Wind Tell Magazine, February 18, 2008, p.59

14 For example, pipelines and storage tanks.

15 Gas flaring in Nigeria, op.cit 4

independence.The flaring of associated gas in Nigeria’s Niger

Delta has been a great challenge to environmentalists who have

been passionate about its harmful effects. Oil companies in

Nigeria engage in gas flaring, as a 24 hour‐a‐day, 365 day‐a‐year

practice. According to Justice in Nigeria Now, an environmental

Non-Governmental Organisation, some of these flares have burnt

without cessation for 40 years.16 People live literally next door

to the roaring, ground‐level flares that leap as high as a

several‐story building and belch black clouds of toxic smoke in

the middle of, or next door to, their villages.

In most parts of the world, the flaring of associated gas is

being gradually phased out, in Nigeria however, the practice has

continued to flourish. The courts have made attempts to stop gas

flaring all to no avail. On 14th November 2005, the Federal High

Court in Benin, Edo State, ordered that gas flaring must stop in

a Niger Delta community.17 The case was instituted against the

16 Justice in Nigeria Now, op.cit., p.2; See Behind the Shine: The other ShellReport 2003, a publication of the Friends of the Earth in conjunction with other Environmental non-governmental organizations, 2005.p.21

17 Jonah Gbemre (For himself and as representing Iwherekan Community in Delta State, Nigeria) v Shell Petroleum Development Company Nigeria Ltd & 2 ors, Unreported, Suit No: FHC/B/CS/53/05

5

Shell Petroleum Development Company of Nigeria (SPDC), the

Nigerian National Petroleum Corporation (NNPC) and the Federal

Government by the Iwherekan community in the Delta State. Justice

C.V. Nwokorie had ruled that the damaging and wasteful practice

of flaring violated the constitutional right to dignity and safe

environment of the plaintiffs. Unfortunately, Shell has refused

to obey this order till date.

IMPACT OF GAS FLARING

The impact of gas flaring on man and his environment is enormous.

Flaring is known to have harmful effects on human health and

ecosystems near flaring sites including structures and the

atmosphere.

1. Effect on Man

Although, no comprehensive study is known to have been carried

out in Nigeria on the health impacts of gas flaring on

communities in the Delta,18 it is clear that flaring harms

people, animals and the environment. This is so because flaring

18 Except that carried out by Climate Justice programme among residents of Bayelsa which was only an estimation. We will examine it in more detail below.

6

of associated gas from oil production facilities is like setting

a match to an enormous container of lighter fluid. The facilities

are so hot that nothing will grow next to them. Emissions

resulting from the combustion of associated gas in this open,

uncontrolled manner will be a mix of smoke, particulate matter,

combustion by-products, including sulfur dioxide, nitrogen

dioxides and carcinogenic substances, such as benz[a]pyrene and

dioxin, and unburned fuel components, including benzene, toluene,

xylene and hydrogen sulfide.19 Many scientific studies have

linked inhaling particulate matter to a series of significant

health problems including aggravated asthma, increases in

respiratory symptoms like coughing and difficult or painful

breathing, chronic bronchitis, cardiac arrhythmia which increases

the risk of premature death and stroke and decreased lung

function.20 In addition, United States Environmental Protection

Agency reported that it has been established and accepted that

19 The Canadian Public Health Association has noted over 250 identified toxins, See Canadian Public Health Association. Background to 2000 Resolution No. 3 at www.cpha.ca/english/policy/resolu/2000s/2000/page5.htm.

20 A publication of the United States Environmental Protection Agency at www.epa.gov/air/urbanair/pm/hlth1.html; American Lung Association State of the Air Report 2010.

7

exposure to benzene and its metabolites cause leukemia and a

variety of other blood-related disorders in humans.21

Although, the health effects of exposure to pollutant

emissions from gas flares will be localized to the vicinity of

such flares and health effects will not be as widespread as its

environmental effects,22 yet, something urgent needs to be done

to deliver communities around these flare sites from these deadly

health problems.

