“Environmental
Impact” is a term used to describe the alteration of environmental conditions.
It may also apply to the creation of a new set of actions, or environmental
conditions which may be detrimental or beneficial to a community or ecosystem.
The impact is the difference between the future environment as a result of the
project or action(s) and the future environment as it would have been if
allowed to evolve naturally without the action(s) or project in foucs
(Ehighelua, 2007). Consequently, Environmental Impact Assessement (EIA) can be
described as a systematic
process carried out to
identify, predict and evaluate the environmental effects of proposed actions in
order to aid decision making regarding the significant environmental
consequences of projects, developments and programmes. EIA involves the evaluation, prediction, and public
discussion of the effects (direct and indirect) that policies,
programmes and investments have on the social and national environment (Garner,
1979). It therefore seeks to identify
possible environmental damage and how such damage arising from the
developmental activity can be avoided or mitigated. It can be summarily
concluded that EIA is an environmental management tool used to foster
sustainable development. It is fairly
well established that EIA helps the stakeholders to identify the environmental,
social and economic impacts of proposed development before a decision is taken
on wether or not to proceed on the proposed project. A petroleum
multinational company in Nigeria, Shell Petroleum Development Company (SPDC), arguably one of the best ranked
polluters and degraders of the country’s environment claims that EIA is an instrument by which it identifies and
assesses the potential environmental, social and health impacts of a proposed
project, evaluate alternatives, and design appropriate environmental and social
management plans during the life-cycle of the project. This typifies what EIA is.
THE EIA LAW
The EIA law is presented here:
Environmental Impact Assessment Decree
No 86 of 1992
Laws of the Federation of
Nigeria
10th December1992
The
Federal Military Government
hereby decrees as follow: -
Part I
General Principles of Environmental Impact
Assessment
1.
The objectives of any environmental Impact
assessment (hereafter in this Decree referred to as "the Assessment") shall be
-
(a) to establish
before a decision taken by any person, authority corporate body or
unincorporated body including the Government of the Federation, State or Local
Government intending to undertake or authorise the undertaking of any activity
that may likely or to a significant extent affect the environment or have
environmental effects on those activities shall first be taken into
account;
(b) to promote
the implementation of appropriate policy in all Federal Lands (however acquired)
States and Local Government Areas consistent with all laws and decision making
processes through which the goal and objective in paragraph (a) of this section
may be realised;
(c) to
encourage the development of procedures for information exchange, notification
and consultation between organs and persons when proposed activities are likely
to have significant environmental affects on boundary or trans-state or on the
environment of bordering towns and villages.
2.
(1) The public or
private sector of the economy shall not undertake or embark on public or
authorise projects or activities without prior consideration, at an early
stages, or their environmental effects.
(2) Where the
extent, nature or location of a proposed project or activity is such that is
likely to significantly affect the environment, its environmental impact
assessment shall be undertaken in accordance with the provisions of this
Decree.
(3) The
criterion and procedure under this Decree shall be used to determine whether an
activity is likely to significantly affect the environment and is therefore
subject to an environmental impact assessment.
(4) All
agencies, institutions (whether public or private) except exempted pursuant to
this Decree, shall before embarking on the proposed project apply in writing to
the Agency, so that subject activities can be quickly and surely identified and
environmental assessment applied as the activities being
planned.
3.
(1) In identifying
the environmental impact assessment process under this Decree, the relevant
significant environmental issues shall be identified and studied before
commencing or embarking on any project or activity covered by the provisions of
this Decree or covered by the Agency or likely to have serious environmental
impact on the Nigerian environment.
(2) Where
appropriate, all efforts shall be made to identify all environmental issues at
an early step in the process.
4.
An environmental impact assessment shall include
at least the following minimum matters, that is -
(a) a
description of the proposed activities;
(b) a
description of the potential affected environment including specific information
necessary to identify and assess the environmental effects of the proposed
activities;
(c) a
description of the practical activities, as appropriate;
(d) an
assessment of the likely or potential environmental impacts on the proposed
activity and the alternatives, including the direct or indirect cumulative,
short-term and tong-term effects:
(e) an
identification and description of measures available to mitigate adverse
environmental impacts of proposed activity and assessment of those
measures;
(f) an
indication of gaps in knowledge and uncertainly which may be encountered in
computing the required information:
(g) an
indication of whether the environment of any other State, Local Government Area
or areas outside Nigeria is likely to be affected by the proposed activity or
its alternatives;
(h) a brief and
non technical summary of the information provided under paragraph (a) to (g) of
this section.
5.
The environmental effects in an environmental
assessment shall be assessed with a degree of detail commensuration with their
likely environmental significance.
6.
The information provided as of environmental
impact assessment shall be examined impartially by the Agency prior to any
decision to be made thereto (whether in favour or adverse thereto).
7.
Before the Agency gives a decision on an
activity to which an environmental assessment has been produced, the Agency
shall give opportunity to government agencies, members of the public, experts in
any relevant discipline and interested groups to make comment on environmental
impact assessment of the activity.
8.
The Agency shall not give a decision as to
whether a proposed activity should be authorised or undertaken until appropriate
period has elapsed to consider comments pursuant to sections 7 and 12 of this
Decree.
9.
(1) The Agency's
decisions on any proposed activity subject to environmental impact assessment
shall -
(a) be in
writing;
(b) state the
reason therefor;
(c) include the
provisions, if any, to prevent, reduce or instigate damage to the
environment.
(2) The report
of the Agency shall be made available to interested person or
group.
(3) If no
interested person or group requested for the report, it shall be the duty of the
Agency to publish its decision in a manner by which members of the public or
persons interested in the activity shall be notified.
(4) The Council
may determine an appropriate method in which the decision of the Agency shall be
published so as to reach interested persons or groups, in particular the
originators or persons interested in the activity subject of the
decision.
10.
When the Council deems fit and appropriate, a
decision on an activity which has been subject of environmental impact
assessment, the activity and its effects on the environment or the provisions of
section 9 of this decree shall be subject to appropriate supervision.
11.
(1) When information provided as part of environmental
impart assessment indicates that the Environment within another State in the
Federation or a Local Government Area is likely to be significantly affected by
a proposed activity, the State, the Local Government Area in which the activity
is being panned shall, to the extent possible -
(a) notify the
potentially affected State or Local Government of the proposed
activity;
(b) transmit
to the affected State or Local Government Area any relevant information of the
environmental impact assessment:
(c) enter into
timely consultations with the affected State or Local
Government.
(2) It shall be
the duty of the Agency to see that the provisions of subsection (1) of this
section are complied with and the Agency may cause the consultations provided
pursuant to subsection (1) of this section to take place in order to investigate
any environmental derogation or hazard that may occur during the construction or
process of the activity concerned.
12.
Editorial Note: there is no section 12
within this Decree.
13.
(1) When a
project is described on the Mandatory Study List specified in the Schedule to
this Decree or is referred to mediation or a review panel, no Federal, State or
Local Government or any of their authority or agency Shall exercise any power or
perform any duty or functions that would permit the project to be carried out in
whole or in part until the Agency has taken a cause of action conducive to its
power under the Act establishing it or has taken a decision or issue an order
that the project could be carried out with or without
conditions.
(2) Where the
Agency has given certain conditions before the carrying out of the project, the
conditions shall be fulfilled before any person or authority shall embark on the
project.
Part II
Environmental Assessment of Projects
14.
(1)
Notwithstanding the provisions of Part I of this Decree, an environmental
impact assessment shall be required where a Federal, State or Local Government
Agency Authority established by the Federal, State or Local Government Council
-
(a) is the
proponent of the project and does any act or thing which commits the Federal,
State or Local Government authority to carrying out the project in whole or,
impact;
(b) makes or
authorises payment or provides a guarantee for a loan or any other form of
financial assistance to the proponent for the purpose of enabling the project to
be carried out in whole or in part, except when the financial assistance is in
the form of any reduction, avoidance, deferral, removed, refund remission or
other form of relief from the payment of any tax, duty or excise under Customs
Tariff (Consolidated) Act or any Order made thereunder, unless that financial
assistance is provided for the purpose of enabling an individual project
specifically named in the enactment, regulation or order that provides the
relief to be carried out;
(c) has the administration of Federal, State or Local
Government and leases or otherwise disposes of those lands on or any tests in
those lands or transfers the administration and control of those lands or invest
therein in favour of the Federal Government or its agencies for the purpose of
enabling the project to be carried out in whole or in part.
(d) under the
provisions of any law or enactment, issues a permit or licence, grants an
approval or takes any other action for the purpose of enabling the project to be
carried out in whole or in part.
15.
(1) An
environmental assessment of project shall not be required where -
(a) in the
opinion of the Agency the project is in the list of projects which the
President, Commander-in-Chief of the Armed Forces or the Council is of the
opinion that the environmental effects of the project is likely to be
minimal;
(b) the project is to be carried out during national
emergency for which temporary measures have been taken by the
Government;
(c) the
project is to be carried out in response to circumstances that, in the opinion
of the Agency, the project is in the interest of public health or
safety.
