Nigeria

In Nigeria, there has been no case challenging the State or governmental department/agency for the approval of projects (likely to) contribute to climate change.

However, there is at least one case that was filed against a government entity for its participation in emitting activities. In Gbmere v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation and Ors, a representative of the Iwherekan community in the Niger Delta filed a suit against a private entity (Shell) and the state oil corporation for gas flaring. The suit was based on the ground that the flaring was a violation of the Applicant’s fundamental right to life and dignity guaranteed by Sections 33(1) and 43(2) of the Nigerian Constitution and reinforced by Articles 4, 16 and 24 of the African Charter on Human and Peoples’ Rights. The court held in favour of the plaintiff granting the following remedies: a declaration that the continued gas flaring by respondents violated the Applicants rights to life and human dignity, an order restraining the respondents from further gas flaring, and an order directing the federal government to amend the gas flaring legislation and regulation, that allows for gas flaring, to bring them in line with the constitution.

In addition to the above human rights ground, another ground could be failure to conduct a proper Environmental Impact Assessment (EIA). The Nigerian EIA Act generally subjects activities that could lead to a rise in greenhouse gas emissions to the procedural requirements of the Act: requiring an EIA study to inform the authority’s decision-making on such projects and to allow for public participation within the process. Failure to perform an EIA for a climate unfriendly project could constitute a violation of the Act’s procedural requirements.

Regarding standing, the recent Supreme Court decision in Centre for Oil Pollution Watch V. NNPC [2019] 5 NWLR (Pt. 1666) 518 expanded the standing requirements in environmental matters by introducing public interest litigation. Previously, the standing requirements were restrictive since plaintiffs were required to show that their ‘civil rights’ – narrowly taken to mean ‘private legal right’ – have been or are in danger of being violated or adversely affected by the violation ((Adesanya v Nigeria; Oronto Douglas v Shell Petroleum).  

The lack of litigation against the State or governmental department/agency for project approval could be attributed to:

• The weak and porous judicial review provisions, which, for instance, provide that judicial review of EIA decisions shall be refused where the sole ground is defect in form or a technical irregularity.
• The unreasonably wide discretion and unstrained powers of the public authority in the EIA processes so that such decisions are not questioned by courts.
• Existing laws permitting high emitting activities such as the Gas Re-Injection Act which authorise gas flaring.
• The pro-economic stance of Nigerian courts in general which favour economic benefits of oil industry over environmental protection.