2. Effect on Environment

21 Ibid.

22 This made it possible for the Climate Justice Programme to estimate the extent to which emissions from gas flares are causing health problems among citizens of the Niger Delta. Such an estimate was made based on an analysis conducted on Bayelsa State residents concerning their exposure to two pollutants (particulate matter and benzene) from gas flare activities going onin 17 identified flow stations in that State. Their analysis shows that persons residing closer than 1.325 meters to gas flares will be exposed to levels of particulate matter substantially higher than 21ug/m3. This population segment will suffer higher rates of premature death, respiratory illnesses among children and asthma attacks. While those residing closer than 5,000 meters to gas flares will be exposed to levels of benzene substantially higher than 2.3 ug/m3 will suffer higher rates of cancer. Additional cases of premature death, respiratory illnesses among children, asthma attacks and cancer will occur from exposure to lower but still significant levels of particulate matter and benzene that occur beyond distances of 1.325 meters and5,000 meters from gas flares, respectively. They stated that gas flaring releases other pollutants which cause other health effects that are not quantified in this analysis. See Gas flaring in Nigeria, op.cit. p. 24.

8

According to a 2002 World Bank report, the most striking example

of environmental neglect has been in the oil sector. Gas flaring

releases large amounts of methane which has very high global

warming potential. The methane is accompanied by another major

greenhouse gas – carbon. The burning of gas by flaring leads to

the emission of carbon dioxide while venting23 of the gas without

burning releases methane.24 These two gases make up about 80% of

global warming to date.25 Methane has a much higher global

warming potential than carbon dioxide even though it is short

lived.26 However, there is problem in assessing the impact of

gas flaring on greenhouse gas accumulation due to lack of

information on the quantities and types of gases emitted. For

23 These occur from leaks and from deliberate release of gas as gas, rather than burning. It is very difficult to find reliable data for these emissions. The National Communication has acknowledged that once flaring has ended, it is most likely that pipeline leakage emissions may remain the single most significant source of methane, and a substantial contributor to non-methane volatile organic compounds in the country. See Gas Flaring in Nigeria, op.citp. 22.

24 Gas Flaring in Nigeria, op.cit. p.22

25 Ibid, p.20

26 It is said that after 20 years, 1 kg of methane is 62 times more powerful than 1 kg of carbon dioxide and over 100 years, it is 23 times more powerful. See IPCC, Third Assessment Report, Working Group 2. Impacts, Adaptation and Vulnerability, Executive Summary. Web. 18th January, 2011.

9

instance, the composition of the gas being flared can vary

greatly. There are gases rich in hydrocarbons heavier than

methane – propane, butane, pentanes plus – so they produce more

carbon, as well as smoke and aerosols.27 On the other hand, gas

may contain significant proportions of inert gases – nitrogen,

helium and sulfur compounds as well as CO2. Flaring of such impure

natural gas will have a different impact on the climate change

than that of pure hydrocarbons. As a result of these

uncertainties, the impact of flaring on the climate could be more

than normally assumed. Flaring also contributes to emissions of

carbon monoxide and oxides of nitrogen. These are the gases that

form ozone28 - photochemical smog or haze often common in the

Niger Delta. It is the third most important greenhouse gas.

Gas flaring also subjects plants to heat radiation, high

temperatures and excessive light and gas deposits (dry and wet,

depending on the season). In the Niger Delta, it is also noted

27 Ibid.

28 Ozone is formed by chemical reactions in the atmosphere from nitrogen oxides and hydrocarbons, also called Volatile Organic Compounds (VOCs). When these two gases come in contact with both heat and sunlight, they combine and form ozone smog.

