University of Calgary PRISM: University of Calgary's Digital Repository
Graduate Studies The Vault: Electronic Theses and Dissertations
2019-04-25 Gas Flaring and Low Carbon Development: A Comparative Analysis of Nigeria, UK and Alberta
Mene, Boritsefere Elizabeth
Mene, B. E. (2019). Gas flaring and low carbon development: A comparative analysis of Nigeria, UK and Alberta (Unpublished master's thesis). University of Calgary, Calgary, AB. http://hdl.handle.net/1880/110232 master thesis
University of Calgary graduate students retain copyright ownership and moral rights for their thesis. You may use this material in any way that is permitted by the Copyright Act or through licensing that has been assigned to the document. For uses that are not allowable under copyright legislation or licensing, you are required to seek permission. Downloaded from PRISM: https://prism.ucalgary.ca
UNIVERSITY OF CALGARY
Gas Flaring and Low Carbon Development: A Comparative Analysis of Nigeria, Uk and Alberta
by
Boritsefere Elizabeth Mene
A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS
GRADUATE PROGRAM IN LAW
CALGARY, ALBERTA APRIL, 2019
© Boritsefere Elizabeth Mene 2019
Abstract
I bet if the environment could talk, it would have many things to say. If the environment could challenge certain actions by humankind on its person, everyone would have an earful. Sadly, the environment has no voice; it relies on environmental activists to tell its story and save it, or at least what remains of it. In this research, I tell a tale of gas flaring stemming from upstream oil and gas production in Nigeria.
This comparative study analyses gas flaring in Nigerian upstream oil and gas industry as a hindrance to low carbon development, and the reasons why the 43 years efforts to phase out gas flaring are unsuccessful. It argues that if there is no address of the five obstacles to phasing out gas flaring that it discusses, Nigeria would never meet its year 2030 commitment of phasing out gas flaring which it declares in its NDC in the Paris Agreement. It uses two jurisdictions, the UK and Alberta, as comparators in determining how two other oil-producing jurisdictions address the gas flaring problems Nigeria faces in its oil and gas industry. It uses the theory of environmental ethics as a basis for the need for environmental protection and accountability in the oil and gas industry.
ii
Acknowledgements
First, I thank the Almighty God who has made the completion of my studies a reality. True, I have slipped in my service bargain, but he has been nothing but faithful.
I thank my supervisor, Prof. Alastair Lucas for his patience, support and dedication in the writing of this thesis. I want to thank my co-supervisor, Prof. Fenner Stewart for his encouragement and kind support in the timeous reading of my never-ending drafts. Without Professors Lucas and
Stewart, this thesis would be nothing but a figment of my imagination till this day. I would also like to thank Prof. Mascher for her suggestions and contributions to this work. I thank the
Director of Graduate Studies, Prof. Greg Hagen, Eunice Wong, the Bennett Jones Law Library team including Nadine Hoffman, Erin Storey, Sara Klein and Kim Clarke for listening to my endless questions.
I thank the Faculty of Law Graduate Program for providing me with funding for this research. I am grateful to my Uncle Anthony Amoman ―for that great deed‖ which kick-started my research.
I am grateful to my ―sister one‖ Mrs. Elsie David (nee Mene), and ―sister two‖ Amaju Mene for never ceasing to believe in me. I thank my best friend, Choice Ubangha and also my childhood friend and drive, Francis Okwulu for his loyalty over the years. Finally, I cannot forget to acknowledge my colleagues and good friends in the graduate program, Francesca Ugbaja, Sally
Onuorah, Eseoghene Olori and Vivian Nwankwo, for their kind support. I wish God‘s blessings on every one of you.
iii
Dedication
I dedicate this thesis to the Loving Memory of my Maternal Grandmother, Madam Ayonjuwe
Meruya, the loving memory of her only child and the mother I never knew, Mrs. Utieyien
Elizabeth Mene and my father, Dn. Albert Ayiroritsegbemi Mene for playing the role of a father and mother so well. Indeed, I remember the younger me, a bright-eyed chatterbox asking you so many questions about the ―big ball of fire‖ which you would later identify as a gas flare site, while we drove past the shell gas flare site in Sapele, Delta State, over two decades ago. You took out time to painstakingly explain what a gas flare is, its implications and that the flare in question had been burning for decades. Although it is sad that the gas flaring site in question still burns till this very day, I am hopeful that you would be proud that I have finally lent my voice to the campaign against gas flaring in Nigeria, through academic research.
iv
Table of Contents
Abstract ...... ii
Acknowledgements ...... iii
Dedication ...... iv
Table of Contents ...... v
Chapter One: Introduction ...... 1
1.1 The Importance of Natural Gas ...... 1
1.2 Gas Flaring at a General Glance ...... 1
1.3 Statement of the Problem: Gas Flaring in the Oil and Gas Industry ...... 2
1.4 The Negative Impacts of Gas Flaring ...... 3
1.5 The Outcry against Gas Flaring in Nigeria ...... 5
1.6 Low Carbon Development (LCD) ...... 6
1.6.1 LCD and the UNFCCC ...... 7
1.6.2 Nigeria’s Involvement with the UNFCCC ...... 8
1.7 Research Problem...... 10
1.8 Research Question ...... 14 1.9 Research Methodology...... 15 1.9.1 Literature Review ...... 15 1.9.2 Doctrinal Research ...... 16 1.9.3 Comparative Approach ...... 17 1.9.3.1 Normative Approach ...... 18 1.9.3.2 Functional Approach ...... 18 1.10 Reasons for Choice of Comparative Jurisdictions ...... 19 1.11 Scope of the Thesis ...... 20 1.12 Thesis Structure ...... 21 v
1.13 Conclusion ...... 23
Chapter Two: An Assessment of the International Climate Change Regime in its Relationship to Low Carbon Development and Gas Flaring ...... 26 2.1 Introduction ...... 26 2.2 An Overview of Environmental Protection ...... 26 2.3 Environmental Ethics as a Branch of Environmental Philosophy ...... 27 2.3.1 Branches of Environmental Ethics...... 30 2.3.1.1 Ecocentrism...... 30 2.4 Environmental Ethics‘ Approach to Environmental Protection ...... 32 2.4.1 The Environmental Ethics Approach of Sustainability ...... 32 2.4.1.1 Conservation as a Tool of the Principle of Sustainability ...... 37 2.4.2 Prescriptive Regulation or “Command and Control Approach” ...... 39 2.4.3 The Market-Based Approach to Natural Resources Conservation ...... 39 2.4.3.1 Price-Based MBI-Carbon Pricing ...... 40 2.4.3.2 Rights-Based MBIs...... 41 2.4.4 Voluntary Agreements ...... 43 2.5 The Criticisms of Environmental Ethics and its Application to Sustainability ...... 44 2.6 International Environmental Law and Climate Change ...... 44 2.7 The International Climate Change Regime ...... 49 2.7.1 The UN Climate Change Regime ...... 50 2.7.1.1 The UNFCCC Agreement ...... 50 (i) CBDR under the UNFCCC Agreement ...... 53 (ii) Criticisms of CBDR under the UNFCCC ...... 54 2.7.1.2 The Kyoto Protocol and CBDR...... 55 (i) Criticisms of the Kyoto Protocol ...... 56 2.7.1.3 The Paris Agreement and CBDR ...... 58 2.8 Gas Flaring and the International Climate Change Regime ...... 60 2.9 Conclusion ...... 64
vi
Chapter Three: The Nigeria Legal and Regulatory Framework on Gas flaring as a Source of Carbon Emissions in Upstream Oil and Gas Operations ...... 66 3.1 Introduction ...... 66 3.1.1 Overview of Oil Exploration and Production in Nigeria ...... 66 3.1.2 Ownership and Control of Oil and Gas Reserves ...... 68 3.1.2.1 Theories of Oil and Gas Ownership ...... 68 3.1.2.1.1 Non-Ownership or Exclusive Right to Drill Theory ...... 69 3.1.2.1.2 Absolute Ownership or Ownership-in-Place Theory ...... 69 3.1.2.1.3 The Domanial System ...... 70 3.1.3 International Law and State Ownership of Natural Resources ...... 70
3.1.4 Oil and Gas Ownership in Nigeria ...... 71 3.1.5 Theories of Oil and Gas Regulation ...... 73 3.1.6 Nigeria’s Upstream Petroleum Industry’s Regulatory Agencies...... 74 3.1.6.1 The Department of Petroleum Resources (DPR) ...... 74 3.1.6.2 The Nigeria National Petroleum Corporation (NNPC) ...... 74 3.2 The Problem- Gas Flaring in Nigeria‘s Upstream Oil and Gas Industry ...... 75 3.3 Nigeria‘s Legal and Regulatory Framework on Gas Flaring ...... 77 3.3.1 Gas Flaring Laws ...... 78 3.3.1.1 The Associated Gas Re-Injection Act ...... 79 3.3.1.2 The Petroleum Drilling and Production Regulations ...... 80 3.3.2 Regulatory Bills on Gas Flaring ...... 81 3.3.2.1 The Gas Flaring (Prohibition and Punishment) Bill 2008 ...... 81 3.3.2.2 The Petroleum Industry Bill 2012 ...... 82 3.3.3 MBIs in Nigeria’s Gas Flaring Laws—Disincentives and Incentives ...... 83 3.3.3.1 Gas Flaring Penalties ...... 83 3.3.3.2 Income Tax Relief and Exemption from Customs and Excise Duties ...... 84 3.3.3.3 Use of Fiscal Incentives to Promote the Utilization of Natural Gas ...... 85 3.4 The Impediments to Phasing Out Gas Flaring with Regulation in Nigeria ...... 86 3.4.1 Inefficient Gas Flaring Laws ...... 87
vii
3.4.2 Ministerial Discretion in the Grant of Gas Flare Permits ...... 93 3.4.3 Weak Enforcement of Gas Flaring Regulations ...... 94
3.4.3.1 Lack of Sincerity and Transparency ...... 94 3.4.3.2 Overlap in the Functions of the DPR and NNPC ...... 95 3.4.3.3 The Participation of the NNPC in Joint Venture Agreements (JVAs) ...... 95 3.4.3.4 Corruption in the NNPC ...... 96 3.4.3.5 The lack of a Record of Companies without Gas Flare Certificates
in Nigeria ...... 96
3.4.4 Voluntary Environmental Disclosure in Corporate Social Responsibility (CSR) ...... 97 3.4.5 Inadequate Response to International Obligations on Low Carbon Emissions Reduction in National Policies ...... 99 3.4.5.1 Nigeria’s Participation in the GCFR ...... 100 3.4.5.2 The Failure of (CDM) Projects in Phasing-Out Gas Flaring ...... 101 3.4.5.3 The Herald of a New Era-- Nigeria’s NDC at the Paris Agreement ...... 102 3.4.5.3.1 Post Paris Agreement--Steps Taken to Achieve Nigeria’s NDC Commitment ...... 103 (i) The Green Bond Initiative ...... 104 (ii) The World Bank Zero-Routine Flaring by 2030 ...... 105 3.4.5.4 An Argument for Increased Implementation of International Obligations on Gas Flaring ...... 106 3.5 Conclusion ...... 107
Chapter four: Gas Flaring in the United Kingdom and Alberta ...... 109
4.1Introduction ...... 109 4.1.2 A Brief History of the Discovery of Oil and Gas in the United Kingdom and Alberta ...... 109 4.1.3 Ownership of Oil and Gas in the United Kingdom and Alberta ...... 110 4.1.3.1 Ownership of oil and gas in the UK ...... 110
viii
4.1.3.2 Ownership of oil and gas in Alberta ...... 113 4.2 Gas Flaring in the UK and Alberta Upstream Oil and Gas Industry ...... 114 4.2.1 Overview of Gas Flaring in the UK Oil and Gas Sector ...... 114 4.2.1.1. Gas Flaring in the UK Upstream Oil and Gas Sector ...... 114 4.2.1.2 Gas Flaring in Alberta’s Upstream Oil and Gas Sector ...... 115 4.2.1.3 Types of Gas Flaring in the UK and Alberta Oil and Gas Industry ...... 116 (i) Baseload Flares ...... 116 (ii) Flaring from the Gas Plant Mode of Operation or Changes in Operation ...... 117 (iii) Flaring from Process Trips or an Emergency Shutdown ...... 117 4.3 The UK and Alberta Approach to Gas Flaring Regulation in Upstream Oil and Gas Activities ...... 117
4.3.1 Gas Flaring Regulation in the UK ...... 117 4.3.2 Gas Flaring Regulatory Agencies in the UK ...... 118 (i) The Oil and Gas Authority (OGA) ...... 118 (ii) The Department of Business Energy and Industrial Strategy (BEIS) ...... 119 4.3.3 Regulation of Gas Flaring in Alberta ...... 120 4.3.1 Gas Flaring Regulator in Alberta ...... 121 4.4 UK and Alberta Approaches to Outlined Obstacles to Phasing Out Gas Flaring in the Nigeria Oil and Gas Sector ...... 122 4.4.1 The Problem of Inefficient Regulation ...... 122 4.4.1.1 Policy-Based Instruments and Gas Flaring Reduction in the UK ...... 124 (i) The Flare Pilot Transfer Trading Scheme (FPTTS) ...... 125 (ii) The UK Emissions Trading Scheme (UKETS) ...... 126 4.4.1.2 Other Approaches to Regulation in Alberta ...... 128 4.4.1.2.1 Public Consultation ...... 129 4.4.1.2.2 The Inclusion of Local Municipalities in the Regulatory Process ...... 131 4.4.1.2.3 Alberta Energy Regulator (AER) Directives ...... 133
ix
4.4.2 The Problem of Ministerial Discretion in the Grant of Gas Flare Certificates ....134 4.4.3 Weak Implementation of Gas Flaring Laws ...... 138 4.4.3.1 Implementation of Gas Flaring Laws in the UK ...... 138 4.4.3.2 Implementation of Gas Flaring Laws in Alberta ...... 140 (i) Stage One: The Fact Gathering stage ...... 141 (ii) Stage two: Investigation Reporting ...... 142 (ii) Court Proceeding ...... 142 4.4.4 Disclosure through Environmental Reporting in Corporate Social Responsibility ...... 145 4.4.5 Inadequate Response to International Obligations on Low Carbon Emissions Reduction in National Policies ...... 147 4.4.5.1 UK and Alberta Response to International Agreements on LCD ...... 147 4.4.5.1.1 The UNFCCC Agreement ...... 147 4.4.5.1.2 The Kyoto Protocol ...... 148 4.4.5.1.3 The Paris Agreement ...... 150 4.5 Conclusion ...... 153
Chapter Five: Conclusion ...... 155 5.1 Introduction ...... 155 5.2 Thesis Synopsis ...... 155 5.3 A Comparison of the Nigerian, UK and Albertan Upstream Gas Flaring Regulatory Systems ...... 160 5.3.1 Ownership and Control of Oil and Gas ...... 160 5.3.2 Gas Flaring Regulation ...... 160 5.3.2.1“Sustainability,” “Sustainable development” and “Conservation” ...... 161 5.3.2.2 Oil and Gas Operators’ Compliance with Regulatory Decisions ...... 162 5.3.2.2.1 Public Participation in EIA ...... 162 5.3.2.3 Ministerial Discretion in the Grant of Gas Flare Certificates ...... 162 5.3.2.4 Weak Gas Flaring Regulation Enforcement Mechanism ...... 163 5.3.2.5 Disclosure through Environmental Reporting in
x
Corporate Social Responsibility ...... 164 5.3.2.6 International Participation in Commitments to Reduce GHG Emissions for LCD ...... 165 5.4 Recommendations ...... 166 5.4.1 Enactment of a Law that Domesticates Nigeria’s Climate Change Commitments ...... 167 5.4.2 Amendment of the Associated Gas Petroleum Act ...... 167 5.4.3 Strengthening the Public Participation Process in EIA Assessment ...... 167 5.4.4 Establishment of an Independent Regulatory Agency ...... 168 5.4.5 Accountability of the Multinational Oil and Gas Companies ...... 168 5.4.6 State Regulation of Oil and Gas ...... 169 5.4.7 State Recognition of International Agreements on Climate Change ...... 169 5.4.8 Adoption of Alternative Regulation ...... 170 5.4.9 Holding Countries Accountable for Failing to Meet NDC Commitments ...... 171 5.5 Further Research ...... 171 5.6 Concluding Statement ...... 171
Bibliographies/ Tables of Authorities ...... 173
xi
Chapter One: Introduction.
1.1 The Importance of Natural Gas
One primary fossil fuel that constitutes a significant source of energy is natural
gas.1 The rise of natural gas to preeminence as a dominant source of energy was in the latter half
of the 19th century.2 Today, even as global efforts to source for alternative sources of renewable
energy continues, natural gas remains the cleanest non-renewable fossil fuel whose use includes
power generation, a contribution to the production of raw materials and other chemically
produced materials.3 Natural gas may exist either as ―associated natural gas‖ or ―non-associated
natural gas".4 Shale gas, coal gas, tight gas, coalbed methane and sour gas are more types of
natural gas.
Wasting natural gas is discouraged due to its importance. Not only is natural gas
wastage a danger to the environment, particularly the climate, it also constitutes a drain on the
economy of the country where such waste occurs. There are several ways in which a waste of
natural gas may occur; one of such actions is gas flaring.5
1.2 Gas Flaring at a General Glance
Gas Flaring generally, is the burning of gases or liquids during operations in
industrial actions, such as oil and gas derivation.6 The flaring of these gases occurs at the end of
1 George A. Olah, ―Beyond Oil and Gas: The Methanol Economy‖ (2006) 44:18 A Journal of the Gellschaft Deutscher Chemiker, 2636 at 2636 [Olah]. 2 Ibid. 3 World Energy Council, ―World Energy Sources: A Summary‖ (2013), online: World Energy Council
a flare boom or stack. A total flare system consists of a flare boom or stack and pipes which assembles gases subject to gas flaring, a flashback arrangement to protect the flare, an extermination structure to ensure that the flare burns gases only, a system of ignition, and a control mechanism to secure the efficient performance of the flare.7
Gas flaring is a significant source of greenhouse gas emissions and pollutes the environment with about 400 Mt of CO2 annually.8
1.3 Statement of the Problem: Gas Flaring in the Oil and Gas Industry
Gas flaring is a common practice in oil and gas production across the globe.9
Associated or solution natural gas is flared during oil production when barriers to the development of gas markets and gas infrastructure prevent its transport and sale — the Canadian
Association of Petroleum Producers states that natural gas flaring is an essential requirement to ensure the safe production of oil and gas.10 Gas flaring structures are on offshore and onshore production fields, port facilities, transport ships, storage tank farms and distribution systems.11
Gas flares are visible and induce heat and noise.12 Production flaring, process flaring, emergency flaring and maintenance flaring are classes of gas flaring.13 Production flaring takes place when gas and liquids are introduced into new equipment and facilities to evaluate the production of
7 Ibid. 8 Olah, supra note 1; Brian Khan, ―Gas Flaring: Major Source of Climate Change‖, (23 May 2010), BP Oil Spill Solution (blog), online:
products for sale during the initial start-up and commissioning of an oil and gas processing unit.14 It also occurs after the initial start-up phases characterized by the routing of a continuous gas stream to a flare system, as a result of the absence of a cost-effective gas valorization avenue for a satellite field.15 Process flaring is usually less than production flaring.16 It materializes when waste gases are removed from the production stream and flared.17 Emergency flaring as the name implies occurs in emergencies where equipment or piping becomes over-pressured thereby spontaneously releasing gas through flaring to flare stacks.18 During equipment repairs and maintenance, flares are also temporarily used as a channel for gas, until completion of the repairs and maintenance process.
There are different types of gas flares. These include pit flares; steam-assisted flares, air-assisted flares, ground flares and elevated flares.19 Pit flares consist of burn pits lined with gravel, refractory bricks or concrete; steam-assisted flares are those which require steam for smokeless combustion; the characteristics of air-assisted flares are noiselessness and smokeless flaming; elevated flares consist of a vertical chimney through which a waste gas stream is fed, and then combusted at the top of a stack.20
1.4 The Negative Impacts of Gas Flaring
14IPIECA, ―Flaring Classification‖ (April 10 2013), online: IPIECA
The flaring of billions of cubic meters of natural gas at oil production sites around the world occurs annually.21 Flaring contributes to climate change by releasing millions of tons of CO2 into the atmosphere.22 Carbon dioxide emissions and other short-lived climate change forces such as black carbon23 and methane from gas flaring have a negative influence on greenhouse gas foot-prints of oil and natural gas production.24 It also wastes a valuable resource that could contribute to economic progress and growth.25 Studies reveal that alternatives to gas flaring during oil production are the conversion of the gas into liquefied natural gas and the re- injection of the gas into the earth.26 An alternative combustion suggestion to gas flaring with considerably less impact on the environment is waste gas incineration.27 There is abundant literature on the negative percussions of gas flaring from oil and gas production in developed, and developing countries alike.28 For developing and low-income countries affected by the
21 World Bank, supra note 9. 22 Ibid. 23 The burning of fossil fuels into the atmosphere releases CO2 and other pollutants such as smoke and soot. The formation of black carbon occurs from layers of soot in the atmosphere. Black carbon is known to be capable of travelling long distances, hindering visibility and blackening vegetation and everything it falls on. However, unlike CO2 which can remain the atmosphere for as long as century, black carbon only persists in the atmosphere for a few days to a maximum of one week before being removed by fog, rain and snow. See: John Bachman, ―Black carbon: A Science Policy Primer‖ (2009), online: Centre for Climate and Energy Solutions
―resource curse,‖ one existing argument is that they lack the necessary technologies to mitigate
gas flaring.29
Even though the majority of researchers agree with the above, they also hammer on the fact that ineffective regulation of gas flaring is a significant contributor to the menace.30
For example, Shaif et al., argue that one way to ensure phasing out gas flaring is to strengthen and enforce the legal and regulatory framework on gas flaring in oil and gas operations in the country.31
1.5 The Outcry against Gas Flaring in Nigeria
Nigeria is a country whose gas flaring activities, are nationally and internationally recognized.32 Several authors note the plight of residents in oil producing communities in
Nigerian communities, who live close to oil production activities.33 They detail how gas flaring endangers the health of community members and the natural environment in which they live.34
29 Christopher A. Osuoha, ―Gas Flaring in Niger Delta region of Nigeria: Cost, Ecological and Human Health Implications‖ (2017) 16:2 Environmental Management and Sustainable Development 390 at 395. 30 Bent Svensson, ―Gas Flaring Reduction-A Global Perspective‖ (Paper delivered at the Natural Gas Star Programme Annual Implementation Workshop, 25 October 2005) [Unpublished]
Regarding damage to the environment, authors point to acid rain, change in weather patterns, drought and black carbon incidences caused by the release of GHGs (mainly CO2).35
The above discussion introduces gas flaring as a contributor to climate change and
a global problem prevalent in oil and gas producing countries. The question which arises from
the discussion is on the connection between gas flaring, low carbon development and climate
change. I discuss the said connection in the sections below.
1.6 Low Carbon Development (LCD)
No internationally agreed definition of the term ―Low Carbon Development‖
(LCD) exists.36 The UK Department for International Development‘s (DFID) description of the
term as ―using less carbon for growth‖ in its white paper is popular.37 It is a means through
which governments seek to achieve economic growth targets through a ―carbon neutral
pathway.‖38
al., ―Air-borne SO2 Pollution Monitoring in the Upstream Petroleum Operation Areas of Niger-Delta, Nigeria‖ (2009) Part A 31:3 Energy Sources, 223 at 223-231 Taylor& Francis CRKN Science and Technology, where the authors argue that gas flaring in the Niger Delta Region causes acid rain; Legborsi Saro Pyagbara ―The Adverse Impacts of Oil Pollution on the Environment and Wellbeing of a Local Indigenous Community: The Experience of the Ogoni People of Nigeria‖ (Paper delivered at International Expert Group Meeting on Indigenous Peoples and Protection of the Environment, 27-29 August) at 7 [Unpublished] online:
The term ―low carbon development‖ is synonymous with a ―low carbon society.‖39 A low carbon society is one which incorporates actions that are instrumental to sustainable development; and ensures that the development of the community, contributes to a global effort to stabilize the concentration of CO2 and other GHGs in the atmosphere, to the extent that will mitigate climate change through global emissions reduction.40 In summary, for a low carbon economy to materialize, there must be low carbon development in all sectors of the universal economy. The preceding must begin with the stabilization of GHGs globally.
1.6.1 LCD and the UNFCCC
Talk of stabilization of GHG emissions began with the United Nations
Framework Convention on Climate Change (UNFCCC) agreement in 1992.41 The objective of the UNFCC is:
Stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.42 The Kyoto Protocol goes a step further than the UNFCCC by imposing binding emission reduction targets for developed countries (Annex I) by introducing the concept of ―Common but
39 Ibid. 40 Ibid. 41 United Nations Framework Convention on Climate Change, 09 May 1992, 1771 UNTS 107; 31 ILM 801 (1992) at 1-33 (entered into force 21 March 1994) [UNFCCC]. 42 Ibid, Art. 2. 7
Differentiated Responsibilities‖ (CBDR).43 In the year 2016, the Paris Agreement emerged as a replacement for the Kyoto Protocol due to its failure.44
The Paris Agreement exceeds the scope of previous United Nations Agreements addressing climate change in several ways: one of such is its clear responsibility for climate change mitigation in Art. 22; expressed through Nationally Determined Contributions (NDCs), which spell out voluntary commitments on GHGs by all signatories.45
The discussion here focuses on the UN framework on climate change mitigation.
First, this section discusses a situation where the UNFCCC Agreement introduces the concept of stabilization of GHG in the atmosphere to mitigate climate change. Next, it points out the Kyoto protocol‘s imposition of emission reduction targets on Developed (Annex I) countries for reducing climate change. Finally, it draws attention to the Paris Agreement taking a stricter stance than the UNFCCC Agreement and the Kyoto Protocol, through its imposition of National
Determined Contributions (NDC) on Developed and Developing countries alike, as a form of binding commitments to mitigate climate change.46 In the discussion below, I give an introduction to Nigeria‘s involvement with the UNFCCC and its voluntary NDC under the Paris
Agreement.
1.6.2 Nigeria’s Involvement with the UNFCCC
43 Kyoto Protocol to the United Nations Convention on Climate Change, 11 December 1997, 1771 UNTS 107; 37 ILM 22(1998) at Art. 3 (entered into force 16 February 2005) [Kyoto Protocol]. 44 Charlotte Streck, Paul Keenlyside & Mortiz von Unger, ―The Paris Agreement: A New Beginning‖ (2016) 13 Journal for European Environmental & Planning Law 3 at 4 [Charlotte Streck et al. The Paris Agreement]. 45 Ibid at 4-5. 46 Ibid. 8
The main focus of this thesis is Nigeria. As such, it is essential to establish a connection between the guiding international agreements and Nigeria. This section attempts to determine the said connection.
Nigeria is actively involved in international talks involving protecting the climate from greenhouse gas emissions; mainly carbon dioxide. It is a signatory to the UNFCCC, Kyoto
Protocol and Paris Agreement. Nigeria‘s obligations under these agreements include: reporting its carbon emissions to the UNFCCC, reducing emissions in a manner consistent with national circumstances (in line with the principles of ―sustainability‖ and ―CBDR‖), and meeting its voluntary obligations under the Paris Agreement.47 To promote the principal goal of the Paris
Agreement contained in Art. 2, on 28 November 2015, as one of its 194 signatories,48 Nigeria submitted its Independent Nationally Determined Contribution (INDC), thereby complying with
Art. 3 of the agreement.49 Nigeria signed the ratification instruments of the Agreement on May
16, 2017, thus converting the INDC to a National Determined Contribution (NDC).50 In its NDC to promote the core concerns of the Paris Agreement in Art. 2, Nigeria states its commitment to
47 Paris Agreement, 12 December, 2015, 55 ILM 740 (2016) at Art. 2 (entered into force 4 November, 2016) [Paris Agreement]. 48 Nigeria became a signatory to the Paris Agreement on 22 September, 2016. See United Nations Framework Convention on Climate Change, ―Paris Agreement-Status of Ratification‖ online: United Nations Framework Convention on Climate Change
reduce its projected 1000 million tonnes of CO2 emissions in the year 2030; below business as usual, by a 20% absolute reduction (600 million tonnes) and a 45% conditional reduction (400 million tonnes).51 One of the core strategies the country intends to adapt to achieve this is eliminating gas flaring in the year 2030.
This discussion shows that even as a developing country, Nigeria is active in the
United Nations talks on climate change mitigation. This section points out that before the Paris
Agreement, Nigeria had no binding commitments under the UNFCCC Agreement or the Kyoto protocol; now, the Paris Agreement commits Nigeria to specific strategies for climate change mitigation. The specific plans are in Nigeria‘s voluntary NDC. One of Nigeria‘s climate mitigation strategies in its NDC is phasing out gas flaring in the year 2030. This strategy points us to the research problem in the discussion below.
1.7 Research Problem
Nigeria, with a population of 190,584,69052 people is the most populous country in West Africa.53 Marked with vast reserves of oil and natural gas, oil exploration in Nigeria first began in the year 1908, with long breaks during the first and Second World War.54 After the
51 NDCs demonstrate the willingness of signatories to the Paris Agreement to reduce national emissions and also, adapt to the effects of climate change. The foremost goal of the Paris Agreement which its article Art.2 provides for is to prepare the world for sustainable development by limiting global warming to 1.5 to 2 degrees Celsius above pre-industrial levels. NDCs serve as long term goals to promote this objective of the Paris Agreement. See UN, NDCs at supra note 49; see also NDC Registry, (Interim) ―Nigeria First NDC‖ online: NDC Registry
further discovery of commercial oil fields in Oloibiri55 in 1956; today, the country continues to produce crude oil in large quantities.56 Nigeria‘s oil fields yield a maximum capacity of 2.5 million barrels of crude oil per day, and the country is the world‘s sixth largest producer of crude oil.57 Crude oil export accounts for 90% of Nigeria‘s earnings.58 Oil exploration occurs onshore, on land and swamps, while offshore operations occur mainly in water depths reaching 2500m.59
Currently, the onshore basin in Anambra State, the Niger Delta shallow and deep water basin and the offshore Dahomey/Benin basin Nigeria produces crude oil in Nigeria.60 Majority of Nigeria‘s onshore oil and gas reserves are in the Niger-Delta Basin area, which has 365 onshore and 251 offshore wells.61 Of the total of 606 fields in the Niger Delta area, 193 are currently operational.62 Other parts of the country also have 28 exploratory wells.63 The Niger Delta accounts for about 75% of the revenue from crude oil export.64 Historically, the Nigerian oil and gas industry has been a significant source of GHG emissions in Nigeria.65 Reports reveal that in
55 Oloibiri is a town in present day Bayelsa State in the Niger Delta area. See: Organization of the Petroleum Exporting Countries, ―Nigeria Facts and Figures‖, online: OPEC:
66 2010, the estimated annual emissions in the oil and gas industry were about 90MtCO2e. The dominant source of emission in the oil and gas industry is gas flaring.67
The Nigerian oil and gas industry consists of the upstream, midstream and downstream oil and gas sectors.68 The upstream sector encompasses all oil exploration activities onshore and offshore, development and production of crude oil and its exportation.69 Midstream operations involve processing, storing, marketing and transportation of crude oil, gas, liquefied natural gas, natural gas, and gas to liquids.70 The downstream sector, on the other hand, encompasses petroleum refining and distribution activities.71 In Nigeria, gas flaring occurs mainly in the upstream oil and gas sector; primarily because Nigeria extracts crude oil and exports the majority of the oil produced for processing into petroleum.72 In the upstream oil and gas sector, the production of oil occurs in several phases.73 In the extraction phase, associated natural gas is a by-product considered as waste. Due to the financial constraints of converting associated gas to natural gas, it is flared thereby releasing anthropogenic gases, mainly Carbon dioxide (CO2) into the atmosphere.74 90% of GHG emissions in the oil and gas industry resulting in air pollution are from the upstream sector.75
66 Ibid. 67 Ibid. 68 KPMG, supra note 58. 69 Ibid. 70 Ibid. 71 Ibid. 72 Ite E. Aniefiok & Ibok J. Udo, ―Gas Flaring and Venting Associated with Petroleum Exploration and Production in the Nigeria‘s Niger Delta‖ (2013) 1:4 American Journal of Environmental Protection 70 at 70-71. 73 Rehanet Isa, ―Greenhouse Gas (GHG) Emissions and Oil & Gas Revenue‖ (2014) 3:7 Academic Journal of Interdisciplinary Studies 127 at 127 [Isa]. 74 Ibid. 75 Ibid. 12
This thesis considers Nigeria‘s current regulatory and enforcement regime as a threat to its voluntary international low carbon development commitment of eradicating gas flaring in the year 2030. This research focuses on the upstream oil and gas sector due to its significant contribution to CO2 emissions in the country, resulting in public outcry overtime. In addition to the argument that Nigeria lacks the necessary gas utilization infrastructure to process flared associated gas during oil production, the inefficiency of its gas flaring laws, and complacent attitude of oil and gas operators to existing gas flaring regulations are some obstacles to curbing gas flaring in Nigeria.76 Another reason given is the poor implementation of gas flaring laws by the federal government.77
This work is a law thesis, which needs to be within a manageable framework: as such, it only considers the following problems:
Inefficient gas flaring laws.