(2) For
greater certainly, where the Federal, State or Local Government exercises power
or performs a duty or function for the purpose of enabling projects to be
carried out an environmental assessment may not be required if -
(a) the project has been
identified at the time the power is exercised or the duty or function is
performed; and
(b) the Federal, State, or Local Government has
no power to exercise any duly or perform functions in relation to the projects
after they have been identified.
16.
Whenever the Agency decides, that there is the need for an environmental
assessment on a project before the commencement of the project the environmental
assessment process may include -
(a) a
screening or mandatory study and the preparation of a screening report;
(b) a mandatory or assessment by a review
panel as provided in section 25 of this Decree and the preparation of a
report;
(c)
the design and
implementation of a follow-up program.
17. (1)
Every screening
or mandatory study of a project and every mediation or assessment by a review
panel shall include a consideration of the following factors, that is –
(a)
the environmental effects of the project, including the environmental effects of
malfunctions or accidents that may occur in connection with the project and any
cumulative environmental effects that are likely to result from the project in
taking into consideration with other projects, that that have been or will be
carried out;
(b)
the significance or, in the case of projects referred to in section 43 44 or 45,
the seriousness of those effects;
(c)
comments
concerning those effects received from the public, accordance with provisions of
this Decree;
(d)
measures that are technically and economically feasible and that would mitigate
any significant or, in the case of projects referred to in sections 43, 44, or
45 any serious adverse environmental effects of the project.
(2) In
addition to the factors set out in subsection (1) of this Decree every mandatory
study of a project and every mediation or assessment by review panel shall
include a consideration of the following factors, that is –
(a) the purpose of the project;
(b) alternative means of carrying out the
project that are technically and economically feasible and the environmental
effects of any such alternative means;
(c) the need for and the requirements of any
follow-up program in respect of the project;
(d)
the short-term or tong term capacity for regeneration of renewal resources that
are likely to be significantly or, in the case of the projects referred to in
sections 43, 44 or 45, seriously affected by the project; and
(e)
any other
matter that the Agency or the Council at the request of the Agency, may re
require.
(3)
For greater certainty, the scope of the factors to be taken into consideration
pursuant to subsection (1) (a), (b) and (d) and subsection (2) (b), (c) and (d)
of this Decree shall be determined –
(a) by
the Agency; or
(b)
where a project is referred to mediation or a review panel, by the Council,
after consulting with the Agency, when fixing the terms of reference of the
mediation or review panel.
(4) An
environmental assessment of a project shall not be required to include a
consideration of the environmental effects that could result from carrying out
the project during the declaration of a national emergency.
18. (1)
The Agency may delegate any part of the screening or mandatory study of a
project, including the preparation of the screening report or mandatory study
report, but shall not delegate the duly to take a course of action pursuant to
section 16(1) or 34(1) of this Decree.
(2)
For greater certainty, the Agency shall not take a course of action pursuant to
section16 (1) or 34(1) unless it is satisfied that any duty or function
delegated pursuant to subsection (1) thereof has been carried out in accordance
with provisions of this Decree or any relevant enactment.
19.
(1)
Where the Agency is of the opinion that a project is not described in the
mandatory study list or any exclusion list, the Agency shall ensure that –
(a) a
screening of the project is conducted; and
(b) a
screening report is prepared.
(2)
Any available information may be used in conducting the screening of a project,
but where the Agency is of the opinion that the information available is not
adequate to enable it to take a course of action pursuant to section 16(1) of
this Decree it shall ensure that any study and information that it considers
necessary for that purpose are undertaken or collected.
20.
(1) Where the Agency receives a screening report
and the Agency is of the opinion that the report could be used as a method of
conducting screening of other project within the same class, the agency may
declare the report to be a class screening report.
(2) Any declaration made pursuant to subsection
(1) of this Decree shall be published in the Gazette and the screening report to
which it relates shall be made available to the public at the registry
maintained by the Agency.
(3) Where in the opinion of the Agency a project
or part of a project is within a class in respect of which a class screening
report has been declared, the Agency may use or permit the use of that report
and the screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section13 of this Decree.
(4)
Where the Agency uses or permits the use of a class screening report, it shall
ensure that any adjustments are made that in the opinion of Agency are necessary
to take into account Local circumstances and any cumulative environmental
efforts that in the opinion of the Agency are likely to result from the project
in combination with other project that have been or will be carried out.
21. (1)
Where a proponent proposes to carry out, in whole or in part a project for which
a screening report has been prepared but the project did not proceed or the
manner in which it is to be carried out has subsequently changed or where a
proponent seeks the renewal of a licence, permit or approval referred to in
section 5(d) of this Decree in respect of a project for which a screening report
has been prepared, the Agency may use or permit the use of that report and the
screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section 13 of this Decree.
(2)
Where the Agency uses or permits the use of a screening or screening report
pursuant to subsection (1) of this section, the Agency shall ensure that any
adjustments are made that in its opinion are necessary to take into account any
significant changes in the circumstances of the project.
22.
(1)
After completion of a screening report
in respect of a project, the Agency shall take one of the following courses of
action, that is –
(a)
where, in the opinion of the Agency;
(i)
the project is not likely to cause significant adverse environmental effects,
or
(ii) any
such effect can be mitigated,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out and shall ensure that any mitigation
measures that the Agency considers appropriate are implemented;
(b) where, in the opinion of the Agency;
(i)
the project is likely to cause significant adverse environmental effects that
may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant
it,
the Agency; shall refer the project to the Council for a referral to mediation
or a review panel in accordance with section 25 of this Decree; or
(c) where, in the opinion of the Agency, the
project is likely to cause significant adverse environmental effects that cannot
be mitigated, the Agency shall not exercise any power or perform any duty or
function conferred on it under any enactment that would permit the project to be
carried out in whole or in part.
(2) For greater certainty, where the Agency
takes a course of action referred to in subsection (1) (a) of this section, the
Agency shall exercise any power and perform any duly or function conferred on it
by or under any enactment in a manner that ensure that any mitigation measures
that the Agency considers appropriate in respect of the project are
implemented.
(3) Before taking a course of action in relation
to a project pursuant to subsection (1) of this section, the Agency shall give
the public an opportunity to examine and comment on the screening report and any
record that has been filed in the public registry established in respect of the
project pursuant to section 51 of this Decree and shall take into consideration
any comments that are filed.
23.
Where the Agency is of the opinion that a program is described in the mandatory
study list, the Agency shall –
(a)
ensure that a mandatory study is conducted, and a mandatory study report is
prepared and submitted to the Agency, in accordance with the provisions of this
Decree; or
(b)
refer the
project to the Council for a referral to mediation or a review panel in
accordance with section 25 of this Decree.
24.
(1)
Where a proponent proposes to carry out, in whole or in part, a project for
which a mandatory study report has been prepared but the project did not proceed
or the manner in which it is to be carried out has subsequently changed, or
where a proponent seeks the renewal of a licence, permit or approval referred to
in section 5(d) of this Decree in respect of a project for which a mandatory
study report has been prepared, the Agency may use or permit the use of that
report and the mandatory study on which it is based to whatever extent the
Agency considers appropriate for the purpose of complying with section 17 of
this Decree.
(2)
Where the Agency uses or permits the use of a mandatory study or a mandatory
study report pursuant to subsection (1) of this section, it shall ensure that
any adjustments are made that in its opinion are necessary to take into account
any significant changes i n the circumstances of the project.
25. (1)
After receiving a mandatory study report in respect of a project, the Agency
shall, in any manner it considers appropriate, publish in a notice setting out
the following information –
(a) the date on which the mandatory study
report shall be available to the public;
(b)
the place at which copies of the report may be obtained; and
(c)
the deadline and address for filing comments on the conclusions and
recommendations of the report.
(2)
Prior to the deadline set out in the notice published by the Agency, any person
may file comments with the Agency relating to the conclusions and
recommendations of the mandatory study report.
26.
After taking into consideration the mandatory study report and any comments
filed pursuant to section 19(2), the Council shall –
(a)
refer the project to mediation or a review panel in accordance with section 25
of this Decree where, in the opinion of the Council -
(i) the project is likely to cause significant
adverse environmental effects that may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant. it;
or
(b)
refer the project back to the Agency for action to be taken under section
34(l)(a) of this Decree where, in the opinion of the Council –
(i)
the project is not likely to cause significant adverse environmental effects;
or
(ii) any
such effects can be mitigated.
27.
Where at any time the Agency is of the opinion that –
(a) a
project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(b)
public concerns respecting the environmental effects of the project warrant
it,
the Agency may refer the project to the Council for a referral to mediation or
review panel in accordance with section 25 of this Decree.
28.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 19 of this Decree in relation to a
project that has not been referred to mediation or a review panel, it may
terminate the environmental assessment of that project.
29.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 25 of this Decree in relation to a
project that has been referred to mediation or a review panel, the Council may
terminate the environmental assessment of the project.
30.
