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This was first published in 234NEXT on September 08, 2010^[1]

A major problem with the Nigerian oil industry can be traced to its regulatory mechanisms. While we should assume that such mechanisms could actually help secure efficient operations of the sector, they have led the sector into murkier waters. For a number of years, the Nigerian president doubled as the minister of petroleum. Busy on many fronts, a number of issues must have gone without strict oversight. Because the president was also the minister, the office had more powers assigned to it.

Some experts believe that because of this setting, the minister of petroleum was allowed wide scope for discretion and decision-making powers, without commensurate systems of review and accountability. The sector is disparately regulated, mainly from the Ministry of Environment and that of Petroleum. How coherently these two perform and how their powers overlap or synergise are issues for another day. But there are many areas we ought to worry about. One area of concern is that the oil sector has created some of the most critical environmental and health problems for the Niger Delta and the entire nation.

Who is the governmental watchdog for the Nigerian environment? The answer to that question may seem obvious. Do you say it is the ministry of environment? You would be right. But that would be only to a point.

When we had a Federal Environmental Protection Agency (FEPA) as a subset of the Federal Ministry of Environment, the answer would have been right to a larger extent than it is now. After the demise of FEPA, another agency with a suspiciously long name emerged in 2007. We are talking of the National Environmental Standards and Regulations Enforcement Agency (NESREA).

Let me confess that I had to visit their website to be sure I got that name right! The duties of NESREA, as stated in the Act by which it was set up, are lofty and should build confidence in the agency. However, there are two key areas that raise serious concern. And they are related.

First area of concern is the composition of the governing council of the agency. Article 3 (viii) of the NESREA Act of 2007 specifies a membership slot in the council for a representative of the oil exploratory and production companies in Nigeria.

Why, we ask, is this space created for the oil companies to regulate our Nigerian environment? We note that apart from a slot allowed for the Manufacturers Association of Nigeria (MAN), there is a provision for the Minister of Environment to appoint ‘three other persons to represent public interest.’ There is no clue in the Act as to who these three would be and on what basis the minister would select them. Would there be representatives of fishers, farmers, or pastoralists? Would there be youth whose future we are already squandering?

We have picked on the objectionable inclusion of the oil corporations in the regulation of our environment because these entities, while baking the petrodollar pie, are also guilty of causing severe damage to the environment and to the psyche of our peoples.

The submission of this writer is that the oil companies should be in the dock and not on the bench in hallowed chambers of environmental and sundry justice. What they have done in the oil communities is nothing short of criminal.

The second issue, which, as already mentioned, relates to the first objection above, is the stipulation of Article 7 (d) of the NESREA Act. This section states that the agency shall ‘enforce compliance with regulations on the importation, exportation, production, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste other than in the oil and gas sector.’

It is clear from the above that a factor has been inserted here to confer a certain status on the oil companies that keeps them away from being regulated by an agency that sets environmental standards in Nigeria and which is supposed to enforce regulations in the land.

With the biggest environmental abuser excluded from the purview of NESREA, the agency must be truly and fully handicapped to play the role it ought to play in regulating the environment. Consider what it would mean if the United States FEPA had no say about how oil companies handle and dispose of chemicals and wastes in the oil and gas sector.

This exclusion from regulation of the oil companies is shocking and scandalous. However, what makes it more objectionable is the fact that these companies, which continue to commit heinous environmental and human rights abuses in the oil fields and communities, are also elevated to the seat of judgment over other lesser polluters of the Nigerian environment.

This is a sad commentary on environmental regulation in Nigeria. It is unacceptable and needs urgent re-examination and correction. A very basic tenet of justice holds that an offender cannot be a judge in his own case.

The unholy wedlock between regulatory agencies and the oil and gas companies is ripe for a divorce. Perhaps, you will tell us that there are other agencies that regulate the oil and gas companies. You could list the Directorate of Petroleum Resources as one. That would make a good joke if you were on a comedy train. The DPR that is unable to tell us how much oil is extracted from the wells and keeps a blind eye or raises hands controlled by political levers cannot take the place of a central environmental regulatory agency.

NESREA needs urgent attention to help close the dangerous gaps created by her blind spots.