Ministerial discretion in the grant of gas flare certificates.
Weak enforcement of gas flaring regulations.
Voluntary environmental disclosure in corporate social responsibility (CSR).
Inadequate Response to International Obligations on Low Carbon Emissions Reduction
in National Policies
By analyzing the above, this thesis achieves the following aims:
76 Musa Bashir Abuhesa, Investigation into Gas Flaring Reduction in the Oil and Gas Industry (Ph.D. Thesis, University of Salford, UK, 2010) at 16 [Unpublished]. 77 Stephen C. Nwanya, ―Climate Change and Energy Implications for Gas Flaring in Nigeria‖ (2011) 6:3 International Journal of Low-Carbon technologies 193 at 194 [Nwanya]. 13
Conducts an in-depth analysis of gas flaring in the upstream oil and gas sector with
regards to atmospheric pollution and low carbon development.
States the impact of gas flaring on the lives of residents where upstream oil and gas
operations take place.
Details Nigeria‘s existing energy regulatory framework on gas flaring in the upstream oil
and gas sector.
Discusses the legal constraints to phasing out gas flaring in Nigeria‘s upstream oil and
gas sector.
Compares Nigeria‘s energy regulatory framework on gas flaring to the UK and Alberta
with a focus on the treatment of the legal obstacles to phasing out gas flaring in Nigeria.
1.8 Research Question
This study answers the question ―What law reforms are necessary if Nigeria is to meet its goal of eliminating gas flaring by 2030‖? The following sub-questions provide the ultimate answer to the research question.
What is the justification for this paper‘s focus on the Nigerian upstream sector rather than
the midstream and downstream sectors?
What are the impacts of gas flaring in Nigeria‘s upstream oil and gas sector on the
environment?
Why choose the UK and Alberta as comparators for the research?
What is the current regulatory regime on gas flaring in Nigeria?
What are the current regulatory regimes on upstream oil and gas flaring in the UK and
Alberta?
14
What lessons can Nigeria learn from the comparators?
How can any or all of these lessons prepare Nigeria for its goal of eliminating gas flaring
in the year 2030?
1.9 Research Methodology
1.9.1 Literature Review
In providing answers to the questions posed above, this research uses several approaches. It uses a literature review in providing information on the doctrinal approach and comparative approach, which are other approaches it uses as a response mechanism to its research question. This thesis adopts doctrinal research in considering the laws which regulate energy regulation in Nigeria in proffering an answer to the question: ―What law reforms are necessary if Nigeria is to meet its goal of eliminating gas flaring by 2030?‖ Its next step is the use of a literature review in analyzing the scope and extent of the laws relating to the upstream energy sector. It uses the literature review in accessing a variety of literature on statutes, case law and concepts that discuss oil and gas regulation in Nigeria‘s upstream energy sector, using
Cooper‘s ―exhaustive review with a selective citation.‖78 The guiding selection criteria for the
―exhaustive review with a selective citation,‖ are availability and relevance.79 The preceding helps this thesis to recognize energy experts in Nigeria and apply the ―purposive sample‖ in the
78 Justus J. Randolph, ―A Guide to Writing the Dissertation Literature Review‖ (2009) 13:14 Practical Assessment, Research and Evaluation Journal 1 at 4 [Randolph]. Cooper‘s ―exhaustive review with selective citation‖ whittles down the difficulty in conducting an exhaustive review where the researcher locates every item of research on the subject matter by allowing the research to decide the type of materials he/she consult in his research. This research considers materials in common. 79 Erik Hofstee, Constructing a Good Dissertation: A Practical Guide to Finishing a Master’s, MBA or Ph.D. on Schedule (Sandton: Exactica, 2006) at 99 [Hofstee]. In determining relevance, this research asks how a literature relates to the work and the weight of its contribution to the subject matter. 15
formation of its arguments.80 The criteria for determining legal experts in the field include educational qualification, contribution to the literature on energy law, expertise in energy and environmental law and the number of citations available for the work. This research also uses a literature review in ascertaining the meaning of low carbon development and its benefits. Next, this research explains why it focuses exclusively on gas flaring in the upstream oil and gas industry through secondary sources such the World Bank data on gas flaring in determining the percentage of GHG emissions from upstream energy activities. It conducts an online search through several databases for secondary sources on the legal approaches adopted by various jurisdictions to reduce GHG emissions in the production of energy.
On whether any of the comparative jurisdictions currently adopt any or all of the approaches, there is an adoption of a literature review, as well as the doctrinal approach. For the literature review, this research work exhausts all legal literature in the field. On why Nigeria should adopt any or all of the methods, it examines all available literature in the area to determine relevance.81 First, it reviews the strategies taken in the three jurisdictions through primary and secondary literature. Next, it considers recorded reports on a significant reduction of carbon emissions as a result of these approaches. Other factors such as if the approaches identified are recognized by the international community, with regards to significant carbon emissions reduction, is also considered by literature review, to provide answers to this question.
1.9.2 Doctrinal Research
80 Randolph, supra note 78 at 4. 81 Ibid.. 16
This research adopts the doctrinal approach in identifying the provisions of the
Nigerian Constitution which empower its government to regulate oil and gas activities and also protect the environment.82 The questions which arise in this regard border on whether the federal government only, or federal and state governments jointly, are vested with powers to make laws regulating gas flaring in the upstream oil and gas sector. Through a constitutional analysis, there is an establishment of the fact that the onus rests primarily upon on federal legislators, to enact laws on the reformation of the upstream energy sector, with a view on how to accomplish low carbon development.
This thesis uses this method to discuss the current decision-making within Nigeria‘s oil and gas industry in granting the reader a descriptive and normative overview of law and governance in this area.
1.9.3 Comparative Approach
This research adopts the comparative research approach in justifying the two jurisdictions to be compared with Nigeria.83 It compares and contrasts the UK and Alberta laws on upstream oil and gas flaring. It utilizes the normative and functional approach of comparative research methodology in this regard.
82 Doctrinal research is legal research which refers to the fusion of various interpretative guidelines, norms, rules, and principles in law academic research. It is closely linked to the doctrine of precedents. It is described as the ―core legal research method‖ which lies at the basis of common law. It also cuts across legal research. See: Terry Hutchinson & Nigel Duncan, ―Defining and Describing What We Do: Doctrinal Legal Research‖ Deakin Law Review (2012) 17:1 83 at 84-85 (Ebscohost Academic Search Complete) [Hutchinson & Duncan]. See generally Terry C. Hutchinson, Researching and Writing in Law, 3rd ed. (Sydney: Thomson Reuters, 2010). 83 Comparative law is a tool for improving legal doctrine and domestic law. The aim of comparative legal research is the provision of the necessary information for comparative law. Comparative research could be the comparison between two or more national laws, national case laws, international law and national law. See generally: Mark Van Hoecke, ―Methodology of Comparative Legal Research‖ (2015) Law and Method 1 at 1-7 [Van Hoecke]. 17
1.9.3.1 Normative Approach
This research uses the normative approach in comparing the gas flaring laws of the comparative jurisdictions by their usefulness or relevance for the reduction of carbon emissions from gas flaring in the upstream energy sector.84 The above answers the question:
―What is the justification for the choice of the approaches adopted in the UK and Alberta for upstream oil and gas flaring regulations?‖
1.9.3.2 Functional Approach
The functional approach comes to play in this research through a consideration of the effects of Nigeria‘s upstream oil and gas flaring laws, in contrast to the UK and Alberta gas flaring laws.85 Have the Nigerian laws been effective in regulating upstream oil and gas flaring significantly? Have the UK and Alberta laws been effective so far? If the latter is the case, an attempt will be made to answer the question of how cues from the United Kingdom and Alberta approaches, may assist Nigeria in effectively regulating upstream oil and gas flaring. It considers the last sub-question on whether these cues can place Nigeria‘s upstream oil and gas sector on the path of the ultimate goal of eliminating gas flaring in the year 2030.
In the course of writing this thesis, the search for relevant materials makes use of several databases. These include:
Law Pavilion for the identification of Nigerian case law.
HeinOnline World Treaty Collection.
84 Ibid. 85 Ibid at 9. The functional approach is premised on the fact that although the legal systems which are the subject of comparison have different rules and concepts, they solve their problems in a similar way. 18
United Nations Law for UN Treaties.
Google scholar.
Proquest.
ABI/INFORM complete for journals.
Global World History in Context.
ProQuest Dissertations &Theses Global.
This research uses such search terms: "GHG emissions"; ―low carbon‖; "gas
flaring‖, ―upstream oil and gas flares‖; ―climate change impacts‖, ―climate change‖, ―global
warming‖; ―climatic changes‖, ―atmospheric pollution‖; ―atmospheric carbon dioxide‖, ―air
pollution and climate change‖; ―carbon emission‖; ―carbon sequestration‖ and
―environmental remediation‖, ―upstream oil and gas‖. The audience the thesis intends to
address are supervisors, legal scholars generally, policymakers, legal practitioners, academic
instructors, and professors at the Faculty of Law, University of Calgary.86
1.10 Reasons for Choice of Comparative Jurisdictions
The reasons for the choice of the United Kingdom and Alberta as comparators for this study are not far-fetched. First, both jurisdictions are akin to Nigeria, in the sense that crude oil production plays a huge role in their economies.87 Second, all three jurisdictions adopt a
86 Isa, supra note 73. 87 Canada is ranked the fifth natural gas and crude oil producer in the world. Alberta is Canada‘s largest oil and gas producer and houses a large deposit of oil sands. See: Calgary Economic Development, ―World Leaders in Responsible Energy Production‖, online: Calgary Economic Development
common law judicial system.88 Third, all three jurisdictions are members of international agreements geared at promoting low carbon development; the said international agreements are the UNFCCC and the Paris Agreement. Fifth, the Alberta Energy Regulator (AER) is endorsed by the World Bank as a world leader in regulating gas flaring.89 The World Bank also recognizes the United Kingdom as having outstanding results in gas flaring reduction, with the implementation of gas flaring reduction policies.90
1.11 Scope of the Thesis
This thesis addresses Nigeria‘s current legal and regulatory framework in relation to gas flaring. In its analysis, it focuses on the theory of environmental ethics, as the norm for environmental protection from gas flaring. The application of the environmental ethics‘ principles of ―sustainability‖, ―sustainable development‖, and ―intergenerational equity‖ entrenched in international law and applied in the UNFCCC Agreement, Kyoto Protocol and
Paris Agreement forms a formidable ground for the argument that there should be the foremost recognition of all three principles in all legislation geared towards reducing carbon emissions, particularly emissions from gas flaring by all signatories to the agreements. Thus, the discussions
88 See generally Suzanne Rab, ―Legal Systems in UK (England and Wales): Overview‖ (01 April 2017), online: Thomas Reuters Practical Law, https://uk.practicallaw.thomsonreuters.com/5-636 <2498?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1> at question 9. Center for Public Legal Education Alberta, ―The Canadian Legal System‖ (02 January 2016), online: Centre for Public Legal Education Alberta
in later chapters examine whether Nigeria, Canada and UK as signatories to the UNFCCC
Agreement and Paris Agreement comply with the tenets of environmental ethics in relation to gas flaring, as enforced in the agreements.
In order to keep this research within a manageable framework, this study restricts itself to the effectiveness of Nigeria‘s gas flaring laws in line with the principle of environmental ethics on environmental regulation as adopted in the UNFCCC Agreements. It does not consider any issues that arise from adequate infrastructure for the reduction of gas flaring, the militancy resulting from the agitation of indigenes of oil and gas communities seeking to participate in energy governance and the contribution of venting to GHG emissions.
1.12 Thesis Structure
This thesis is in five chapters. Chapter one introduces the reader to the research problem, justifies the reasons for embarking on this research project, and explains the choice of the UK and Alberta as comparators. It also outlines the reasoning for the exclusive focus upon gas flaring in the upstream energy sector.
Chapter Two is a literature review of the theoretical principle underlying gas flaring regulation. It focuses on the doctrine of environmental ethics which advocates for the protection of the environment. There is a discussion on the origin of environmental protection and its connection to domestic and international law. Next, is a discussion on environmental ethics as the study of the relationship between humans and the environment. I argue that environmental ethics scholars advocate for the theory of sustainability as a measure to ensure
―intra-generational‖ and ―inter-generational equity.‖ I consider the arguments on the difference between ―sustainability‖ and ―sustainable development.‖ There is a brief explanation of why this
21
thesis aligns itself with the argument that while sustainability is the goal, the principle of sustainable development is a way to achieve the said goal of sustainability. This chapter discusses the application of the environmental ethics principle of sustainability in the United
Nations approach to climate change. The interpretation of these principles in international agreements for the protection of the environment, disparity regarding ―CBDR‖ between developed and developing nations in recognition of these principles, and Nigeria‘s international commitment to low carbon development in the Paris Agreement, as it relates to gas flaring is also discussed.
Chapter Three considers the regulatory framework on gas flaring, in the Nigerian upstream oil and gas sector industry. First, this chapter points out that Nigeria‘s oil and gas is vested in the federal state which adopts the perspective regulation or ―command and control‖ approach to regulation. Component state governments cannot make laws on either the exploitation of oil and gas or regulating pollution from same. There is the observation that
Nigeria‘s regulation of gas flaring from the oil and gas industry faces criticism on the grounds of the inefficiency of gas flaring laws; a weak enforcement mechanism of same, ministerial discretion in the grant of gas flare certificates and an inadequate response to international agreements on low carbon emissions interalia.
Chapter Four discusses the regulatory framework on upstream oil and gas flaring in the United Kingdom and Alberta. This chapter considers oil and gas ownership in the United
Kingdom and Alberta. While the UK operates state ownership of natural resources, Alberta operates state-private ownership of natural resources, with over 80% public ownership of oil and gas. This research points out that the province possesses exclusive regulatory powers regarding
22
its natural resources. Next, it considers the laws and the agencies regulating gas flaring in the UK and Alberta upstream oil and gas sector, and the enforcement mechanism. It notes that both jurisdictions adopt a conservation attitude to gas. This chapter further points out that the United
Kingdom takes a ―command and control approach to gas flaring,‖‘ as well as market-based incentives, in addition to industry practices such as requiring that all oil and gas operators adopt
Best Industry Practices in tackling pollution in the oil and gas sector. Alberta, on the other hand, takes the command and control approach in addition to company best practices in regulating gas flaring. The discussion in chapter four points to the fact that Canada (Alberta) and the UK are two jurisdictions which have a history of instilling the provisions of international agreements on carbon emissions in domestic laws.91 The application of the principle of conservation of gas that would otherwise be flared in Alberta and UK, as well as the stringent process involved in granting gas flaring consents in both jurisdictions, show an impressive recognition of the principle of environmental ethics in the attitude of both jurisdictions to gas flaring regulation and enforcement.
Chapter five is the conclusion and recommendation chapter. It emphasizes the similarities and differences of the enforcement mechanisms in Nigeria, UK and Alberta. It further points out the lessons learned, which Nigeria can adopt in its regulatory system.
1.13 Conclusion
This chapter gives a background of the thesis by discussing gas flaring generally and how it relates to oil production. It sets the stage for preceding chapters by providing an analysis of the importance of the stabilization of GHG, including CO2 in the atmosphere as
91 See the discussion in sections 4.4.5.1.2 and 4.4.1.5.3. 23
applied in the UNFCCC Agreement, Kyoto Protocol and Paris Agreement as a necessary measure for LCD. Nigeria‘s participation as a signatory in the agreements mentioned above shows its recognition of the importance of LCD. Nigeria‘s commitment to phase out gas flaring in the year 2030 stated in its NDC indicates that the country recognizes the need to take practical steps to ensure LCD. In this Chapter, there is an introduction to the argument that effective gas flaring regulation and subsequent enforcement of same is the model norm for a successful termination of gas flaring.92 This introduction heralds the more significant question on whether the gas regulatory regime in all three comparative jurisdictions conforms to the model norm as can be seen from extensive discussions in subsequent chapters.93 In the study in chapter three, it is glaring that although Nigeria‘s gas flaring laws recognize the principle of sustainability inherent in environmental ethics, there is a severe flaw in the country‘s enforcement mechanism of the principle, hence a recurrent shift in the dates for the cessation of gas flaring contained in its laws. In Alberta and the UK on the other hand, there is strict adherence to gas flaring laws as well as enforcement of same by regulatory agencies.
This chapter has done the following:
Provided a backdrop of the thesis by examining gas flaring and how it relates to oil
production.
92 The analysis in sections 2.4.2- 2.4.4 show that environmental ethics posits that effective environmental regulation is achievable either through prescriptive based regulation, market based incentives, voluntary agreements, or a combination of all three mechanisms. 93 The analysis in chapter four shows that the UK adopts prescriptive regulation and MBIs in regulating gas flaring. So far, the UK‘s approach is considered successful. In Nigeria on the other hand, as seen in Chapter three, prescriptive based regulation of gas flaring with an influx of MBIs through measures like income tax relief exemption and CDMs have been unsuccessful. Alberta adopts prescriptive based regulation for gas flaring, but its participation in the GGFR is seen as a largely successful MBI practice. 24
It has given an overview of Nigeria‘s NDC commitment to eliminate gas flaring in the
year 2030 in the Paris Agreement as a reason for this study.
Provided a brief introduction to Nigeria‘s NDC commitment to eliminate gas flaring by
the year 2030 and explained how this commitment inspires this study.
It has outlined the research problem of gas flaring in Nigeria‘s upstream oil and gas
sector.
Explained its focus upon upstream oil and gas flaring as a real context to assess Nigeria‘s
attempts to meet its obligations under the Paris Agreement.
25
Chapter Two: An Assessment of the International Climate Change Regime in its
Relationship to Low Carbon Development and Gas Flaring
2.1 Introduction
This chapter begins with an analysis of the legal theory surrounding environmental protection, its relationship with international environmental law, and climate change. It dwells precisely on environmental ethics, a branch of environmental philosophy, as a criterion for evaluating gas flaring regulation and enforcement mechanisms in Nigeria, the UK and Alberta. Next, it discusses the international climate change regime, with a focus on the
United Nations Climate Change regime for reasons disclosed in the introductory chapter. It further explains the environmental ethics principles of ―sustainability,‖ ―intra-generational‖ and
―inter-generational equity,‖ which exist in the three United Nations Agreements governing climate change. This chapter analyses all three agreements in the light of the ―CBDR‖ principle, and establishes that the Paris Agreement is a ―game changer‖94 concerning GHG emission commitments, mainly CO2, by binding developed and developing countries alike to specific commitments on GHG emission reduction through their various NDCs.95
2.2 An Overview of Environmental Protection
Human abuse of the environment often refers to the extinction of species, use of animals for scientific experiments, depletion of resources, and pollution of the soil, rivers and
94 Sam Mostyn, ―The Paris Agreement is a Game -Changer-and Business Risks being Left Behind‖ The Guardian (6 November 2016), online:
air.96 Environmental philosophers such as Brennan, Rolston, Callicott, and green activists such as
Porritt argue that the environment is a system of ecosystems, and warn that the interference of man in this system through activities such as the exploration of energy sources have an irreversible adverse effect on the environment.97 These activities, if not checked, will affect future generations adversely.98 Environmental protection refers to practices and procedures adopted for eliminating, reversing, minimizing, or entirely avoiding damage to the environment.99
2.3 Environmental Ethics as a branch of Environmental Philosophy
Over time, the argument that ―man‖ owes a duty to protect the natural environment arose.100 Environmental philosophy as a jurisprudential school of thought champions this argument. Concern for the environment began from the works of utopian socialists such as John Ruskin in the 18th century.101 Environmental philosophy in its modern form starts in the late 1960s from the concerns of academics and journalists.102 The evolution of movements such as Deep Ecology, Ecofeminism, Bioregionalism, Radical Activism and Animist
96 Avner De-Shalit, The Environment between Theory and Practice (Oxford: Oxford University Press, 2000) at Chapter 3[De-Shalit]. 97 Ibid. 98 Maren I. Borok, Mangai M. Morgan & Golkus J. Ishaku, ―Energy Exploitation and Environmental Impact in Nigeria: The Way Forward‖ (2013) 13:3 Journal of Energy Technologies and Policy; Christopher Belshaw, Environmental Philosophy: Reason, Nature and Human Concern (New York: Routledge, 2014) at 5. 99 Chris Park & Michael Allaby, Dictionary of Environment and Conservation (Oxford: Oxford University Press, 2017) at 299. 100 The term Environment means all components of the ecosystem including but not limited to all organic organisms, air, land, and water, all layers of the atmosphere and all natural systems which interact. See: Canadian Environmental Assessment Act, SC 2012, c19, at s. 2 (1). 101 Christopher Belshaw, Environmental Philosophy (Oxon: Routeldge, 2001) at vii-ix [Belshaw]. 102 Ibid. 27
are branches of environmental philosophy.103 Environmental ethics also emerges as a branch of environmental philosophy in the 1970s.
The very first Earth‘s day in 1970, marks the beginning of the environmental ethics movement.104 During this period, philosophers engaged in environmental discussions were urged by environmentalists, to formalize the environmental ethics movement.105 Lynn White's
―The Historical Roots of our Ecologic Crisis” (1967) and Garett Hardin's ―The Tragedy of the
Commons” (1968) are influencers of the formation of the environmental ethics movement.106
The philosophical theory of environmental ethics revolves around the ethical relationship of humans with the natural environment.107 It seeks to answer two questions: what duties do human beings owe to the environment, and why do human beings owe such duties?108 Environmental ethics studies the human moral relationship to the environment, the moral status and value of the environment and its nonhuman contents.109 In its early days, proponents of the movement emphasized the protection of animals.110 However, later years saw the movement grow beyond animals to the entire ecosystem as a whole.111 Now, it presents and defends a comprehensive
103 Ibid. 104 Eugene C. Hargrove, ―A Very Brief History of the Origins of Environmental Ethics for the Novice‖, online: Environmental Ethics < http://www.cep.unt.edu/novice.html> [Hargrove]. 105 Ibid. 106 Andrew Light, ―The Urban Blind Spot in Environmental Ethics‖ (2001) 10:1 Environmental Politics 7. 107Alasdair Cochrane, ―Environmental Ethics‖ (September 2008), online: LSE Research
systemic account of the moral relationship between humans and their natural environment.112 The job of environmental ethics is to outline the environmental obligations humans owe as a response to pollution and depletion of natural resources, degradation of ecosystems, climate change, loss of wilderness and reduction in plant and animal biodiversity.113 According to Yang, the fact that environmental ethics is interdisciplinary, plural, global, extends and revolutionary, are some of its distinctive features.114 Jardins is of the view that in its assumptions that moral norms govern human behaviour towards the natural world, it must show what the moral norms are, explain to whom humans have responsibilities, and how the responsibilities are justified.115 The preceding means that the two issues environmental ethics must address are what specific duties do humans owe the environment, and why there should be a fulfillment of the duties.116 For example, some environmental ethic philosophers argue that humans bear indirect responsibilities to the environment, which are best understood by the responsibilities, owed to other humans.117 Some others base their arguments on human-centred (anthropocentric) ethics, with the reasoning that
112 Joseph R. Des Jardins, Environmental Ethics: An Introduction to Environmental Philosophy, 5th ed. (Belmont: Wadsworth Publishing Company, 2013) at 17 [Jardins]. 113 Ibid. 114 Tongjin Yang, ―Towards an Egalitarian Global Environmental Ethics‖ (2006), online: Environmental Ethics and International Policy < http://publishing.unesco.org/chapters/978-92-3-104039-9.pdf> at 23-25 [Yang]. Yang explains that unlike traditional ethics which revolves around intra-human duties, environmental ethics is extended to include not just humans, but animals, the biosphere and generations unborn; environmental ethics applies other environmental studies such as environmental politics, literature, economics and environmental sciences thus making it interdisciplinary; anthropocentrism, biocentrism, liberation/rights theory and ecocentrism , which are the branches of environmental ethics, all provide reasonable justification for environmental protection thereby vesting in it a plural status; environmental ethics is global due to the fact that environmental crises are not restricted to a certain part of the world; it is revolutionary because it challenges mainstream ethics by extending the duty of environmental protection to animals and the future generation. See also Scott Slovic ―Literature‖; John Andrew Fisher ―Aesthetics‖; Myrick Freeman III ―Economics‖; Ian Simmons ―History‖; Kristen Shrader-Frechette ―Ecology‖; Robyn Eckersley ―Politics‖ and Sheila Jasanoff in Dale Jamieson, (ed.), A Companion to Environmental Philosophy (Massachusetts: Black Well Publishers Ltd, 2001) Part three at Chapters 17-23 [Jamieson]. 115 Jardins, supra note 112 at 17. 116 Fierser & Dowden, supra note 107. 117 This view known as the biocentric approach postulates that humans must treat nature as humans. See Özcan Sezr & Șenay Ișin, ―Sustainable Development-Environmental Ethics within EU Environmental Policies‖, online: Eprints < https://core.ac.uk/download/pdf/153447949> at 388. 29
only human beings possess moral value and so, even though humans have fundamental responsibilities regarding the natural world, the said responsibilities are only indirect.118 An off- shoot of anthropocentric environmental ethics proponents argue, that while considering our obligations regarding the environment as humans, there should be a consideration of future generations of humans as the recipients of our moral obligations.119 Another source of argument is that humans, do not owe direct obligations to any other natural phenomenon but human beings.120 The moral discipline of ethics, largely informs environmental ethics. The fundamental ethical concepts of ―the common good‖ ―rights,‖ ―utility‖ and ―responsibility‖ have a dominant role to play in this theory as they encourage humans to protect the environment for the common good of man and also because it is the right of future generations to inherit a beneficial environment.121
2.3.1 Branches of Environmental Ethics
Environmental Ethics exists in four schools of thought: Anthropocentrism,
Biocentrism, Rights theory / Animal liberation and Ecocentrism.122 However, ecocentrism is the focus of this work.
2.3.1.1 Ecocentrism.
Ecocentrism regards all of nature as possessing inherent value, and centres on the natural environment rather than on human beings.123 This theory posits that the ecosphere-
118 William Leiss, ―Instrumental Rationality, The Domination of Nature, and Why We Do Not Need an Environmental Ethic‖ in Philip H. Hanson ed. Environmental Ethics: Philosophical and Policy Perspectives (BC: Institute for the Humanities, Simon Fraser University, 1986) at 175-176. 119 Jardins, supra note 112 at 17. 120 Ibid. 121 Jardins, supra note 112 at 26. 122 Fieser & Dowden, supra note 107; Yang, supra note 114 at 28. 30
consisting of the atmosphere, water, land and the entire earth‘s ecosystem is the originator and sole sustenance of life.124 This theory exists as the direct opposite of anthropocentrism which posits that only humans possess a central predominance in the universe and that a consideration of the natural environment should only be by its benefit to human entities.125 Ecocentrism is of the view that man‘s greed results in an ―ecological footprint‖ leading to a massive natural imbalance and environmental crises around the world.126 The theory has its roots in traditional natural law which suggests two rationales for ecocentrism. First, is the ideology that the best way for humans to co-exist peacefully with the natural environment is to quietly exploit the earth‘s natural resources in such a way and manner that is not harmful because it is in the joint interest of both man and the environment to do so. Susan Amstrong and Michael Botzler distinguish
Land Ethics, developed by Aldo Leopold, and Deep Ecology developed by Arne Ness as the two major arms of Ecocentrism.127 Land ethics as the name suggests, dwells on human responsibilities to nature, while deep ecology focuses on short-term reforms for resolving environmental problems such as natural resource depletion and pollution.128 The criticism of ecocentrism is that it is anti-human or contrary to the principle of social justice. Rowe, who rejects this criticism states that:
Ecocentrism is not an argument that all organisms have an equivalent value. It is not an anti-human argument or a put-down of those seeking social
123 Ibid. 124 Joe Gray, Ian Whyte & Patrick Curry, ―Ecocentrism: What it means and what it implies‖ (2018) 1:2 The Ecological Citizen 130 at 130. 125 Cutler Clevland & Christopher Morris (eds.), Dictionary of Energy, 2nd ed. (Amsterdam: Elsevier Science & Technology, 2015) at 26. 126 Kevin J. Gatson, ―Biodiversity and Extinction: Species and People‖ (2005) 29:2 Progress in Physical Geography 239 at 239. 127 Susan J. Armstrong & Richard G. Botzler, Environmental Ethics Divergence and Convergence, 3rd ed. (New York: McGraw-Hill Education, 2004) at 371 [Armstrong & Botzler]. 128 Ibid. 31
justice. It does not deny that myriad important homocentric problems exist. However, it stands aside from those smaller, short-term issues in order to consider Ecological Reality. Reflecting on the ecological status of all organisms, it comprehends the ecosystem as a Being that transcends in the importance of any single species, even the self-named sapient one.129 2.4 Environmental Ethics’ Approach to Environmental Protection Robert Traer likens the reduction of the impact made on our environment by the present generation to a person who leaves a public park after a picnic, in as much good condition as found.130 It does not matter whether the past generations acted environmentally responsibly; the onus rests on the present age to protect the environment.131 Regarding the duty today‘s generation owes to future generations concerning the environment, environmental ethics scholars argue that there are several approaches to achieving the ultimate goal of environmental protection. Proponents of the first approach say that environmental protection, through sustainability and conservation of natural resources, is a duty the present generation owes to future generations.132 Peter Wenz explains that one measure that can ensure the sustainable use of natural resources is the fairness principle, which extols humans to put themselves in the position of others before judging actions from their perspective.133 He advocates for the application of this principle to the environmental conservation of natural resources for future generations.134 Louis Pojman, who is likeminded, states that conserving natural resources and avoiding pollution are the main concerns of environmental ethics.135 The next section discusses
129 J. Stan Rowe, ―Ecocentrism and Traditional Ecological Knowledge‖, online: Ecospherics Ethics
the sustainability and conservation of natural resources approach as a tool for environmental protection.
2.4.1 The Environmental Ethics Approach of Sustainability
Misuse of natural resources is a contributing factor to waste, pollution and destruction of the ecosystem.136 The very idea of sustainability has a long history, existing in
Greek, Roman, Egyptian and Mesopotamian civilizations.137 As at that time, there was a concern about the impact that the sourcing for natural resources had on the environment.138 There are two categories of natural resources. The first is products from agriculture while the second category is mineral resources.139 The principle of sustainability dwells on mineral resources because they are exhaustible and sourcing for them hurt the environment. The introduction of the principle of modern sustainability as it is today is by the Brundtland Commission in its 1987 report entitled
―Our Common Future.”140 The report defines the concept as:
A development that meets the needs of the present without compromising the ability of future generations to meet their own needs.141 Following the report, the Brundtland commission further recommends there should be a United
Nations international conference for furthering a cause on the sustainability of natural resources.