Where at any time the Council is of the opinion that –
(a) a
project is likely to cause significant adverse environmental effects that may
not be mitigable, or
(b)
public concerns respecting the environmental effects of the project Warrant
it,
the Council may, after consultation with the Agency, refer the project to
mediation or a review panel in accordance with section 25 of this Decree.
31.
Where a project is to be referred to mediation or a review panel under this
Decree, the Council shall, within a prescribed period, refer the Council project
–
(a)
to
mediation, if the Council is satisfied that -
(i)
the parties who are directly affected by or have direct interest in the project
have been identified and are willing to participle in the mediation through
representatives, and
(ii) the
mediation is likely to produce a result that is satisfactory to all of the
parties: or
(b)
to
a review panel, in any other case.
32.
Where a project is referred to mediation, the Council shall, in consultation
with the Agency –
(a)
appoint as mediator any person who, in the opinion of the Council possesses the
required knowledge or experience; and
(b)
fix the terms of reference of the mediation.
33. (1) In
the case of a dispute respecting the participation of parties in a mediation,
the Council may, on the request of the mediation, determine those parties who
are directly affected by or have a direct interest in the project.
(2)
Any determination by the Council pursuant to subsection (1) of this section
shall be binding
34.
(1) A
mediator shall not proceed with a mediation unless the mediator is satisfied
that all of the information required for a mediation is available to all of the
participants.
(2) A
mediation shall, in accordance with the provisions of this Decree, and the terms
of reference of the mediation –
(a) help the participants to reach a consensus
on
(i)
the environmental effects that are likely to result from the project,
(ii) any
measures that would mitigate any significant adverse environmental effects,
and
(iii) an
appropriate follow-up program;
(b)
prepare a report setting out the conclusions and recommendations of the
participants; and
(c)
submit the report to the Council and the Agency.
35.
Where at any time after a project has been referred to mediation the Council is
of the opinion that the mediation is not likely to produce a result that is
"satisfactory to all parties, the Council may terminate the mediation and refer
the project to a review panel.
36.
Where a project
is referred to a review panel, the Council shall, in consultation with the
Agency –
(a)
appoint as members of the panel including the Chairman thereof, persons who, in
the opinion of the Council, possess the required knowledge or experience;
and
(b) fix the term of reference of the
panel.
37. A
review panel shall, in accordance with the provisions of this Decree and its
terms of reference –
(a)
ensure that the information required for an assessment by a review panel is
obtained and made available to the public;
(b) hold hearing in a manner that offers the
public an opportunity to participate in the assessment;
(c)
Prepare a report setting out –
(i)
the conclusions and recommendations of the panel relating to the environmental
effects of the project and any mitigation measures or follow-up program,
and
(ii) a
summary of any comments received from the public; and
(d)
Submit the report to the Council and the Agency.
38.
(1) A review panel shall be the power of
summoning any person to appear as witness before the panel and or ordering the
witness to –
(a)
give evidence, orally or in writing; and
(b)
produce such documents or things as the panel consider necessary for conducting
its assessment of the project.
(2) A
review panel shall have the same power to enforce the attendance of witnesses
and to compel them to give evidence and produce documents and other things as is
vested in the Federal High Court or a High Court of a State.
(3) A
hearing by review panel shall be in public unless the panel is satisfied after
representation made by a witness that specific, direct and substantial harm
would be caused to the witness by the disclosure of the evidence, documents or
other things that the witness is ordered to give or produce pursuant to
subsection (1) of this section.
(4)
Where a review panel is satisfied that the disclosure of evidence documents or
other things would cause specific, direct and substantial harm, to a witness,
the evidence, documents or things shall be privileged and shall not, without the
authorization of the witness, knowingly be or be permitted to be communicated,
disclosed or made available by any person who has obtained the evidence,
documents or other things pursuant to this Decree.
(5)
Any summons issued or order made by a review panel pursuant to subsection (1) of
this section may, for the purposes of enforcement, be made a summons or order of
the Federal High Court by following the usual practice and procedure.
39.
On receiving a
report submitted by a mediator or a review panel, the Agency shall make the
report available to the public in any manner the Council considers appropriate
and shall advise the public that the report is available.
40. (1)
Following the
submission of a report by a mediator or a review panel or the referral of a
project back to the Agency pursuant to section 30(b) of this Decree, the Agency
shall take one of the following courses of action in relation to the project,
that is –
(a)
where in the opinion of the Agency -
(i) the project is not likely to cause
significant adverse environmental effect, or
(ii)
any such effect
can be mitigated or justified in the circumstances,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out in whole or in part and shall ensure that
any mitigation measures that the Agency considers appropriate are implemented;
or
(b)
where, in the
opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated and cannot be justified in the
circumstances, the Agency shall not exercise any power or perform any duty or
function conferred on it by or under any enactment that would permit the project
to be carried out in whole or in part.
(2)
For greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, it shall exercise any power and perform any
duty or function conferred on it by or under any enactment in a manner that
ensures that any mitigation measure that the Agency considers appropriate in
respect of the project is implemented.
Environmental Impact Assessment Decree No. 86 1992
Commencement. 10th December1992
The
Federal Military Government
hereby decrees as follow: -
Part I
General Principles of Environmental Impact
Assessment
1.
The objectives of any environmental Impact
assessment (hereafter in this Decree referred to as "the Assessment") shall be
-
(a) to establish
before a decision taken by any person, authority corporate body or
unincorporated body including the Government of the Federation, State or Local
Government intending to undertake or authorise the undertaking of any activity
that may likely or to a significant extent affect the environment or have
environmental effects on those activities shall first be taken into
account;
(b) to promote
the implementation of appropriate policy in all Federal Lands (however acquired)
States and Local Government Areas consistent with all laws and decision making
processes through which the goal and objective in paragraph (a) of this section
may be realised;
(c) to
encourage the development of procedures for information exchange, notification
and consultation between organs and persons when proposed activities are likely
to have significant environmental affects on boundary or trans-state or on the
environment of bordering towns and villages.
2.
(1) The public or
private sector of the economy shall not undertake or embark on public or
authorise projects or activities without prior consideration, at an early
stages, or their environmental effects.
(2) Where the
extent, nature or location of a proposed project or activity is such that is
likely to significantly affect the environment, its environmental impact
assessment shall be undertaken in accordance with the provisions of this
Decree.
(3) The
criterion and procedure under this Decree shall be used to determine whether an
activity is likely to significantly affect the environment and is therefore
subject to an environmental impact assessment.
(4) All
agencies, institutions (whether public or private) except exempted pursuant to
this Decree, shall before embarking on the proposed project apply in writing to
the Agency, so that subject activities can be quickly and surely identified and
environmental assessment applied as the activities being
planned.
3.
(1) In identifying
the environmental impact assessment process under this Decree, the relevant
significant environmental issues shall be identified and studied before
commencing or embarking on any project or activity covered by the provisions of
this Decree or covered by the Agency or likely to have serious environmental
impact on the Nigerian environment.
(2) Where
appropriate, all efforts shall be made to identify all environmental issues at
an early step in the process.
4.
An environmental impact assessment shall include
at least the following minimum matters, that is -
(a) a
description of the proposed activities;
(b) a
description of the potential affected environment including specific information
necessary to identify and assess the environmental effects of the proposed
activities;
(c) a
description of the practical activities, as appropriate;
(d) an
assessment of the likely or potential environmental impacts on the proposed
activity and the alternatives, including the direct or indirect cumulative,
short-term and tong-term effects:
(e) an
identification and description of measures available to mitigate adverse
environmental impacts of proposed activity and assessment of those
measures;
(f) an
indication of gaps in knowledge and uncertainly which may be encountered in
computing the required information:
(g) an
indication of whether the environment of any other State, Local Government Area
or areas outside Nigeria is likely to be affected by the proposed activity or
its alternatives;
(h) a brief and
non technical summary of the information provided under paragraph (a) to (g) of
this section.
5.
The environmental effects in an environmental
assessment shall be assessed with a degree of detail commensuration with their
likely environmental significance.
6.
The information provided as of environmental
impact assessment shall be examined impartially by the Agency prior to any
decision to be made thereto (whether in favour or adverse thereto).
7.
Before the Agency gives a decision on an
activity to which an environmental assessment has been produced, the Agency
shall give opportunity to government agencies, members of the public, experts in
any relevant discipline and interested groups to make comment on environmental
impact assessment of the activity.
8.
The Agency shall not give a decision as to
whether a proposed activity should be authorised or undertaken until appropriate
period has elapsed to consider comments pursuant to sections 7 and 12 of this
Decree.
9.
(1) The Agency's
decisions on any proposed activity subject to environmental impact assessment
shall -
(a) be in
writing;
(b) state the
reason therefor;
(c) include the
provisions, if any, to prevent, reduce or instigate damage to the
environment.
(2) The report
of the Agency shall be made available to interested person or
group.
(3) If no
interested person or group requested for the report, it shall be the duty of the
Agency to publish its decision in a manner by which members of the public or
persons interested in the activity shall be notified.