10

that affected plants show symptoms of chlorosis (leaf

discoloration), scorching, browning and desiccation, stunting and

death after prolonged exposure. All types of plant species are

affected to some degree and their susceptibility seems to vary

from species to species.29 The same study also noted that the gas

flares attract yam tuber beetles and grasshoppers that destroy

crops.30

Gas flaring causes acid rain. Acid rain is formed when

emissions of sulphur dioxide SO2 and nitrogen oxides NOx combine

with atmospheric moisture to form sulfuric acid and nitric acid,

respectively. It impacts soil fertility and is associated with

reduced crop yields, causing hunger in the Niger Delta where fish

populations already have declined due to pollution by oil

companies.31Acid rain also acidifies lakes and streams. The

particulate matter derivatives of these gases contribute to

reduced visibility.32 In the Delta, an oily hue is often observed

29 Nigerian Analysis of the Environment 2002 A USAID report www.rmportal.net/library/content/1/118 _nigeria/at_download/file accessed on 28th February, 2011 p. 5830 Ibid 31 Gas Flaring in Nigeria, op. Cit., p.3

32 U.S. EPA, ibid.11

on collected rain water. This is due to the pollution of rain

water which gas flare turns to acid rain and this in turn

pollutes river water. This exposes the rural communities who

depend on these sources of water for cooking, drinking, bathing

and other domestic uses to waterborne diseases.

Acid rain also affects structures. Residents of the Delta

have long complained about how their corrugated roofs have been

corroded by the composition of the rain that falls as a result of

flaring. In Iko, Akwa Ibom State, it is reported that the roofs

of the houses do not last beyond 10 years because of acid rain.33

Similarly, a research conducted in some communities of Akwa Ibom

State showed that rain water samples at Ekpene Obo town of Esit

Eket local government area situated close to gas flares contained

high levels of acidity resulting in corrosion of corrugated

33 Gas Flaring: Will it ever end in Nigeria? National Mirror, Wednesday February 2, 2011 p.23

12

roofs.34 In addition, acid rain accelerates the decay of building

materials and paints.

Another problem caused by gas flaring is noise pollution.

For instance, in July 2010, members of the Gbarain communities in

Bayelsa State wrote to Shell complaining that they hardly sleep

at night as a result of noise generated from flaring.35 They also

allege that noise from flares cause buildings to vibrate in some

of their communities which makes it unsafe for them to continue

to live in those buildings. Their call therefore, was for Shell

to stop gas flaring in their communities.

THE ASSOCIATED GAS RE-INJECTION ACT

I. Background to the Act

34 Akpan, E.R., ‘Acidic precipitation and infrastructural deterioration in oilproducing communities of Akwa Ibom State: A Case Study of Eket, South Eastern Nigeria’ Global Journal of Environmental Sciences, 2(1):47 – 52. www.ajol/info/viewarticle. The researcher from the institute of oceanography, University of Calabar showed that rain water samples at Ekpene Obo town of Esit Eket local government area situated close to gas flares in Akwa Ibom State contained high levels of acidity resulting in corrosion of corrugated roofs.

35 Akanimo, S., Gas flaring: Community Youths Warn Shell, 29th July, 2010.Web. accessed on 9th March, 2011.

13

In 1969, President Yakubu Gowon ordered that within 5 years

of set‐up, a company must cease gas flaring. This order was

formulated into law in form of regulation 42 of the Petroleum

(Drilling and Production) Regulations, a Regulation made pursuant

to the Petroleum Act.36 The regulation provides that not later

than five years after the commencement of production from the

relevant area, the licensee or lessee shall submit to the

minister, any feasibility study, programme or proposals that he

may have for the utilization of any natural gas, whether

associated with oil or not, which has been discovered in the

relevant area. This provision was strengthened by the Associated

Gas Re-injection Act. The Associated Gas Re-injection Act is to

compel every company producing oil and gas in Nigeria to submit

preliminary programmes for gas re-injection and detailed plans

for implementation of gas re-injection. Although the Act does not

mention air pollution, the essence of this is to regulate gas

flaring by companies in order to prevent atmospheric pollution

36 Cap P 10 Laws of Federation of Nigeria, 2004; See s.9(1)(b)(iii) of the Petroleum Act

14

because that is the major environmental problem that gas flaring

may result to.

Section 2(1) of the Act provides that every company

producing oil and gas in Nigeria is mandatorily required to

submit to the Minister not later that 1st October, 1980 detailed

programmes and plans for either the implementation of programmes

relating to the re-injection of all produced associated gas or

schemes for viable utilization of all produced associated gas.