136 Michael E. Porter & Claas Van der Linde, ―Green and Competitive: Ending the Stalemate‖ (1995) 73:5 Harvard Business Review 120 at 122. 137 Jacobus A. Du Pisani, ―Sustainable Development-Historical Roots of the Concept‖ (2006) 3:2 Environmental Sciences 83 at 85[Du Pisani]. 138 Ibid. 139 C. H Desch, ―Conservation of Natural Resources‖ (1941) 148:3758 Nature 547 at 547 [Desch]. 140 Rachel Emmas, ―The Concept of Sustainable Development: Definition and Defining Principles‖, online: Brief for GDSR 2015
The result of the recommendation is the 1992 UN Conference on Environment and Development
(UNCED), also known as the Rio Declaration.142 Principle 4 of the Rio declaration States that:
environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.143 The Rio declaration further provides that states must have effective laws for the regulation of the environment.144 One of the three areas of sustainability the Rio declaration considers is the efficient administration of natural resources to ensure their preservation. In its Agenda 21,145 it provides interalia, a strategy for changing consumption patterns of natural resources in signatory countries to promote sustainability.146 Two areas where it provides for a change in consumption patterns are the energy and transportation industry with the aim of reducing wastes from the said industries.147
Sustainability as a term is often used interchangeably with sustainable development. However, there is an argument that both terms are distinct. Some scholars argue that sustainable development refers to economic growth with a measure of concern for the environment. It busies itself with improving the material well being of people through the use of natural resources in a conservative manner that ensures their existence for several decades.148
Sustainable development entails living off the interest of nature, rather than its capital.149 The
142 Rio Declaration on Environment and Development, 14 June, 1992, UN Doc.A/CONF.151/26 (vol.1) 31 ILM 874 at Principle 3 (entered into force on 29 December, 1993) [Rio Declaration]. 143 Ibid at principle 4. 144Ibid at principle 11. 145U.N. Conference on Environment and Development (UNCED), Agenda 21, 8.7 U.N. Doc. A/CONF.151/26/Rev.1 (Vol.1), U.N. Sales No. E.93.1.8 (1992) [Agenda 21]. 146 Ibid at 4.1. 147 Ibid at 4.2. 148 Czech Conroy, ―Introduction‖ in Czech Conroy & Miles Litvinoff, eds, The Greening of Aid: Sustainable Livelihoods in Practice (London: Earth Scan, 1988) at xi [Conroy & Litvinoff]. 149 Ibid. 34
principle of sustainability, on the other hand, is all about granting the environment priority.150
The commonality between both concepts is a shared concern for the environment.151 They argue that while sustainable development focuses more on increasing economic growth with a concern for the environment, the principle of sustainability dwells solely on the ability of man to live within the limits of the environment even at the cost of economic development.152 Other scholars argue that sustainability is the goal, while sustainable development refers to the steps that must be taken to achieve the goal of sustainability.153 A supportive provision of this view is Principle
3 of the Rio Declaration which provides that:
the right to development must be fulfilled to equitably meet developmental and environmental needs of present and future generations.154 This research aligns itself with this latter argument discussed above. To ensure sustainable development, the principle of ―integrated decision making‖ must be activated by state governments. Integrated decision making would actualize the incorporation of concerns for the environment into government decision making policies for development without being treated independently or in isolation.155 Integrated decision making sets a foundation for sustainable development as its concepts such as intergenerational equity; all depend on integrated decision making.156 Unsustainable development, on the other hand, exists in situations where the government decision-making process exists in separate social, economic, security and
150 Tom Waas et al., ―Sustainable Development: A Bird‘s Eye View‖ (2013) 3:10 Sustainability 1637 at 1639 [Waas et al.]. 151 Ibid. 152 Ibid. 153 Ibid. 154 Rio Declaration, supra note 142 at principle 3. 155 John C. Dernbarch, ―Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decision Making‖ (2003) 10:1 Ind J Global Leg Stud, 10 at 248 [Dernbarch]. 156 Ibid at 249. 35
environmental categories.157 In such a situation, governments make it harder and more expensive to fulfil commitments regarding the environment.158 Hans Jonas appeals to global political institutions to inculcate sustainable development as a policy in all government politics.159
Sustainable development should target overconsumption of natural resources, the efficiency of the use of mineral resources, and harmonize the coexistence of man and nature through the realization that nature is a subject of co-evolution rather than one of conquest.160 On a global scale, states can achieve the goal of sustainability through a ―top-down‖ and ―bottom-up‖ approach on sustainable development, that would involve a combination of national policies within each state and transboundary or global coordination among states.161 This expression of this idea is evident in the works of scholars such as Hempe who states that:
Both global and local ends of the political spectrum must be strengthened in order to achieve effective environmental governance.162 The principle of sustainability is now a subject of recognition by domestic and international courts. In the Canadian case of Imperial Oil v. Quebec (Minister of the
Environment), the court uses the principle of sustainability to give life to the polluter pays principle.163 Here, Justice LeBel in a unanimous decision for the court states:
157 Ibid. 158 Ibid at 250. 159 Peter Tor & Larisa Mantativa, ―Philosophical Underpinnings of Environmental Ethics: Theory of Responsibility by Hans Jonas‖ (2015) 214 Procedia-Social and Behavioral Sciences 1055 at 1060 [Tor & Manativa]. 160 Ibid. 161 Ryan Plummer, ―A Review of Sustainable Development Implementation through Local Action from an Ecosystem Management Perspective‖ (2005) 4 Journal of Rural and Tropical Public Health 33 at 38 [Plummer]. 162 Lamont C. Hempel, Environmental Governance: The Global Challenge (Washington DC: Island Press, 1996) [Hempel]. 163 Imperial Oil Ltd v. Quebec [Minister of the Environment [200] 2 S.C.R. 624, 2003 SCC 58 at Para 23. See also Re Ainsworth Lumber Co [2000] AEABD No. 33 where the Environmental Appeal Board applied the principle in concluding that there should be the management of the earth‘s resources in a way that ensures sustainability for future generations; Old Man River Society v. Canada Minister of Transport [1992] 1 S.C.R.3 where the court lays 36
To encourage sustainable development,[the polluter pays principle] assigns polluters the responsibility for remedying contamination for which they are responsible and imposed on them the direct and immediate costs of pollution. At the same time, polluters are asked to pay more attention to the need to protect ecosystems in the course of their economic activities.164 In international law, the principle gains recognition in the Gabcikovo-Nagymaros Dam case where Vice-President Weeramantry embarks on an explanation of how sustainability leads law- makers to depart from the traditional concept of lawmaking.165
As can be seen from the discussions in preceding sections, the UNFCCC adopts the ―top-down‖ ―bottom-up‖ approach of sustainable development in its pathway strategies to sustainability. We can see these pathway strategies through the provisions of first, the UNFCCC
Agreement, and afterwards, the Kyoto Protocol and Paris Agreement which encourage signatories to implement national laws on carbon emission reduction and also binds each party to common GHG reduction provisions in line with the principle of CBDR.166
2.4.1.1 Conservation as a Tool of the Principle of Sustainability
Conservation is a way to achieve the goal of sustainability. The argument surrounding the usefulness of the concept of conservation is that there should be the management of natural resources which an individual utilizes in a manner that leads to others bearing the consequence of such use because the use is socially and environmentally undesirable.167 There are several ways through which the encouragement of natural resource conservation practices
emphasis on environmental protection through sustainability as a growing cause for concern ; Ontario v. Canadian Pacific Ltd, [1995] 2 S.C.R 1031, where the court says that humans should be stewards of the natural environment. 164 Ibid at para 24. 165 See Separate Opinion of Vice–President Weeramantry in Gabčikovo-Nagymaros Project, Hungary v Slovakia (1998) 37 ILM 162. 166 See the discussion in Section 2.7 of this paper. 167 K.C Roy, ―Issues in resource conservation and sustainable development: Indian Situation‖ (1988) 25:1 International Journal of Social Economics 6 at 8 ProQuest. 37
may occur in a society. The first is through the use of a community as a medium. A community in this context may refer to an international agency such as the United Nations Convention on
Climate Change, and the World Bank.168 Another example of a community is an indigenous people bound by special interests, such as the residents of oil producing communities where gas flaring takes place. This preceding example would fall under the category which Agrawal and
Gibson refer to as a ―community with common interests and said norms.”169 Another medium of conservation of natural resources is ―local-level processes‖ which is a network of communities and individuals who negotiate conservation practices, make rules on the agreed negotiations and implement strategies on the rules agreed on by the community.170 A general example of this mechanism is the interaction between non-governmental organizations and communities bound by either small size or spatial-unit or shared interests and norms.171 The third group is institutional arrangements which are the highest medium of conservation. It involves rule- making on resource use, conservation and resource management, the implementation of the rules made, and an enforcement mechanism by the institution itself or an agency delegated to do so.172
In the case of institutions, the government represents the interest of the community, be it a community bound by a shared interest or spatial-unit, or a community of localized actors.173
In situations where a state government belongs to an international community and ratifies an agreement promoting conservation of natural resources which champions the interest of the community it represents, there is an expectation that the institution honours the
168 Arun Agrawal & Clark C. Gibson, ―Enchantment and Disenchantment: The Role of Community in Natural Resource Conservation (1999) 27:4 World Development 629 at 63 [Agrawal]. 169 Ibid at 631. 170 Ibid at 635. 171 Ibid at 637. 172 Ibid at 638. 173 Ibid at 639. 38
arrangement to the benefit of the community it serves, subject to the terms of the agreement. In conserving natural resources, the tools used by government institutions may either be a command and control approach, market-based approach, or voluntary agreements.
2.4.2 Prescriptive Regulation or “Command and Control Approach”
In the prescriptive regulation or ―command and control‖ approach, the government directs the use of natural resources through prescriptive regulation.174 Failure to comply with the mandatory behaviour which the prescriptive regulation stipulates is subject to sanctions as a form of punishment. Prescriptive regulation comprises laws enacted by the legislature and executive administrative rules which are enforceable through the intervention of the government and private individuals.175 Compliance with prescriptive regulations are non- discretionary and only exceptions recognized by the regulations will be honoured in the case of a breach. The judiciary has an important duty to perform in the interpretation of the provisions of prescriptive based regulations and enforcement of a violation of same.176
2.4.3 The Market-Based Approach to Natural Resources Conservation
The market-based approach is another approach to natural resource conservation.
This approach uses practices and tools that utilize price mechanisms, financial incentives, economic variables and markets for the elimination or reduction of undesired impacts on the
174 Martin Nie, ―The Underappreciated Role of Regulatory Enforcement in Natural Resource Conservation‖ (1998) 41:2 Policy Sciences 139 at 140. Canadian Research Knowledge Network Springer Link Current [Nie]. 175 Ibid. 176 Ibid at 141. 39
environment.177 According to Conservation Ontario, three types of market-based instruments
(MBIs) exist.178 The first, known as price-based MBIs encourage change in behavioural patterns in industries and the society in general by either increasing or decreasing taxes, imposing levies for a specific behaviour or granting subsidies. An example of the price based MBI is carbon pricing. The second, known as Rights-based MBIs on the other hand, influence behavioural change by imposing specific obligations. An example of the Rights-based MBIs is the Cap-and-
Trade mechanism. Market-based instruments influence behavioural change through their impacts on private markets in a bid to encourage better environmental performance. Examples of MBIs include Cap-and-Trade Mechanism, Conservation tenders, Green Infrastructure Incentive
Programs and Environmental Offsets.
2.4.3.1 Price-Based MBI- Carbon Pricing
Carbon pricing is a price-based MBI where governments impose a price or tax on emissions. Governments which employ this instrument leave it to persons and private firms to figure out ways to reduce emissions, particularly carbon emissions, and ensure investment in innovative technologies, plans and processes that would help in a further reduction of emissions.179 Some advantages of carbon pricing are the promotion of cost-effective abatement in reducing GHG emissions, the encouragement of innovative incentives and the reduction of the
177 Kaitlyn MacEachern, ―Market-based Instruments within the Green Economy‖ (September 2013), online: Conservation Ontario
fiscal problems of an applying government.180 As this research discusses in Chapter four, Alberta adopts the carbon pricing in addition to prescriptive regulation in GHG emissions in general.
2.4.3.2 Rights-Based MBI
The first rights-based MBI in this discussion is the cap-and-trade system. It is noteworthy to mention that the cap-and-trade system works hand-in-hand with prescriptive regulation. A cap can either be a limitation on the utilization of a natural resource, or a restriction on harmful by-products from a natural resource, for example, the associated gas which accompanies crude oil during the production process. An industry operator who does not exceed the limit imposed on either the use of a natural resource or the by-products from a natural resource can trade its unused allowance to another industry operator who exceeds or is likely to exceed its authorized limit. Proponents of the cap-and-trade mechanism argue that it promotes the ultimate goal of sustainability while also allowing for sustainable development. A disadvantage of the cap-and-trade system is the fact that the measurement of its effectiveness hinges on the notoriety of the issues it seeks to address, the certainty of achieving the cap, acceptance of the mechanism by relevant stakeholders and enforceability of the cap at a comfortable cost.181
The second MBI is environmental offsets. Environmental offsets are MBIs that ensure that imminent environmental hazards such as carbon emissions from well-testing are run up against other positive environmental gains. Thus, industry operators who encounter unavoidable environmental pollution use the ―no net loss principle‖ (NNL) as a form of compensation for environmental pollution. NNL programs include environmental protection
180 Ibid. 181 Ibid at 4. 41
programs and the formation of companies for the sole purpose of environmental improvement through rehabilitation, ecosystem restoration and initiatives for restitution. The danger in the use of environmental offsets is that they cannot serve as a stand-alone mechanism for environmental management. They can only serve as an additional mechanism to independent instruments such as the cap-and-trade-system.
The third MBI is conservation banking. This mechanism works through the sale of credits to industry operators who are likely to cause environmental damage. The sale of the said credits to the industry operators are before the occurrence of the environmental damage.
There is the utilization of the money realized from credit sales for environmental restoration and rehabilitation.182
Green Infrastructure Programs are the last category of MBIs. Green Infrastructure programs are generally government based incentives to encourage more climate-friendly processes in the implementation of new and already existent programs. The five main types of green infrastructure programs are grants, installation/rebate financing; awards/recognition, stormwater fee discounts and development programs. Cities usually directly provide grants to owners of private property to promote green infrastructure habits, or for other arrangements such as environmental outreaches. Installation rebate and financing is a combination of rebates, tax credits and funding to owners of private properties who install specific green infrastructure on their lands. Awards and recognition as the name suggests is the recognition of homeowners who indulge in green practices in their homes. Storm-water fee discounts are incentives given to private developers who utilize green infrastructure in developing storm-water. Development
182 Ibid at 5. 42
incentives apply to developers. Here, there is a grant of incentives to property developers who use green infrastructure in evolving properties.
MBIs are fast gaining popularity as a measure of environmental protection.
Generally, the challenges they currently face include the education of citizens on what they entail, complexity, getting the necessary community and stakeholder interests for their implementation. The last problem is that a selected MBI sought to be applied must have the support of research and scientific evidence.183
2.4.4 Voluntary Agreements
Voluntary agreements include voluntary public services, unilateral commitments and negotiated agreements.184 Unilateral commitments are a product of environmental protection programs formed by industry operators.185 Public bodies initiate public, voluntary schemes. The public bodies stipulate the criteria for performance and other conditions of compliance by members. Industry operators have a choice to become members. Negotiated agreements are formal agreements between government authorities and industry operators with the aim of addressing environmental problems.186 Negotiated agreements are binding in most situations.187
Countries such as the US currently apply voluntary agreements in environmental matters.188
183 Ibid at 9. 184Magali A. Delmas & Ann K. Terlark, ―A Framework for Analyzing Voluntary Agreements‖ (2001) 43:3 California Management Review 44 at 44 EBSCO host Business Source Complete [Delmas & Terlark]. 185 Ibid. 186 Thomas P. Lyon & John W. Maxwell, ―Self-Regulation, Taxation and Public Voluntary Environmental Agreements‖ (2003) 87:1-8 Journal of Public Economics 1453 at 1454 CRKN Elsevier Science Direct [Lyon & Maxwell]. 187 Ibid. 188 Ibid at 1456. 43
In this research, there is an interplay between sustainability, conservation and the role of government institutions as an agent of the community in carbon emission reduction through gas flaring regulations, as will be seen in subsequent chapters.
2.5 The Criticisms of Environmental Ethics and its Application to Sustainability
Janna Thompson criticizes all non-anthropocentric approaches in environmental ethics.189 She aligns herself with core anthropocentrism by expressing the view that natural resources are valuable only to the extent of human enrichment.190 Good Paster argues that it makes no sense to ascribe natural characteristics to things which do not possess self-benefit.191
Don Marietta, Jr. addresses the criticism that ecocentrism is totalitarian, as opposed to humanistic philosophy, arguing that only extreme forms of ecocentrism can justify such claims.192 Martinex Alier and Ramachandra Guha agree that ecocentrism is not appropriate for third world countries guidance, due to its emphasis on such issues as overconsumption, human rights and materialism.193 Despite its criticisms, environmental ethics remains a fundamental contributor to the discussion on environmental protection. Its principle of sustainability is applicable in environmental law and exists in the UN framework on the reduction of GHG emissions, including carbon emissions to mitigate climate change.
2.6 International Environmental Law and Climate Change
189 Janna Thompson, ―A Refutation of Environmental Ethics‖ (1990) 12:2 Environmental Ethics 147 at 147-160; Robin Attfield, Environmental Ethics (Cambridge: Polity Press, 2014) at 71[Attfield]. 190 Ibid. 191 Ibid. 192 Armstrong & Botzler, supra note 127. 193 Ibid. See also Ramachandra Guha, ―Radical American Environmentalism and Wilderness Preservation: A Third World Critique‘‘ (1989) 11 Environmental Ethics 71 at 71-83. 44
This section establishes the fact that environmental protection from climate change is rooted in environmental law. It discusses the relationship between environmental law and climate change to ascertain the fact that the latter would not be in existence if not for the former. The bedrock of environmental law is environmental protection from human activities.194
It evolved as an offshoot of environmentalism.195 Environmental law prescribes just how much there should be condoning of environmental pollution.196 It prohibits increased pollution in certain areas and fixes a limit on increasing pollution in some other regions.197 Environmental law is considerably uniform in several countries. The uniformity is a result of two factors. First, is its derivation from widespread economic and scientific speculation about the origins and consequences of environmental degradation and second, is the fact that a majority of countries
194 Richard J. Lazarus, Making Environmental Law, (Chicago: University of Chicago Press, 2014) at 1. Environmental law is categorized into four eras within the period of the past 200 years. These areas are: The resource use era, conservation era, preservation laws era and the protection era. Era one is premised on the belief that natural resources and nature were intended for man‘s pleasure; era two is characterized with the realization that humans were exhausting natural resources through a use-only ethic which would not only lead to long-term shortages, but would also affect the availability of these resources to future generations; era three is when policy makers realized that the environmental policies from the first three eras contributed to the disappearance of some natural resources, and so, hastily passed laws to preserve natural resources such as places and wildlife; era four which began towards the end of the twentieth century and continues till this day, is characterized by environmental protection policies aimed at the protection of environmental resources such as air and water. This era uses the ―homo economicus‖ model which presumes that man is best regulated if told what to do, and punished severely for acts which affect environmental goods. See also Jan Laitos with Juliana Okulski, Why Environmental Policies Fail, (United Kingdom: Cambridge University Press, 2017) at 43-48. 195 A. Dan Tarlock, ―History of Environmental Law‖ in A. Dan Tarlock & John C. Dernbach, eds. Environmental Laws and their Enforcement , Volume 1 (Oxford: EOISS Publishers Co, Ltd, 2009) 42 at 42 [Tarlock]. The fundamental substantive principles of international environmental law are: State Sovereignty, ―Good Neighborliness--The Duty to Cooperate, the No-Harm Rule, sustainable development, right to development, the right to a healthful and clean environment, intragenerational and intergenerational equity, equitable utilization of shared resources, conservation, the common heritage of humankind in the global commons, the ―erga homnes‖ principle, common but differentiated responsibilities, the polluter-pays principle, state responsibility and liability. See Ved P. Nanda & George (Rock) Pring, International Environmental Law & Policy for the 21st Century (New York: Transnational Publishers, 2003) at 17-41 [Nanda & Pring]. 196 John Copeland Nagle, Law’s Environment (Yale: Yale University Press, 2010) at 1 [Nagle]. 197 Ibid. 45
follow the European model of policy instruments for the reduction of pollution, environmental impact assessment, conservation of the biosphere and the evaluation of toxic risk.198
The increase in environmental risks and complexity of such risk management saw the formation of international environmental law at the end of World War II.199 Today, international law is an instrument in the fight against climate change caused by air pollution.200 It exists as a separate field of law with independent principles, institutions and legalese.201 Sands opines that international environmental law encompasses substantive, procedural and institutional rules whose primary objective is environmental protection.202 The mid-twentieth century saw the beginning of a whole new approach to environmental regulation of human activity.203 In the 1960s and 1970s, ―command and control‖ regulations were introduced and enforced for the environmental protection of air, water and land.204
Pollution is one way in which the degradation of the environment occurs. Garrett
Hardin thinks that the tragedy of the commons reappears in matters of pollution.205 He argues that unlike in his example about cows grazing in a pasture, pollution is not a matter of taking something out of the environment, but inputting harmful substances such as dangerous fumes in the air; disposing sewage, chemical radioactive and heat waves into water; and causing a
198 Tarlock, supra note 195 at 43. 199 Edith Brown Weiss, ―The Contribution of International Environmental Law to International Law: Past Achievements and Future Expectations‖ (2011) 54 Japanese Y.B. Intl. L. 1at 1 [Weiss]; Urlich Beyerlin & Thilo Marahun, International Environmental Law (United Kingdom: Hart Publishing Ltd, 2011) at 3. 200 Daniel Bodansky, Jutta Brunnée & Ellen Hey, eds., The Oxford Handbook of International Environmental Law, (Oxford: Oxford University Press, 2007) at 24 [Bodansky, Brunnée & Hey]. 201Ibid. 202 Phillipe Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2003) at 15. 203 Aurelija Pūraitė, ―Origins of Environmental Regulation‖ (2012) 19:2 Jurispudencija 657 at 660-661[ Pūraitė]. 204 Ibid. 205 Garrett Hardin, ―The Tragedy of the Commons‖ in John Benson ed. Environmental Ethics an Introduction with Readings, (London: Routledge, 2000) at 190 [Hardin]. 46
nuisance with advertisements.206 Air Pollution is akin to water pollution, soil degradation, waste production and water contamination as they are all products of industrialization.207 Air Pollution is considered an international problem which can only be resolved by international cooperation.208 Climate change, stratospheric ozone depletion, transboundary air pollution and global warming, are three problems caused by air pollution from the international standpoint.209
Global warming and climate change are two major threats to the environment.210 An increase in anthropogenic gases in the atmosphere is the primary threat to the climate.211 Climate scenarios prepared by the Intergovernmental Panel on Climate change, show an estimate of global warming ranging from 1.9°C to 2.9°C from the years 1990 to 2100.212 Henry Shue states that the effects of climate change are dangerous changes in weather, leading to droughts, heavy rains, and the death of plants, migration and death of animals, an increase in infant mortality and diseases; and the prevention of humans from obtaining the minimum necessaries for continued existence.213 Climate change and air pollution control are some of the dilemmas of international environmental law.214 Climate change policy in international environmental law seeks to regulate the percentage of greenhouse gases released into the atmosphere, to prevent dangerous
206Ibid. Garett refers to his earlier 1968 work ―The Tragedy of the commons‖. 207 W. Lang, H. Neuhold & K.Zemanek, (eds), Environmental Protection and International Environmental Law, (Boston: Graham & Trotman/ Martinus Nijhoff, 1991) at 91. 208 Ibid. 209 Nanda & Pring, supra note 195 at 221. 210 Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law and the Environment, (Oxford: Oxford University Press, 2009) at 336 [Birnie et.al]. 211 Ibid. 212Organization for Economic Co-operation and Development, National Climate Change Policies and the Kyoto Protocol, (Paris: OECD Publishing, 1999) at 11. 213 Yang, supra note 114 at 449 and 450. 214 Ibid. 47
anthropogenic climate change.215 Carbon Dioxide (CO2), Methane (CH4), Nitrous Oxide (N2O),
Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCS) and Sulphur Hexafluoride (SF6), are the major greenhouse gases.216 CO2 is estimated to contribute 50% to the overall global warming effect from human activities, thereby causing climate change.217 Andrew Light states that CO2 is the primary GHG and the most difficult to deal with due to its existence as the basis of a fossil fuel driven economy.218 Carbon pollution is not only restricted to areas where carbon emission occurs; due to its gaseous state, it travels and persists in the atmosphere for a long time.219 This dangerous gas is released through the production and burning of fossil fuels and has an atmospheric lifetime averaging 50 to 200 years.220 Tremmel and Robinson state that the two factors responsible for climate change are the consumption pattern of individuals to fulfil daily needs, and population growth.221
The IPCC warns that evidence from all continents reveals that climate change is affecting all natural systems.222 UN Respondent for the Boston Globe states:
Human industry has been stroking that natural heating system. Since the late nineteenth century, the global concentration of greenhouse gases has grown by 25 percent, raising the average surface temperature around the world by 1 degree Fahrenheit. If the level of global emissions of greenhouse gases continues to increase at current rates, says the latest IPCC forecast, the
215 Daniel Bodansky, Jutta Brunnèe, & Lavanya Rajamani, International Climate Change Law, 1st ed. (Oxford: Oxford University Press, 2017) at 5 [Bodansky et. al]. 216 Kyoto Protocol, supra note 43 at Annex A. 217 Methane and Nitrous Oxide are estimated to contribute 18 and 6% respectively. See: United Nations Convention on Climate Change, ―Uniting on Climate Change‖ (November, 2007), online (pdf): United Nations Convention on Climate Change
global surface temperature should rise between 1.8 and 6.3 degrees Fahrenheit by the year 2100. (The most likely increase is 3.6 degrees.)223 In its fifth report, the ICPC further states a 95% certainty that humans are responsible for climate change.224 It also stresses also that as at today, anthropogenic emissions of GHG are the highest historically, and that global warming of the climate is evident.225 Specific changes such as the warming of the atmosphere and oceans, reduction in amounts of ice and snow, and increasing sea levels are sure signs of this fact.226 Jason Bryne suggests that adopting measures such as institutional reform, citizen education, the reliance on new technologies and capacity building will help cushion the effects of climate change.227
2.7 The International Climate Change Regime
Bodansky, Brunnee and Rajamani emphasize that the international climate change regime‘s focus is on the mitigation of climate change, adaptation to climate change, the financial means to support the mitigation and adaptation of climate change; and ensuring the compliance, implementation and effectiveness of climate change laws through international oversight.228 The international climate change law comprises the UN climate change regime, models advanced by international bodies and systems, principles and rules of general international law; institutions, policies and regulations at sub-national, national and regional levels; and judgments of regional,
223 Colum F. Lynch, ―Global Warning‖ (1996) The Amicus Journal 20 at 20. See also Wenz, supra note 133 at 40. 224 Tim Cadman, Rowna Maguire & Charles Sampford, (eds), Governing the Climate Change Regime, (Oxon: Routledge, 2017) at 16 [Cadman]. 225 Intergovernmental Panel on Climate Change, ―Climate Change 2014 Synthesis Report Summary for Policy Makers‖ (2014) at 1-34 online: (Intergovernmental Panel on Climate Change
national and international courts.229 The UN climate change regime sits at the top of this structure.230
2.7.1 The UN Climate Change Regime
The UN Climate change regime comprises the United Nations Framework
Convention on climate change, the Kyoto Protocol and the Paris Agreement. Jutta Brunèe,
Meinhard Doelle and Lavanya Raajamani agree that the UNFCCC and Kyoto Protocol revolve around the same premise.231 They both seek a prescriptive, time conscious approach to address environmental problems, and set emission reduction targets for countries, with various compliance mechanisms.232 Both agreements further require developed countries to take the lead in carbon emission reductions, considering their contributions to global warming.233
2.7.1.1 The UNFCCC Agreement.
The UN Conference on Environment and Development (UNCED), held in Rio in
1992 culminated in the United Nations Framework Convention on Climate Change
Agreement.234 The primary objective of the agreement states thus:
The ultimate objective of this Convention and any related legal instruments that the conference of the Parties may adopt is to achieve, in accordance with the relevant provisions the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous
229Ibid at 10. 230 Ibid. 231 Jutta Brunèe, Meinhard Doelle & Lavanya Raajamani, eds., Promoting Compliance in an Evolving Climate Regime, (New York: Cambridge University Press, 2012) at 2-3 [Brunèe, Doelle & Rajamani]. These authors argue that the UNFCCC is the hard law on climate change as it forms the framework on which the Kyoto Protocol is built. See also Lukshman D. Guruswamy & Brent R. Hendricks International Environmental Law in a Nutshell 4th ed. (USA: Thompson Reuters, 2003). 232 Brunèe, Doelle & Rajamani, supra note 231 at 3. 233Ibid. 234Olav Schram Stokke, Jon Hovi & Gleir Ufstein, eds, Implementing the Climate Change Regime: International Compliance, (London: Earth Scan, 2005) at 1. The UNCED affirms the Stockholm Declaration and lays twenty-seven principles for environmental development. It adopts the Framework Convention on Climate Change (FCCC). 50
anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed sustainably.235
The UNFCCC takes cognizance of the fact that human activities are significantly increasing
GHG concentrations, which enhance the greenhouse effect, resulting in an average increase in global warming of the Earth‘s surface and atmosphere that poses a danger to ecosystems and humans.236 It further recognizes that all parties to the agreement are duty bound to enact effective environmental legislation, bearing in mind that the standards applied by some countries may not apply to other countries; particularly developing countries.237
The Agreement makes a distinction between member parties. The first group it identifies are the Annex I Parties, consisting of member countries of the Organization for
Economic Co-operation and Development (OECD) in 1992, countries transitioning from planned into a market economy (ETI countries), Annex II parties, and the states not outlined in the
Annexure (Non-Annex I), which are mainly developing countries.238 The Agreement further utilizes the environmental ethics principle of inter and intragenerational equity, by committing all parties to the agreement to protect the climate in a manner beneficial to the present and future generations of humanity, by CBDR, and their respective capabilities.239 It further requires developed countries to be the leaders in combating climate change and recognizes the principle
235 UNFCCC, supra note 41. 236 Ibid at preamble. 237 Ibid. 238Douglas Bushey & Sikinna Jinnah, ―Evolving Responsibility? The Principle of Common but Differentiated Responsibility in the UNFCCC‖ (2010) 6 Berkeley Journal of International Law Publicist 1 at 2 [Bushey & Jinnah]. Heinonline; Sharon Mascher, United Nations Convention on Climate Change, Course Pack (Faculty of Law, University of Calgary, winter 2017) 1-27 at 21. 239 UNFCCC, supra note 41 at Art. 3 (1) & (2). 51
of sustainability through its provision that each party has a right to sustainable development.240 It gives developing countries, which are somewhat vulnerable to the effects of climate change, special consideration regarding the binding commitment of the UNFCCC.241 However, it urges all parties to ―take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.‖242 Lack of full scientific certainty is not an excuse to postpone such measures, in the event of threats of irreversible damage, taking into account that such measures should be cost-effective, and within the financial capacity of a party in question.243 Parties are also encouraged to act cooperatively in efforts to tackle climate change.244 In its commitment provision, the Agreement takes account of CBDR, as well as the specific regional and national circumstances, objectives and priorities of all parties in mandating only developed and Annex I parties to develop, update, publish, and provide the COP with a nationwide account of removals of all GHG not controlled by the Montreal Protocol.245 It further provides that ―all parties‖ shall formulate regional programs to mitigate climate change; promote the transfer of technologies, practices and processes that prevent, control or mitigate GHG emissions that are not under the control of the Montreal Protocol in all relevant sectors including the energy sector.246 All parties are also prompted to cooperate in preparing for the adoption of climate change effects, take climate change considerations into account as far as is practicable in
240 Ibid, Art. 3 (1) & (3). 241 Ibid, Art. 3 (2). 242 Ibid, Art. 3 (3). 243Ibid, Art. 4 (1) (b) & Art 3(3); Peter Singer ―One atmosphere‖ in Stephen M. Gardiner et al., eds, Climate Change Ethics: Essential Readings (Oxford: Oxford University Press, 2010) 181 at 185. 244 UNFCCC, supra note 41 Art.4 (1) (g) (h) & (i). 245 Ibid Art. 4 (2) (a). 246 Ibid at Art. 4 (1), (b) & (c). 52
relevant environmental, economic and social laws.247 The agreement further requires all parties to promote research on climate change and appropriate response strategies, promote the exchange of relevant information on climate change, promote climate change education, and communicate to the COP on the implementation of the Agreement.248 Only parties included in
Annex I (that is, ―developed‖ countries) are required to adopt ―national policies‖ and measures for climate change mitigation, either alone, jointly with other parties or as a method of assisting other parties.249 The preceding provision expects that such policies and measures will demonstrate the leadership of these parties in climate change mitigation.250
(i) CBDR under the UNFCCC Agreement
Yoshiro Matsui explains that ―CBDR,‖ has its origin in the Rio Declaration and is based on two grounds.251 The first is the level of contribution of each country to universal environmental degradation, while the other is the level of technology at the disposal of the parties to the agreement.252 Historically, developed nations have the largest share of contribution to global GHG emissions, while the per capita emissions from developing countries are still considerably low. Developed countries based on the ―Polluter Pays Principle‖ are expected to be world leaders in the fight against climate change.253 Henry Shue‘s ―equity‖ argument appears to be in support of Matsui‘s reasoning. He explains that a party who has taken advantage of others by placing costs upon them in the past should bear the burden of restoring equality, for the past
247 Ibid, Art. 3 (3) & 4 (e). 248 Ibid. 249 Ibid at Art. 4 (2) (a). 250 Ibid. 251 Yoshiro Matsui, ―The Principle of Common but Differentiated Responsibilities‖ in Nico Schrijver and Friedl Weiss, eds., International Law and Sustainable Development (Dordrecht: Martinus Nijhoff Publishers, 2004) 73 at 78-79 [Matsui]. 252 Ibid at 76. 253 Ibid at 77. 53
unfair advantage taken.254 Even though all countries agree that climate change is the concern of all states and that each state‘s responsibility is different, developing states see CBDR as a mechanism that limits the liability of each state to its historical contribution to climate change; thus, leading to a clamour for the distinction between developing and developed countries.255
Developed countries, on the other hand, reject the notion of historical contributions to emissions as well as a distinction between North and South, tending to focus on current and future contributions to climate change, as well as the ability of each country.256 It is worthy of mentioning that no developing country signatory to the UNFCCC committed to reducing an assigned amount of GHG emissions.257 The UNFCCC Agreement regards the developing parties as aggrieved parties regarding climate change, due to their vulnerability to the climate change effects.258
(ii) Criticisms of CBDR under the UNFCCC CBDR under the UNFCCC Agreement faces some criticisms. Since the beginning of the climate change regime, the concept has led to disagreements.259 Brunne and Streck note
254 Henry Shue, ―Global Environment and International Inequality‖ in Stephen Gardiner, et al., (eds.), Climate Ethics: Essential Readings (Oxford: Oxford University Press, 2014) 101 at 103 [Shue]. 255 Ibid. Developing nations not only argue that their economies cannot afford the cost of cleaning the environment or mitigating climate change, but also argue that they should not bear the expense because they did ―not cause the problem‖ See Nanda & Pring, supra note 195at 38. 256 Ibid. 257 Joseph F.C. DiMentro, The Global Environment and International Environmental Law (USA: University of Texas Press, 2003) at 113; See also Bushey & Jinnah, supra note 238 at 1. 258 Bushey & Jinnah, supra note 238. The developed and developing countries dichotomy is well enshrined in the Rio declaration, which states: ―The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries‖. See Principle 6 of the Rio Declaration. 259 Shue, supra note 254 at 103; See also Climate Nexus, ―Common But Differentiated Responsibilities and Respective Capabilities (CBDR-RC)‖ (30 July 2015), online: Climate Nexus
that achieving the goal of CBDR is difficult.260 The vagueness of the text of the Convention faults the certainty of the principle under the Agreement.261 Analysts further criticize the principle for only paying particular attention to the plight of developing and least developed countries, without special consideration for developed countries, and imposing binding commitments on developed countries only.262
Moreover, although the agreement does impose the obligation upon developed countries to provide financial and technological assistance to developing countries, it falls short of imposing any obligation on developing countries to reduce their emissions or to contribute adequate funding to make the incentive workable.263 Critics argue that the Conference of the
Parties has no locus-standi to determine what countries are developed and developing. The critics add that the lack of a locus-standi by the conference of the parties faults the classification of countries into Developed (Annex I) and Developing (Annex II) countries.264 The Failure of the
UNFCCC Agreement led to the emergence of the Kyoto Protocol.