(4) The Council
may determine an appropriate method in which the decision of the Agency shall be
published so as to reach interested persons or groups, in particular the
originators or persons interested in the activity subject of the
decision.
10.
When the Council deems fit and appropriate, a
decision on an activity which has been subject of environmental impact
assessment, the activity and its effects on the environment or the provisions of
section 9 of this decree shall be subject to appropriate supervision.
11.
(1) When information provided as part of environmental
impart assessment indicates that the Environment within another State in the
Federation or a Local Government Area is likely to be significantly affected by
a proposed activity, the State, the Local Government Area in which the activity
is being panned shall, to the extent possible -
(a) notify the
potentially affected State or Local Government of the proposed
activity;
(b) transmit
to the affected State or Local Government Area any relevant information of the
environmental impact assessment:
(c) enter into
timely consultations with the affected State or Local
Government.
(2) It shall be
the duty of the Agency to see that the provisions of subsection (1) of this
section are complied with and the Agency may cause the consultations provided
pursuant to subsection (1) of this section to take place in order to investigate
any environmental derogation or hazard that may occur during the construction or
process of the activity concerned.
12.
Editorial Note: there is no section 12
within this Decree.
13.
(1) When a
project is described on the Mandatory Study List specified in the Schedule to
this Decree or is referred to mediation or a review panel, no Federal, State or
Local Government or any of their authority or agency Shall exercise any power or
perform any duty or functions that would permit the project to be carried out in
whole or in part until the Agency has taken a cause of action conducive to its
power under the Act establishing it or has taken a decision or issue an order
that the project could be carried out with or without
conditions.
(2) Where the
Agency has given certain conditions before the carrying out of the project, the
conditions shall be fulfilled before any person or authority shall embark on the
project.
Part II
Environmental Assessment of Projects
14.
(1)
Notwithstanding the provisions of Part I of this Decree, an environmental
impact assessment shall be required where a Federal, State or Local Government
Agency Authority established by the Federal, State or Local Government Council
-
(a) is the
proponent of the project and does any act or thing which commits the Federal,
State or Local Government authority to carrying out the project in whole or,
impact;
(b) makes or
authorises payment or provides a guarantee for a loan or any other form of
financial assistance to the proponent for the purpose of enabling the project to
be carried out in whole or in part, except when the financial assistance is in
the form of any reduction, avoidance, deferral, removed, refund remission or
other form of relief from the payment of any tax, duty or excise under Customs
Tariff (Consolidated) Act or any Order made thereunder, unless that financial
assistance is provided for the purpose of enabling an individual project
specifically named in the enactment, regulation or order that provides the
relief to be carried out;
(c) has the administration of Federal, State or Local
Government and leases or otherwise disposes of those lands on or any tests in
those lands or transfers the administration and control of those lands or invest
therein in favour of the Federal Government or its agencies for the purpose of
enabling the project to be carried out in whole or in part.
(d) under the
provisions of any law or enactment, issues a permit or licence, grants an
approval or takes any other action for the purpose of enabling the project to be
carried out in whole or in part.
15.
(1) An
environmental assessment of project shall not be required where -
(a) in the
opinion of the Agency the project is in the list of projects which the
President, Commander-in-Chief of the Armed Forces or the Council is of the
opinion that the environmental effects of the project is likely to be
minimal;
(b) the project is to be carried out during national
emergency for which temporary measures have been taken by the
Government;
(c) the
project is to be carried out in response to circumstances that, in the opinion
of the Agency, the project is in the interest of public health or
safety.
(2) For
greater certainly, where the Federal, State or Local Government exercises power
or performs a duty or function for the purpose of enabling projects to be
carried out an environmental assessment may not be required if -
(a) the project has been
identified at the time the power is exercised or the duty or function is
performed; and
(b) the Federal, State, or Local Government has
no power to exercise any duly or perform functions in relation to the projects
after they have been identified.
16.
Whenever the Agency decides, that there is the need for an environmental
assessment on a project before the commencement of the project the environmental
assessment process may include -
(a) a
screening or mandatory study and the preparation of a screening report;
(b) a mandatory or assessment by a review
panel as provided in section 25 of this Decree and the preparation of a
report;
(c)
the design and
implementation of a follow-up program.
17. (1)
Every screening
or mandatory study of a project and every mediation or assessment by a review
panel shall include a consideration of the following factors, that is –
(a)
the environmental effects of the project, including the environmental effects of
malfunctions or accidents that may occur in connection with the project and any
cumulative environmental effects that are likely to result from the project in
taking into consideration with other projects, that that have been or will be
carried out;
(b)
the significance or, in the case of projects referred to in section 43 44 or 45,
the seriousness of those effects;
(c)
comments
concerning those effects received from the public, accordance with provisions of
this Decree;
(d)
measures that are technically and economically feasible and that would mitigate
any significant or, in the case of projects referred to in sections 43, 44, or
45 any serious adverse environmental effects of the project.
(2) In
addition to the factors set out in subsection (1) of this Decree every mandatory
study of a project and every mediation or assessment by review panel shall
include a consideration of the following factors, that is –
(a) the purpose of the project;
(b) alternative means of carrying out the
project that are technically and economically feasible and the environmental
effects of any such alternative means;
(c) the need for and the requirements of any
follow-up program in respect of the project;
(d)
the short-term or tong term capacity for regeneration of renewal resources that
are likely to be significantly or, in the case of the projects referred to in
sections 43, 44 or 45, seriously affected by the project; and
(e)
any other
matter that the Agency or the Council at the request of the Agency, may re
require.
(3)
For greater certainty, the scope of the factors to be taken into consideration
pursuant to subsection (1) (a), (b) and (d) and subsection (2) (b), (c) and (d)
of this Decree shall be determined –
(a) by
the Agency; or
(b)
where a project is referred to mediation or a review panel, by the Council,
after consulting with the Agency, when fixing the terms of reference of the
mediation or review panel.
(4) An
environmental assessment of a project shall not be required to include a
consideration of the environmental effects that could result from carrying out
the project during the declaration of a national emergency.
18. (1)
The Agency may delegate any part of the screening or mandatory study of a
project, including the preparation of the screening report or mandatory study
report, but shall not delegate the duly to take a course of action pursuant to
section 16(1) or 34(1) of this Decree.
(2)
For greater certainty, the Agency shall not take a course of action pursuant to
section16 (1) or 34(1) unless it is satisfied that any duty or function
delegated pursuant to subsection (1) thereof has been carried out in accordance
with provisions of this Decree or any relevant enactment.
19.
(1)
Where the Agency is of the opinion that a project is not described in the
mandatory study list or any exclusion list, the Agency shall ensure that –
(a) a
screening of the project is conducted; and
(b) a
screening report is prepared.
(2)
Any available information may be used in conducting the screening of a project,
but where the Agency is of the opinion that the information available is not
adequate to enable it to take a course of action pursuant to section 16(1) of
this Decree it shall ensure that any study and information that it considers
necessary for that purpose are undertaken or collected.
20.
(1) Where the Agency receives a screening report
and the Agency is of the opinion that the report could be used as a method of
conducting screening of other project within the same class, the agency may
declare the report to be a class screening report.
(2) Any declaration made pursuant to subsection
(1) of this Decree shall be published in the Gazette and the screening report to
which it relates shall be made available to the public at the registry
maintained by the Agency.
(3) Where in the opinion of the Agency a project
or part of a project is within a class in respect of which a class screening
report has been declared, the Agency may use or permit the use of that report
and the screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section13 of this Decree.
(4)
Where the Agency uses or permits the use of a class screening report, it shall
ensure that any adjustments are made that in the opinion of Agency are necessary
to take into account Local circumstances and any cumulative environmental
efforts that in the opinion of the Agency are likely to result from the project
in combination with other project that have been or will be carried out.
21. (1)
Where a proponent proposes to carry out, in whole or in part a project for which
a screening report has been prepared but the project did not proceed or the
manner in which it is to be carried out has subsequently changed or where a
proponent seeks the renewal of a licence, permit or approval referred to in
section 5(d) of this Decree in respect of a project for which a screening report
has been prepared, the Agency may use or permit the use of that report and the
screening on which it is based to whatever extent the Agency considers
appropriate for the purpose of complying with section 13 of this Decree.
(2)
Where the Agency uses or permits the use of a screening or screening report
pursuant to subsection (1) of this section, the Agency shall ensure that any
adjustments are made that in its opinion are necessary to take into account any
significant changes in the circumstances of the project.
22.
(1)
After completion of a screening report
in respect of a project, the Agency shall take one of the following courses of
action, that is –
(a)
where, in the opinion of the Agency;
(i)
the project is not likely to cause significant adverse environmental effects,
or
(ii) any
such effect can be mitigated,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out and shall ensure that any mitigation
measures that the Agency considers appropriate are implemented;
(b) where, in the opinion of the Agency;
(i)
the project is likely to cause significant adverse environmental effects that
may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant
it,
the Agency; shall refer the project to the Council for a referral to mediation
or a review panel in accordance with section 25 of this Decree; or
(c) where, in the opinion of the Agency, the
project is likely to cause significant adverse environmental effects that cannot
be mitigated, the Agency shall not exercise any power or perform any duty or
function conferred on it under any enactment that would permit the project to be
carried out in whole or in part.