The Act provides further that no company engaged in the

production of oil and gas shall after 1st January, 1984 flare gas

produced in association with oil without the permission in

writing of the Minister.37 However, where the Minister is

satisfied after 1st January, 1984 that utilization or re-

injection of the produced gas is not appropriate or feasible in a

particular field or fields, he may issue a certificate in that

respect to a company engaged in the production of oil or gas,

specifying such terms or conditions as he may at his discretion

choose to impose, for the continued flaring of gas in the

particular field or fields: or permitting the company to continue37 See section 3(1)

15

to flare for a fee in such sum as the Minister may from time to

time prescribe for every 28.317 standard cubic metre (SCM) of gas

flared.38 To take effect from 1st January, 1985 is the Associated

Gas Re-injection (Continued Flaring of Gas) Regulations which

were made pursuant to sections 3 and 5 of the Associated Gas Re-

injection Act. The Regulations stipulate conditions for issuance

of a certificate by the Minister for the continued flaring of gas

in a particular field or fields. The implication of the

regulations is that the Minister can only issue a certificate

permitting a company to continue flaring gas if the following

conditions are met:

a) Where more than 75 per cent of the produced gas is

effectively utilized or conserved;

b) Where the produced gas contains more that fifteen per

cent impurities such as N2, H2S, CO2, etc., which render

the gas unsuitable for industrial purposes;

c) Where an on-going utilization programme is interrupted

by equipment failure, provided that such failures are

38 Section 3(2)(a) & (b)16

not considered too frequent by the Minister and that

the period of any one interruption is not more than

three months;

d) Where the ratio of the volume of gas produced per day

to the distance of the field from the nearest gas line

or possible utilization point is less than 50,000

SCF/KM provided that the gas-to-oil ratio of the field

is less than 3,500 SCF/bbl, and that it is not

technically advisable to re-inject the gas in that

field;

e) Where the Minister, in appropriate cases as he may deem

fit, orders the production of oil from a field that

does not satisfy any of the conditions specified in

these Regulations.