2.7.1.2 The Kyoto Protocol and CBDR
The Kyoto Protocol reaffirms the CBDR Principle.265 It, however, differs from the
UNFCCC in quite some ways. First, its principal focus is on GHG emissions from the
260 Jutta Brunne & Charlotte Streck, ―The UNFCCC as a Negotiation Forum: Towards Common but Differentiated Responsibilities‖ (2013) 13:5 Climate Policy 589 at 590. 261 Pieter Pauw et al., ―Different Perspectives on Differentiated Responsibilities‖ (2017), online: German Development Institute
consumption of fossil fuels.266 On the issue of emission reduction commitments, it imposes legally binding specific reduction commitments on carbon dioxide, in developed countries alone.267 Developed parties commit to adopting strategies for the reduction of their emission levels to below their 1990 emission levels.268 Next is the introduction of programs, such as Joint
Implementation, Emissions Trading and Clean Development Mechanism (CDM), which are designed to encourage emission reductions.
The CDM assists Non-Annex parties to achieve sustainable development, contributing to the overall objective of the convention and supporting the emission commitments under Art. 3.269 Art. 10 of the Protocol, reaffirms Art. 4 of the UNFCCC. It, however, includes other obligations such as the inclusion of programmes aimed at climate change mitigation, in the national communications of all parties.270
(i) Criticisms of the Kyoto Protocol
266 Nigel T. Roulet, ―Peatlands, Carbon Storage, Greenhouse gases, and the Kyoto Protocol: Prospects and Significance of Canada‖ (2009) 29:4 Wetlands 605 at 616. 267 Sebastién Jodoin & Sarah Mason-Case, ―What Difference Does CBDR Make: A Socio-Legal Analysis of the Role of Differentiation in The Transnational Legal Process for REDD‖ (2016) 5:2 Transnational Environmental Law 255 at 258. ―The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012‖. Kyoto Protocol supra note 43 at Art.3. Annex B of the protocol lists the quantified reduction commitment for each developed party for the base year. 268Annex I countries agree to reduce GHG emission level within the years 2008-2012 to an average of 94.8% of their 1990 emissions. Rahel Aichele & Gabriel Felbermayr, ―The Effect of the Kyoto Protocol on Carbon Emissions‖ (2013) 32:4 Journal of Policy Analysis and Management 731 at 73. 269 Kyoto Protocol, supra note 43 at Art. 12. 270 Ibid, Art. 10 (f). 56
The Kyoto Protocol is ineffective, due to its inability to provide a global solution to climate change.271 Some reasons cited for its ineffectiveness include the failure of binding emission targets set out in Annex I for developed countries; and the lack of emission targets or a plan to that effect, for developing countries.272 Another reason for the failure of the Kyoto
Protocol is the fact that there is no ratification by the US.273 As such, the GHG emission reduction targets of the agreement are not binding on the US.274 Reports further state that in the year 2012, the protocol covers a mere 20 percent of present global emissions,275 pointing to the unambitious nature of its prescribed emission cuts.276 Scholars attribute the pull out of Canada,
Japan and Russia from the second commitment period of the Agreement as one of the reasons for its failure.277 Environmentalists, such as BjØrn Lomborg, argue that the Kyoto Protocol has serious flaws, including compliance loopholes, which diverted global attention and created a false sense that an adequate global response was in place.278 Lomborg states:
The central problem of the Kyoto Protocol is that it will achieve very little at a very high cost.279 It is not just a good way of dealing with the problem we are facing.280
271 Ezgi Edigbolu, ―Effectiveness Analysis of the United Nations Climate Change Regime‖ (28 February, 2018), University of Aberdeen School of Law (blog), online:
The decisions of the UNFCCC COP also enshrine the CBDR-RC principle,281 including the
Doha Amendment to the Kyoto Protocol, Bali Action Plan 2007,282 Copenhagen Accord
2009,283 and Cancun Agreement 2010.284
2.7.1.3 The Paris Agreement and CBDR
One response to the failure of the Kyoto Protocol is the Paris Agreement which creates a new climate change regime entirely. It employs soft, yet ambitious obligations, due to the fixed temperature limit it sets, as well as its mitigation, adaptation, and support goals.285
Unlike the UNFCCC and Kyoto Protocol, in mitigating climate change, it sets a limit to the global average temperature to below 2°C beyond pre-industrial levels, and limits temperature increase to 1.5 °C above pre-industrial levels:
This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by: (a) Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
280Ibid. 281 Estefanía Jiménez, ―The Principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR&RC) and the Compliance Branch of the Paris Agreement‖, online: The Organization of American States
(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; (c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development.286 Like its predecessors, it recognizes the principle of CBDR-RC with the provision that: This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.287 However, unlike the UNFCCC and Kyoto Protocol, it achieves a complete overhaul of the
CBDR-RC norm by encouraging all parties to take definite steps in response to climate change.288 The steps parties intend to implement as contributions to climate change mitigation are in individual National Determined Contributions (NDCs).289 NDCs typically consist of each party‘s proposed cut in GHG emissions within a specified period and the sectors where the reduction in emissions would take place. It creates a mandate for all parties to ―prepare, communicate and maintain successive nationally determined contributions.‖290 All parties to the
Paris Agreement must implement domestic mitigation measures, which are in line with their
NDC commitment, to achieve the collective goal of NDCs.291
The Agreement further provides that subsequent NDCs of signatories to the agreement should be strengthened within five years, commencing from the year 2025.292 Parties are encouraged to reach global peaking at the earliest possible time while recognizing that developing countries
286 Paris Agreement, supra note 47 at Art. 2 (1). 287Ibid at Art. 52 (2). 288 Ibid at Art. 4 (2). These steps include domestic climate change mitigation measures. 289Ibid at Art. 12. The communication of a party‘s INDC before its submission of its instrument of ―ratification, accession, or approval of the Paris Agreement‘, automatically grants its INDC NDC status. A party which is unable to achieve is required to communicate its first NDC on or before its instrument of approval, ratification and accession of the Paris Agreement. See Art. 22. 290 Ibid, Art. 4 (2). 291 Ibid. 292Paris Agreement, supra note 47 at Art. 4 (9). 59
need more time to reach their peak period.293 Annex I countries are required to achieve global peaking in the nearest possible time.294 Developing parties are promised support in line with
Arts. 9, 10 and 11, to promote greater future ambition with regards to climate change mitigation.295 All parties are bound to account for their NDCs while taking into account
―environmental integrity,‖ ―accuracy,‖ ―completeness,‖ ―consistency‖ and ―compatibility‖ amongst others.296 Every party must communicate a long-term GHG reduction strategy in line with its CBDR-RC.297 The Paris Agreement specifies considerations of the welfare of parties likely to be most affected by the effects of climate change in its implementation.298
Several scholars praise the mitigation provisions in the Paris Agreement for its creation of procedural obligations and clarity on the allocation of mitigation efforts to individual parties.299 However, a significant criticism is it is for non-disclosure of the methods used in arriving at individual NDCs and a legal mechanism to hold parties accountable for their respective NDCs.300
2.8 Gas Flaring and the International Climate Change Regime
293 Ibid at Art. 4 (1). 294 Ibid at Art. 4 (4). 295 Ibid at Art.5. Support considered by the Paris Agreement include: financial support from developed countries, voluntary support from other parties, and the provision of consistent information on support for developing country parties and so on. 296 Ibid at Art. 4 (13). 297 Ibid at Art. 4 (19). 298 Ibid at Art. 4 (15). 299 Meinhard Doelle in ―Assessment of Strengths and Weaknesses‖ in Daniel Klein et al., (eds), The Paris Agreement on Climate Change (Oxford: Oxford University Press, 2017) at 378 [Doelle]. 300Ibid. 60
Gas flaring is a common feature of oil and gas production. It is a contributor to global warming and climate change.301 Reports state that gas flared from the oil production from land and water sites globally amounts to about 150 billion cubic meters yearly.302 This figure, in turn, translates to approximately 350 million tons of carbon dioxide, which is about the same as the carbon dioxide emitted from about 77 million cars.303 The World Bank reports that in 2015, the volume of natural gas flared globally amounts to a loss of approximately 30 billion USD.304
The volume of gas flared annually is sufficient to provide 25% of natural gas for consumption in the US and 30% in the EU.305 It further states that gas flaring is a significant source of black carbon, which accelerates the melting of Arctic ice.306 It advises the oil and gas industry to change its mode of operation after the Kyoto protocol talks of eliminating gas flaring resurfaced.
With the Clean Development Mechanism, Annex B countries sought to gain carbon credits by assisting developing countries with GHG reduction projects.307 Of all 135
301 Union of Concerned Scientists, ―Environmental Impacts of Natural Gas‖ Union of Concerned Scientists(blog), online:
GHG emission reduction projects initiated by the CDM, 44 are gas conservation projects from gas flaring and other GHG emission reduction activities, in oil production.308
308 The gas conservation projects listed by the UNFCCC are: 1. Rang Dong Oil Field Associated Gas Recovery and Utilization Project; registered on 4th Feb, 2006 with Vietnam as the host, and United Kingdom of Great Britain and Northern Ireland, as other parties. 2. Recovery of associated gas that would otherwise be flared at Kwale Oil Processing Plant; registered 9th Nov, 2006 with Nigeria as the host party and Italy as the other party. 3. Reduction of flaring and use of recovered gas for methanol production with Equatorial Quinea as the host party, United Kingdom of Great Britain and Northern Ireland as other parties. (Rejected). 4. Al-Shasheen Oil Field Gas Recovery and Utilization Project; registered 29th May, 2007, with host Qatar and Equitorihttps://medium.com/climate-change-law/5-the-international-climate-change-regime-15a45d33988al as other parties. 5. Flare gas recovery project at Uran Plants, Oil and Natural Gas Corporation (ONGC) registered 14th Dec, 2007, with host party India and Switzerland as the other party. 6. Tambun LPG Associated Gas Recovery and Utilization Project; registered 1 Feb, 2008, with Switzerland as host party and the United Kingdom of Great Britain and Northern Ireland as the other party. 7. Flare gas recovery project at Hajira Gas Processing Complex (HGR), Hajira Plant, Oil and Natural Gas Corporation (ONGC) Limited; registered 16th May, 2008) with host India and Switzerland as the other party. 8. Oil India Limited (OIL)-Greenhouse Gas Emission Reduction through Recovery and Utilization of Flare Gas; registered 26th Jan, 2009, with host India. 9. Pan Ocean Gas Utilization Project; registered 01 Feb, 20 with host Nigeria and Norway as the other party. 10. Leak Reduction in Above Ground Gas Distribution Equipment in the KazTrasngas-Tbilisi Gas Distribution System-Tbilisi, Georgia; registered 21 Sep, 2009, with host Georgioa and the United Kingdom of Great Britain and Northern Ireland as other parties. 11. Soroosh and Nowrooz Early Gas Gathering and Utilization Project (S&N Project); registered 23rd Nov, 2010; with host Iran and Norway as the other party. 12. Tres Hermanos Oil Field Gas Recovery and Utilization Project; registered 9th July, 2010, with host Mexico and Norway as the other party. 13. Tarim Oilfield Associated Gas Recovery and Utilization Project; registered 23rd August, 2010 with host China and United Kingdom of Great Britain and Northern Ireland as other parties. 14. Recovery and Marketing of Gas that would otherwise be flared at the Asuokpu, Umutu Marginal Field, Nigeria; registered 16th October, 2010, hosted by Nigeria with Norway as the other party. 15. Reduced gas leak at compressor stations Ugbekistan; registered 26th Nov, 2010. 16. Leaks Reduction in Above Ground Gas Distribution Equipment in the Gas Distribution Network UZ Transgaz- Markazgas (UZTG); registered 27 November, 2010 with Ugbekitsta as the host, and United Kingdom of Great Britain and Northern Ireland as other parties. 17. Leak Reduction in the Above Ground Distribution Equipment in the Gas Distribution Network UZ Transgaz- Zhanubgaz (ZhGT0); registered 28th December, 2010 with Uzbekitsan as host, and United Kingdom of Great Britain and Northern Ireland as other parties. 18. Reducing gas leaks in low pressure and medium pressure gas distribution network in Ferghana valley; registered 17th February, 2011, with Uzbeskistan as host, and UAE and Netherlands as other parties. 19. Recovery and Utilization of Associated Gas to Optimize Powe Generation at Petromazonas Block 15 Facilities, with host Ecuador, and Sweden and Finland as other parties (Rejected). 20. Leak Reduction in Above Ground Distribution Equipment in the Gas Distribution Network UzTransgaz- Garbgaz (GGT); registered 22 August, 2017 with host Uzbekistan, and Switzerland United Kingdom of Great Britain, and Northern Ireland as other parties. 62
21. Reduction of gas leakages in low- and middle- pressure gas-distribution pipelines in Tashkent City and Tashkent Region registered 09 Sep 2011, with host Uzbekistan, United Kingdom of Great Britain and Northern Ireland as other parties. 22. Reduction of Methane Leakages in the Gas Distribution Networks operated by the company JP Serbiagas; registered 7th January, 2012 with Serbia as host, and United Kingdom of Great Britain and Northern Ireland as other parties. 23. Leak reduction in above ground gas distribution system in the gas distribution networks in Khorezm region and the Republic of Karakalpakstan; registered 7th March, 2012 with Uzbekistan as host and United Arab Emirates as the other party. 24. Leak Reduction in Above Ground Gas Distribution Equipment in ‗Socar Georgia Gas‘ gas distribution system, Georgia registered 10th Oct 2012, with Georgia as host, and Switzerland as the other party. 25. Rejected Recovery and Utilization of Associated Gas to Optimize Power Generation at PETROAMAZONAS Block 15 Facilities with host Ecuador and Sweden as the other party (Rejected). 26. Reduction of methane emissions in the gas distribution network of Armenia Republic; 29th November, 2012 with host Armenia and Netherlands as the other party. 27. Recovery and Utilization of Associated Gas at Tugu Barat Plant; registered 29th Nov 2012, with host Indonesia and United Kingdom of Great Britain and Northern Ireland as host parties. 28. Nanba Associated Gas Processing Plant and the Auxiliary Engineering; registered 7th December, 2017 with China as host, and Australia as the other party. 29. Recovery and Utilization of Associated Gas at Pondok Tengah LPG Plant – PT. Yudistira Energy; registered 17th Dec 2012, with Indonesia as host, and United Kingdom of Great Britain and Northern Ireland. 30. Reducing gas leakages within the Moldovagaz distribution network, Republic of Moldova; registered 17 December, 2012, with Republic of Moldova as host, and Denmark as the other party. 31. Jubilee Oil Field Associated Gas Recovery & Utilization Project Ghana, registered 19th December 2012 with Switzerland as host. 32. Gas Flaring Reduction at Neelam & Heera Asset; registered 24th December 2012, with India as host. 33. Recovery and Utilization of Associated Gas from the Obodugwa and neighbouring oil fields in Nigeria; registered 24 Dec 2012 with Nigeria as host. 34. Sukowati-Mudi (Tuban) LPG Associated Gas Recovery and Utilization Project; registered 24 December, 2012, with Indonesia as host, and United Kingdom of Great Britain and Northern Ireland, as other parties. 35. Capture and processing low pressure associated gas from the Neft Dashlari and Palchiq Pilpilassi oil fields of SOCAR with Azerbaijan as host, and Germany as the other party. 36. Reducing gas leakages within ‗Tiraspoltransgaz-Pridnestrivie‘ LLC gas distribution network, Transnistria/Republic of Moldova; registered 29th December, 2012 with Republic of Moldova as host, and Denmark as the other party. 37. Flare gas reduction through spiking compressor at Shah; registered 29th December, 2012 with the United Arab Emirates as host. 38. Tarim oil wells associated gas recovery and utilization project (CNG); registered 31 December, 2012, with China as host, and the United Kingdom of Great Britain and Northern Ireland, as other parties. 39. Associated Gas Recovery and Utilization at Block 9; registered 31 Dec 12, with Oman as host as, and United Arab Emirates as the other party. 40. Sao Thian-A Oil Field Flare Gas Recovery and Utilization Project, Sukhothai, Thailand; registered 17 Jan 2013, with Thailand as host. 41. Oil Search Limited Flare and Vent Gas Conservation Project; registered 31st January, 2013, with Papua New Guinea as host. 42. Reducing Gas Leakages within the Titas Gas Distribution Network in Bangladesh; registered 17th Jan 2013, with Bangladesh as host, and Denmark, as the other party. 43. Flare Gas Recovery in Sarkhoon and Qeshm Gas Treating Company; registered 30th October, 2015, with Iran as host. 44. Gas Flaring Reduction Project at GGS, Chariali, Sibasagar, ONGC, and Assam; registered 19th Nov 2015, with India as host. 63
Some skeptics say that the CDM is inefficient and counterproductive.309 Others call for a reform of the principle.310 Optimists, however, believe that CDM helps in funding projects for the reduction of gas flaring in developing countries.311 Non-governmental and Intergovernmental organizations, also respond to the CDM with programs aimed at Gas Flaring Reduction.
Examples are the World Bank Group Global Gas Flaring Reduction Initiative (GGFR) and the
World Bank Zero Routine Flaring by 2030.312
2.9 Conclusion
This chapter considers existing literature on the relationship between environmental protection and environmental ethics while also paying attention to Ecocentrism as a branch of Environmental ethics. Regarding the discussion on environmental ethics and climate change, this chapter singles out the principle of sustainability, through conservation of natural resources as a contributor to environmental protection. It portrays sustainability through natural resource conservation as a contributor to low carbon development, which in turn mitigates the effects of climate change. Despite the teachings of environmental ethics on sustainability through
United Nations Convention on Climate Change, ―Project Search‖ online: United Nations Convention on Climate Change < http://cdm.unfccc.int/Projects/projsearch.html>. 309 Axel Michaelowa, ―Failures of Global Carbon Markets and CDM‖ (2011) 11:1 Climate Policy, 839-841 at 840. 310 Charlotte Streck & Jolene Lin, ―Making Markets Work: A Review of the CDM Performance and the Need for Reform‖ (2008) 19:2 The European Journal of International Law, 409 at 435-442; Igor Shishov & Velantin Bellasin, ―10 lessons from 10 years of the CDM‘ N0.37, Climate Report, Research on the economics of Climate Change, October, 2012, online: CDC Climat Research < http://www.cdcclimat.com/IMG/pdf/12-10-05_climate_report_37_- _10_lessons_from_10_years_of_cdm.pdf>. 311 See Antoine Dechezlepreˆtre, Matthieu Glachant &Yann Menie`re, ―The Clean Development Mechanism and the International Diffusion of Technologies: An empirical study‖ 2008 36:4 Energy Policy 1273 at 1273. 312 World Bank, ―Zero Routine Flaring by 2030‖online: World Bank < http://www.worldbank.org/en/programs/zero-routine-flaring-by-2030>. 64
the conservation of natural resources, there is a limitation to its application on the ground that sustainable strategies must have a scientific basis for implementation.313
313 Garry K. Meffe, ―Sustainability, Natural Law and the Real World‖ (1993) 10:4 The George Wright Forum (1993) 48 at 48. 65
Chapter Three: The Nigerian Legal and Regulatory Framework on Gas flaring as a Source of Carbon Emissions in Upstream Oil and Gas Operations
3.1 Introduction
Some legal scholars argue that the binding nature of some of the international agreements to which Nigeria is a signatory has an influence its domestic laws.314 This chapter considers Nigeria‘s participation in the United Nations carbon emission reduction regime. It analyses whether or not Nigeria‘s Nationally Determined Contribution (NDC) at the Paris
Agreement is achievable, in light of existing laws and regulations in the oil and gas industry. Its focus is on gas flaring from the upstream oil and gas sector, as the principal cause of greenhouse gases (GHGs) emissions.315 It evaluates the problems that serve as obstacles to phasing out gas flaring in Nigeria. This chapter argues that the introduced issues would hinder Nigeria from achieving its year 2030 target of phasing out gas flaring.
3.1.1 Overview of Oil Exploration and Production in Nigeria
In the early 20th century, specifically in 1906, John Simon Bergheim requested that the colonial government in the area known as Nigeria today, allow his company, the
Bitumen Corporation, to prospect for oil in that region.316 Oil exploration commenced in the year
1908, with long breaks during the first and Second World War.317 The year 1956 marks the
314 Cecilia Chinwe Nwufo, ―Legal Framework for the Regulation of Waste in Nigeria‖ (2010) 4: 2 An International Multi-Disciplinary Journal Ethopia 491at 495 [Nwufo]. 315 In the course of this research, no existing literature analyzing Nigeria‘s NDC commitment in the light of gas flaring was found. This could be because Nigeria only recently ratified the agreement. 316 Okechukwu Iloba-Aninye & Abdullahi Mohammed Kontagora, ―An Appraisal of the Ownership Theories of Oil and Gas with Particular Reference to Nigeria and the United States of America (USA), online: Unimaid < http://www.unimaid.edu.ng/oer/Journals-oer/Law/Private%20Law/vol2-1/Doc%2015.pdf> at 1. 317 Fagbohun, supra note 54 at 153-154. 66
discovery of commercial oil fields in Oloibiri Nigeria, by Shell-BP, after about fifty years of exploration.
Nigeria‘s oil and gas industry is in three sub-categories, the upstream sector, downstream sector, and gas sector.318 The country is the 5th largest producer of crude oil in the world.319 It has more natural gas reserves than oil.320 After its discovery, production of crude oil continues in large quantities.321 The country‘s crude oil reserves stand at 28.2 billion barrels, while natural gas reserves amount to 5,284.3 billion cu.m.322 It produces a maximum capacity of
2.5 million barrels of crude oil per day.323 Crude oil export accounts for 90% of Nigeria‘s earnings.324 Oil exploration occurs onshore and offshore.325 The onshore basin Anambra State, the Niger Delta shallow and deep-water basin and the offshore Dahomey/Benin basin, currently produce crude oil. The Niger-Delta Basin has the largest oil and gas reserves, with about 365 onshore and 251 offshore wells.326 Of the total of 606 fields in the Niger Delta area, 193 are currently operational.327 Twenty-eight exploratory wells are also present in other parts of the country. The Niger Delta accounts for about 75% of the revenue from crude oil export.328
318 Gbadebo O. Odularu, ―Crude Oil and the Nigerian Economic Performance‖ (2008) Oil and Gas for Business 1 at 8. 319United States Energy Information Administration, ―Country analysis brief: Nigeria‖ (May, 2016), online: USEIA
Several oil-producing countries in Africa face the ―natural resource curse‖ or ―oil curse.‖329 Despite the vast amounts of income garnered from oil production in these countries, they experience corrupt governments, deteriorating living standards and struggling economies.
Nigeria is no exception in this regard.330 Despite its substantial foreign exchange earnings from oil and gas production, 70 percent of Nigerian households live on only a few dollars per day.331
3.1.2 Ownership and Control of Oil and Gas Reserves
Common law, national constitutions, international and domestic institutions, influence title to natural resources.332 All of these factors lead to several resource ownership and control theories, which in turn apply to oil and gas ownership.333 Oil and gas ownership and control affects gas flaring regulation.334
3.1.2.1 Theories of Oil and Gas Ownership
329 Kairn A. Weiman, ―US Oil Companies, the Nigerian Civil War, and the Origins of Opacity in the Nigerian Oil Industry‖ (2012) 99:1 The Journal of American History 155 at 155. 330Michael L. Ross, The Oil Curse: How Petroleum Wealth Shapes the Development of Nations (New Jersey: Princeton University Press, 2012) at 27 [Ross]; Chimobi Ucha ―Poverty in Nigeria: Some Dimensions and Contributing Factors‖ (2010) 1: 1 Global Majority E-Journal, 46 at 46
There are three broad classes of oil and gas ownership. These are the absolute ownership or ownership-in-place, non-ownership or exclusive right to drill theories and the domanial system.335
3.1.2.1.1 Non-Ownership or Exclusive Right to Drill Theory
One of the earliest cases which distinguish the ownership of oil and gas from other natural resources is the US case of People’s Gas Co v.Tyner.336 In this case, the court in its analysis of the ―rule of capture,‖ likened oil and gas to fugitive wild animals, and held that there is no legal recognition of persons who own oil and gas rights as owners until after capture and storage.337 This theory espouses the view that a landowner is not entitled to exclusive ownership of natural resources beneath his land but only becomes entitled to sole ownership, subject to the reduction of such natural resources, including oil and gas to capture and storage.338
3.1.2.1.2 Absolute Ownership or Ownership-in-Place Theory
Here, a person who owns the land is entitled to ownership of natural resources underneath the land, in addition to the rights to explore, win and work the natural resources beneath the land.339 However, this right is limited to the oil and gas that remain underneath the possessor of the title‘s land.340 If oil migrates to the land of another and is captured by that other, the original owner loses the title. Thus, the original owner loses ownership when it migrates from
335 Robert E. Sullivan, Handbook of Oil and Gas Law, 2nd Edition (United States of America: Prentice-Hall, 1956) at 41 [Sullivan]; John S. Lowe, Oil and Gas Law (USA: Thompson West Publishers, 2003) at 29 [Lowe]; Yinka Omorogbe, Oil and Gas Law in Nigeria, (Lagos: Malthouse Press Limited, 2003) at 33 [Omorogbe]. 336 People’s Gas Co v. Tyner, 31 NE 59. Ind. Supreme Court (1892). 337 Hail v. Reed, 15 B. Mon. 479 (Ky. 1854); Hughes v. United Pipe Lines, iig N. Y. 423 (1890). 338 Sullivan, supra note 335 at 43. 339 Lowe, supra note 335 at 29. 340 Ibid. 69
his or her property.341 In the US case of Westmoreland & Cambria Natural Gas Co v. Dewitt, the
Court held that oil and gas are like moving animals.342 Possession of title to land does not ensure possession of the oil and gas which migrates from the land; this is because if the oil beneath A‘s land migrates during the drilling process, B is entitled to ownership if he drills such oil, from his land. In a nutshell, this theory regards whoever captures the oil and gas underneath his land as its owner. It does not matter if such oil and gas escape from underneath the land of another. This theory is the most popular theory of ownership.343 These two theories are intertwined but enunciate only one fact. No landowner possesses permanent ownership of oil and gas beneath his land, because such a person loses such ownership as soon as the oil and gas migrate. As such, whoever drills the oil underneath his land, and reduces it to capture and storage is deemed the owner of such oil and gas.
3.1.2.1.3 The Domanial System
The domanial system vests land and the natural resources beneath land in the sovereign or State.344 Most countries except the United States, adopt this system today.345
Nigeria uses this system of ownership.346
3.1.3 International Law and State Ownership of Natural Resources
341 Sullivan, supra note 335 at 42. 342 Westmoreland & Cambria Natural Gas Co v. Dewitt (1889)130 Pa. 235. 343 Sullivan, supra note 335 at 42. 344 Ibid; See also Giorgio Resta, ―Systems of Public Ownership (July 1, 2015) pages 1-43 at 3 in Michele Graziadei - Lionel Smith, eds, Comparative Property Law: Global Perspectives (Cheltenham: Edward Elgar Publishers, 2017). The Domanial System of natural resources ownership is also referred to as permanent sovereignty theory of ownership. See Ricardo Pereira & Orgla Gough, ―Permanent Sovereignty over Natural Resources in the 21st Century: Natural Resource Governance and the Right to Self-Determination of Indigenous Peoples under International Law‖ (2013) 14:2 Melbourne Journal of International Law 451 at 455-456. 345 Omorogbe, supra note 335 at 33-34. 346 See a full discussion below at section 3.1.5. 70
International law recognizes state ownership of natural resources, including but not limited to oil and gas. Principle 2 of the Rio Declaration provides:
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.347 3.1.4 Oil and Gas Ownership in Nigeria
Before colonial independence, Britain exercised total control over Nigeria‘s oil and gas and all oil exploration leases were vested in British companies or subjects.348 Within its civil war years of 1967-1970, Nigeria‘s military heads of state promulgated decrees that vested ownership of oil and gas in the country.349 The Federal Government exercises total ownership and control of oil and gas reserves in Nigeria.350 The laws which regulate the ownership and control of oil and gas activities in the upstream oil and gas sector are the 1999 Constitution of the
Federal Republic of Nigeria (CFRN),351 The Petroleum Act 352 and its attendant regulations,353 the Exclusive Economic Zone Act,354 and the Land Use Act, 1979.355
347 Rio Declaration, supra note 142 at principle 2. 348 Ownership and control was expressed through the Mining Regulation (Oil) ordinance 1907of Southern Nigeria (as amended in 1907 and 1909 and s. 6(1) (a) of the Nigeria Mineral Oil Ordinance (Colonial Mineral Ordinance No.17) of 1914 (amended in 1915, 1925 and 1928).See: Jedrzej George Frynas, Oil in Nigeria: Conflict and Litigation Between Oil Companies and Village Communities (New Brunswick: Transaction Publishers, 2000) at 12. 349 These are the Oil in Navigable Waters Decree 1968 (now Act), the Petroleum Decree 1969 (now Act), Land Use Decree 1978 (now Act) and Exclusive Economic Zone Decree (Now Act). See Cyril I. Obi, ―Oil Extraction, Dispossession, Resistance, and Conflict in Nigeria's Oil-Rich Niger Delta‖ (2010) 30:1 Canadian Journal of Development Studies / Revue canadienne d'études du développement 219 at 233. 350A-G., Federation v. A-G., Abia State; (2002) 6. NWLR (Pt. 762) at 542 [2001] 11NWLR 689 (Nigeria) [AG Fed v. AG Abia]. 351 Constitution of the Federal Republic of Nigeria 1999, Act No. 24, 1999 [CFRN]. 352 Petroleum Act 1969, Laws of the Federation of Nigeria, c. P 10 2004 [Petroleum Act]. 71
The CFRN lists ―mines and minerals, including oil fields, oil, mining, geological survey and natural gas,‖ as items within the exclusive legislative jurisdiction of the Federal
Government.356 The CFRN explicitly provides that:
Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.357 The implication of the above is that all matters about the exploration, refining, and distribution of oil and natural gas are within the control of the Federal Government. In the exercise of this authority, the National Assembly creates regulatory agencies and laws for the control of the oil and gas sector. The first of such laws is the Petroleum Act.358 s. 1 of the Act vests the entire ownership and control of all petroleum in, under, or upon all lands, territorial waters, and continental shelves, in the exclusive economic zone of Nigeria, in the Federal Government.359
This provision strengthens item 39 in Part 1 to the second schedule and. s. 44 (3) of the CFRN.
No international treaty shall have the force of law in Nigeria unless enacted into law by the
353 The regulations relevant to this discussion are the Mineral Oil (Safety) Regulations 1997, Laws of the Federation of Nigeria 1990, and the Petroleum (Drilling and Production) Regulations, 1969, Laws of the federation of Nigeria 1990 c. 50. 354 Exclusive Economic Zone Act 1978, Laws of the Federation of Nigeria, 1990, c.116 [EEA]. See s. 2 of the Act which vests all sovereign and exclusive rights regarding the exploration and exploitation of all natural resources on Nigeria‘s Exclusive Economic zone (EEZ) seabed, adjacent waters and subsoil in the federal government. Rights to the EEZ are exercisable by a minister or agency specified by the federal government. 355 Land Use Act 1979, Laws of the Federation of Nigeria 1990, c.202. 356 CFRN, supra note 351 at Item 39 Part I to the 2nd Schedule. 357 Ibid at s. 44 (3). 358Petroleum Act, supra note 352. 359 Ibid at s. 1. 72
National Assembly.360 The Land Use Act also solidifies the ownership of land in the government with the provision that:
Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested in the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians by the provisions of this Act.‖361 3.1.5 Theories of Oil and Gas Regulation
Two widely accepted models of regulation of the oil industry in developed countries are the Neoliberal and State-institutional models.362 In the former, the state regulates all subsurface oil and gas activities, primarily engaged in by private oil and gas companies.