(2) For greater certainty, where the Agency
takes a course of action referred to in subsection (1) (a) of this section, the
Agency shall exercise any power and perform any duly or function conferred on it
by or under any enactment in a manner that ensure that any mitigation measures
that the Agency considers appropriate in respect of the project are
implemented.
(3) Before taking a course of action in relation
to a project pursuant to subsection (1) of this section, the Agency shall give
the public an opportunity to examine and comment on the screening report and any
record that has been filed in the public registry established in respect of the
project pursuant to section 51 of this Decree and shall take into consideration
any comments that are filed.
23.
Where the Agency is of the opinion that a program is described in the mandatory
study list, the Agency shall –
(a)
ensure that a mandatory study is conducted, and a mandatory study report is
prepared and submitted to the Agency, in accordance with the provisions of this
Decree; or
(b)
refer the
project to the Council for a referral to mediation or a review panel in
accordance with section 25 of this Decree.
24.
(1)
Where a proponent proposes to carry out, in whole or in part, a project for
which a mandatory study report has been prepared but the project did not proceed
or the manner in which it is to be carried out has subsequently changed, or
where a proponent seeks the renewal of a licence, permit or approval referred to
in section 5(d) of this Decree in respect of a project for which a mandatory
study report has been prepared, the Agency may use or permit the use of that
report and the mandatory study on which it is based to whatever extent the
Agency considers appropriate for the purpose of complying with section 17 of
this Decree.
(2)
Where the Agency uses or permits the use of a mandatory study or a mandatory
study report pursuant to subsection (1) of this section, it shall ensure that
any adjustments are made that in its opinion are necessary to take into account
any significant changes i n the circumstances of the project.
25. (1)
After receiving a mandatory study report in respect of a project, the Agency
shall, in any manner it considers appropriate, publish in a notice setting out
the following information –
(a) the date on which the mandatory study
report shall be available to the public;
(b)
the place at which copies of the report may be obtained; and
(c)
the deadline and address for filing comments on the conclusions and
recommendations of the report.
(2)
Prior to the deadline set out in the notice published by the Agency, any person
may file comments with the Agency relating to the conclusions and
recommendations of the mandatory study report.
26.
After taking into consideration the mandatory study report and any comments
filed pursuant to section 19(2), the Council shall –
(a)
refer the project to mediation or a review panel in accordance with section 25
of this Decree where, in the opinion of the Council -
(i) the project is likely to cause significant
adverse environmental effects that may not be mitigable; or
(ii)
public concerns respecting the environmental effects of the project warrant. it;
or
(b)
refer the project back to the Agency for action to be taken under section
34(l)(a) of this Decree where, in the opinion of the Council –
(i)
the project is not likely to cause significant adverse environmental effects;
or
(ii) any
such effects can be mitigated.
27.
Where at any time the Agency is of the opinion that –
(a) a
project is likely to cause significant adverse environmental effects that may
not be mitigable; or
(b)
public concerns respecting the environmental effects of the project warrant
it,
the Agency may refer the project to the Council for a referral to mediation or
review panel in accordance with section 25 of this Decree.
28.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 19 of this Decree in relation to a
project that has not been referred to mediation or a review panel, it may
terminate the environmental assessment of that project.
29.
Where at any time the Agency decides not to exercise any power or perform any
duty or function referred to in section 25 of this Decree in relation to a
project that has been referred to mediation or a review panel, the Council may
terminate the environmental assessment of the project.
30.
Where at any time the Council is of the opinion that –
(a) a
project is likely to cause significant adverse environmental effects that may
not be mitigable, or
(b)
public concerns respecting the environmental effects of the project Warrant
it,
the Council may, after consultation with the Agency, refer the project to
mediation or a review panel in accordance with section 25 of this Decree.
31.
Where a project is to be referred to mediation or a review panel under this
Decree, the Council shall, within a prescribed period, refer the Council project
–
(a)
to
mediation, if the Council is satisfied that -
(i)
the parties who are directly affected by or have direct interest in the project
have been identified and are willing to participle in the mediation through
representatives, and
(ii) the
mediation is likely to produce a result that is satisfactory to all of the
parties: or
(b)
to
a review panel, in any other case.
32.
Where a project is referred to mediation, the Council shall, in consultation
with the Agency –
(a)
appoint as mediator any person who, in the opinion of the Council possesses the
required knowledge or experience; and
(b)
fix the terms of reference of the mediation.
33. (1) In
the case of a dispute respecting the participation of parties in a mediation,
the Council may, on the request of the mediation, determine those parties who
are directly affected by or have a direct interest in the project.
(2)
Any determination by the Council pursuant to subsection (1) of this section
shall be binding
34.
(1) A
mediator shall not proceed with a mediation unless the mediator is satisfied
that all of the information required for a mediation is available to all of the
participants.
(2) A
mediation shall, in accordance with the provisions of this Decree, and the terms
of reference of the mediation –
(a) help the participants to reach a consensus
on
(i)
the environmental effects that are likely to result from the project,
(ii) any
measures that would mitigate any significant adverse environmental effects,
and
(iii) an
appropriate follow-up program;
(b)
prepare a report setting out the conclusions and recommendations of the
participants; and
(c)
submit the report to the Council and the Agency.
35.
Where at any time after a project has been referred to mediation the Council is
of the opinion that the mediation is not likely to produce a result that is
"satisfactory to all parties, the Council may terminate the mediation and refer
the project to a review panel.
36.
Where a project
is referred to a review panel, the Council shall, in consultation with the
Agency –
(a)
appoint as members of the panel including the Chairman thereof, persons who, in
the opinion of the Council, possess the required knowledge or experience;
and
(b) fix the term of reference of the
panel.
37. A
review panel shall, in accordance with the provisions of this Decree and its
terms of reference –
(a)
ensure that the information required for an assessment by a review panel is
obtained and made available to the public;
(b) hold hearing in a manner that offers the
public an opportunity to participate in the assessment;
(c)
Prepare a report setting out –
(i)
the conclusions and recommendations of the panel relating to the environmental
effects of the project and any mitigation measures or follow-up program,
and
(ii) a
summary of any comments received from the public; and
(d)
Submit the report to the Council and the Agency.
38.
(1) A review panel shall be the power of
summoning any person to appear as witness before the panel and or ordering the
witness to –
(a)
give evidence, orally or in writing; and
(b)
produce such documents or things as the panel consider necessary for conducting
its assessment of the project.
(2) A
review panel shall have the same power to enforce the attendance of witnesses
and to compel them to give evidence and produce documents and other things as is
vested in the Federal High Court or a High Court of a State.
(3) A
hearing by review panel shall be in public unless the panel is satisfied after
representation made by a witness that specific, direct and substantial harm
would be caused to the witness by the disclosure of the evidence, documents or
other things that the witness is ordered to give or produce pursuant to
subsection (1) of this section.
(4)
Where a review panel is satisfied that the disclosure of evidence documents or
other things would cause specific, direct and substantial harm, to a witness,
the evidence, documents or things shall be privileged and shall not, without the
authorization of the witness, knowingly be or be permitted to be communicated,
disclosed or made available by any person who has obtained the evidence,
documents or other things pursuant to this Decree.
(5)
Any summons issued or order made by a review panel pursuant to subsection (1) of
this section may, for the purposes of enforcement, be made a summons or order of
the Federal High Court by following the usual practice and procedure.
39.
On receiving a
report submitted by a mediator or a review panel, the Agency shall make the
report available to the public in any manner the Council considers appropriate
and shall advise the public that the report is available.
40. (1)
Following the
submission of a report by a mediator or a review panel or the referral of a
project back to the Agency pursuant to section 30(b) of this Decree, the Agency
shall take one of the following courses of action in relation to the project,
that is –
(a)
where in the opinion of the Agency -
(i) the project is not likely to cause
significant adverse environmental effect, or
(ii)
any such effect
can be mitigated or justified in the circumstances,
the Agency may exercise any power or perform any duty or function that would
permit the project to be carried out in whole or in part and shall ensure that
any mitigation measures that the Agency considers appropriate are implemented;
or
(b)
where, in the
opinion of the Agency, the project is likely to cause significant adverse
environmental effects that cannot be mitigated and cannot be justified in the
circumstances, the Agency shall not exercise any power or perform any duty or
function conferred on it by or under any enactment that would permit the project
to be carried out in whole or in part.
(2)
For greater certainty, where the Agency takes a course of action referred to in
subsection (1) (a) of this section, it shall exercise any power and perform any
duty or function conferred on it by or under any enactment in a manner that
ensures that any mitigation measure that the Agency considers appropriate in
respect of the project is implemented.
41.