II. The Effect of the Act on Gas Flaring in Nigeria

The import of section 3 of the AGRA Act is that from 1st

January, 1984, gas flaring becomes an offence for which the

penalty is the forfeiture of the concessions granted in the17

particular field in relation to which the offence was

committed.39 Ever since the AGRA Act came into force, no oil

company has been penalized in this way for gas flaring. One may

predicate this on the proviso in that section that permits a

company to continue flaring gas where the Minister is satisfied

that there is no alternative to it.40 In such a case, the

Minister is expected to issue a certificate in that respect to

the company, but only upon one of two of the conditions being

fulfilled.41 From what obtains in Nigeria, it would seem the

Minister of Petroleum at the inception of the Act chose to impose

the condition of payment of a fee for gas flared on the oil

companies. This has remained the practice ever since, as it seems

subsequent Ministers have not changed the conditions. Presently,

the Oil Companies pay $4 per 1,000 cubic meter gas flared.42

The puzzle however is what the imposition of this fee on the

company is meant to achieve. Ordinarily, one would think it is

39 S.4 of the Act.

40 S.3(2)

41 S.3(2)(a)&(b)

42 National Mirror, op.cit. p.24; See also, Justice in Nigeria Now, op.cit. p.3

18

meant to be a fine to deter oil companies from flaring gas while

they take steps to build infrastructure that would enable the

utilization or re-injection of the associated gas. Curiously,

this has not been the case as seen by the gas flaring activities

still going on in the country. This probably has to do with the

amount imposed as penalty as it has been criticized as being

inadequate.43 Since the Act provides that the fee to be paid

ought to be in respect of every 28.317 cubic meter and the

companies are presently paying $4 for every 1,000 cubic meter, it

means the companies are paying about 8.83 cents for every 28. 317

cubic meter of gas flared. Obviously, this fee is ridiculously

low and it cannot serve as a deterrent to the oil companies. The

continual payment of such a low fee by the oil companies may mean

gas flaring will never cease in Nigeria because a fee of this

nature makes it cheaper for the oil companies to flare gas than

to separate commercially viable associated gas from the oil. One

cannot but agree with Fagbohun44 that the operators are simply

contented with paying the fines imposed by government as penalty

43 ibid

44 Fagbohun, Olanrewaju; op.cit, p. 180.19

for gas flaring, particularly that the fines are such that they

can comfortably afford, 45 while the damages to the environment

and man continues. This is more disturbing as it appears that the

fines are not used to alleviate environmental damages.

The researcher acknowledges though that the oil companies

have been complaining of various challenges confronting them in

the utilization and re-injection of natural gas. In 2001, the

then Managing Director of Shell Petroleum Development Company

(SPDC), Mr. Ron Van Den Berg, stated that gas flaring persists in

Nigeria for various reasons among which are:

a) Limited number of appropriate reservoirs

conducive for gas reinjection/storage;

b) Low industrial base in Nigeria resulting in low

energy consumption;

c) Huge cost of developing major gas transmission

facilities;45 It has been stated that the approximately $3million per month of fines thatthe government receives is a fraction of what it could impose – African Business ‘Nigeria: Gas is More Than Just Hot Air’, December, 2001 in Fagbohun,Olanrewaju, Ibid; The Oil Companies pay $4 per 1,000 cubic meter gas flared, see National Mirror, op.cit. p.24.

20

d) Limited regional and international gas markets;

and

e) Historical inappropriate fiscal and gas pricing

policy.46

Another reason given by the oil companies is the non

completion of work on the Petroleum Industry Bill expected to

guide them in making investment and other decisions.47 Ms Kim

Bates, Area Manager, Nigeria, Exxonmobil Corporation also noted

that, previously, the industry had not consciously explored gas

because ‘technical challenges were enormous’48. As earlier noted,

one acknowledges these challenges which reveals that the Federal

Government must address the challenges that are solely its

responsibility in order to create an enabling environment for the

oil companies to stop gas flaring. For instance, the oil

46 Akinrinola, T., and Owete, F., “Why Gas Flaring Persists – Shell MD”, The Punch, July 26, 2001 cited in Oche, Patrick. Petroleum Law in Nigeria –Arrangements for Upstream Operations, Jos: Heirs Great Commission, 2004, p.174. Print.

47 “Gas Flaring: Will it ever end in Nigeria?” National Mirror, Wednesday February 2, 2011 p. 23 at p. 24.

48 Clara Nwachukwu, ‘Gas flaring: Oil majors seek extension of deadline to 2010’, Punch Newspaper, Wednesday 14 Nov 2007. Ms Kim Bates made the statementwhile speaking on “Gaps in the Gas Development Chain: ExxonMobil Perspective”

21

companies expect the federal Government to build major gas

utilization projects around associated gas; embark on

constructing comprehensive gas infrastructure in the Niger Delta

region and provide a stable fiscal framework and also a firm

attractive investment climate. The government must show goodwill

and execute these projects. Be that as it may, the oil companies

are aware that despite the challenges they are complaining about,

they have the capacity to eliminate gas flaring in their

operations if they are committed to it. This is evidenced by the

different programs and projects they have embarked on for the

elimination of gas flaring, some of which commenced since year

2000 but are yet to be completed.49

Moreover, these companies operate in other climes where they

do not flare gas the way they do in Nigeria. The lack of

political will on the part of the Nigerian government to enforce

the AGRA Act is largely responsible for this state of affairs.

For instance, when the North Sea production started in UK in the

49 SPDC, ExxonMobil, Chevron and Mobil Producing Nigeria Unlimited have all embarked on one program or the other towards attaining zero gas flare. See Oche, P.N., op.cit., pp. 179-180.

22

1970s, flaring of associated gas was over 90% but a general

prohibition of gas flaring in the UK decreased the flare over

the past two and half decades to around 2%50. This is a country

that commenced oil exploration after Nigeria.51 Clearly, the

political will of the British government and an efficient

enforcement mechanism made this reduction of gas flaring

possible.