State legislation, a tax system, and ―resource payments‖363 are the main instruments utilized by the neoliberal model.364 It is considered an exemplary model for states driven by market economies. In the state-institutional model, on the other hand, state governments vested with all mineral rights; use the traditional ―command and control mechanism‖ for the regulation of the oil and gas industry.365 Nigeria adopts the state-institutional model. The first sector of Nigeria‘s oil and gas industry is the upstream oil and gas sector.366 The
Petroleum Act vests the power of granting all petroleum licenses for oil exploration and
360 CFRN, supra note 351 at s. 12. 361 Land Use Act, supra note 355 at s. 1. 362 Ainur Yermekkaliyeva, Regulation of the Oil Industry: The Case of Kazakhstan (MA Thesis, University of Ottawa Department of Economics, 2013) [Unpublished]. 363 Resource payments refer to the consideration which users of economic resources give in exchange for their benefits. Examples of resource payments include: rent for land, wages for labor and interest for capital. 364 Alexey Piskarev & Mikhail Shkatov, eds, Energy Potential of the Russian Artic Seas: Choice of Development Strategy 1st ed, (Amsterdam: Elsevier Science, 2012), 349-367. 365 Jason J. Czarnezki & Katherine Fiedler, ―The Neo-Liberal Turn in Environmental Regulation‖ (2016) Utah L. Rev. 1 at 4; Robert Plastow, ―Neoliberalism in environmental governance: a paradoxical double movement?‖ (May 2010), online: Academia. edu
production, in the Petroleum Minister.367 Oil exploration and production without a license is illegal. The Act authorizes the minister to make regulations in matters of conserving petroleum resources, protection of watercourses, and the atmosphere.368
3.1.6 Nigeria Upstream Petroleum Industry’s Regulatory Agencies
3.1.6.1 The Department of Petroleum Resources (DPR)
The DPR is the technical arm of the Ministry of Petroleum Resources.369 It ensures the compliance with petroleum laws, monitors, and supervises operations in the petroleum industry, guarantees the safety of the environment, maintains a record of petroleum industry operations, plays an advisory role to the Nigerian government and its agencies and also, processes the application for oil and gas licenses.370 Its jurisdiction cuts across the upstream and downstream sectors of the oil and gas industry, in addition to issues involving gas, laboratories, revenue, safety and environment in oil and gas operations.371
3.1.6.2 The Nigeria National Petroleum Corporation (NNPC)
The NNPC is the principal institution through which the Federal Government regulates and participates in activities of the Petroleum Industry.372 The roles of the NNPC are numerous. First, it functions as a quasi-regulator and sector manager of the oil and gas
367 Petroleum Act, supra note 349 at s. 2. 368 Ibid at s. 9. 369 Department of Petroleum Resources, ―Functions of DPR‖, online: Department of petroleum Resources
industry.373 Through its subsidiary the National Petroleum Investment Management Services
(NAPIMS), it regulates the operations of International Oil Companies (IOCs) in the country. The
NNPC engages in oil and gas operations with other companies through concession agreements, joint venture agreements, production sharing contracts, and risk service contracts.374 It further acts as a service provider to the Nigerian oil and gas sector.375 One of its subsidiaries which the
NNPC oversees is the Nigeria Gas Company (NGC).376
3.2 The Problem- Gas Flaring in Nigeria’s Upstream Oil and Gas Industry
Gas flaring which is peculiar to the upstream oil and gas industry is the controlled practice of burning Associated Petroleum Gas (APG) which accompanies crude oil reserves, in the course of oil and gas production. During petroleum exploration by oil companies, gas flaring occurs by the burning of extra natural gas into the atmosphere, as a safety measure to prevent unplanned upsets in vessels and pipes used in the production process, instead of removal by other means, such as re-injection.377
Nigeria has been gas flaring for over 60 years.378 The year 2008 reports reveal that Nigeria is the second largest gas flaring country in the World, with a flaring capacity of 15
373 Mark C. Thurber, Ifeyinwa M. Emenife, & Patrick R.P Steller ―NNPC and Nigeria‘s Oil Patronage Ecosystem‖ (2010) Freeman Spogli Institute for International studies Working Paper online:
BCM.379 Russia and Nigeria are responsible for 40% of all gas flaring around the world.380 In
2017, it was the 7th largest gas flaring nation in the world.381 Although government institutions attribute a decline in Nigeria‘s gas flaring figures over the years to programmes aimed at gas flaring reduction, critics argue that a decline in oil production is the principal reason for this.382
Currently, oil and gas companies are in the business of flaring gas twenty-four hours daily and three hundred and sixty-five days yearly.383 The country flares over 80% of the gas derivable from oil production in the country.384 Gas flaring is particularly prevalent in the Niger Delta region where residents compare the flames from gas flares to the flames in hell.385 In years‘
2007-2011, associated gas flaring from Nigeria‘s oil and gas industry amounts to USD 1.8 billion tonnes of natural gas yearly.386 Africa contributes an estimate of about 40 billion cubic meters to the global 150 billion cubic meters of associated natural gas flared annually.
Nigeria‘s contribution to this figure is an estimate of about 23 billion cubic meters per annum; from over 100 flare sites.387 The 23 billion cubic meters of gas per annum amounts to
379 Christopher D. Elvidge et al., ―A Fifteen year Record of Global Natural Gas Flaring Derived from Satellite Data‖ (2009) 2:3 Energies 599 at 607 [Elvidge et al.]. 380 Ibid. 381 World Bank, ―Nigeria‘s Flaring Reduction Target: 2020‖ (10 March 2017) , World Bank, online: < http://www.worldbank.org/en/news/feature/2017/03/10/nigerias-flaring-reduction-target-2020>. 382 Daniel Howden, ―Visible from space, deadly on Earth: the gas flares of Nigeria‖ The Independent (April 26, 2010) online:
386 Zoheir Ebrahim & Jorg Friedrichs, ―Gas flaring: ―The Burning Issue‖ (3 September 2013), online: Resilience
over 13% of global gas flaring.388 Nigerians feel the adverse effects of GHGs on the country.
Acidity in rainwater affects soils, corroded roofs, skin problems, liver damage, and increased concentrations of pollutants and floods.389 Reports say gas flaring is a significant reason for black carbon occurrences in the city of Port-Harcourt in the Niger-Delta area.390 In 2016, Nigeria lost at least N2, 700,000.00 to gas flaring, from the oil and gas industry.391
Alternatives to flaring natural gas from oil sites are either re-injection of the natural gas or transportation of the gas via natural pipelines, and its subsequent conversion to energy for electricity. Some legal scholars rely on the theory of oil and gas conservation as an efficient way to end gas flaring in Nigeria.392 These scholars consider the legal transplant theory in its application to transferability of oil and gas conservation principles as a method of terminating the gas flaring problem.393
3.3 Nigeria’s Legal and Regulatory Framework on Gas Flaring
Nigeria adopts a prescriptive regulatory approach to gas flaring through the prescription of a deadline date to end same. Over the years, however, there is a continuous steady influx of economic incentives into the country‘s regulatory laws. Nigeria‘s utilization of MBIs
388 Ibid. 389 Temi A. Ologunorisa, ―The Effects of Gas Flaring on the Nigeria Delta‖ (2001) 8:3 International Journal of Sustainable Development and Ecology 249 at 251-254; See also YouTube, ―West Africa‘s gas flaring-curse‖, (Jul 4, 2010), online:< https://www.youtube.com/watch?v=bnquNenscHQ..at> 00h.3m.9s. 390Vanguard, ―Strange Black Soot Blankets Port-Harcourt‖ Vanguard (February 14, 2017) online:
aims at discouraging gas flaring and encouraging the use of gas that would otherwise be subject to flaring to achieve same. The CFRN lays the framework for environmental protection in
Nigeria through the provision that:394
The State shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.395 The regulation of gas flaring in Nigeria dates back to the late colonial era. The specific law which regulates environmental protection from gas generally flaring in all industrial sectors of the country, except for the oil and gas sector, is the National Environmental Standards and
Regulations Enforcement Act (NESREA).396 The National Environmental Standards and
Regulations Enforcement Agency (the Agency) enforces the provisions of the NESREA.397 Laws solely responsible for regulating gas flaring in the oil and gas sector are the Associated Gas Re-
Injection Act (AGRA),398 The Associated Gas (Continued Flaring of Gas) Re-Injection
Regulations (AGCRR)399 and the Petroleum Profit Tax Act (PPTA).400
3.3.1 Gas Flaring Laws
3.3.1.1 The Associated Gas Re-Injection Act
394CFRN supra note 351. See generally, Oghogho Makinde & Temitayo Adegoke, ―Environment Law in Nigeria‖ (20 November 2007), Mondaq (blog), online: < http://www.mondaq.com/Nigeria/x/53804/Energy+Law/Environment+Law+In+Nigeria> [Makinde &Adegoke]. 395 CFRN, supra note 351 at s. 20. 396 National Environmental Standards and Regulations Enforcement Act, 2007 No. 25. [NESREA]. 397 The ―Agency‖ is vested with the duty of enforcing Nigeria‘s environmental laws, regulations, standards, guidelines and policies. It has the additional responsibility of enforcing the provisions of international conventions, protocols, treaties and agreements on environmental protection. Its vision is to ensure ―a healthier and cleaner environment for all Nigerians‖ See Federal Ministry of the Environment, ―National Environmental Standards Regulatory and Enforcement Agency (NESREA)‖, online: Federal Ministry of the Environment
In the oil and gas industry, the AGRA is the first law which addresses the problem of gas flaring in the oil and gas industry directly.401 The Act adopts the conservation of natural gas approach through its provision that every oil and gas-producing company shall submit a preliminary program for schemes aimed at utilizing all associated gas produced from fields before a deadline of April 1, 1980.402 It requires that oil and gas companies set introductory plans, and include projects for re-injection of associated natural gas from oil production.403 It sets a deadline date of October 1, 1980, for oil companies to submit plans for implementing re- injection of natural gas, or for the viable utilization of all produced associated gas, to the
Petroleum Minister.404 It gives a deadline of January 1, 1984, for all oil-producing companies to stop flaring natural gas permanently, except with the written permission of the minister.405 The
Act‘s penalty for contravention of this provision is a revocation of the concession granted, as well as an imposition of a desirable re-injection scheme, decided by the minister, on the oil- producing company.406 Oil producing companies with written permission to flare gas, receive gas flaring certificates in some instances.407 The Minister has the power to review, amend or alter any portion of the regulations, at his discretion.408 Before the deadline date, major oil companies in Nigeria cited poor infrastructure as a core difficulty for re-injection of natural gas. The direct result of the excuses that were given by the major oil companies led to the extension of the
401AGRA, supra note 398. 402 Ibid at s. 1. 403 Ibid at s.1 (a) & (b). 404 Ibid at s. 2. 405 Ibid at s. 3. 406 Ibid at s. 4. 407 AGCFR, supra note 399. 408 Ibid at s. 2. 79
deadline date for an additional year.409 Subsequently, there was an exclusion of about 55% of oil fields in Nigeria from gas re-injection participation and the imposition of insignificant penalties on gas flaring oil fields.410 The exclusion of such a large number of oil and gas operators from the gas flare deadline dates has the effect of thwarting the core provision of the AGRA on the phase-out of gas flaring. In 2010, a bill was introduced by the national assembly for the amendment of the AGRA. The Bill sets the deadline for the phase-out of gas flaring as the year
2012. This Bill was never enacted to make the deadline a reality.
3.3.1.2 The Petroleum Drilling and Production Regulations The Petroleum (Drilling and Production) Regulations (PDPR) sets a standard that approved methods or practices, shall be used in producing crude oil, or gas from any pool or reservoir.411 It requires all licensees to take all reasonable precautions to prevent pollution, and control pollution if it occurs.412 Despite the preceding, its only provision directly connected to gas flaring requires a Licensee to submit a gas utilization feasibility study, he may have, within five years of commencing production.413 The non-mandatory nature of the phrase ―may have‖ which is not interpreted to mean ―must have‖ in Nigerian law, is its criticism.414 Neither the
Petroleum Act nor its subsidiary PDPR gives an insight into the ―approved methods or practices‖ that oil and gas operators ought to apply in the production of either crude oil or gas. However, another subsidiary to the Petroleum Act, the Nigerian Minerals, and Oil (Safety Regulations) states that:
409 Ibid. 410 Ibid. 411 Petroleum (Drilling and Production) Regulations 1969, Laws of the Federation of Nigeria, 2004 c.p12 at Reg. 39 [PDPR]. 412 Ibid at Reg. 25. 413 Ibid at Reg. 42. 414 See PIPDC Ltd v. Philip Eblota and 5 Ors (2001) 64 FWLR at 374 (Nigeria) where it was held that before the phrase ―may‖ can be interpreted as ―must‖ under Nigeria Law, a party must give an exceptionally clear reason. 80
Where no specific provision is made by these Regulations in respect thereof, all drilling, production, and other operations necessary for the production and subsequent handling of crude oil and natural gas shall conform with good oilfield practice which for the purpose of these Regulations shall be considered to be adequately covered by the appropriate current Institute of Petroleum Safety Codes, the American Petroleum Institute Codes or the American Society of Mechanical Engineers Code.415 3.3.2 Regulatory Bills on Gas Flaring
3.3.2.1 The Gas Flaring (Prohibition and Punishment) Bill 2008
Nigeria‘s Senate first introduced the Nigeria Gas Flaring (Prohibition and
Punishment) Bill in 2008.416 The bill sets December 31, 2008, as the deadline date for gas flaring in Nigeria.417 The deadline is today, not a reality. In the year 2009, there is the introduction of certain changes to the bill subject to approval by the Senate which it eventually granted in July
2009.418 The year 2009 amendment to the Bill fixes the deadline date for gas flaring as December
31, 2010.419 It further sets stiffer financial penalties on gas flaring and specifies the closure of oil fields that would contravene its deadline date.420 The 2016 reproduction of the bill places the deadline for the phase-out of gas flaring as the year 2016.421 The bill specifies that gas flare reports must be submitted and stipulates a three-month jail term for defaulters.422 The bill in s. 4 takes away the power of the Petroleum Minister to permit gas flaring granted by s. 3 of the
AGRA. A significant criticism of the bill is the provision which gives oil companies the power to
415 Nigerian Minerals and Oils Safety Regulations 1997, Laws of the Federation of Nigeria, 1996 c.350. 416 Nigeria Bill C.1687, Bill Gas Flaring (Prohibition & Punishment) Bill, 2008 [GFPPB, 2008]. 417 Ibid at s. 1 (2). 418 Harrison Declan, ―What Gas Flaring Prohibition bill will achieve‖ Punch Newspaper, (17 November 2016)
continue flaring gas after December 31st, 2016, on justifiable technical grounds. The possible abuse of this section is a source of argument.423
3.3.2.2 The Petroleum Industry Bill 2012
In 2012, the legislature presented the Petroleum Industry Bill (PIB) to address some discrepancies in Nigeria‘s oil and gas laws.424 The bill establishes an Upstream Petroleum
Inspectorate for a healthy and safe-conduct of all upstream petroleum operations.425 Part D of the
PIB deals with gas flaring and its prohibition. It provides that companies shall not flare gas after the deadline date the minister declares in a regulation.426 The PIB empowers the minister to grant not later than a hundred days grace to start-up companies who flare gas when commencing operations.427 It mandates all oil-producing companies with flared gas resources to categorize all flared gas resources, submit a detailed re-injection plan of the gas they plan to re-utilize before the flare out date, within six months of enacting the bill.428 Companies who flare gas after the given deadline date shall pay fines not less than the value of gas flared.429 The measurement of gas flaring by companies is with standard equipment.430 A group of persons or an affected community may need a lodge a documented report of continued flaring after the flare out date, at the inspectorate.431
3.3.3 MBIs in Nigeria’s Gas Flaring Laws—Disincentives and Incentives
423 Declan, supra note 418. 424Nigeria Law, ―The Petroleum Industry Bill, 2012‖, online: nigeria-law.org
3.3.3.1 Gas Flaring Penalties
Nigeria‘s gas flaring penalties are a price based MBI with the intent of serving as a disincentive to gas flaring. The provision of penalties for gas flaring begins with the 1979
Association Gas Re-injection Decree (now AGRA) which stipulates that oil and gas companies with gas flare exemption certificates which continue to flare gas after April 1980 deadline date would be subject to flaring penalties.432 However, the Act does not specify a specific sum as penalties but leaves it to the sole discretion of the Petroleum Minister.433 For the first time, there is an introduction of certain fines in the 1983 Associated Gas Re-injection Amendment Act to the tune of 2 kobo (0.0009 USD) for every 1000 Standard Cubic Square feet of gas.434 The year
1990 amendment to the Act increases the fine to 0.50 naira (0.0014 USD) per 1000 standard feet of gas flared.435 In 2011, a ministerial directive further increased gas flaring penalties to N3.50k
(0.0096 USD) for every 1000 standard cubic feet of associated gas burned.436 It is interesting to note that the new regulations on gas flaring, the Flare Gas (Prevention of Waste and Pollution)
Regulations 2018 specify that the flaring fee for every 28.317 standard cubics per meters of flare gas is a paltry USD 2.00.437 In my opinion, paying the new penalties would be nothing to companies like Shell and Chevron who make billions of dollars yearly. Ibikunle concludes that the gas flaring penalties in force are not sufficient to end gas flaring.438 Ukala criticizes the gas
432 AGRA, supra note 398 at s. 3(b). 433 Ibid. 434Oludamola Adewumi, “Nigeria: Gas Flaring Charges in Nigeria” (November 20, 2018), Mondaq (blog), online:
penalties in effect as too low to serve as a deterrent, while Okeke and Aniche opine that it is not clear whether the motive of the government in imposing sanctions on gas flaring is to discourage flaring or to raise revenue.439
3.3.3.2 Income Tax Relief and Exemption from Customs and Excise Duties
The Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act (Nigeria
LNG Act) establishes the Nigeria Liquefied Natural Gas Limited (NLNGL) and grants the company pioneer status.440 The NLNGL is the Nigerian government‘s first attempt in building a company that utilizes associated natural gas from crude oil production under the Nigeria
Liquified Natural Gas Project.441 The NLNGL comprises of three shareholders, the NNPC which represents the Federal Government of Nigeria, Shell, Total Gaz Electricite Holdings France, and
Eni.442 The Nigeria LNG Act exempts the NLNGL from income tax relief applicable to pioneer companies as specified by the Industrial Development (Income Tax Relief Act).443 The Act also exempts the company from customs and excise duties on the import of equipment for its operation.444 The NLNG blames its failure to completely convert gas that would otherwise be
439 Eferiekose Ukala, Gas Flaring in Nigeria‗s Niger Delta: Failed Promises and Reviving Community Voices, (2011) 2:1 Wash. & Lee J. Energy, Climate & Env‘t. 97 at 104; V.O.S Okeke & E.T Aniche, ―A Critique of the Enforcement of Nigeria Extractive Industries Transparency Initiative (Neiti) Act 2007 in the Nigerian Oil and Gas Sector‖ (2013) 14:2 British Journal of Arts and Social Sciences 98 at 100. 440 Nigeria LNG, (Fiscal Incentives, Guarantees and Assurances) Act 1989, Laws of the Federation of Nigeria 1990, c. N87 at s. 1 [Nigeria LNG Act]. 441 The environmental objective of the NLNGL is the conversion of associated gas from upstream oil and gas activity to LNG and engage in the export of same to reduce gas flaring. See Nigeria LNG Limited, ―NLNG and the Nigerian Economy‖, online: NLNG < http://www.nlng.com/Our-Company/Pages/NLNG-and-the-Nigerian- Economy.aspx>. 442 The NNPC is the largest shareholder in the NLNGL with 49% ownership. Shell, Total and Eni have 25.6%, 15% and 10.4% respectively. See Nigeria LNG Limited, ―Profile‖ online: NLNG
subject to flaring on Nigeria‘s past investment in crude oil to the detriment of the natural gas industry.445
3.3.3.3 Use of Fiscal Incentives to Promote the Utilization of Natural Gas
The federal government provides fiscal incentives for natural gas utilization under the Associated Gas Framework Agreement, 1992.446 The agreement grants a three-year tax-free period to companies who indulge in the usage of natural gas and also, exemption from taxes on expenses relating to natural gas separation.447 The Nigeria Gas Master Plan 1992 is an initiative of the Federal Government with the objectives of developing Nigeria‘s natural gas sector and also, achieving sustainability by meeting the needs of future generations through the conservation of natural gas.448 The plan grants a ten-year tax-free period for all LNG ventures.449
Next, is the grant of capital allowances to the tune of 20 percent, 19 percent and one percent in an LNG company‘s first four years, fifth year and every other subsequent year of operation.450
Gas utilization projects are also subject to exemption from paying withholding tax to non- residents for oil and gas ventures.451 The Associated Gas Utilization Fiscal Incentives (AGUFI) grants fiscal incentives for gas-to-liquid ventures and to oil firms which intend to utilize natural
445 Amanda Figueras, ―Nigeria‘s Unfulfilled Gas Flare Targets‖ Egypt Oil and Gas News Paper (May 4 2016), online: < https://egyptoil-gas.com/features/nigerias-unfulfilled-gas-flare-targets/>. 446Nigeria-South Africa Chamber of Commerce, ―Gas Commercialization and Monetization in Nigeria: The Journey So Far‖ (12 January 2016), online: NSACC< http://nsacc.org.ng/gas-monetization-and-flaring-in-nigeria-the- journey-so-far-and-policy-option-going-forward/>. 447 Aminu Hassan & Reza Kouhy, ―Gas Flaring in Nigeria: Analysis of Charges in its Consequent Carbon Emission and Reporting‖ (2013) 37:2 Accounting Forum 124 at 126. 448 The main objectives of the Nigeria Gas Master Plan are to develop Nigeria‘s natural gas sector and also, meet the needs of future generations through the conservation of natural gas. See R. Ingwe, ―The Nigeria Gas Master Plan, Investment Opportunities, Challenges, Issues Affecting Power Sector: An Analysis‖ (2014) 59:2 Studia UBB Geographia 115 at 120. 449 This Day, ―Will New National gas Policy Outlive Buhari‘s Administration‖, This Day (July 18 2017), online :
gas.452 With the AGUFI, the Nigerian government cut income taxes from 85 percent to 35% in the year 1998.453 Another source of fiscal incentives is the PPTA which provides tax incentives to companies which utilize associated and non-associated natural gas.454 These incentives are extended to all oil companies involved in ―oil field development‖ including but not limited to:
Companies which utilize techniques for the separation of oil from gas in reservoirs with
the intent for gas reuse, and
companies with capital investment on machinery for the delivery of associated gas in
the reusable form.
Companies which incur expenses for the processing of gas into reusable form.455
Authors argue that despite all measures put in place by the Nigerian government to end gas flaring, the problem persists and there is no certainty that there would be a complete end to gas flaring soon.456
3.4 The Impediments to Phasing Out Gas Flaring with Regulation in Nigeria
As will be discussed in detail, the obstacles to phasing out gas flaring in Nigeria include:
Inefficient gas flaring laws.
Ministerial discretion in the grant of gas flare certificates.
Weak enforcement of gas flaring regulations.
Voluntary environmental disclosure in corporate social responsibility (CSR).
452 E.T Aniche, ―An Assessment of the Role of Nigerian State in Enforcing Zero-Gas Flare Regime, 1979-2012: The Imperatives of Environmental Diplomacy‖ (2015) 7:12 Civil and Environmental Research 29 at 34 [Aniche]. 453 Ibid. 454 PPTA, supra note 400 at s. 11 and s. 12. 455 Ibid at s. 11 (1) (a)-(c). 456 Aniche, supra note 452. 86
Inadequate Response to International Obligations on Low Carbon Emissions Reduction
in National Policies
3.4.1 Inefficient Gas Flaring Laws
One of the reasons for Nigeria‘s constant failure to phase out gas flaring is the country‘s insufficient and inefficient gas flaring laws. Fagbohun criticizes the non-justiciability of s. 1 of the CFRN as having no real effect on environmental issues in the country.457 He further argues that the AGRA compounds the problem of gas-flaring rather than addressing it.458
Orji and Nyong argue that the PDPR‘s prescription of less than $1 (one dollar) for every cubic square foot of gas flared by oil and gas companies, serves as an incentive rather than a deterrent to gas flaring for oil and gas companies.459 Due to the meagre fines, oil and gas companies find it cheaper to flare gas, rather than look for an alternative means of conservation such as reinjection.460
The NESREA ought to have the effect of whittling down the inefficiency of the
AGRA and its attendant PPDR. The very provisions of the Act which could help regulate gas flaring are first, the objectives of the National Environmental Enforcement Agency (NEEA) to enforce all legislation and standards, coordinate and liaison with domestic and international stakeholders on environmental matters.461 Second, the duty to enforce compliance with the provisions of international agreements, protocols, conventions and treaties on the environment,
457 Olarenwaju Fagbohun, ―Reappraising the Nigerian Constitution for Environmental Management‖, (2002) 1 AAU Journal 44 at 44 [O. Fagbohun]. 458 Fagbohun, supra note 54 at 331-332. 459 Uchenna Jerome Orji, ―An Appraisal of the Legal Frameworks for the Control of Environmental Pollution in Nigeria‖ 2012 38:2 Common Wealth Law Bulletin 321 at 332 [Orji]; Reuben Umoh Nyong, Empirical Analysis of Determinants of Natural Gas Flaring in Nigeria (M.SC, Thesis, Umeḁ universitet, 2012) [Unpublished] at 15. 460 Orji, supra note 459. 461 NESREA, supra note 396 at s. 2. 87
including but not restricted to matters of climate change and oil and gas.462 Third, the duty to make regulations with specifications and standards for the protection and enhancement of
Nigeria‘s air sources to promote public health, natural development and reproduction of living things in Nigeria about:463
minimum essential quality air standards,
the concentration of substances which in isolation or as a group may cause harm to man,
marine or plant life,
the most appropriate means for preventing and combating atmospheric pollution,
Control of atmospheric pollution resulting from energy sources, including but not limited
to industries and facilities, and
Enforce compliance with laws and regulations for the sustainable management of the
earth‘s ecosystem.464
The fourth penalizes the illegal discharge of hazardous substances into the air by a person or body corporate.465 An individual who contravenes this provision is liable to a fine of N1,
000,000.00 (one million naira) or imprisonment for five years upon conviction while a body corporate is liable to a fine of N1,000,000.00 and a subsequent fine of N50,000.00 (fifty thousand naira) for each day the action continues.466 The criticism of these fines is that they are too affordable for defaulting oil-producing companies.467 Also, in reality, it is doubtful whether this provision can apply to oil-producing gas-flaring companies for two reasons. First, are the
462 Ibid at s. 7(a) - (c). 463CFRN, supra note 351. See generally Makinde & Adegoke, supra note 394. 464 NESREA, supra note 396 at s. 20 (1) - (e). 465 Ibid at s. 27 (1) (2). 466 Ibid at s. 27 (2) & (3). 467 Eghosa Ekhator, ―Environmental Protection in the oil and gas industry in Nigeria: The Roles of Governmental Agencies‖ (2013) International Energy Law Review at 4. 88
valid licenses granted by the minister to gas flaring oil-producing companies. Next, are the numerous exclusion provisions contained in the Act and the conflict of jurisdictions in the Act and the CFRN.
Sadly, however, the above four provisions, contrast with three provisions which exclude the NESREA and the NEEA‘s jurisdiction from the oil and gas sector entirely. The first empowers the NEEA to enforce through compliance monitoring, environmental regulations, and standards in all sectors involving air pollution, except for the oil and gas industry.468 The second empowers the NEEA to submit to the approval of the environment minister, proposals for the evaluation and review of guidelines relating to air quality except in the oil and gas sector.469 The third excludes the NEEA from undertaking or promoting expanding research in eliminating pollution and other matters related to environmental pollution in the oil and gas sector.470 The fourth is the duty of the NEEA to liaise with other governmental agencies in the cleaning the polluted environment from all industries, excluding the oil and gas sector. It also vests judicial jurisdiction for all matters covered by the provisions of the Act in state high courts. From the provisions discussed above, one can see that some of the NESREA‘s requirements look promising with regards to phasing out gas flaring. However, it is sad to note that the draftsmen of the Act exclude its provisions from matters about oil and gas. Fagbohun states the exclusion provisions in ss. 7, 9 and 29 of the NESREA, hinders access to environmental justice and enforcement of environmental laws in the oil and gas sector.471
468 NESREA, supra note 396 at 7 (h). 469 Ibid at s.7 (k) (i). 470 Ibid at s. 7(m). 471 Fagbohun, supra note 54 at 332-333. 89
Regarding bills which would have a positive effect on gas flaring regulation if enacted as law, Ezeigbo‘s advice is that the PIB would have a tremendous impact on gas flaring regulation, if passed into law, due to its creation of a separate body for regulating the upstream petroleum industry.472 However, she criticizes the bill for not proscribing gas flaring completely.473 It is worthy of mention that after all this time, the Senate is yet to enact the PIB as a law. In 2016, without any reference to the PIB, the Petroleum Industry Governance Bill (PIGB) was proposed. The bill completely disbands the NNPC from participating in all sectors of the oil and gas industry by creating different agencies of participation, in the upstream, midstream and downstream sectors. However, since it makes no provisions on gas flaring, it is doubtful if it would positively affect this problem if passed into law. Despite the numerous deadlines given for the phase-out gas flaring, it persists in areas like the Niger Delta.474
Another contributor to Nigeria‘s inefficient gas flaring laws is the public consultation process at play in environmental law. Public consultation in the upstream oil and gas industry is inherent in the Nigerian Environmental Impact Assessment (EIA) process.475
Nwapi and Ingleson criticize Nigeria‘s environmental impact assessment process as being flawed due to its partial inclusion of public participation.476 In Nigeria, oil and gas operators are under no obligation to consult local communities during the EIA Assessment report preparation stage
472Chinwe Ezeigbo, “The Petroleum Industry Bill: Achieving its Intended Reform Objectives?”(6 March 2014), Natural Resource Charter (blog), online:
to obtain feedback on proposed projects, before the submission of an initial draft to the Federal
Ministry of the Environment. The entertainment of public input only begins at the decision making stage when the review panel considers the EIA report.477 Both authors argue that the preceding gives the public consultation process in force a retroactive effect. Another weakness of the EIA assessment process is the absence of an opportunity to appeal a decision which favours an EIA report by an oil and gas operator.478 Thus, in a situation where local communities have the chance to challenge a proposed project during the decision making of the EIA panel, all hope is lost if the board decides in favour of the oil and gas operator.
The EIA Assessment process further lacks a requirement for an Environmental Management
Plan (EMP) by oil and gas operators.479 EMPs are necessary to show how oil and gas companies intend handling unfavourable effects of oil and gas projects. The exclusion of EMPs from the
EIA process questions the concerns the Nigerian government has for local communities and the environment because it challenges the credibility of the grant of licenses for oil and gas projects.
In relation to gas flaring projects, it is my opinion that the inclusion of public consultation of local communities by oil and gas operators during the preparation of an EIA, and the inclusion of an EMP mechanism would give local communities a more magnificent room to be heard, thereby addressing environmental concerns of the communities from the outset. A greater inclusion in both areas will show the seriousness of oil and gas operators towards the management of accidental gas flare operations.
477 EIA Act, supra note 475. 478 Ingleson & Nwapi, supra note 476; EIA Act, EIA Act supra note 475 at s. 25. 479 Ingleson & Nwapi, supra note 476. 91
A factor which compounds the problems of Nigeria‘s ineffective and inefficient gas flaring laws is the non-compliant attitude of oil and gas operators to judicial decisions on gas flaring. A few cases of actions against oil and gas companies, on the grounds of gas flaring, exist.480 In Chinda v. Shell, the plaintiffs instituted a lawsuit seeking to restrain the defendant‘s operation of a fire stack within five miles of their community.481 The court refused an injunction because the relief sought was absurd and dismissed the case. In Theophilus G. Metsagharun et.
Al v. Chevron Ltd, the court also rejects the case of gas flaring made out against the defendants.482 In an unreported case, the defendants reached an out of court monetary settlement with the applicants. Gbemre v Shell Petroleum Development Company Nigeria Limited and
Others marks a different attitude of the judiciary on gas flaring and shows the non-compliant disposition of oil and gas operators to decisions on gas flaring.483 In this case, the applicants claimed that gas flaring by the defendants affected their right to live, dignity, health, food, and water. The court held that the defendants take steps to stop gas flaring in the community immediately. The court further decided that the National Assembly expunge provisions of the
AGRA, which permit gas flaring for inconsistencies with fundamental human rights, in the
CFRN. Three important points to note from this case are: the applicants never pleaded climate change, specifically, even though it pleaded environmental and health damage, the NNPC neither entered an appearance or defence in the court proceedings, and there is no enforcement of the court‘s decision to date.