(1) Where the Agency takes a course of action
pursuant to section 40(1)(a) of this Decree it shall, in accordance with this
Decree, design any follow-up programme that it considers appropriate for the
project and arrange for the implementation of that one.
(2)
The Agency shall advise the public of –
(a)
its course of action in relation to the project;
(b)
any mitigation measure to be implemented with respect to the adverse
environmental effects of the project;
(c)
the extent which the recommendations set out in any report submitted by a
mediator or a review panel have been adopted; and
(d)
any follow-up program one designed for or in the pursuant to subsection (1) of
this section.
42.
A certificate
stating that an environmental assessment of a project has been completed, and
signed by the Agency that exercises a power or performs a duty or function
referred to in section 35(c) of this Decree in relation to the project, is in
the absence to the contrary, proof of the matter stated in the certificate.
43.
(1)
For the purposes of this Decree "jurisdiction" includes
(a)
a Federal
authority;
(b)
the government
of a State;
(c)
any other
agency or body established pursuant to a Decree, Act, Law, Edict or Bye-law or
the legislature of a State and having powers, duties or functions in relation to
an assessment of the environmental effects of a project;
(d)
any body
established pursuant to a comprehensive land claims agreement and having powers,
duties or functions in relation to an assessment of the environmental effects of
a project;
(e) a
government of a foreign State or of a subdivision of a foreign Sate, or any
institution of a such a government; and
(f)
an
international organisation of States or any institution of such an
organisation.
(2)
Subject to section 38 of this Decree, where the referral of a project to a
review panel is required or permitted by this Decree and a jurisdiction referred
to in subsection (1) (e) or (f) of this section, has a responsibility on an
authority to conduct an assessment of the environmental effects of the project
or any part of it, the Council and the Council of External Affairs may establish
a review panel jointly with that jurisdiction.
44.
The Council
shall not establish a review panel jointly with a jurisdiction referred to in
subsection 37(1) of this Decree unless the Council is satisfied that –
(a)
the Council may
appoint or approve the appointment of the Chairman or a co-Chairman and one or
more other members of the panel;
(b)
the Council may fix or approve the terms of reference for the panel;
(c) the public shall be given an opportunity
to participate in the assessment conducted by the panel;
(d) on
completion of the assessment, the report of the panel shall be submitted to the
Council; and
(e)
the panel's report shall be published.
45.
Where the Council establishes a review panel jointly with a jurisdiction
referred to in subsection 37(1) of this Decree, the assessment conducted by that
panel shall be deemed to satisfy any requirements of this Decree, respecting
assessment by a review panel.
46.
(1)
Where the referral of a project to a review panel is required or permitted by
this Decree and the Council is of the opinion that a process for assessing the
environmental effects of projects that is followed by a Federal authority under
a Decree or an Act of Parliament other than this Decree or by a body referred to
in section 37(1)(d) of this Decree would be appropriate substitute, the Council
may approve the substitution of that process for an environmental assessment by
a review panel under this Decree.
(2) An
approval of the Council pursuant to subsection (1) of this section shall be in
writing and may be given in respect of a project or a class of projects.
47.
The Council shall not approve a substitution pursuant to
subsection 46(1) of this Degree unless the Council is satisfied that –
(a) the process to be substituted includes a
consideration of the factors referred to in section 11 of this Decree;
(b) the public has been given an opportunity
to participate in the assessment;
(c) at
the end of the assessment, a report has been submitted to the Council; and
(d)
the report has been published.
48.
Where the Council approves a substitution of a process pursuant to section 46(1)
of this Decree, an assessment that is conducted in accordance with that process
shall be deemed to satisfy any requirements of this Decree, in respect of
assessment by a panel.
49.
(1) Where a project for which an environmental
assessment is not required under section 5 of this Decree, is to be carried out
in a State and the President, Commander-in-Chief of the Armed Forces is of the
opinion that the project is likely to have serious environmental effects in
another State, the Council may establish a review panel, to conduct an
assessment of the inter-State environmental effects of the project.
(2)
The Council shall not establish a review panel pursuant to subsection (1) of
this section where the President, Commander-in-Chief of the Armed Forces and the
governments of all interested States have agreed on another panel of conducting
an assessment of the inter State environmental effects of the project.
(3) A review panel may be established pursuant
to subsection (1) of this section on the President, Commander-in-Chief of the
Armed Forces initiative of the President, Commander-in-Chief of the Armed Forces
or at the request of the government of any interested State.
(4) At
east ten days, before establishing a review panel pursuant to subsection (1) of
this section, the President, Commander-in-Chief or the Armed Forces shall give
notice of the intention to establish a panel to the proponent of the project and
to the State or all interested States.
(5)
For the put of this traction and section 45(3) of this Decree, "interested
State" means
(a) a
State in which the project is to be carried out; or
(b) a State that claims that serious adverse
environmental effects are likely to occur in that State as a result of the
project.
50.
(1)
Where a project for which an environmental assessment required under section 5
of this Decree is to be carried out in Nigeria or on federal lands and the
President, Commander-in Chief of the Armed Forces is of the opinion that the
project is likely to cause serious adverse environmental effects outside Nigeria
and those Federal lands, the Agency and the Minister of Foreign Affairs may
establish a review panel to conduct an assessment of the international
environmental effects of the project.
(2) At
least ten days before establishing a review panel pursuant to subsection (1) or
(2) of this section, the Agency shall give notice of the intention to establish
a panel to –
(a)
the proponent of the project;
(b)
the governments of any interested States in which the project is to be carried
out; and
(c) the government of any foreign State in
which in the opinion of the Minister of Foreign Affairs, serious adverse
environmental effects are likely to occur as a result of the project.
51.
(1)
Where a project for which an environmental assessment is not required under
section 15 of this Decree is to be carried out in Nigeria and the Agency or the
President, Commander-in-Chief of the Armed Forces is of the opinion that the
project is likely to cause serious adverse environmental effect on Federal Lands
or on lands in respect of which a State or Local Government has interests, the
Agency or the President may establish a review panel to conduct an assessment of
the environmental effects of the project on those lands.
(2)
Where a project for which an environmental assessment is not required under
section 5 of this Decree, is to be carried out on lands in a Local Government
land or on lands that have been set aside for the use and benefit of certain
class of persons pursuant to legislation and the Agency is of the opinion that
the project is likely to cause serious environmental effects outside those
lands, the Agency may establish a review panel to conduct an assessment of the
environmental effects of the project outside those lands.
(3) At
least ten days before a review panel is established pursuant to subsection (1)
or (2) of this section, the Agency shall give notice of the intention to
establish a panel to the proponent of the project and to the governments of all
interested States and if, in the case of a project that is to be carried out the
Agency is of the opinion that
(a) is
likely to cause or have serious adverse environmental effects on lands in a
reserve that is set apart for the use and benefit of a certain class of persons,
to that class of persons;
(b) on
settlement lands described in comprehensive land claims agreement referred to in
subsection (2) if this section to the party to the agreement; and
(c) on
lands that have been set aside for the use and benefit of certain class of
persons to that class of persons
(4)
For the purposes of this Decree, a reference to any land areas or reserves
includes a reference to all waters on and air above those lands, areas or
reserves.
52.
Sections 30 to 33 and 37 to 39 of this Decree shall apply, with such
modifications as the circumstances require, to review panel established pursuant
to sections 43(1), 44(1) or 45(1) or (2) of this Decree.
53.
(1)
Where the
Agency after the appraisal of the President, Commander-in-Chief of the Armed
Forces' assessment of the environmental effects of a project referred to in
sections 43(1), 44(1) or 45(1) or (2) of this Decree the President,
Commander-in-Chief of the Armed Forces may, by order published in the Gazette,
prohibit the proponent of the project from doing any act or thing that would
commit the proponent to ensuring the project is carried out in whole or in part
until the assessment is completed and the Agency is satisfied that the project
is not likely to cause any serious adverse environmental effects or that any
such effects shall be mitigated or are justified in the circumstances.
(2) Where a review panel established to access
the environmental effects of a project referred to in subsection 43(1), 44(1) or
45(1) or (2) of this Decree submits a report to the Agency indicating that the
project is likely to cause any serious adverse environmental effects, the Agency
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 the Agency is satisfied that such effects have been mitigated.
54.
(1)
Where, on the application of the Agency, it appears to court of competent
jurisdiction that a prohibition made under section 47 of this Decree 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 –
(a) with respect to a prohibition made pursuant to section 47(1)
of this Decree the assessment of the environmental effects of the project
referred to in sections 43(1), 44(1) or 45(1) or (2) of this Decree completed
and the Agency satisfied that the project is not likely to cause any serious
adverse environmental effects or any such effects shall be mitigated or are
justified in the circumstances; and
(b) with respect to a prohibition made pursuant to section 47(2),
of this Decree the Agency is satisfied that the serious adverse environmental
effects referred to in that subsection had been mitigated.