Besides, series of deadline to end all flares associated

with oil explorations have been given to the multinational

operators in the oil and gas industry in the past – the last

deadline being 2010.52 The Federal Government had earlier set

January 1, 2008 as the deadline to achieve zero flares in all oil

50 Gas flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity, An Environmental Rights Action and The Climate Justice Programme Publication, published in Amsterdam, the Netherlands, June 2005, p. 7 accessedon 19th January, 2011. The prohibition is contained in s.12 of the Energy Act,1976.

51 Oil exploration began in Nigeria in 1908 but it suffered some interruptionsresultant from the first and second world wars. Subsequently, petroleum was discovered in commercial quantities in 1956. Oil production in the United Kingdom commenced in 1975. For a detailed historical background of petroleum exploration in Nigeria, see Oche, Patrick. op.cit. pp. 1-11.

52 Clara Nwachukwu, op cit; Previous dates were 2004 & 2007.23

fields in Nigeria.53 The operators did not meet any of the

deadlines, yet the government has not taken any step to address

it nor has it sanctioned the operators. This is 2012 and gas

flaring is still ongoing in Nigeria. One wonders whether any date

will ever be realistic and whether gas flaring can ever cease in

Nigeria. This is further buttressed by the fact that at a time

when Nigerians were looking forward to the materialization of the

measures being put in place to end gas flaring, a statement made

recently by Jide Ojo, the President of the Nigerian Association

of Petroleum Explorationists (NAPE) soon dashed such hopes. He

stated that so long as the oil companies continued to produce

crude oil, they would also continue to flare gas.54 He noted that

the only way to achieve flare down was for the oil companies to

stop producing crude oil, adding that unless the issue of gas

gathering infrastructure was resolved, the companies would

continue to flare gas.55 It is obvious that Nigeria cannot stop

producing crude oil because oil production accounts for up to 8053 Ibid.

54 Ejiofor Alike, ‘Gas Flare: Oil Firms Can Only Meet Deadlines by Stopping Operations’, Thisday, 1 November, 2011. Web.

55 Ibid.24

per cent of government revenue. Does it mean gas flaring cannot

be stopped in Nigeria? Without the government discharging its

responsibility and putting machinery into motion to enforce the

provision of this Act and the set targets for flare down, Jide

Ojo’s position may just become the lot of Nigeria. Moreover, one

can safely conclude that it is doubtful that the government is

desirous of bringing an end to gas flaring in Nigeria and by

implication, atmospheric pollution. The fact that the Act focuses

solely on utilization or reinjection of gas without any

provisions for environmental protection buttresses this point.56

This may be because the government has placed economic interest

above environmental concerns.

Since the legislation stipulates that the Minister should

issue a certificate permitting the oil company to flare gas where

he is satisfied that the utilization or re-injection of the

produced gas is not feasible,57 we assume that this certificate

of permit has been issued to the oil companies flaring gas. Even

56 See Onuma, Orieji. ‘Towards a Comprehensive Framework for Sustainable Development of Gas: Lessons for Nigeria’, 2nd November, 2011. Web.

57 S. 2 of the AGRA Act.25

though we are working under the assumption that gas flaring is

on-going in Nigeria because ministerial certificates permitting

gas flaring has been issued to the oil companies, the only way by

which this can be ascertained is for the companies to make such

certificates public. Unfortunately, none of the multinational oil

companies or the NNPC has disclosed whether any Ministerial

certificates have been issued to them despite requests made for

same, how much more producing the certificates.58 Consequently,

it becomes impossible to ascertain whether or not the flaring

going on is in accordance with the Act and its regulations.