480Business & Human Rights Centre, ―Gas Flaring Lawsuits (re oil companies in Nigeria), online: Business & Human Resources Centre
The cases above show that gas flaring actions based on climate change is strange to Nigerian law courts, unlike several developed nations.484
3.4.2 Ministerial Discretion in the Grant of Gas Flare Permits
Ministerial discretion on the exclusion of oil and gas operators from gas flaring operations through the grant of gas flare certificates dates back to the year 1984 phase-out of gas flaring deadline set by the AGRA.485 The AGCFR permits oil and gas operators to continue flaring gas subject to paltry fines under the auspices of a gas flaring exemption by the minister.486 Many oil and gas flaring oil and gas operators used this gas flaring exemption provision in evading practices that could successfully phase out gas flaring under the guise of the lack of inadequate infrastructure to do so. Only just recently, the Federal government enacted the
Flare Gas (Prevention of Waste and Pollution) Regulation 2018 with the objectives of protecting the environment, to prevent the waste of natural resources and create economic and social benefits from the capture of natural gas.487 The regulation reinforces the provision of ministerial exemption in the AGCFR through the requirement that the Minister may at this discretion grant ministerial gas flare certificates under s. 3 of the AGRA.488 The right to take all flare gas lies with
484 In the case of Juliana, et al., .v. United States of America, 564 U.S. 410 (2011) an action is brought against the US President, Federal Government Agencies and Departments by 21 youths and others. The action is founded on the grounds that the decisions of the government have caused the rise of oceans and global warming. Judge Aliken in her opinion, articulates on the right to a climate system capable of sustaining human life, and dwells on the role of the judiciary to uphold constitutional rights as an arm of the government. See Environmental Law Alliance Worldwide, ―Juliana v. United States” (10 November 2016), online: ELaw< https://www.elaw.org/us.juliana.mtd>. 485 AGRA, supra note 398. 486 The Associated Gas Re-injection (Continued Flaring of Gas) Regulation 1984, Supplement to Official Gazette 67: 71 of 29 November 1984, Laws of the Federation of Nigeria 2004, c. A 25 at Reg. 1& 2. [FGN Official Gazette]. 487 Ibid at 1 (a)-(c). 488 Ibid at 12 (1). 93
the federal government.489 The regulations do not hint at an existing gas utilization master plan, or the establishment of one in the future by the federal government to utilize gas taken from flare sites.
Regarding the grant of a permit to access flare gas, the regulations use somewhat problematic language by indicating that the minister ―may‖ grant a license to access flare gas to either utilize or dispose of the gas in a manner authorized by the Federal Government; accordingly, the minister is under no obligation.490 The regulation does not specify the conditions that would enable an application to get an access permit, but provides that oil and gas producers with a flare permit shall report the volume of gas flaring in their facilities annually; and that there shall be a publication of all amounts of all annual gas flares on the DPR‘s website.491 It is the sincere hope that the preceding would not be another case of the government failing to keep to its word. The regulations are relatively new and only time can tell whether its provisions would help improve the current condition of gas flaring in the oil and gas industry.
3.4.3 Weak Enforcement of Gas Flaring Regulations
The DPR and NNPC are the regulators of the oil and gas industry.492 Working towards the achievement and sustainment of zero flaring of associated gas in oil and gas production is one of the functions of the NNPC.493
3.4.3.1 Lack of Sincerity and Transparency
489 Ibid at 2 (1). 490 Ibid at 6 (1). 491 Ibid at 17 (1) & (18). 492 DPR, supra note 369; NNPA, supra note 372. 493Nigerian National Petroleum Corporation, ―Production‖, online: NNPC
A criticism of the DPR is a lack of sincerity and transparency in its operations.
Abiodun Adesanya, a one-time president of the Nigeria Association of Petroleum
Explorationists, argues that the DPR is not well-equipped to effectively monitor gas flaring by international oil and gas operators who continue to indulge in the practice despite its prohibition in areas the headquarters of such oil and gas operators are situated.494 For there to be a deadline to phase-out gas flaring, there should be commitment, transparency, and sincerity in the operations of the government, the DPR and oil and gas operators.495
3.4.3.2 Overlap in the Functions of the DPR and NNPC
The low capacity of the DPR and its creation of overlap between its functions and that of the NNPC by continuously assuming the latter‘s roles is a subject of criticism.496 Gilles recommends the creation of a website that specifies the performance of oil and gas operators and shows the DPR‘s regulatory regime, as a measure to show accountability on the issue of gas flaring in upstream operations.497
3.4.3.3 The Participation of the NNPC in Joint Venture Agreements (JVAs)
The participation of the NNPC in JVAs with oil and gas operators is a hindrance to implementing gas flaring laws and regulations because it would amount to a situation where
494 Kelvin Ebiri & Kingsley Jeremiah, ―Nigeria: Why Nigeria Cannot End Gas Flaring in 2020-Experts‖ The Guardian (6 May 2018), online: < https://guardian.ng/news/why-nigeria-cannot-end-gas-flaring-in-2020-experts/> [Ebiri]. 495 Ibid. 496 Alexandra Gillies, ―Reforming corruption out of Nigeria oil? Part two: progress and prospects‖ (April 2009), online: CHR. Michelsen Institute < https://www.cmi.no/publications/3348-reforming-corruption-out-of-nigerian-oil- part-two.pdf> at 2 [Gillies]. 497 Ibid. 95
the NNPC would enforce gas flaring penalties against itself.498 The entity‘s reliance on oil firms for the performance of its most complex functions earns it the name tag of being ―neither a meaningful oil operator nor a real commercial entity.‖499 The NNPC is subject to criticism for incompetence which lies in its lack of control over the oil revenue it generates and the consequent disability of being unable to set its strategy for operation, and corruption.500
3.4.3.4 Corruption in the NNPC
Okeke & Aniche argue that corrupt practices in the oil and gas sector exist in the form of bribes oil and gas operators offer to the NNPC thus leading to a discrepancy in quoted figures and revenue.501 The preceding makes one question the credibility of the gas flaring figures the NNPC provides.
3.4.3.5 The lack of a Record of Companies without Gas Flare Certificates in Nigeria
There is no record of oil and gas companies, which have gas flare exemption certificates or written permission to flare gas from the petroleum minister in Nigeria.502 The lack of a record on companies which are not the recipients of gas flare exemption certificates makes one wonder if any company was denied gas flare exemption and asked to stop flaring. Federal
498 Giovanni Occhiali & Giacomo Falchetta, ―The Changing Role of Natural Gas in Nigeria‖ (2018) Fondazione Eni Erico Mattei Working Paper No.010 [Occhiali & Falchetta]. 499 Ibid. The NNPC faces the same problems corporations completely owned by the federal government face. A fusion of corporate governance and partisan politics, the negative influence of military rule and corruption are examples of such problems. See Boniface Anunwan, ―Corporate Governance in Nigeria‖ (2002) 37:3 Journal of Business Ethics 269 at 275. 500 Thurber et al., supra note 373; Marc-Antoine Pèrouse De Montclos, ―The Politics and Crisis of the Petroleum Industry Bill in Nigeria‖ (2014) 52:3 Journal of Modern African Studies 403 at 407. 501 V.O.S Okeke & E.T Aniche, ―A Critique of the Enforcement of Nigeria Extractive Industries Transparency Initiative (Neiti) Act 2007 in the Nigerian Oil and Gas Sector‖ (2013) 14:2 British Journal of Arts and Social Sciences 98 at 100. 502 Friends of the Earth International, ―Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity, online: Friends of the Earth International
Inland Revenue v. Mobil Producing Nigeria Unlimited illustrates the reporting lacunae regarding oil and gas companies which lawfully flare associated natural gas.503 One of the issues, in this case, is the legality of the gas flaring penalties the defendant paid to the plaintiff because the former was not a recipient of a gas flaring permit. In considering the preceding issue, the court held that although the defendant applied for a gas flaring permit from the petroleum minister in the years in question, the fact there was no response from the petroleum minister is not an automatic grant of an approval; as such, gas flaring by Mobil within that time was illegal.
Consequently, the court refused the defendant the right to claim tax deductions on the penalties paid to the government on the grounds of illegality. The decision of the court faced reproval for not aligning with the position of the law which is that there should be the revocation of the licences of companies which do not have gas flare exemptions.504 The court failed to comment on the underlying issue of why the Minister received payments for gas flaring, rather than revocation of the defendant‘s licence when a gas flaring exemption did not exist in the first place. On appeal, the Court of Appeal held that the respondent did not consider the penalties paid by the appellant during the assessment illegal, and such, the defendant is entitled to tax deductions on the fees paid.505 Again, the court did not admonish the minister for accepting gas flaring penalties in respect of a non-existing permit.
3.4.4 Voluntary Environmental Disclosure in Corporate Social Responsibility (CSR)
503 Federal Inland Revenue v. Mobil Producing Nigeria Unlimited (FHC/L/3A/2017). 504 Adebiyi Tax & Legal, ―Federal High Court Holds it‘s Illegal to Flare Gas without Written Permission of the Minister for Petroleum‖ online: Adebiyi Tax & Legal
CSR is an instrument which addresses the environmental and social impact of the activities of companies, and it plays a huge role in the oil and gas industry.506 Environmental reporting is a vital component of CSR which Frynas describes ―as a means to an end‖ because it achieves sustainability through the improvement of environmental practices.507
The reporting mechanism for Nigeria‘s upstream oil and gas industry is flawed since oil and gas operators have no legal obligation to disclose financial and non-financial information (Including information on gas flaring).508 The origin of the non-disclosure attitude of oil and gas operators lies in the historical incentive plans the Nigerian government grants foreign multinational oil companies (FMOCs) to operate in JVAs with the NNPC as unincorporated partners.509 The only exception to the non-disclosure status of upstream oil and gas operators is a financial disclosure to the relevant tax authorities.510 So far, there is only a minute measure of success in extracting a form of disclosure from oil and gas operators due to national and international pressure through the Global Sustainability/CSR Report, or Annual Report of the
FMOCS.511 Hasan and Kouhy describe the gas flaring information in the Global
Sustainability/CSR Report as ―soft and non-specific.‖512 Examples of ―soft and non-specific‖ reports are the Shell, and Mobil reports from the years 1997-2000, and 2000-2009 which make no mention of the quantitative volume of gas flaring in those years, or its CO2 equivalent
506 Jeḑrzez George Frynas, ―Corporate Social responsibility in the Oil and Gas Sector‖, (2009) 2:5 Journal of World Energy Law and Business 178 at 180 [Frynas]. 507 Ibid at 186. 508 Aminu Hasan & Reza Kouhy, ―Gas Flaring in Nigeria: Analysis of Changes in its Subsequent Carbon Emission and Reporting‖ (2013) 37 Accounting Forum 124 at 127 [Hasan & Kouhy]. 509 Ibid. 510 Ibid at 128. 511 Ibid. 512Ibid. 98
specific to Nigeria by an of the two companies.513 Although the NNPC‘s Annual Statistical
Bulletin reporting mechanism is ―specific and hard,‖514 it is my opinion that the report requires more than just a second cursory look due to questions on impartiality that it may raise as a result of the NNPC‘s JVA with significant oil and gas operators which flare gas. It is also worthy of note that the NNPC‘s report does not disclose the volume of gas flared monthly/annually by each company thereby denying the public the opportunity to monitor which companies are trying harder than others to reduce gas flares.
3.4.5 Inadequate Response to International Obligations on Low Carbon Emissions Reduction
in National Policies
No international treaty shall only have the force of law in Nigeria except by enactment by the National Assembly.515 The implication of this section is the fact that no matter what the country says and does as a party to an international agreement, citizens cannot hold it accountable for its commitment in any international agreement except it grants the commitment legal status through a valid enactment. Nigeria participates actively in international negotiations on climate change.516 Its signature and ratification of the UNFCCC on June 13, 1992, and August
1994 respectively, show this.517 As an Annex II Party under the UNFCCC, certain obligations in the convention are binding upon the country. One of such is the commitment to:
513Ibid. 514Ibid. 515 CFRN, supra note 351 at s. 12 (1)-(3). International treaties which do not have the force of law in Nigeria are not enforceable in law courts. See Abacha v. Fawehinmi [2006] 6NWLR (Pt.660) at 228; Mhwun v Minister of Health and Productivity & Ors [2005] 17 NWLR pt. 953 at 120. 516 ICF International, ―Nigeria: Carbon Credit Development for Flare Reduction Projects‖ (June 2006), online: World Bank < http://siteresources.worldbank.org/EXTGGFR/Resources/NigeriaGGFRGuidebook_ICF.pdf> [ICF]. 517 Ibid at 15. 99
formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate adaptation to climate change.518 Despite its status as an Annex II country, Nigeria acceded to the Kyoto Protocol
(KP) in October 2004. Domestication of the treaty was on March 10, 2005. Although the KP lays the bulk of emission reduction targets on Developing (Annex I countries), it promotes Emissions
Trading (ET), Joint Implementation/Fulfillment (JI) and Clean Development Mechanism
(CDM), as additional mechanisms to attain its emission reduction objectives.519 Art. 12 of the KP enables Nigeria as a developing country, to benefit from CDM mechanisms. As a means of using the opportunity in Article 12, the country subscribed to the Global Gas Flaring Reduction Public-
Private Partnership (GGFR).
3.4.5.1 Nigeria’s Participation in the GCFR
The GCFR is set up in line with Art.12 of the KP by the World Bank and the
Government of Norway in 2004.520 The partnership aims at capturing gas that is subject to flaring during oil production, for other uses such as power production.521 Nigeria gave the year
2008 as the deadline to phase out gas flaring and implemented several policies to meet the target.522 Despite being assisted with funds by the World Bank, the country is yet to meet this commitment.
518 UNFCCC, supra note 41 at Art. 4 (1) (b). 519 Garba I. Malumfashi, ―Phase-out of Gas Flaring in Nigeria by 2008: the Prospects of a Multi-win Project‖ (2007)1(4):2 Petroleum Training Journal 1 at 5 [Malumfashi]. 520 Ibid at 6. 521 Ibid at 7. 522 Ibid at 9-14. 100
Regarding regulation, the FMEV,523 responded to the KP by publishing the
National Policy on the Environment (NPE) which contains Nigeria‘s National Agenda 21
(Agenda 21).524 The Nigerian government further inaugurated the National Council on
Environment (NCE) on May 18, 2000. Through its Pollution and Waste Management
Memorandum NCE/nv/2000/I/5, the NCE burdens all relevant ministries with the task of strengthening oil pollution control and enforcement mechanisms.525 Currently, gas flaring persists, and flaring penalties are unpaid.526
3.4.5.2 The Failure of (CDM) Projects in Phasing-Out Gas Flaring
CDMs are a product of the Kyoto Protocol with the aim of achieving sustainable development.527A CDM project is one orchestrated by an agreement between Annex I and non-
Annex I countries where the former grants project owners in the latter infrastructure and capital in the number of carbon credits the project owner generates in developing our countries.528 CDM projects benefit Annex-I countries by helping them achieve emission reduction rejects through projects in non-Annex-I countries.529
523 As at that time, the Federal Ministry of Environment in Nigeria was the Federal Ministry of Environmental Protection (FEPA). 524 Nigeria‘s national Agenda 21 states ―rational use of oil and gas sources‖, as one of its visions. See Federal Environmental Protection Agency, National Policy on the Environment, (Abuja: FEPA, 1999) at 17. 525 Nwanya, supra note 77 at 195. 526 Gas Flare Tracker, ―Mapping Nigeria‘s Gas Flares‖, online: Gas Flare Tracker
There are currently ten registered CDM projects in Nigeria.530 50% of these projects dwell mainly on fugitive emission reduction and gas projects, with the aim of conserving natural gas from oil production.531 In a study conducted on 59% of all fugitive emission projects in Nigeria, the study concludes that it is indisputable that such projects aim at reducing fugitive emissions.532 However, a lot is left to do regarding realistic benchmarks of such projects; a more significant effort between Nigeria and developed countries, and ensuring that the federal government reneges absolute control over all CDM projects.533 Pillay attributes one of the failures of the CDM projects to uneven distribution of the projects in the south-south region and Western region in Nigeria thus leading to the inability of the projects to add to the sustainable development of the entire country.534
3.4.5.3. The Herald of a New Era-- Nigeria’s Nationally Determined Contribution at the Paris
Agreement
The Paris Agreement goes beyond the scope of previous United Nations
Agreements addressing climate change in several ways.535 One of such is its clear responsibility for climate change mitigation in Art. 22, expressed through Independent Nationally Determined
Contributions (NDCs), which spell out voluntary commitments on GHGs by all signatories.
530 Department of Climate Change, Federal Ministry of the Environment, Abuja ―Registered CDM, Projects in Nigeria‖, online: Climate Change gov. org
Nigeria is one of the 194 signatories to the Paris Agreement.536 To promote the principal goal of the Paris Agreement contained in Art. 2, on 28 November 2015, it submitted its INDC thereby complying with Art.3 of the agreement.537 Nigeria signed the ratification instruments of the
Agreement on March 28, 2017, thus converting the INDC to an NDC.538 In its NDC to promote the core concerns of the Paris Agreement in Art. 2, Nigeria states its commitment to reduce its projected 1000 million tonnes of CO2 emissions in the year 2030, below business as usual, by a
20% absolute reduction (600 million tonnes) and a 45% conditional reduction (400 million tonnes).539 One of the key measures to achieve these objectives is working towards ending gas flaring by the year 2030.540 Regarding the gas flaring reduction strategy, the question which arises is whether Nigeria‘s existing legal framework is ripe for the 2030 target. Gas flaring still occurs in oil and gas production in Nigeria.541
3.4.5.3.1 Post Paris Agreement--Steps Taken to Achieve Nigeria’s NDC Commitment
At the COP 22 conference, Nigeria‘s President Muhammadu Buhari acknowledged the devastating effects of climate change and reiterated the country‘s resolve to fulfill its NDC commitment as its contribution to green growth.542 The Federal Government estimates that
536 Nigeria signed the Paris Agreement on September 22, 2016. See United Nations Treaty Collection, ―Paris Agreement‖, online: United Nations Climate Change < https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&clang=_en>. 537INDC, ―INDCs as communicated by Parties‖, online: United Nations Climate Change < http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx>. 538 Chinedum Uwaegbulam, ―Buhari Ratifies Agreement on Climate Change‖ The Guardian (March 29, 2017), online:
Nigeria requires a minimum of $142,000,000,000 (one hundred and forty-two billion) USD to meet its NDC goals, and lacks this sum in national coffers.543 In a bid to solve this issue, there was a deliberation of the Green Bond Initiative by the legislature in September 2016.544 In
January 2017, Nigeria‘s Federal Government announced plans to launch the Green Bond
Initiative.545
(i) The Green Bond Initiative
The Green Bond initiative aims at enabling investment and capital funding for new and existing programs beneficial to the environment.546 The Green Bond Initiative is a measure to promote Nigeria‘s commitment to the COPS at the UNFCC. Objectives of the Green
Bond initiative are:
Creation of funds and partner programs for the direction of resources to promote
participation in green bond issuance or provide technical support.
Creating awareness of the economic benefits of the country‘s NDC themes.
Increasing confidence in the financial industry sector for green project finance or the
issuance of green bonds.
Developing a guidance framework for preceding tranches.547
543 Federal Ministry of Environment, ―Green Bonds‖ online: Federal Ministry of Environment < http://environment.gov.ng/index.php/green-bonds> [FME]. 544 News Agency of Nigeria, ―Nigeria Plans Africa‘s First Sovereign Bond‖ The Guardian (23 February 2017) The Guardian
The past Minister of Environment--Amina Mohammed, states that the initiative will fund Nigeria‘s NDC, by financing its objectives.548 The bond will boost environmental project financing. The minister of finance and the vice-president, are optimistic that a deposit of
N20, 000,000,000.00 (Twenty billion Naira), will occur in the first quarter of the year, to meet this goal.549 Benefits of the initiative are the provision of funds for environmental protection from climate change, provision of investment opportunities for companies and individuals with interest in environmental preservation, validating the government‘s commitment to environmental protection, and diversification of the sources of government funding. Funds from the green bond approach will be invested in renewable energy and transportation only.550 There is the suggestion that Green Bonds is an innovative, alternative mechanism to raise finance for sustainability investments in Africa.551 Although Nigeria‘s green bond project appears laudable, it remains the only plan the government has announced to meet its NDC commitment and fails to mention the goal of phasing out gas flaring. The oil and gas industry generates a substantial part of Nigeria‘s emission, and if no implementation of a concrete plan exists, Nigeria may never meet its target of phasing out gas flaring in 2030.
(ii) The World Bank Zero-Routine Flaring by 2030
Nigeria had earlier endorsed the World Bank Zero ―Routine Flaring by 2030.‖552
Under this initiative, governments, oil companies and institutions which agree that gas flaring is
548 Ibid. Amina Mohammed resigned from her office as the Minister of Environment, to resume office as Deputy Secretary General to the UN. 549 Ibid. 550 Ibid. 551 Uche Duru & Anthony Nyong, ―Why Africa Needs Green Bonds‖ (2016) 7:12 Africa Economic Brief 1 at 2. 552 World Bank, ―Nigeria Endorses 2030 Flaring Initiative; Raises Own Goal to 2020‖ (18 August 2016), online: World Bank
not sustainable, wish to end the practice in the year 2030.553 Nigeria‘s voluntary target is the year
2020.554 The initiative, however, specifies that endorsing governments will provide a legal, regulatory environment for the success of the project.555 Nigeria is yet to fulfill this requirement in light of its existing laws.
3.4.5.4 An Argument for Increased Implementation of International Obligations on Gas Flaring
Notable vital impediments to APG flaring reduction are technological and geographical factors, economic factors, structural and market factors, and the legal and regulatory environment.556 Through participation in international agreements and projects,
Nigeria has put up efforts to work on other factors; a lot is left undone about its legal and regulatory environment, which has inconsistent laws, a weak enforcement mechanism, and a lack of a domestic deadline for phasing out gas flaring completely.557 Critics may argue in line with
Art. 4 (4) of the Paris Agreement that Nigeria is a developing country, and so can only handle the problem of gas flaring in a way that will not interfere with its sustainable development. This thesis‘ line of argument wishes to point out that sustainable development is that which satisfies the necessities of the present generation, without placing the needs of future generations in jeopardy.558 The benefits of the principle of sustainable development are threefold; these are the
553 World Bank, ―The Zero-Routine Flaring by 2030‖, online: World Bank < http://www.worldbank.org/en/programs/zero-routine-flaring-by-2030> [World Bank‘s Zero-Routine Flaring]. 554World Bank‘s, Flaring Initiative, supra note 552. 555 World Bank‘s Zero-Routine Flaring, supra note 553. 556 Anastasia Rodina, ―Burning Through: Reducing Associated Petroleum Gas Flaring to Enhance Natural resources governance‖ (2016) Law in Transition Journal 83 at 84-86. 557 Sam O. Aghalino, ―Gas Flaring, Environmental Pollution and Abatement Measures in Nigeria, 1969-2001‖ (2009) 11:4 Journal of Sustainable Development in Africa 219 at 226. 558 Our Common Future, supra note 141 at 43. 106
economic, social and environmental benefits.559 The question which arises from this definition is whether the continuous flaring of APG in the country‘s oil fields meets the economic, social and environmental needs of present generations in any way. The answer would be a resounding no in the sense that all indicators point out that gas flaring is not only a drain on the nation‘s economy, but a threat to the health of Nigerians, Nigeria‘s climate, and indeed that of the world in general.
These present-day negative impacts will, in turn, affect future generations.
It is worthy of mentioning that the Paris Agreement urges each country to tailor its NDC commitment, according to its common but differentiated responsibilities.560 Nigeria‘s voluntary commitment to phase out gas flaring by the year 2030 in its NDC shows a readiness to solve the problem on the surface. However, a mere international commitment with no domestic law backing up the deadline it indicates is insufficient.
3.5 Conclusion
This chapter argues that Nigeria adopts a domanial or permanent sovereignty system of oil and gas ownership. Since the enactment of the AGRA, the government has tried unsuccessfully to practice a ―command and control approach,‖561 to gas flaring regulation. This approach is a total failure by the fact that not one of the gas flare phase-out deadline date was actualized. The exclusion of most oil and gas operators from the deadline for phasing out gas flaring mocks every attempt the federal government has made to phase out gas flaring. The
MBI‘s introduced into the country‘s legislation to encourage gas utilization in the oil and gas
559 Dave Newport, Thomas Chesnes & Angela Linder, The ―environmental sustainability‖ problem: ensuring that sustainability stands on three legs‖ (2003) 1:4 International Journal of Sustainability in Higher Education 357 at 357. 560 Paris Agreement, supra note 47 at Art. 3 (19). 561 Nigeria‘s laws on a deadline date for phasing out gas flaring are indicative of the command and control approach to gas flaring regulation. 107
industry as well as international initiatives have also proven unsuccessful in phasing out gas flaring so far.
It is at this time concluded that Nigeria boasts of a weak regulatory framework and enforcement mechanism for the phase-out of gas flaring.562 Its failure to create an effective regime for carbon emission reductions ending gas flaring, which is more in line in with the Paris
Agreement, makes a mockery of its NDC commitment to phase out gas flaring by the year 2030.
562 Nwufo, supra note 311 at 493.This includes its laws, bodies fostered with the responsibility of enforcing the laws as well as its judicial response to the issue of gas flaring.
108
Chapter four: Gas Flaring in the United Kingdom and Alberta
4.1 Introduction
This chapter considers the legal and regulatory framework on gas flaring from upstream oil and gas operations in the United Kingdom and Alberta. First is a brief background of the discovery of oil and gas in the United Kingdom and Alberta. A discussion on the theories of oil and gas ownership applied in both jurisdictions follows. Then, the chapter considers gas flaring in the UK and Alberta before examining how lessons from both jurisdictions can guide
Nigeria to manage better the obstacles it must address if it is to phase out gas flaring. The chapter ends by offering some concluding thoughts.
4.1.2 A Brief History of the Discovery of Oil and Gas in the United Kingdom and Alberta
Before the discovery of oil, the Defence of the Realm Act, 1914 empowered the
British Government to enter lands with the intention of exploring petroleum to the exclusion of all others.563 The year 1919 saw the discovery of the first oil well in England in Hardstoft,
Derbyshire.564 The discovery of commercial quantities of gas in the UK was in 1965.565
Currently, in Europe, the UK ranks as the third largest producer of natural gas and the second largest producer of oil.566 Oil and gas production accounts for over £20 billion of UK‘s annual financial income.567
563 Terrence Daintith & G.D.M. Willoughby, A Manual of United Kingdom Oil and Gas Law, (London: Oyez Publishing Ltd, 1977) at 11 [Daintith &Willoughby]. 564 Ibid. 565 George C. Band, ―Fifty years of UK offshore oil and gas‖ (1991) 157:2 The Geographical Journal 179 at 179 (Environment Complete). 566 David Hough, ―UK offshore oil and gas industry‖, (2017) House of Commons Library Briefing Paper No 07268 at 5 [Hough]. 567 Ibid. 109
While in Canada, Alberta is the country‘s largest oil and gas producing province.568 Drilling of the first natural gas well in Alberta occurred in a field close to Medicine
Hat in 1883.569 However, the first significant discovery of oil and gas was at the Turner Valley in
1914.570 In 2016, Alberta‘s oil production was an estimated 67 percent of Canada‘s oil production, while its natural gas production was about 81 percent of Canada‘s gas production.571
In the same year, the AER provides that Alberta has an estimated crude oil production of
441,000bbls/d.572
4.1.3 Ownership of Oil and Gas in the United Kingdom and Alberta
4.1.3.1 Ownership of oil and gas in the UK
The Petroleum Act 1918 gives the UK government the right to enter any land to explore and prospect petroleum, and also, prevent others from doing so. However, there was no specific vesting of the ownership of oil and gas in the legislative union until the UK Petroleum
Act, 1938, which vests absolute ownership of oil and gas underneath UK lands, and the UK
Continental shelf (UKCS) in the crown, and grants it an exclusive right to search for and win such petroleum.573 The exception to this provision is active licenses already issued regarding
568 Canadian Association of Petroleum Producers, ―Industry Across Canada‖, online: Canadian Association of Petroleum Producers < https://www.capp.ca/canadian-oil-and-natural-gas/industry-across-canada>. 569Alberta Energy, ―Natural Gas Facts‖, online: Alberta Energy
petroleum under the Petroleum (Production) Act, 1918.574 Currently, the Petroleum Act 1998 (as amended)575 is the national focal law which governs onshore and offshore upstream activities in the UK oil and gas sector. The Act consolidates several pieces of enactment on the control of oil and gas.576 The Act states that petroleum includes deposits of mineral oils, natural gas, and hydrocarbons existing in their original state in strata.577 It expressly excludes bituminous shales, coals, and deposits of strata from the definition of petroleum.578 The Act further adopts the stance of the Petroleum (Production) Act, 1934,579 by vesting the right to explore all oil lying in its natural state in the UK, including those in crown lands, or petroleum lying underneath the territorial sea adjacent to the UK in the crown.580 The Act empowers the Crown through the secretary of state, to grant deserving applicants licenses for the exploration of all petroleum with rights vested in the Crown by s. 1 of the Continental shelf Act, 1965,581 and petroleum defined in s. 2 (2) of the Act.582 The function above of the secretary of state to grant licenses now rests with
574 Ibid. 575Petroleum Act 1998, c.17, 11th June 1998 < https://www.legislation.gov.uk/ukpga/1998/17/contents> [Petroleum Act]. 576 Ibid at preamble. 577 Ibid. 578 Petroleum Act, supra note 575 at 1(b). 579 Petroleum (Production) Act 1934, 24 & 25 Geo. 5, c. 36, 12th July 1934 < http://www.legislation.gov.uk/ukpga/Geo5/24-25/36/enacted>. 580 Petroleum Act, supra note 575 at s. 2 (1) & (2). There is a difference in the nomenclature in the two Acts. s. 1 of the Petroleum (Production), Act 1934 refers to the crown as ―his majesty‖ while the Petroleum Act, 1998 refers to the crown as ―her majesty‖ due to the fact that the current monarch in the UK is the Queen Elizabeth; while the monarch referred to in the Petroleum (Production, Act) is King George VI. Also, the Petroleum Act is silent on the exclusion of all licenses granted in 1918 indicated in the 1934 Act, from the total control of the crown in the Petroleum Act, 1998. 581 Continental Shelf Act 1964, c.29, 15th April 1964 < https://www.legislation.gov.uk/ukpga/1964/29/contents>. 582 Petroleum Act, supra note 575 at s.2 (1) & (2). 111
the Oil and Gas Authority (OGA).583 So far, the nomenclature on ownership rights to petroleum is devoid of ambiguity.
However, arguments have arisen as to the extent of the utilization of licences regarding drilling onshore petroleum licenses granted by the crown. In the Supreme Court Case of Star Energy Weald Basin Limited v Bocardo SA, one of the main questions was whether an oil mining license granted the appellants by the crown, under the auspices of the Petroleum Act,
1934, empowered it to enter the respondents land for drilling the oil lying underneath, without its express permission.584 The court considered several principles such as possession versus ownership and surface rights and came to the conclusion that even with legal documents to enter the land with the intention of oil exploration; the appellant's actions amounted to trespass with no defence at common law.585 This case illustrates the fact that although control of mineral rights is vested in the crown, who can grant such rights in the way of leases to whomever it deems fit, such a right must not conflict with the surface rights of actual occupants of the land. Besides national recognition, there is the international recognition of state sovereignty over natural resources in the UK.586
There are four sectors in the UK oil and gas industry, the upstream, midstream, downstream and decommissioning oil and gas sector. The upstream oil and gas sector is that
583 See generally Petroleum (Transfer of Functions) Regulations, No.898, 2016 at s. 2(1) & S3 (1) & (2); The Grant or revocation of licenses is one of the regulatory functions of the OGA. See Energy Act, 2016, c.16, 12th May 2016 < http://www.legislation.gov.uk/ukpga/2016/20/contents/enacted> at s. 8 [EA, 2016]. 584 Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC 35. 585 See also Nigel Bankes, “The Supreme Court of the United Kingdom (fka the House of Lords)Decides an Oil and Gas Case” (12 August, 2010), ABlaw.ca (blog), online:
which involves the search for, recovery and production of natural gas and crude oil.587 Also known as the exploration and production (E&P) sector, its operations further include the search for likely underground oil and gas fields and operation of crude oil and natural gas surface recovery wells.588
4.1.3.2 Ownership of oil and gas in Alberta
The provinces in Canada exercise control over their natural resources.589 In the past, the preceding was not always the case. After the creation of Alberta in 1905, the federal government continued to exercise control over its natural resources, including oil and gas.590
However, in 1925, after many years of struggle and negotiations, the federal government agreed to cede control over natural resources to the provinces, thus granting Alberta its much-desired control over natural resources in the region.591
Alberta practices two regimes of oil and gas ownership-Private Ownership and
Crown Ownership.592 The cases of Berkheiser v. Berkheiser,593 Alberta Energy Company Ltd v.