(2) At
least forty-eight hours before an injunction is issued under subsection (1) of
this section, notice of the application shall be given to the persons named in
the application unless the urgency of the situation is such that the delay
involved in giving such notice would not be in the public interest.
55.
(1) Any prohibition under section 47 of this
Decree shall come into force on the day it is made.
(2)
The prohibition shall cease to have effect fourteen days after it is made unless
within that period, it is approved by the President, Commander- in -Chief of the
Armed Forces.
Agreements and Arrangements
56.
(1)
Where a Federal authority or the Government of Nigeria on behalf of a Federal
authority enters into agreement or arrangement with the government of a State or
any institution of such a government under which a Federal authority exercises a
power or performs a Duty or function referred to in section 15(b) or (c) of this
Decree in relation to projects –
(a)
that have not been identified at the time power is exercised or the duly or
function is performed; and
(b) in
respect of which the Government of Nigeria or the federal authority as the case
may be, shall have no power to exercise or duty or function to perform when the
projects are identified,
the Government of Nigeria or the Federal authority concerned shall
ensure that the agreement or arrangement provides for the assessment of the
environmental effects of those projects and that the assessment shall he carried
out as early as practicable in the planning stages those projects.
(2)
Where a Federal authority or the Government of Nigeria on behalf of a Federal
authority enters into an agreement with the government of a Foreign State or of
a subdivision of a foreign State, an international organisation of a foreign
States, any institution of such a government or organisation, under which a
Federal authority exercises a power or performs a duty or function referred to
in section 5(b) or (c) of this Decree in relation to the projects
(a)
that have not been identified at the time the power is exercised or the duty or
function is performed, and
(b) in
respect of which the Government of Nigeria or the Federal authority, as the case
may be, shall have no power to exercise or duty or function to perform when the
projects are identified.
the Government of Nigeria or the Federal authority shall ensure
that the agreement or arrangement provides for the assessment of the
environmental effects of those projects and that the assessment shall be carried
out as early as practicable in the planning stages of those projects.
Access to Information
57.
(1) For the purpose of facilitating public
access to records relating to environmental assessments, a public registry shall
be established and operated in accordance with the provisions of this Decree in
respect of every project for which an environmental assessment is
conducted.
(2)
The public registry in respect of a project shall be maintained
(a) by
the Agency from the commencement of the environmental assessment until any
follow-up program in respect of the project is completed; and
(b)
where the project is referred to mediation or review panel, by the Agency from
the appointment of the mediator or the members of the review panel until the
report of the mediator or review panel is submitted to the Agency or the
Secretary to the Government of the Federation as the case may be.
(3)
Subject to subsection (4) of this section, a public registry shall contain all
records and information produces, collected or submitted with respect to the
environmental assessment of the project, including
(a)
any report relating to the assessment;
(b)
any comments filed by the public in relation to the assessment; and
(c)
any record prepared by the Agency for the purposes of section 35 of this
Decree.
(4)
A public
registry shall contain a record referred to in subsection (3) of this section if
the record falls within one of the following categories-
(a)
records that have otherwise been made available to the public carrying out the
assessment pursuant to this Decree and any additional records, that have
otherwise been made publicly available;
(b)
any record or part of a record that the Agency, in the case of a record in its
possession, or any other Ministry or government agency determines would have
been disclosed to the public if a request had been made in respect of that
record at The time the record was filed with the registry, including any record
that would be disclosed in the public interest;
(c)
any record or part of a record, except a record or part containing third party
information, if The President in the case of a record in the Agency's
possession, or the President believes on reasonable grounds that its disclosure
would be in the public interest because it is required in order for the public
to participate effectively in the assessment,
(5) Notwithstanding any other enactment, no
civil or criminal proceedings shall lie against the Agency, or against any
person acting on behalf of or under the direction of, and no proceedings shall
lie against the State or any of its agencies for the disclosure in good faith of
any record or any part of a record pursuant to this Decree, for any consequences
that flow from that disclosure, for the failure to give any notice if reasonable
care is taken to give the required notice.
(6)
For the purposes of this section, "third party information" means –
(a)
trade secrets of a third party;
(b) financial, commercial, scientific or
technical information that is confidential information supplied to a government
institution by a third party and is treated consistently in a confidential
manner by the third party;
(c)
information the disclosure of which could reasonably be expected to result in
material financial loss or gain to, or could reasonably be expected to prejudice
the competitive position of a third party; and
(d)
information the disclosure of which could reasonably be expected to interfere
with contractual or other negotiations of a third party.
58. (1)
During each year, the Agency shall maintain a statistical summary of all the
environmental assessments undertaken or directed by it and all courses of action
taken, and all decisions made, in relation to the environmental effects of the
project after the assessments were completed.
(2)
The Agency shall ensure that the summary for each year is compiled and completed
within one month after the end of that year.
59.
An application for judicial review in connection with any matter
under this Decree shall be refused when. the sole ground for relief established
in the application is a is a defect in form or a technical irregularity.
Part III
Miscellaneous
60.
(1)
For the purposes of this Decree, the Agency may-
(a) issue guidelines and codes of
practice to assist in conducting assessment. of the environmental effects of
projects;
(b) establish research and
advisory bodies;
(c) enter into agreements or
arrangements with any jurisdiction within the meaning of section37(1)(a), (b),
(c) or (d) respecting assessments of environmental effects;
(d)
enter into agreements or arrangements with States for the purposes of
coordination, consultation, and exchange of information in relation to The
assessment of the environmental effects of projects of common
interest;
(e)
recommend the appointment of members to bodies established by federal
authorities or to bodies referred to in section 37(1)(d) of this Decree on a
temporary basis, for the purpose of facilitating a substitution pursuant to
section 40 of this Decree;
(f) establish criteria for the
appointment of mediators and members of review panels; and
(g) establish criteria for the
approval of a substitution pursuant to section 40 of this Decree.
61. The Agency,
with the approval of the President, Commander-in Chief of the Armed Forces may
make regulations, published in the Gazette-
(a) respecting the procedures and
requirements of, and the time or period relating to the environmental assessment
process set out in or including the conduct of assessment by review panels
established pursuant to section 37 of this Decree:
(b) prescribing a list of projects
or classes of projects for which an environmental assessment is not required,
where the Council with the approval of the President, Commander-in-Chief of the
Armed Forces is of the opinion that the environmental effects of the projects
are likely to be negligible;
(c) prescribing a list of projects
or classes of projects not covered by, the best of mandatory study list in the
Schedule to this Decree for which a mandatory study is required where the
Council is of the, opinion that the projects are likely to have significant
adverse environmental effects;
(d) prescribing a list of projects or classes
of projects for which or environmental assessment is not required, when, the
Council is of the opinion that the contribution of the Agency to powers or the
performance of its duties or functions is minimal;
(e) prescribing a list For which
an environment assessment is required, where the Council is of the opinion that
an environmental assessment of the projects would be inappropriate for reasons
of national security
62. Any person who fails to comply
with the provisions of this Decree shall be guilty of an offence under this
Decree and on conviction in the case of an individual to N 100,000 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 N 1,000,000
63. (1) In this Decree, unless the context
otherwise provides
"Agency" means the Nigerian Environmental Protection Agency
established by the Federal Environmental Protection Act;
"assessment by a review panel" means an environmental
assessment that is conducted by a review panel appointed pursuant to section 30
and that includes a consideration of the factors set out in subsections 11(1)
and (20) of this Decree
"Council" means the Federal Environmental Protection
Council established by the Federal Environmental Protection Agency
Act;
"environment" means the components of the Earth, and
includes-
(a)
land, water and air, including all layers of the atmosphere,
(b) all organic and inorganic
matter and living organisms, and
(c) the interacting natural
systems that include components referred to in paragraphs (a) and
(b);
"Environmental assessment" means, in respect of a project, an
assessment of the environmental effects of the project that is conducted in
accordance with this Decree and any regulations made thereunder;
"environmental effect" means, in respect of a project,
(a) any change that the project
may cause to the environment,
(b)
any change the project may cause to the environment, whether any such
change occurs within or outside Nigeria, and includes any effect of any such
change on health and socio-economic conditions;
"exclusion list" means any list prescribed pursuant to paragraph
55(1)(b), (d) or (e) or section 55(2) of this Decree;
"federal authority" means -
(a) a Minister of the Government
of the Federation of Nigeria;
(b) any agency of the Government
of Nigeria or other body established by or pursuant to an Act, Decree, Law or
Edict that is ultimately accountable through a Governor of the State of Nigeria
in the conduct of its affairs;
(c) any other prescribed body, but
does not include the Commissioner in a Local Government;
"Federal Lands" means -
(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 land
(b) the following lands and areas
namely,
(i)
the internal waters of Nigeria within the meaning of the Sea Fisheries
Decree 1992, including the sealed and subsoil below and the airspace above those
waters,
(ii) the territorial sea of Nigeria
as determined in accordance with the Nigerian Territorial Waters Act, including
the seabed and subsoil below and the airspace above that sea,
(iii) any fishing zone of Nigeria
prescribed under The Sea Fisheries Decree 1992;
(iv)
any exclusive economic zone that may be created by the Government of
Nigeria; and
(v) the continental shelf, consisting of the
seabed 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 two hundred nautical
miles from the inner limits as may be prescribed pursuant to a Decree or an Act,
and
(c) reserves, surrendered lands and any other
lands that are set apart for the use and benefit of a class of Nigerians by the
Federal Government of Nigeria and all waters on and airspace above those
reserves or surrendered lands:
"follow-up program" means a program for -
(a) verifying the accuracy of the
environmental assessment of a project; and
(b) determining the effectiveness
of any measures taken to mitigate the adverse environmental effects of the
project;
"mandatory study" means an environmental assessment that is
conducted pursuant to, section 17 and that includes a consideration of the
factors set in subsection 11(1) and (2) of this Decree;
"mandatory study list" means the list in the Schedule to this
Decree and those that may be prescribed pursuant to section 55(l)(c) of this
Decree;
"mandatory study report" means a report of a mandatory study that
is prepared in accordance with the provisions of this Decree or any regulations
made thereunder;
"mediation" means an environmental assessment that is conducted
with the assistance of a mediator appointed pursuant to section 26 of this
Decree and that includes a consideration of the factors set out in section 11(1)
and (2) of this Decree;
"mitigation" means, in respect of a project, the elimination,
reduction or control of the adverse environmental effects of the project, and
includes restitution for any damage to the environment caused by such effects
through replacement restoration, compensation or any other means;
"prescribed" means prescribed by regulations;
"project" means a physical work that a proponent proposes to
construct, operate, modify, decommission, abandon or otherwise carry out or a
physical activity that a proponent proposes to undertake or otherwise carry
out;
"proponent", in respect of a project, means the person, body or
federal authority that proposes the project;
"record" includes any correspondence, memorandum, book, plan, map
drawing, diagram, pictorial or graphic work, photograph, film, microform, sound
recording, videotape, machine readable record, and any other documentary
material, regardless of physical form or characteristics, and any copy
thereof;
"responsible authority" in relation to a project, means a Federal
authority that is required pursuant to subsection 7(1) of this Decree to ensure
that an environmental assessment of the project is conducted;
"responsible Minister" means, in respect of a responsible
authority,
(a)
in the case of a department or ministry of State, The Minister or
Commissioner presiding over that department or ministry, and
(b) in any other case, such member of the
National Executive Council or State Executive Council as is designated as the
responsible Minister or Commissioner for that responsible authority;
"screening" means an environmental
assessment that is conducted pursuant to section13 of this Decree and that
includes a consideration of the factors set out in section 11(1) of this
Decree:
"screening report" means a report that summarises the results of a
screening.