However, gleaning from the statistics given by the World Bank

that Nigeria is flaring 75 percent of its associated gas, one can

safely conclude that only a small percentage is being utilized or

conserved by the oil companies. So, the condition that the

certificate can be issued where more than 75 per cent of the gas

is utilized or conserved has not been met. Furthermore, no

information has been made available to the public to the effect

that impurities have been found in the gas produced either in the58 The Environmental Rights Action/Friends of the Earth Nigeria, a non-governmental organization made this assertion. See Gas Flaring in Nigeria, op.cit, p. 31

26

past or at present which makes it unsuitable for industrial

purposes. Information concerning the other conditions have not

been disclosed either. The question that then arises is: on what

basis were the ministerial certificates issued, if at all they

exist? In view of the above, one can reasonably assume that the

companies have refused to disclose the issuance or non-issuance

of a Ministerial certificate because:

a) no ministerial certificate has been issued;

b) or a ministerial certificate has been issued without a

lawful basis for the Minister being satisfied that

utilization or re-injection is not appropriate or feasible

in respect of that particular field(s);

c) A ministerial certificate has been issued without compliance

with the Act and its Regulations.

The implication of the above is that gas flaring is being

carried out in Nigeria in contravention of the Associated Gas Re-

injection Act and is therefore illegal. This remains a reasonable

27

assumption until the ministerial certificates are produced along

with the information on which their issuance was based.

Again, the discretion given to the minister is too wide. One

wonders why the Minister is given such power to decide terms or

conditions for continous flaring of gas.59 Such discretion is

subject to abuse especially where it is only an individual that

can exercise it without checks and balances. This gives

opportunity for corruption to thrive as gratification becomes

easy to perpetuate in order to get the minister issue a

certificate in a company’s favor without meeting the criteria.

Another problem is that the latitude given the Minister in the

Act is such that personal interest is capable of being considered

ahead of national interest. The implication of all of these is

that gas flaring will continue even when it could be stopped on

the pretext that the minister is exercising his discretion under

the Act.

From the content of the Act, it seems that the harmful

effect of gas flaring was not a priority to the draftsmen, even

59 S.3(2)(a)28

though that should ordinarily be the objective of the Act. The

writer formed this opinion because section 3 which prohibits gas

flaring also permits the activity by reason of its provisos. The

primary concern appears to be the broadening of the country’s

revenue base. However, the conditions stipulated in the

Regulations would have been the solution to gas flaring where

there is transparency, access to information, public

participation and effective enforcement mechanism. Unfortunately,

from the discourse above, all these parameters are absent in the

implementation of the Act. It is therefore obvious that the Act

has failed to fulfill its objective –which is to stop gas flaring

in Nigeria.

It is this seeming failure of the Act that probably led

Senator Osita Izunaso and Hon. Tunde Akogun to sponsor the Gas

Flaring (Prohibition and Punishment) Bill (hereinafter known as

the Bill) at the Senate and House of Representatives

respectively. 60 The Bill looks more promising than the Associated

Gas Re-injection Act as it has addressed the inadequacies

60 Chukwuluka, Modestus, “Senate Passes Gas Flaring Bill”, The Sun Saturday 4 July, 2009. Web.

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observed in the Associated Gas Re-injection Act in the course of

this work. The provision of the Bill61 coupled with the requisite

political will on the part of Government for its implementation

if passed into law; the Bill is able to put an end to gas flaring

in Nigeria. Fortunately, the Bill passed its third reading at the

Senate on 2nd July, 2009 but it is yet to cross this hurdle at

the House of Representatives. We urge the National Assembly to

expedite action on the Gas Flaring (Prohibition and Punishment)

Bill and pass same into law.

CONCLUSION

It is a bit worrisome that gas flaring is still going on

despite its implication for the environment and its implication

on human health. The health and environmental hazards caused by

these flares are too enormous to be overlooked, therefore all

stakeholders must rise up to their responsibilities.We hope the

Federal government will show the oil companies how really

desirous it is to put an end to this problem by ensuring that it

fulfills its own obligations and by ensuring that the Bill is

61 If the content remains unchanged.30

passed into law as soon as possible. Like we noted in this

discourse, the oil companies can stop flaring gas if they are

made to. The major requirement to make this a reality, is the

political will of the government to make the law effective.

.

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