Goodwell Petroleum Corporation Ltd;594 Borys v. Canadian Pacific Railway,595 and Anderson v
Amoco Canada Oil and Gas,596 establish that the owners of minerals rights in Alberta have the
587 Mohammed Alaramahi, Oil and Gas Law in the UK (West Sussex: Bloomsbury Ltd, 2013) at 9 [Alaramahi]. 588 Ibid. 589 The Constitution Act, 1867, 30 & 31 Vict, c 3, at s. 92 A (1) [CA, 1867]. 590Alberta Culture and Tourism, ―The Provincial Government and Conservation‖, online: Alberta Culture and Tourism
authority to exercise their mineral rights.597 Based on the auspices of the Constitution Act, 1867, the Albertan government exclusively regulates oil and gas production in the province.598
4.2 Gas Flaring in the UK and Alberta Upstream Oil and Gas Industry
The preceding section establishes that oil and gas in the UK are subject to Crown ownership while oil and gas in Alberta are provincial and privately owned. The recognition of the principle of state sovereignty is by domestic as well as international law.599 Flowing from the above, the question which arises is how does gas flaring in the UK and Alberta occur and what is the regulatory process?
4.2.1 Overview of Gas Flaring in the UK Oil and Gas Sector
4.2.1.1 Gas Flaring in the UK Oil and Gas Sector
Of the 30 largest upstream oil and gas flaring countries in the World, the UK occupies the 22nd position.600 In the UK, the production of natural gas coincides with the manufacture of oil. The history of gas flaring in the union is similar to those of other countries grappling with the problem. Historically, there was flaring of massive volumes of associated natural gas during oil and gas production. The flaring is primarily because of the unavailability of export pipelines for the transportation of surplus gas in the UK‘s early oil fields. Also, due to a lack of a market and sale of natural gas, oil and gas companies indulged in gas flaring as a safety measure for the prevention of gas explosion. However, times have changed. Flaring of oil and
597 Nigel Banks, ―Summary Judgment Ordered in Outstanding Coal Bed Methane Cases‖ (28 June, 2013), ABlawg.ca (blog), online:
gas in the UK‘s upstream oil and gas sector is now subject to strict regulations. The oil and gas industry currently continues to embark on measures to ensure gas flaring reduction. Gas flaring in upstream oil and gas activities only occurs in extreme circumstances as a measure to promote safety in oil and gas operations. Reports reveal that gas flaring only accounts for 20% of overall
GHG emissions in the oil and gas industry.601
4.2.1.2 Gas Flaring in Alberta’s Upstream Oil and Gas Sector
Alberta is the energy province in Canada and is considered the country‘s hub of oil and gas operations.602 Unlike countries such as Nigeria, Alberta‘s oil is predominantly unconventional oil, due to its heavy reliance on oil sands. Unconventional crude oil is more massive than conventional crude oil and is closer to the surface of the earth. However, it requires more specialized techniques for its extraction. Some opponents of unconventional crudes from oil sands argue that it is less environmentally friendly than conventional oil. One of such is the
Pembina institute which revealed after a study that greenhouse gas emissions from oil sands are
8 to 32% higher than that obtainable from drilling conventional crude oil.603 Regarding gas flaring in the upstream oil and gas sector, evidence suggests that before the discovery of oil in
Turner Valley, there was already the flaring of the free gas cap which typically acts as a reservoir drive for oil production.604 In extracting oil from its convention oil wells, Alberta utilizes surface mining techniques. Solution gas which consists primarily of methane accompanies
601 Ibid. 602 Ibid. 603 Benjamin Israel, ―The Real GHG trend: Oil Sands among the most carbon intensive cuds in North America‖ (4 October, 2017), Pembina Institute (blog), < http://www.pembina.org/blog/real-ghg-trend-oilsands>. 604 Norman J. Hyne, Nontechnical Guide to Petroleum Geology, Exploration, Drilling and Production, 2nd ed, (Tulsa: PennWell, 2003). 115
Alberta‘s unconventional oil during its extraction from reservoirs in the province.605 Reports in
1998 reveal that is a recovery of about 92% of this solution gas during the separation process, which in turn is conserved as fuel, or processed into natural gas, while the remaining are either flared vented.606
From the preceding, we see that Alberta is similar to most oil and gas flaring countries who share the problem of gas flaring from oil production. However, over the years it has taken many steps to curtail gas flaring drastically.
4.2.1.3 Types of Gas Flaring in the UK and Alberta Oil and Gas Industry
Four types of gas flaring are prevalent in the UK and Alberta oil and gas industry.
These are: (i) the baseload flare; (ii) flaring from the gas plant mode of operation or changes in procedure; and (iii) flaring from process trips or emergency shutdowns.607
(i) Baseload flares
Baseload flares are a combination of gas from an emergency lack of access to a third-party gas export pipeline, a gas plant start-up and the planned shutdown of production equipment.608 It further includes the flaring of gas during normal operating conditions to ensure
605 Mark R. Holford & Patrick J. Hettiaratchi, An Evaluation of Potential Technologies for Reducing Solution Gas Flaring in Alberta, (Calgary, Faculty of Engineering, 1998) at 1. 606Breen, supra note 570. 607 R. Jamie Stewart, ―A Review of Flaring and Venting at the UK Offshore Oil Fields‖ (Nov, 2014), online: Scottish Carbon Capture and Storage
safety and efficiency in oil and gas production.609 Examples of gas flared during base load flares include off-gas obtainable from the glycol regeneration plants and acid gas emanating from gas treatment plants.610
(ii) Flaring from the gas plant mode of operation or changes in operation
These include gas flaring from the start-up of a gas plant, shut down of equipment during the production process, equipment outages or maintenance, and lastly, from gas which does not meet the approved standards for export.
(iii) Flaring from process trips or an emergency shutdown
Flaring from process trips or emergency shutdown occurs during the flaring of gas from emergencies during the installation of equipment, the emergency shutdown/ process trip of drilling equipment, and the third type of gas flaring is gas flaring from process trip, or an emergency shutdown.
4.3 The UK and Alberta Approach to Gas Flaring Regulation in Upstream Oil and Gas
Activities
4.3.1 Gas Flaring Regulation in the UK
The objective of the UK regulatory regime is the maximization of oil and gas recovery, ensuring the practicality of health and safety measures and lastly, the prevention of environmental damage.611 The UK adopts the sustainability approach through the conservation of natural resources in its attitude to gas flaring. The World Bank reports that UK‘s flaring policy
609 Ibid. 610 Ibid. 611 Petroleum Act, supra note 575 at s. 9 (A) (1); World Bank, ―UK Flaring Policy‖, online: World Bank
aims at maximizing the economic benefit to the UK through making sure that in its objectives, there is a proper recovery of its hydrocarbon reserves; ensuring that appropriate documentation and management of environmental repercussions, and the efficient supply of facilities and pipelines.612 Thus, I can rightly say that regulation of oil and gas in the UK have two aims: securing economic profit and promoting environmental conservation for the local benefit of the country, as well as meeting international obligations on the reduction of GHGs (mainly CO2) which pose a threat to the climate. The UK‘s stance on gas flaring is similar to that of oil and gas countries which share this problem. It adopts the conservation of natural gas approach concerning gas that would otherwise be subject to flaring through reinjection mechanisms. The non-discriminatory and transparent process in the access to upstream infrastructure, an effective regulatory gas flaring regime and liberalized energy market are some of the reasons given for the success of the UK‘s gas flaring reduction policy. Current central laws which regulate the oil and gas industry are the Energy Act, 2016,613 and the Petroleum Act, 1998.614 In the UK, the
Environmental Act grants local governments of each legislative union the authority to monitor air pollution and take steps to ensure meeting national targets.615 The result of this authorization is the enactment of air quality regulations by each component legislative union.616
4.3.2 Gas Flaring Regulatory Agencies in the UK
(i) The Oil and Gas Authority (OGA)
612 Ibid. 613 EA 2016, supra note 583. 614 Petroleum Act, supra note 575. 615 Environment Act 1995, c.25, 19th July 1995. < https://www.legislation.gov.uk/ukpga/1995/25/contents> at s. 5 [UK Env Act]. 616 The UK Government, ―Local Government Power‖, online: UK GOV < http://www.environmentlaw.org.uk/>. 118
The Agency vested with the power to issue gas flaring consents in upstream oil and gas operations governed under the OGA.617 The EA 2016 formally establishes the OGA as an independent regulatory agency free from any interference by the Crown.618 Historically, the
Crown transfers its power to grant licenses to explore petroleum to the Secretary of State in the
Department of Energy and Climate Change (DECC).619 The Secretary of State, in turn, transfers the sole authority to grant licenses for the exploration and extraction of petroleum to the OGA.620
The OGA has two broad functions. First, is the decommissioning of offshore oil and gas installations and pipelines; second, is the control of oil and gas upstream activities and environmental legislation enforcement.621 In its upstream oil and gas control functions, the OGA is empowered by the EA 2016 to impose fines as high as GBP 1,000,000 (one million GBP) on defaulting oil and gas operators, through the issuance of penalty notices.622 The Act further empowers the agency to revoke the licenses of defaulting oil and gas operators, who fail to comply with applicable oil and gas regulations.623
(ii) The Department of Business Energy and Industrial Strategy (BEIS)
617 EA 2016, supra note 583 at Schedule 1 (3); Oil & Gas Authority, ―Production‖, online: Oil & Gas Authority,
The BEIS formulates climate change policies in the UK.624 The BEIS is a replacement to the DECC which previously had the responsibility of issuing licenses as set out under the Petroleum Act 1988 and other oil and gas industry regulations. Safety and responsibility in the recovery of UK oil and gas reserves is a primary responsibility of the BEIS‘ office of unconventional oil and gas. The EA 2016 expressly transfers several of these oil and gas regulatory powers to the Secretary of State.625
In the next section, this thesis discusses the various regulatory mechanisms for the regulation of upstream oil and gas industry flaring.
4.3.3 Regulation of Gas Flaring in Alberta
Alberta adopts a ―command and control‖ approach to gas flaring. The principal law applicable to gas flaring in the province is the Oil and Gas Conservation Act (OGCA).626
The Act grants the regulator of the oil and gas industry the power to prescribe information that should be included in the Act and also accompany its application. It also gives the regulator the power to grant licences and to exercise environmental protection including but not limited to the commencement of Well drilling and during drilling for the conservation of gas.627 The commission of waste is punishable under the auspices of the Act. Two other principal laws which apply to gas flaring regulation are the Responsible Energy Development Act (REDA)628
624 The Department for Business, Energy and Industrial Strategy, ―About Us‖, online: The Department of Business, Energy and Industrial Strategy < https://www.gov.uk/government/organisations/department-for-business-energy- and-industrial-strategy/about#our-responsibilities> [BEIS]. 625 See EA 2016, supra note 583 at Schedule 1. 626 See Oil and Gas Conservation Act, RSA 2000, c.O-6 at s. 3 & s. 4 [OGCA]. 627 Ibid at s. 10 (1) (a), (b) & (Z). 628 Responsible Energy Development Act, RSA 2012, c. R-17.3 s. 2 (1) (a) (b) (ii) [REDA]; See also OGCA, supra note 626 at s. 7. 120
and the Climate Change Emissions Management Act (CCEMA).629 The REDA establishes the
AER as the regulator of activities including the development of energy resources and the protection of Alberta‘s environment.630 The CCEMA, on the other hand, incorporates Canada‘s international commitment to the reduction of GHG emissions in the province.631
4.3.1. Gas Flaring Regulator in Alberta
In Alberta, the agency responsible for the regulation of gas flaring from oil and gas production is the Alberta Energy Regulator (AER).632 The REDA establishes the AER as an independent regulator of the Alberta energy industry with no external interference.633 The AER facilitates the monitoring of infrastructure and natural resource development of oil and gas companies.634 The monitoring process occurs in several ways, including but not limited to the inspection of oil and gas activities to ensure that all applicable requirements, including legislation and directives, are met by oil and gas companies. The AER also penalizes errant oil and gas companies and holds hearings to determine the viability and feasibility of proposed oil and gas projects.
629 Climate Change and Emissions Management Act, RSA 2003, c.16.7 [CCEMA]. 630 REDA, supra note 628. 631 CCEMA, supra note 629. 632Canada‘s Natural Gas, ―Flaring and venting is regulated‖ online: Canada’s Natural Gas < https://www.canadasnaturalgas.ca/en/environmental-action/air/flaring-and-venting>. 633 REDA, supra note 628 at s. 3 (1) & 4. 634 Alberta Energy Regulator, ―How does the Alberta Energy Regulator regulate energy development in Alberta?‖ online: Alberta Energy Regulator,
Regarding oil and gas conservation, it is the responsibility of the AER to ensure compliance with the provisions of the Oil and Gas Conservation Act (OGCA) to achieve the purposes of the Act, as well as its attendant rules.635
In addition to applying gas flaring laws in the province, the AER regulates gas flaring through its Directive 060: Upstream Petroleum Industry Flaring, Incinerating and
Venting.636 The definition of waste in the directive includes but is not limited to: 637
The flaring, burning, or escape of gas which possesses the potential for economic
recovery through processing or economic reinjection into a reservoir underground.
The drilling, operating or producing, completing or equipping any well in a manner
which causes unreasonable and avoidable loss.
The disproportionate or incompetent use of reservoir energy.
Failing to use suitable recovery methods in the processing of oil and gas; if the said
methods would increase the quantity of oil and gas.
4.4 UK and Alberta Approaches to Outlined Obstacles to Phasing Out Gas Flaring in the
Nigeria Oil and Gas Sector
4.4.1 The Problem of Inefficient Regulation
As discussed earlier in this chapter, the EA 2016 and the Petroleum Act, 1998 are the two principal laws which regulate gas flaring in the UK. Both laws require that oil and gas
635 The purposes of the OGCA include oil and gas conservation, ensuring safety in the exploration and processing of oil and gas, while taking into account the environment, economy and public interests. Other purposes include providing an avenue for information dissemination and pollution control. See OGCA supra note 626 at s. 4. 636Alberta Energy Regulator, ―Directive 060‖ (12 March 2018), online: Alberta Energy Regulator
operators who wish to flare gas must seek the consent of the OGA. In addition to both major laws, other supplementary legislation regulates gas flaring in the oil and gas industry. The
Offshore Combustion Installations (Pollution Prevention and Control) Regulations (OCIR) outlines the intentional release of fluorinated GHG offshore as an offence.638 An Officer of any body corporate who contravenes or contributes to the infringement of any offence in the regulations is subject to a fine not exceeding the statutory minimum on either a summary conviction or indictment.639 In R v. Thames Water Utilities Ltd, the suggestion of the court is to the effect that fines in millions of pounds would be useful in ensuring compliance with environmental regulations by company shareholders and directors.640 The Offshore
Environmental Civil Sanctions Regulations (OECSR) allows the Secretary of State to impose monetary penalties on contraveners of environmental regulations which govern oil and gas flaring. The regulations further require the Secretary of State to publish reports on cases where there is the successful imposition of penalties.
The EU EIA directly influences the current UK EIA regime.641 The UK EIA process encompasses consultation and notification regarding development about air, climate,
638 The Offshore Combustion Installations (Pollution Prevention and Control) Regulations 2013, SI 2013/971 < http://www.legislation.gov.uk/uksi/2013/971/contents/made> at 29 (1) (a) (i) [OCIR]. 639 Ibid at ss. 30 &31; Under Criminal Law in the UK, sanctions for most breaches of environmental law including the discharge of harmful substances into the air is an unlimited fine for the commission of offences after March 12, 2015, and/ a maximum term of imprisonment for six months in lower courts. In higher courts, there is a maximum of unlimited fines and/ a maximum of five years imprisonment. See Michael Coxall & Elizabeth Hardacre, ―Environmental Law and Practice in the UK (England and Wales): Overview‖ (1 February 2008), online: Thompson Reuters Practical Law
water, and soil, and land amongst others.642 An Environmental Statement (Environmental Impact
Assessment in the Scottish Regulations) which contains a description of an applicant‘s proposed project, likely impact of the project on the environment, and measures to address the project‘s adverse environmental effects on the environment, is a necessary feature of the UK EIA process.643 While the UK regulations give robust, clear cut directives on public notification for
EIA projects, the requirement of public consultation does not include private individuals, NGOs and other marginal interested bodies which such projects may likely affect its scope.644 In practice, public consultation occurs during the scoping stage and involves only the decision- making body and statutory environmental bodies.645
4.4.1.1 Policy-Based Instruments and Gas Flaring Reduction in the UK
Besides the apparent command and control approach to the regulation of gas flaring in the UK, there is the implementation of national schemes for the reduction of gas
642 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/ 571 < http://www.legislation.gov.uk/uksi/2017/571/contents/made> at Reg. 4 (1) & (3) [England EIA Regulations]; The Town Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/567
flaring. One of such is the Flare Transfer Pilot Trading Scheme, applicable to the UK
Continental Shelf.646 The other is the UK Emissions Trading Scheme.
(i) The Flare Pilot Transfer Trading Scheme (FPTTS)
The scheme serves as a ―carrot approach‖ to mitigate gas flaring by offering incentives to oil and gas operators with the aim of further reducing gas flaring beyond the limitations set by flare consents annually. Launched in January 2001, this project organizes a system for oil and gas operators to trade volumes of gas that fall below the ―participating oil and gas operators‖ valid consent.647 Generally, gas flare consents cover flaring for safety purposes and emergencies. Under the scheme, oil and gas operators with flare consents may either increase or decrease the volume of gas specified in their voluntary asset target each year. The preceding occurs when operators who wish to reduce the amount of gas flaring defined in their voluntary flare target may trade their unused flaring consent to oil and gas operators who want to increase their flare target. The World Bank points out that a benefit of the FPTTS in this regard is that it provides an avenue for an oil and gas operator to avoid applying for an additional flare consent in the desire to increase its voluntary flare target. However, such a company can only increase flaring through the unused portion of a flare consent granted to another oil and gas company. In my opinion, this strategy intends to maintain a balance in the quantity of gas flared by oil and gas companies annually. The World Bank attributes 11% reduction of gas flaring to the FPTTS. The FPTTS consists of two trading schemes: the Transfer of Flare by Assets
Operating within Flare Gas Volume Consents and Transfer of Flare Gas Volume by Revision of
646 Flare Transport Pilot Trading Scheme, ―Framework for the Voluntary Transfer Scheme 2006‖ (April 11, 2006), online: Flare Transport Pilot Trading Scheme < http://siteresources.worldbank.org/INTGGFR/Resources/unitedkingdom.pdf> at 2. 647 Stewart, supra note 607 at 5. 125
Flare Consents.648 A problem inherent in the FPTTS scheme is an accurate measurement of gas flaring that occurs through the programme annually.
(ii) The UK Emissions Trading Scheme (UKETS)
The UKETS serves as one of the measures of a voluntary scheme of the UK
Climate Change Program.649 The UKETS aims to enable the UK to fulfill its commitment to mitigating gas flaring under the Kyoto Protocol. The objectives of the scheme are reducing GHG emissions at a low cost, the encouragement of an emissions trading centre in London, and granting of UK oil and gas operators early experience in the concept of emissions trading.650
The characteristics of the UKETS are its utilization of the concepts of voluntariness, direct utilization participation, climate change agreements and sale of overachievements.
Voluntariness: The voluntary nature of the scheme opens the door for oil and gas
operators who are opposed to membership of the plan on an emissions reduction target or
project, to become participants through market and trade allowances granted on a
speculative basis.651 The advantage of this concept is that it allows environmentalist
groups to participate in the UKETS.
648 World Bank, ―Overview of Onshore and Offshore Gas Flaring and Venting in the United Kingdom‖, online: World Bank < http://siteresources.worldbank.org/INTGGFR/Resources/unitedkingdom.pdf>. 649 Osamuyien Enabulele, Mahdi Zahraa & Franklin N. Ngwu, ―Addressing Climate Change due to Emission of Greenhouse Gas Associated with the Oil & Gas Authority: Market-Based Regulation to the Rescue‖ in Maria Alejandra Gonzalez-Perez (eds), Climate Change and the 2030 Corporate Agenda for Sustainable Development (Wales, Emerald Group Publishing Ltd, 2017) at 53 [Gonzalez-Perez]. 650 Ibid. 651Gonzalez-Perez, supra note 649 at 54. 126
Direct Participation: Here, the government grants financial incentives to a maximum of
€30,000,000 to companies who agree to set voluntary targets on GHGs.652 There is a
requirement that direct participation should reduce emissions entirely with named
baselines.653 Annually, direct participants receive an allocation of emissions allowance
equal to the baseline emissions minus their contracted abated commitments.654 There is a
three-month window reconciliation period for each direct participant at the end of the
annual compliance period to demonstrate compliance and begin any trading vital to
meeting its target.655
Climate Change Agreements (CCA) Participations: Companies which join the scheme
through the CCA are known as CCA Participants. By membership of the CCA, these
companies already possess current climate change reduction targets and as such are not
eligible for emission allowances. CCA Participants use the UKETS to either sell to help
in achieving their goals.656
Sale of Overachievements: Organizations which undertake emission reduction projects
can sell the credits from the projects.657
Although the official end of the UKETS is the year 2008, it is considered a success in providing lessons on the operability of an emissions trading scheme, causing a
652 Olivia Hartridge, ―The UK Emissions Trading Scheme‖, online: Department for Environment Food and Rural Affairs
behavioural change in the GHG emission attitude of participants, reducing CO2 and creating an atmosphere for consistent, reliable, transparent and complete data reporting by participants.658 Its only criticisms from participants are its complexity and the time required to engage in the scheme. The preceding criticisms are two problems prevalent generally in the application of rights-based MBIs as seen from the discussion in chapter two.659 However, the advantage of the program is a noticeable decrease in CO2 emissions during its duration.660 Its predecessor, the
EUETS which is mandatory as opposed to voluntary, adopts a similar operating model through the use of a cap limit of total greenhouse gas Emissions from all participants with a sole focus on
CO2 emissions.661 Recent studies reveal that the EUETS contributes to real reductions in GHG emissions as well as emission intensity.662
In addition to the above scheme, another contribution to the reduction of gas flaring in the UK is the award of oil and gas production contracts to companies with credible proposals on how to recover natural gas. For example, in the year 2030, Costain UK designed technology for the future recovery of natural gas during the oil production phase for Total UK
Limited, to help show the latter‘s commitment to recover natural gas during the production process.663
4.4.1.2 Other Approaches to Regulation in Alberta
658 Enviros Consulting Limited, ―Appraisal of Years 1-4 of the UK Emissions Trading Scheme‖ (2006), online: DEFRA
In addition to the three primary laws, OGCA, REDA and CCEMA which regulate gas flaring from Alberta‘s oil and gas industry, it strengthens its prescriptive regulatory approach to mitigate gas flaring through the concept of public consultation and participation before the grant of well and gas flaring permits. There is also the inclusion of municipalities in the Well and gas flaring permit consultation process, compliance with the policies of municipalities by oil and gas operators, and AER directives.
4.4.1.2.1 Public Consultation
Alberta adopts a robust consultation process, the development of directives and programs and the inclusion of municipal participation in the regulation of its gas flaring conservation regime. The gas flaring consultation process in Alberta is a mixture of public consultation and participation.664 Oil and gas operators who continuously flare gas must notify and initiate a consultation process with the public to keep them abreast of developments regarding the flaring of gas in their operations.665 Also, there is a requirement that oil and gas operators must consult annually, the residents in areas within the proximity of their gas flaring operations to address concerns in those areas. R. 9 (1) and (2) of the Alberta Energy Rules of
Practice regulates Alberta‘s public consultation and participation process.666
A classic example of a consultation process between an oil and gas operator and residents of an area involving the application for a gas flare permit by an oil and gas company is
664 Ibironke T. Odumosu, ―Transferring Alberta‘s Gas Flaring Reduction Regulatory Framework to Nigeria: Potentials and Limitations‖ (2007) 44:4 Alta. L. Rev. 863 at 89 [T. Odumosu] 665 Orieji Onuma, ―Mainstreaming Sustainability: An Evaluation of Alberta‘s Legal and Regulatory Regime for Gas Development‖ (2015) 116 Canadian Institute of Resources Law 1 at 6 [Onuma]. 666 Alberta, Alberta Energy Regulator Rules of Practice, Alta Reg. 99/2013 (CanLII). 129
the Whaleback Hearing in the year 2003.667 The hearing presided over by the Energy Resources and Conservation Board (ERCB, now AER) involves the public consultation process between residents of the Bob Creek Wildland and Polaris Resources Ltd. At the hearing, the ERCB deliberates on issues affecting drilling gas reservoirs on community lands and the inevitable resultant plume dispersion and flaring from drilling gas wells. Polaris Resources Ltd. argues that the well is necessary, and that drilling it is within the rights of the company due to its location outside the protected territory. The Bob Creek Wildland Community representatives, on the other hand, argue that the land in question is within a protected region, drilling a well on it raise environmental concerns and that there was an inadequate consultation of residents within proximity of the land. Bray reports that at the hearing, there is the observation of five essential principles which are necessary for hearings of this kind.668 These are establishing the necessity of the proposed project, effective public consultation, environmental concerns and the technical and financial viability of the company proposing the project.669 In its decision, the board cites Polaris
Resources Ltd.‘s application as being contrary to the public interest and denies the Well drilling and gas flare permit.670 It is the view of this thesis that the decision of the ERCB is apt. Not only were there significant loopholes such as inadequacies in the drilling plan of the applicant, but there was also a lack of an efficient management plan in a situation where an eventuality arises
667 Besides the Whaleback hearing, other cases where there is a denial of well drilling and gas flaring permits are the Amoco Petroleum application in 1994, Stampede oil application in 1999 and Shell Canada application in 2001. See Dolores Noga, ―Sour Gas Well Application Denied‖ (2004) 19:1 Environmental Law Centre 1 at 1[Noga]. 668 Shirley Bray, ―Finding the Public Interest at the Whaleback Hearing‖ (2003) 11(5) Wild Lands Advocate 6 at 4, 5, 8-10 [Bray]. 669 Ibid. 670 Alberta Energy and Utilities Board, ―Decision 2003-101: Polaris Resources Ltd-Applications for a Well Licence, Special Gas Well Spacing, Compulsory Pooling and Flaring Permit‖, online: Alberta Energy Regulator < https://www.aer.ca/documents/decisions/2003/2003-101.pdf>. 130
from the project. It is my opinion that a contrary decision, in this case, would prompt public outrage.
Odumosu recommends Alberta‘s public participation process in the oil and gas industry regulation as worth adopting.671 However, I want to mention here that one challenge public consultation process faces is the limitation of locus standi of participation in the process to only persons directly affected by the application, as seen from R. 9(2)(b)(a)(h) of the AER Rules of Practice.672 Another is the cost of instituting an action by private citizens, who are sometimes not availed of the AER‘s discretionary costs.673
4.4.1.2.2 The Inclusion of Local Municipalities in the Regulatory Process
The Municipal Government Act (MGA) empowers the creation of municipalities in Alberta.674 The MGA defines a municipality as ―a city, town, village, summer village, municipal district, municipal district or specialized municipality.‖675 Municipalities participate in oil and gas development in Alberta through the adoption of procedural policies and protocols on oil and gas development. An example of municipal procedural policy on oil and gas development is the 2007 City of Edmonton policy on Oil and Gas Facilities.676 The aims of the Edmonton policy are ensuring public safety, reducing pollution, ensuring that oil and gas activities do not affect urban development in the city, and providing citizens with information and a platform to
671 T. Odumosu, supra note 664 at 898. 672 Shaun Fluker, ―The Right to Public Participation in resources and Environmental Decision-Making‖ (2015) 52:3 Alberta Law Review 562 at 602. 673 Onuma, supra note 665 at 7. 674 Municipal Government Act, RSA 2000, c. M-26 (CanLII) [MGA]. 675 Ibid at 1 (1) (s). 676Edmonton City, ―City Policy: Oil and Gas Facilities‖ (2007), online: Edmonton City
express an opinion on oil and gas development projects.677 The 2017 Strathcona County Protocol is an example of a protocol with the aim of regulating oil and gas activities including flaring.678
In its expectations from oil and gas operators, the protocol specifies that they must comply with municipal regulations regarding gas flaring amidst other environmental nuisances.679
Municipalities act as key responders to emergencies in oil and gas projects and participate in public consultation processes.680 The participation of municipalities in public consultation is not absolute; the basis of determining an Alberta municipality‘s locus standi in a case involving a grant of a well or gas flaring permit is at the discretion of the AER which considers the factum of each case before it. In previous hearings, the AER is known to have denied locus standi to municipalities.681 Municipalities possess by-law making functions according to the MGA.682
However, there is an exemption of the by-law making functions of municipalities from regulating wells and batteries within the auspices of the OGCA.683 The effect of this provision is that oil and gas operators do not require a permit from municipalities before drilling wells, and for the operation of the wells. Vlavianos and Thompson are of the view that the exclusion of
677 Ibid at policy 1, 3 & 7. 678 Strathcona County, ―The Strathcona County protocol for Seismic Surveying, Drilling, Construction and Operation of Oil and Gas Facilities in Strathcona County‖ (January, 2017), online: Strathcona County < https://www.strathcona.ca/files/files/at-pds-strathcoprotocol2017.pdf> [Strathcona 2017 protocol]. 679 Ibid, at Key Element 3(a). 680 John Ludwick, ―Incident Response‖ (11 September, 2016), online: Alberta Energy Regulator Resource
municipalities from lawmaking in oil and gas operations, as well as the current state of input of local municipalities in oil and gas projects, is unsatisfactory; they call for improvements.684
4.4.1.2.3 Alberta Energy Regulator (AER) Directives
In addition to enforcing the provisions of the OGCA, REMA and CCEMA, the
AER applies Directive 060 which contains industry requirements regarding flaring, incinerating and venting in all upstream oil and gas processing facilities and wells in Alberta.685 The directive does not provide for the production of crude oil from oil sands, as well as processing plants provided for under s. 11 of the Oil Sands Conservation Act.686 However, it does state that flaring is associated with various energy resources including, but not limited to: gas, oil, bitumen and oil well drilling; gas well testing, routine bitumen, or solution gas production, and waste management in oil fields.687 It sets out three options oil and gas operators must consider regarding gas flaring.688 The first option is the feasibility of eliminating gas flaring.689 Second, is if the practicality of reducing gas flaring.690 The third is the question of whether gas flaring can conform to industry standards.691
The directive further specifies that solution gas flaring in Alberta must not exceed
670 million cubic meters (10ᶝ mᶟ) yearly.692 If the solution gas flaring in any oil and gas operation exceeds the specified limit in any year, the defaulting oil and gas operator will be
684 Vlavianos & Thompson, supra note 680 at 91-92. 685 AER, Directive 060, supra note 636 at 1.1. 686 Oil Sands Conservation Act, RSA 2000, c. O-7 (CanLII). 687 AER, Directive 060, supra note 636 at 1.3. 688 Ibid. 689 Ibid. 690 Ibid. 691 Ibid. 692 AER, Directive 060, supra note 636 at 2.1. 133
subject to an individual restriction of 670 10ᶝ mᶟ/ year based on the most current annual data available.693 Regarding gas flaring in new wells, gas flaring during the test period must be within the specified time frame for obtaining data for the sizing and economic evaluation of gas conservation apparatus.694 In a situation where the well-testing period reveals that combined flaring and venting in the tested well will exceed 900 mᶟ daily, there must be the closure of the
Well, and the oil and gas operator must embark on a solution gas evaluation. During the solution gas evaluation period, the well must remain closed.695 If the solution gas evaluation process reveals that solution gas conservation is required, the well must remain closed until the implementation of the gas conservation scheme.696
4.4.2 The Problem of Ministerial Discretion in the Grant of Gas Flare Certificates
There is no ministerial discretion on the grant of gas flare exemption certificates in the UK. The Energy Act, 1976 and Petroleum Act, 1998697 jointly require petroleum and gas operators to obtain consent from the OGA for hydrocarbon flaring and venting in the upstream onshore and offshore petroleum production process.698 The Energy Act, 1976699 provides that:
Disposal of gas by flaring
693 Ibid. 694 Ibid at 2.5. 695 Ibid. 696 Ibid. 697OGA, Flaring and Venting in Production, supra note 608. < https://www.ogauthority.co.uk/media/2467/flaring-and-venting-during-the-production-phase-1016.pdf>. 698 The grant of gas flare consents is a part of the functions transferred from the Secretary of State to the OGA. 699 Energy Act 1976, c. 76, 22nd November 1976 < https://www.legislation.gov.uk/ukpga/1976/76> at s. 12 [EA 1976]. 134
(1)Subject to subsection (3) below, the Secretary of State‘s consent is required for natural gas to be disposed of (whether at the source or elsewhere) by flaring or by releasing it unignited into the atmosphere.700 (2)This section applies to all natural gas of the United Kingdom, whether obtained there or in territorial waters, or in areas designated under the Continental Shelf Act 1964 except gas supplied by the British Gas Corporation.701 The above provision of the EA 1976 is amended by Schedule 1 s. 3 of the EA 2016,702 which provides that s. 12 A, be inserted immediately after s. 12 of the EA 1976. This section provides a requirement for OGA approval of gas flaring in areas within the UK but creates three exceptions to mandatory OGA consent.703 The first exception is where flaring is necessary to avoid or reduce harming anyone; second is where there is no reasonable foreseeability of risk before an emergency flaring occurs; and the last, where there can be no reasonable expectation of obtaining consent before the occurrence of the flaring incident.704 Applications for gas flare consents must be through the OGA portal, with the requisite application documents detailing the anticipated flare volumes during the commissioning process.705 If unsatisfied that the application contains the lowest level of flare essential to the efficient commissioning of the plant, the OGA may reject the request; otherwise, there would be an approval of the application.