(2) For the purposes of this
Decree, a company is controlled by another company if -
(a) securities of the corporation
to which are attached more than fifty per cent of the votes that may be cast to
elect directors of the corporation are held, other than by way of security only,
by or for the benefit of that corporation; and
(b) the votes attached to those
securities are sufficient, if exercised, to elect a majority of the directors of
the corporation.
64. This Decree may be cited as the
Environmental Impact Assessment Decree 1992
Schedule
Mandatory Study Activities
1.
Agriculture
(a) Land development schemes
covering an area of 500 hectares or more to bring forest and into agricultural
production.
(b) Agricultural programmes
necessitating the resettlement of 100 families or more.
(c) Development of agricultural
estates covering an area of 500 hectares or more involving changer in type of
agricultural use.
2.
Airport
(a) Construction of airports
(having an airstrip of 2,500 metres or more
(b) Airstrip development in State
and national parks.
3.
Drainage and Irrigation
(a) Construction of dams and
man-made lakes and artificial enlargement of lakes with surface areas of 200
hectares or more.
(b) Drainage of wetland, wild-life
habitat or of virgin forest covering an area of 100 hectares or
more.
(c) Irrigation schemes covering an
area of 5,000 hectares or more.
4.
Land
Reclamation
(a) Coastal reclamation involving
an area of 50 hectares or more.
5.
Fisheries
(a)
Construction of fishing harbours.
(b) Harbour expansion involving an increase of
50 per cent or more in fish landing capacity per annum.
(c) Land based aquaculture
projects accompanied by clearing of mangrove swamp forests covering an area of
50 hectares or more.
6.
Forestry
(a) Conversion of hill forest land
to other land use covering an area of 50 hectares or more.
(b) Logging or conversion of
forest land to other land use within the catchment area of reservoirs used for
municipal water supply, irrigation or hydro power generation or in areas
adjacent to state and national parks and national marine parks.
(c)
Logging covering an area of 500 hectares or more.
(d) Conversion of mangrove swamps
for industrial, housing or agricultural use covering an area of 50 hectares or
more.
(e) Clearing of mangrove swamps on
islands adjacent to national marine parks.
7.
Housing
8.
Industry
(a) Chemical
Where production capacity of each product or of combined products
is greater than 100 tonnes/day,
(b)
Petrochemicals all sizes.
(c) Non-ferrous primary
smelting
Aluminium - all sizes
Copper - all sizes
Others - producing [50?] tonnes/day and above of
product
(d) Non-metallic
- Cement - for clinker throughput of 30 tonnes/hour and
above
- Lime - 100 tonnes/day and above burnt lime rotary kiln or 50
tonnes/day and above vertical kiln.
(e)
Iron and steel
- Require iron ore as raw materials for production greater than 100
tonnes/day; or
- Using scrap iron as raw materials for production greater than 200
tonnes per day.
(f) Shipyards
- Dead Weight Tonnage greater than 5000 tonnes.
(g) Pulp and paper
industry
- Production capacity greater than 50 tonnes/day
9.
Infrastructure
(a)
Construction of hospitals with outfall into beachfronts used for,
recreational purposes.
(b)
Industrial estate development for medium and heavy industry covering an
area of 50 hectares or more.
(c) Construction of
Expressways.
(d) Construction of national
highway.
(e) Construction of new
townships.
10.
Ports
(a)
Construction of ports.
(b)
Port expansion involving an increase of 50 percent or more in handling
capacity per annum.
11.
Mining
(a) Mining of materials in new
areas where the mining lease covers a total area in excess of 250
hectares.
(b) Ore processing, including
concentrating for aluminium, copper, gold or tantalum.
(c)
Sand dredging involving an area of 50 hectares or more.
12.
Petroleum
(a) Oil and gas fields
development.
(b) Construction of off-shore
pipelines in exceed of 50 kilometres in length.
(c) Construction of oil and gas
separation, processing, handling, and storage facilities.
(d) Construction of oil refineries.
(e) Construction of product depots
for the storage of petrol, gas or diesel (excluding service stations) which are
located within 3 kilometres of any commercial, industrial or residential areas
and which have a combined storage capacity of 60,000 barrels or more.
13.
Power Generation and Transmission
(a) Construction of steam generated power
stations burning fossil fuels and having a capacity of more than 10
megawatts.
(b) Dams and hydroelectric power
schemes with either or both of the following.
(i) dams over 15 metres high and
ancillary structures covering a total area in excess of 40 hectares;
(ii)
reservoirs with a surface area in excess of 400 hectares;
(c) Construction of combined cycle
power stations.
(d) Construction of nuclear-fueled
power stations.
14.
Quarries
Proposed quarrying of aggregate, limestone, silica, quartzite,
sandstone marble and, decorative building stone within 3 kilometeres of any
existing residential, commercial or industrial areas, or any area for which a
licence, permit or approval has been granted for residential, commercial or
industrial development.
15.
Railways
(a) Construction of new
routes.
(b) Construction of branch
lines.
16. Transportation
17. Resort and
Recreat1onal Development
(a) Construction of coastal resort-facilities
or hotels with more than 80 rooms.
(b) Hill station resort or hotel
development covering an area of 50 hectares or more.
(c)
Development of tourist or recreational facilities in national
parks.
(d) Development of tourist or
recreational facilities, on islands in surrounding waters which may be declared
as national marine parks.
18. Waste Treatment and
Disposal
(a) Toxic and Hazardous
Waste
(i) Construction of incineration
plant.
(ii) Construction of recovery plant
(off-site)
(iii) Construction of waste water
treatment plant (off-site).
(iv) Construction of secure landfill
facility.
(v) Construction of storage facility
(off-site).
(b) Municipal Solid
Waste
(i) Construction of incineration
plant.
(ii).
Construction of composing plant.
(iii) Construction of recovery/recycling
plant.
(iv) Construction of municipal solid
waste landfill facility.
(c) Municipal Sewage
(i) Construction of waste water treatment
plant.
(ii) Construction of marine
outfall.
19.
Water
Supply
(a) Construction of dams,
impounding reservoir with a surface area of 200 hectares or more.
(b) Groundwater development for industrial,
agricultural or urban water supply of greater than 4,500 cubic metres per
day.
Made
at Abuja this 10th day of December
1992.
General I. B. Babangida,
President, Commander-in Chief of the Armed Forces
Federal Republic of Nigeria