The OGA‘s stance on flaring is that it must be necessary.706 As such, it requires that oil and gas operators must implement ―Best Practices‖ at the early stages of a project and
700 Ibid at s. 12 (1). 701 Ibid at s. 12 (2). 702 EA 2016, supra note 583. 703 Ibid at 12 A (1), (2) & (3). 704 Ibid at s.3 12 A (3). 705 OGA, Flaring and Venting in Production, supra note 608 at 2. 706Mace et al., supra note 621. 135
continue to do so throughout is duration.707 The OGA makes the process for the grant of flaring consents accessible to all through its guideline on offshore flaring approvals, the OGA Policy
Position: Offshore Flaring and Venting. The objective of the OGA Policy Position: Offshore
Flaring and Venting is to eliminate wasteful flaring of gas throughout the life span of a petroleum project.708 In granting flaring permits, the OGA adheres strictly to four factors. First, is the consideration of all appropriate evidence and data furnished by oil and gas operators to the
OGA by oil and gas companies to support the request for a flare consent. Second, is whether or not there is a consideration of alternative uses of the gas by the applicant. Third, whether or not the applicant utilized the best technology applicable in the field development stage of the project, and finally, the history of the applicant regarding prior flare consents.709 The discussion above shows that only routine flaring, and not continuous flaring of gas, is permitted in the UK onshore and offshore fields.
In the UK Continental Shelf, the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED), an arm of the BEIS regulates offshore discharges and emissions. UKCS operators must apply for a permit to produce emissions which must be made available to the OPRED through the Environmental Emissions Monitoring Scheme (EEMS).710
Okumagba explains that certain factors are responsible for the UK gas flaring consent regime.
707 Ibid. 708 Oil & Gas Authority, ―OGA policy position: Offshore flaring and venting‖, online: Oil &Gas Authority < https://www.ogauthority.co.uk/media/5014/flaring-and-venting-policy-position-website.pdf>at 2 [OGA, Policy Position]. 709 Ibid. 710Oil and Gas UK, ―Environment Report 2017‖, online: UK Oil and Gas
First, is the fact that consents are granted on a field by field basis.711 Second, the revocation of an oil and gas operator‘s licence rather than fines is the consequence of a breach of gas flare consent.712 Third, only oil and gas operators with plans for gas flare reduction receive gas flare consents. Fourth, there is a review of the flaring level of fields which flare over 50 tonnes, and the grant of either a medium or short consent upon submission of gas flare reduction plans annually.713
In Alberta, oil and gas operators who wish to flare gas must notify the appropriate
AER field center, as well as the general public before doing so.714 The AER sets out several requirements concerning gas flaring that should be met by operators before consenting to the flaring of natural gas.715 First, is the notification through the Designated Information Submission
System which requires oil and gas operators to notify the applicable AER field centre before embarking on any gas flaring activity.716 The said notification occurs through the completion and submission of an AER Flaring Notice Form.717 Oil and gas operators are further encouraged to follow instructions on the FIS Web User Guide while completing and submitting the form.718
Next, is the Solution Gas Management Requirement which expresses the desire of the AER that the oil and gas industry continuously pursues improvement for the reduction of gas flaring, as
711 Edward O. Okumagba, ―Gas Flaring Abatement. Kaleidoscopic View of UK‘s Regulatory Approach and the Need for a Paradigm Shift by Nigeria‖, online: Academia
well as other environmental degrading practices in conjunction with stakeholders.719 The upstream oil and gas industry and stakeholders are also expected to monitor the progress of oil and gas conservation measures to figure out if a need for further solution gas flaring conservation exists.720 In the conduct of this study, there is no discovery of any information that suggests complaints in the AER process of granting flare permits.
The discussion in this section shows that the grant of gas flare licences in the oil and gas industry lies with the regulatory agencies in the UK and Alberta. Although the award of a permit is discretionary, a guideline to which there must be strict adherence guide the AER and
OGA. The process for the grant of gas flare permits is accessible by all on the websites of all regulatory agencies.
4.4.3 Weak Implementation of Gas Flaring Laws
4.4.3.1 Implementation of Gas Flaring Laws in the UK
The OGA exists as an independent regulatory agency of the UK oil and gas industry; its functions do not include participation in JVCs and other contracts.721 Its roles are unambiguous and clear cut. On gas flaring regulation, the policy of the OGA is a commitment to the eradication of unnecessary and wasteful gas flaring.722 Even with flare licenses, oil and gas operators are expected to minimize gas flaring through the implementation of ―Best Practices‖ at
719 Ibid. 720 AER, Directive 060, supra note 636 at 2. 721 Oil and Gas Authority, ―Oil and Gas Authority Framework Document‖ (29 September, 2016), online: Oil and Gas Authority < https://www.ogauthority.co.uk/media/2718/framework-document-29-september-2016.pdf.> at 4.1. 722 Oil & Gas Authority, ―Flaring and Venting during commissioning‖ (October, 2016) available online: Oil & Gas Authority
early stages of oil and exploration.723 The oil and gas operators are further required to make improvements aimed at minimizing gas flaring to the barest minimum during the operational phase.724 The OGA is vested with the authority to impose penalties for failure to comply with schedule 1 s. 3 12 A of the EA 2016 in line with Chapter 5 of Part B of the Act.725 Criminal and civil law sanctions apply to the contravention of laws regulating oil and gas activities.726 These provisions aim at eradicating any unnecessary gas flaring.
Regarding the production phase, the OGA grants flare and vent consents, upon application, to qualified petroleum operators annually.727 The OGA also reserves the right to grant discretionary shorter licenses known as ―Short Term Consents‖ to Petroleum operators.728
There may be the issuance of a short-term consent in a situation where the OGA is concerned about activities on the exploration site.729 In regulating gas flaring in the upstream petroleum industry, the OGA adheres to several principles.730 The first is the commission philosophy.731
The commission philosophy principle specifies the fact that there should be a restriction of gas flaring to the barest minimum, during the commissioning of a gas plant.732 Second, is the installation and hook-up principle.733 This principle stresses the importance of the implementation of security checks and tests procedures to determine the safety and efficiency of
723 OGA, Flaring and Venting in Production, supra note 608 at 2. 724 Ibid. 725 EA, 2016, supra note 583 at s. 12B schedule 1. 726 See s. 11 (3) of the Petroleum Act 1998 as amended by s. 110 (2) the EA 2016, for civil sanctions. s. 10 of the Petroleum Act 1998 amended by s. 103(3) of the Energy Act 2004, c. 20, 22nd July, 2004
future recipient gas plants, before drilling oil. The third is the commission and planning philosophy.734 This philosophy presumes that a week after obtaining the first oil from a drilling site, the commissioning of a gas plant will be with the gas which accompanies the first oil.735 In situations where this does not occur within a fortnight of first oil or the OGA senses a weighty delay in commissioning due to disruptions in the plant, the agency may limit production of oil until the commissioning of a gas plant.736 The fourth philosophy is the grant of flare and vent consents.737 The OGA only issues ―Short term consents.‖
4.4.3.2 Implementation of Gas Flaring Laws in Alberta
In Alberta, there is no overlap of functions regarding the enforcement of gas flaring laws by regulatory agencies. The AER remains the sole regulator of the energy industry, and it deals with companies which flout the AER‘s guidelines accordingly; through a Non-
Compliance Trigger Assesment Process, an investigation, and finally, enforcement action against a liable company.738
The above process involves the assessment of the significance of non- compliance, coordination of the response of the AER to the non-compliance, and ensuring that the evaluation of the non-compliance by the AER is consistent.739 After the determination of all
734Ibid. 735Ibid. 736Ibid 737OGA, Flaring and Venting in Production, supra note 608. 738 Alberta Energy Regulator, ―Compliance Assurance Program‖, online: Alberta Energy regulator
the factors outlined under the non-compliance trigger assessment process, the AER considers the following other factors:
What is the level of significance of the non-compliance by the defaulting company, or an
agency resource, the environment, and public safety?
Has the regulated agency been involved in an authorized activity that the AER would not
have approved?
Is there in existence any evidence that indicates that the non-compliance occurred
unknowingly, or with a conscious disregard for the AER?
Does the defaulting oil and gas company have a non-compliance history?
Has the defaulting oil and gas company furnished the AER with a misleading, or false
information in an attempt to address a regulatory requirement?740
The AER after that engages in an investigation if any or all of the above criteria apply.741 The investigation involves the examination of the cause of the incident; determination of the infringement of a regulation, identification of the parties responsible, and ways to enhance industry practices to prevent a reoccurrence of the event.742 The investigatory stage is in three phases. These are:
(i) Stage One: The Fact Gathering stage
The fact-gathering stage is all the information gathering phase. This process is highly consuming with a time frame of about three months to two years. The investigators visit the gas flaring sites; evaluate the response activities to flaring incidents, conduct interviews, and
740 Ibid. 741AER, Investigations, supra note 738. 742 Ibid. 141
collate background and historical information. In this stage, the AER considers essential questions such as:
Did the event in question adversely affect the environment?
Was the incident preventable?
Was there a failure by the defaulting company to submit the required information?
Was the information provided by the company intentionally misleading, or false?
Did the defaulting company practice due diligence in preventing the occurrence of the
incident?
(ii) Stage two: Investigation Reporting
After the completion of the fact-gathering stage, the AER shares the information gathered from the fact-gathering stage with the defaulting company, as well as the entire industry, to prevent a similar occurrence in the future. Also, the AER prepares an investigation report which it later shares on its Compliance Dashboard. The AER‘s investigation reports include administrative penalties; legal orders that contain specific actions, warning letters; restrictions on an oil and gas license, approval, or permit; and provincial court prosecutions.743
(iii) Court Proceeding
Upon the conviction that there is enough probable cause to lay charges against the defaulting company, the AER ensures that investigations proceed to the provincial court. The
Crown and Defence Counsel reviews the AER‘s investigation record and presents the cases to court. At the end of the proceedings, the court decides if the company is guilty. Appeals lie from the provincial court to the Court of Appeal. The provincial court judge may decide to issue a
743 Ibid. 142
penalty against a defaulting oil and gas company. Sanctions may include a monetary fine or creative sentencing. The judge may direct that the funding of creative sentencing enterprises should be from a financial penalty issued against the responsible oil and gas company. Creative sentencing initiatives include an order that the company:
Perform a specific action to remedy the criminal activity, or to prevent a future
reoccurrence.
Make the facts of its conviction known through a publication.
Execute public programs, such as educational funding in the community where the
defaulting act occurred.
Compliance with other conditions imposed by the court.744
The Alberta Energy Regulator (AER) conducts regular inspections and audits to ensure that the oil and gas companies comply with the laws, regulations, and directives on gas flaring. In cases where emergency gas flaring occurs, the AER‘s Directive 071: Emergency and
Response, would be on hand to cushion the effects.745 The Directive instructs oil and gas licensees to adopt adequate response measures to emergency incidents.746 The directive prescribes when emergency preparedness measures are needed; the content and maintenance mechanisms of emergency preparedness procedures, whether or not there should be the
744 Ibid. 745 Alberta Energy Regulator, ―Emergency Planning, Preparedness and Response Fact Sheet‖, online: Alberta Energy Regulator
involvement of the public, or the AER in the process, the frequency of the energy measures actions; and instructions on the active emergency zones.747
The AER makes it clear that it is on call to help oil and gas operators handle emergency hazards, when such risks (gas flaring is no exception) occur, the company is expected to make a call to the AER.748 The AER, in turn, sends its duty officer to gather as much information as possible regarding the emergency incident.749 After the verification of the report,
AER officials commute to the incident site to work with the oil and gas company, as well as: local; municipal, provincial and federal authorities, and first responders to ensure compliance with the AER response requirements.750
Regarding Alberta, this study is unable to find any reported cases on the court asking that oil and gas companies desist from flaring gas. Under s. 94 of the OGCA and s. 2 of the REDA, the AER considers and decides applications for oil and gas projects including Well
Drilling.751 The preceding also applies to applications for operations and matters within the ambit of the Public Lands Act.752 A person who has the requisite locus standi to challenge an approval request for an oil and gas project may file a statement of concern to that effect with the AER.753
Upon receipt of a statement of concern, the AER decides whether or not to conduct a hearing on an application.754 After a hearing, the AER may choose to either grant or refuse the award of a
747 Ibid at 1.3, 1.5, 4.1, 3.1 and 12.1. 748 Ludwick, supra note 680. 749 Ibid. 750 Ibid. 751 REDA, supra note 628 at s. 2 (a). 752 Ibid at s. (2) (b) 753 Ibid at s. 32. 754 Ibid at s. 33 (2); In Chris Huhn/ Shell Canada Ltd. (Shell), Statement of Concern No. 30404, 0ct 24 2016, Chris Huhn opposes an application by Shell Canada Ltd. For a permit to flare gas. The AER held that Mr. Huhn‘s 144
gas flare permit. The WhaleBack hearing is an example of a situation where there is a refusal to grant a flaring permit.755 This study was unable to find any decided judicial decisions on actions instituted by aggrieved parties against oil and gas operators for illegal gas flaring in Alberta.
4.4.4 Disclosure through Environmental Reporting in Corporate Social Responsibility
Before 2017, the Alberta Specified Gas Emitters Regulation (SGER) applied to all industrial facilities which emitted over 100,000 tonnes of GHG annually from the year 2003, and opted-in facilities.756 The SGER further requires that facilities which emit over 50,000 tonnes of
757 CO2e equivalent annually should submit annual reports to the Government of Alberta. The
Carbon Competitiveness Incentive Regulation (CCIR), commencing from January 1, 2018,
758 serves as a replacement to the SGER. It retains its mandatory reporting standard for CO2e
759 emitting facilities but lowers the threshold to all facilities emitting 10,000 tonnes of CO2e.
Facilities which meet the threshold must submit a report through Alberta‘s Single Window
Information Management (SWIM) GHG reporting system.760 Based on the preceding, it is my observation, that facilities which emit less than 10,000 tonnes have no mandatory requirement to
statement of concern does not establish a direct adverse effect with the application. The AER arrives at the same conclusion in Christine Schlief, G. Cameron Donald, Deanna Bildson. Stefanie Clarke, Brian Bildson, Blackbird Energy Inc. (Blackbird), Statements of Concern, Sept 28 2016. See Nigel Bankes, Amy Matychuk & David Rennie, ―Digest of Alberta Energy Regulator Participatory and Procedural Decisions Between 30 September 2015 and 1 February 2017‖, (6 February 2017), ablawg (blog),< https://ablawg.ca/wp-content/uploads/2015/06/AER- Decisions_digest_feb6_2017.pdf> at 21 and 24. 755 Noga, supra note 667. 756 Alberta, Specified Gas Emitters Regulation, Alta Reg. 139/2007 at R. 2(a) & (b) (Repealed) (CanLII) [SGER]. 757 Kay She et al., ―Canada: Lowered threshold for Emissions Reporting for Alberta Facilities‖ (January 11 2018), online: Mondaq
report emissions. However, it is noteworthy to mention that the CCIR specifies a voluntary opt-in option for a facility which does not meet the 100,000 tonnes of GHG requirement.761 Such a company can opt into the regulation on two grounds: first that its annual emissions must be up to
50,000 tonnes of GHG, or that it competes against a facility subject to the CCIR; second, that the facility has a high emissions intensity and finally, trade exposure.762
In furtherance of the above, the AER annually publishes ST602B: Upstream Petroleum Industry
Flaring and Venting Report as a means to fulfil the commitment in Directive 060 of making gas flaring data accessible.763 The report focuses on solution gas flaring and venting from crude oil and bitumen production operations. Data used in the compilation of the report are from Canada‘s
Petroleum Information Network (Petrinex) and the AER.
Given the above discussion on the provisions of the CCIR, I conclude that Alberta operates a compulsory as well as a voluntary environmental reporting mechanism and that a gas flaring facility which emits over 10,000 tonnes of CO2e annually must report such emissions under the auspices of the CCIR. Thus, industrial facilities which emit below 10,000 tonnes have no compulsory responsibility to report because the CCIR does not impose a duty on them to do so.
761 CCIR supra note 758 at 4 (1). 762 Ibid at 4 (4); Thomas W. McInerney & Duncan M. McPherson, ―Alberta Replaces Specified Gas Emitters Regulation with Carbon Competitiveness Incentive Regulation‖ (January 3, 2018) Bennett Jones (blog),
In the UK, the legal requirement for environmental reporting lies in the
Companies Act, 2006764 which provides that:
a director of a company must act in the way he considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole, and in doing so have (amongst other matters) regard to the impact of the company‘s operations on the community and environment.765 The Act enacts the main thrust of the EU Accounts Modernisation Directive (AMD) through the inclusion of a business review requirement which mandates all small, medium-sized and quoted companies to provide a ―fair review‖ of the business including environmental matters in their annual reports.766 The Strategic Report and Directors’ Reports Regulations 2013767 replaces the business review requirement.768 There is an introduction of Greenhouse Gas Emissions
Reporting into the directors‘ reports of quoted companies in the year 2013.769
4.4.5 Inadequate Response to International Obligations on Low Carbon Emissions Reduction
4.4.5.1 UK and Alberta Response to International Agreements on LCD
4.4.5.1.1 The UNFCCC Agreement
As a signatory to the UNFCCC, the UK is bound by its objectives to mitigate greenhouse gas emissions, create measures for climate change adaptation, and facilitate the reporting of national emission reduction and finance climate change action in developing
764 Companies Act, 2006, c.46, 8 November 2008
countries.770 The failure of the UNFCCC agreement leads to the Kyoto protocol, and it did not influence the UK to enact domestic laws on climate change mitigation. The situation is the same in Alberta. The UNFCCC agreement did not prompt any significant strategy for LCD in the
UNFCCC agreement era.
4.4.5.1.2 The Kyoto Protocol
The Kyoto Protocol emerged in 1997 as a response to UNFCCC negotiations. The
Kyoto Protocol set a standard target for 37 Annex I countries (including the UK) for the reduction of greenhouse gas emissions by an average of 5% below 1990 levels from the year
2008 to 2015. The UK committed to reducing greenhouse gas emissions by 12% under this protocol.771 Achieving the commitment within the commitment period was successful.772 After the Kyoto Protocol, the UK began playing a leading role in the creation and implementation of international policies on climate change. Currently, it is considered a pioneer in the GHG emission trading scheme and a dominant participant in the EUETS.773 Government policies engage the oil and gas industry to adopt ―emerging‖ or ―active‖ strategies for carbon emission reduction.774 There is no exemption of the oil and gas industry in this regard, as oil and gas firms prepare GHG inventories, conduct energy assessments and identify improvement
770 See UNFCCC, supra note 41 at Art. 2. 771Committee on Climate Change, ―Global Action on Climate Change‖, online: Committee on Climate Change
opportunities.775 Another milestone achieved after the Kyoto protocol is the enactment of the
Climate Change Act, 2008, as a domestic strategy to mitigate greenhouse gas emissions.776
In its introductory text, the Act states its purpose as:
An Act to set a target for the year 2050 for the reduction of targeted greenhouse gas emissions; to provide for a system of carbon budgeting; to establish a Committee on Climate Change; to confer powers to establish trading schemes for the purpose of limiting greenhouse gas emissions or encouraging activities that reduce such emissions or remove greenhouse gas from the atmosphere; to make provision about adaptation to climate change; to confer powers to make schemes for providing financial incentives to produce less domestic waste and to recycle more of what is produced; to make provision about the collection of household waste; to confer powers to make provision about charging for single use carrier bags; to amend the provisions of the Energy Act 2004 about renewable transport fuel obligations; to make provision about carbon emissions reduction targets; to make other provision about climate change; and for connected purposes.‖ 777 On December 17, 2002, the ratification of the Kyoto Protocol by Canada took effect.778 In line with the principal goal of the UNFCCC to stabilize the concentration of atmospheric GHG including but not limited to CO2 to prevent fatal harm to the environment, the government came up with a strategy through the implementation of the Climate Change Plan for
Canada on November 21, 2003. The plan contains some actions with the goal of reducing GHG emissions, mainly carbon dioxide to the tune of 280 million metric tonnes (MT) in the oil and gas industry, as well as six other leading sectors of the economy. One of the several goals of the
775 Ibid at 53. 776 Committee on Climate Change, ―UK regulations: the Climate Change Act‖, online: Committee on Climate Change < https://www.theccc.org.uk/tackling-climate-change/the-legal-landscape/the-climate-change-act/>. 777 Climate Change Act 2008, c.27, 26 November 2008 < https://www.legislation.gov.uk/ukpga/2008/27/contents> at introduction. 778 United Nations Treaty Collection ―Kyoto Protocol to the United Nations Framework Convention on Climate Change‖, online: United Nations Treaty Collection < https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-a&chapter=27&clang=_en>. 149
plan is the production of clean fossil fuel Canada‘s oil and gas industry, and also, CO2 carbon capture and storage with the provision of infrastructure for the same. Canada submits a national inventory on anthropogenic emissions of GHGs not provided for under the Montreal protocol to the conference of the parties (COP) in line with Articles 4 and 12 of the UNFCCC.779
Provinces are encouraged to follow the federal government‘s strategy in creating programs for GHG emission reduction. In Alberta, the response to the Kyoto Protocol was the enactment of the Climate Change and Emissions Management Act780 which provides for
Alberta‘s Climate Change Emissions Trading Scheme. The Act aims at reducing emissions to
50% of 1990 levels in the year 2020.781 It also provides for reporting mechanisms by industries which produce emissions beyond certain thresholds and also, empowers the Albertan government to enter into agreements with other jurisdictions for GHG reduction.782
4.4.5.1.3 The Paris Agreement
After the Paris Agreement, the UK government continues to express its commitment to reducing GHG emissions and transitioning to a clean low carbon economy, by indicating that the Climate Change Act, 2008 provides the framework for domestic action, thereby binding the current and future governments to reduce GHG emissions by at least 80%
779 Articles 4 and 12 are to the effect that countries all parties must furnish information on all GHGs not provided for under the Montreal Protocol in a national inventory to the COP. The said national inventory must also contain steps to be taken by the parties for the implementation of the convention, as well as other relevant information with a view to achieving the convention‘s objective and global emissions trend calculation. Developed Parties are obliged to make their initial communication within six months of ratification of the agreement. In the implementation of national programs to combat climate change, developed parties are encouraged to take the lead by working either independently, or as a team with other developed countries. See UNFCCC, supra note 41. 780 Climate Change and Emissions Management Act, R.S.A 2003, c.16.7 [CCEMA]. 781 Ibid at s. 3 (1). 782 Ibid at s. 6 (1) & s. 8. 150
below the 1990 baseline by 2050.783 The establishment of a carbon budget which sets a limit on the amount of GHG that the UK can emit over five years is another indication of its seriousness.784 In 2015, there was the enactment of the UK Infrastructure Act,785 as a response to the international climate change regime. The Act provides that the principal objective of the section is the maximization of UK petroleum.786 The ways through which the actualization of the said recovery should occur are:787
(i) the construction, development and deployment of petroleum industry equipment,
including that of the upstream petroleum industry.
(ii) a collaboration of all industry participators in the oil and gas industry such as oil licence
holders, the operators of petrol licences and people planning the commissioning and
controlling upstream petroleum infrastructure.
The Act authorizes the Secretary of State to implement strategies for actualizing the recovery of petroleum and also making a report on compliance with the recovery strategies and their impacts on the oil and gas industry.788 In addition to the functions of implementing a plan and reporting of the compliance with the implemented policies, the Secretary of State also has the role of producing and revising current strategies.789 The deadline for the first production
783 Committee on Climate Change, ―Onshore Petroleum: the Compatibility of UK Onshore Petroleum with Meeting the UK‘s Carbon Budgets (March, 2016), online: Committee on Climate Change < https://www.theccc.org.uk/wp- content/uploads/2016/07/CCC-Compatibility-of-onshore-petroleum-with-meeting-UK-carbon-budgets.pdf> at 14. [CCC, onshore petroleum]. 784 Ibid. 785 Infrastructure Act 2015, c.7, 12 February 2015. < http://www.legislation.gov.uk/ukpga/2015/7/introduction/enacted> at s. 41 Part 1 9A [Infrastructure Act]. 786 Ibid at Part 1A s. 9 A. 787 Ibid. 788 Ibid at s. 9C and 9D. 789 Ibid at s. 9F. 151
of a new plan is the anniversary of the first year after which s. 9E comes into force.790 The
Secretary of State must from time to time require that the Committee on Climate Change (CCC) under s.38 of the Climate Change Act, 2008, provide recommendations on the impact of fugitive emissions from oil and gas activities.791 The Act offers a two year reporting period beginning from the coming into force date of the act and subsequent one year periods starting from the day after the end of a previous reporting period.792 The CCC offers a further report on the compatibility of the UK‘s carbon budgets with its onshore petroleum by April 2021. An option to request updated advice in a helpful or necessary situation is further made available to the department.793 In its NDC, phasing out gas flaring is not one of the strategies the UK indicates for carbon emission reduction.794
Alberta is not left out in the scheme of things. In 2016, it enacted the Alberta
Climate Change leadership Act.795 The Act applies to persons who vent fuel or engage in any prescribed activity of that nature.796 The Act restricts every person from flaring or venting fuel and empowers the Minister or an officer to enter any land to investigate any prescribed activity.797 The general offences and penalties provision applies to prohibited flaring and venting.
A person found guilty is subject to a fine not exceeding $1000 or a term of imprisonment not
790 Ibid. 791 Ibid at s. 49 (1) (9A) see also CCC, onshore petroleum, supra note 783 at 15. 792 Infrastructure Act, supra note 785 at 9E. 793 Ibid. 794The UK does not set a new target commitment in the Paris Agreement. It maintains its long-term target of reducing GHG emissions to at least 80% of the 1990 levels in the year 2050. It focuses on GHG removal from the air and pursuing other strategies such as decarbonizing electricity, economy wide efficiency and other measures to achieve this goal. See Committee on Climate Change, ―UK climate action following the Paris Agreement‖ (October, 2016), online: Committee on Climate Change
beyond a month, or both for the first offence. Subsequent offences attract a fine not exceeding
$5000, or a term of imprisonment not beyond six months, or both.798
The Alberta government also enacted the Energy Efficiency Act799 which creates the Energy Efficiency Alberta, a crown corporation responsible for the support and promotion of programs on energy efficiency.800 It is also worthy of mention that in 2017, the government made further amendments to the CCEMA, by including additional programs which should benefit from the climate fund. These include adaptation programs to educate Albertans on climate change, as well as create outreach initiatives.801 Alberta also adopted carbon pricing as an MBI in regulating GHG through the SGER.802 The CCIR retains the provision on carbon pricing but treats all firms equally irrespective of historical emissions by granting an emission limit in line with production capacity, unlike the SGER.803 Under, the Climate Change leadership
Plan, there is an exemption of small oil and gas operators for fuel used in conventional production until the year 2023.804
4.5 Conclusion
798 Ibid at s. 62. 799 Energy Efficiency Alberta Act, RSA 2016, c. E-9.7[Energy Efficiency Act]. 800 Ibid at s. 2 (1). 801 Sarah Levine, ―Bill 20: The Climate Change Implementation Act-Now What?‖ (25 July 2016), online: McLennan Ross LLP
This chapter begins with an introduction which outlines its structure. Next, it considers past and current laws connected to gas flaring and low carbon development in the
United Kingdom and Alberta. From the analysis, we see that gas flaring is an area of environmental pollution in the UK and Alberta that has fast lost intense discussions. The current situation is that gas flaring is almost non-existent. Gas is considered a valuable resource which is relevant to meeting the UK‘s goal of transitioning fully from coal-powered electricity to gas- powered electricity.
As such, flaring in the UK and Alberta only occurs in extreme situations which are subject to regulation. Although the UK and Alberta maintain gas flaring laws, the focus of the two jurisdictions nowadays is other areas of low carbon development such as energy efficiency.
154
Chapter Five: Conclusion
5.1 Introduction
The final part of this thesis gives a brief analysis of each chapter to reveal the influence of environmental ethics on domestic and international laws on gas flaring; and low carbon development, and the strengths and weakness of each comparator, regarding gas flaring and low carbon development regulation.
First, this chapter begins with a synopsis of each chapter and reveals what the aim of this research is, bearing in mind Nigeria‘s status as a developing country as expressed through its NDC in the Paris Agreement. Second, it compares the regulatory regime of all three jurisdictions in the light of the identified obstacles to gas flaring in Nigeria identified in chapter three. Third, are recommendations that can assist Nigeria in meeting its 2030 goal of phasing-out gas flaring. Fourth is a discussion for further research and finally, a concluding statement.
5.2 Thesis Synopsis
Chapter one of this paper discusses the reasons for the research and the choice of research methodology. The paper adopts and the reasons for the selection. It further gives the reader an understanding of specific areas the study does not discuss, thus keeping the thesis within a feasible framework.
Chapter two discusses environmental protection on gas flaring and low carbon development. It focuses on the theory of environmental ethics with its sub-theory of ecocentrism and how they apply to the UN international regime on climate change. It points out the fact that the principles of sustainable development and conservation of natural resources are two essential steps to achieve the environmental ethics principle of sustainability which is a goal of the United
155
Nations Convention on Climate Change as seen in the UNFCCC Agreement, Kyoto Protocol and lastly, the Paris Agreement.
Chapter three considers the gas flaring regulatory framework in Nigeria‘s oil and gas industry. It dwells on the impact of gas flaring on Nigeria‘s environment and recent incidents evidencing the said impact; the history of gas flaring regulation, gas flaring enforcement mechanisms, the criticisms of Nigeria‘s gas flaring regulation and enforcement mechanism, and notes that litigation in respect of gas flaring is a grey area in Nigerian law. It further notes that Nigeria is yet to get to a level where lawsuits on gas flaring incidents in the upstream oil and gas sector are premised solely on environmental protection. For now, Gbemre v. Shell Petroleum Development Company of Nigeria Ltd et al., is the only case where the FHC court held that an international oil and gas operator in Nigeria desist from flaring gas in the Niger
Delta region; and the main premise of the case is on the human rights of the inhabitants of that region. The judgment makes no mention of Nigeria‘s participation in international agreements on climate change and how the said participation should apply about gas flaring regulation in the country. In this chapter, the reader gets to see the corruption authors point out in the Nigerian oil and gas industry. The NNPC faces criticism for turning a blind eye to the widespread flouting of oil and gas laws by multi-national oil and gas operators. This chapter also points out the problem of ineffective regulation seen through where Nigeria‘s continuous enactment of laws that specify deadlines for phasing out gas flaring as one of the problems inherent in the Nigeria gas flaring regime.
The first law, the Associated Gas Flaring Re-injection Act, enacted as far back as 1979, specifies a deadline of January 1, 1984, for the complete phase-out of gas flaring in
156
Nigeria‘s oil and gas industry. The said deadline was never actualized. Next, is a deadline of
December year 2008 for the phase-out of gas flaring. The deadline never became a reality. A further deadline of December 2012 was never actualized. This chapter considers the PIB which several authors regard as promising, towards the complete elimination of gas flaring in the
Nigeria oil and gas industry. The PIGB currently replaces the PIB which sets an incentive for companies which conserve gas subject to gas flaring. The PIGB which makes no mention of phasing gas flaring whatsoever is under deliberation by the National Assembly.
There is a consideration of Nigeria‘s participation in the UN Climate Change
Regime. Nigeria is a signatory to the UNFCCC Agreement. The dates of ratification of the
UNFCCC agreement and the Kyoto Protocol by Nigeria are August 29, 1994, and December 10,
2004.805 The time of ratification of the Paris Agreement by Nigeria is May 16, 2017.806 Under the UNFCCC and Kyoto Agreement; this research argues that Nigeria does not have a binding commitment with regards to emission reduction due to its status as a developing nation.
However, with the implementation of the Paris Agreement, this is not the same. Nigeria now has a binding commitment to reduce GHG emissions according to its capabilities. Just as every other signatory to the Paris Agreement, there is an expression of Nigeria‘s commitment in its NDC. In its NDC the country aims at reducing GHG emissions to 45% of current levels come the year
2030. One of the strategies the country intends to implement in achieving this is the phasing out of gas flaring. This chapter argues that this aim is way above board in light of Nigeria‘s existing gas flaring laws in the oil and gas industry based on several grounds. First, is the fact that there
805 United Nations Convention on Climate Change, ―Nigeria‖, online: United Nations Convention on Climate Change < http://unfccc.int/tools_xml/country_NG.html.>. 806 United Nations Convention on Climate Change, ―Paris Agreement-Status of Ratification‖, online: United Nations Convention on Climate Change < https://unfccc.int/process/the-paris-agreement/status-of-ratification>. 157
was no compliance with previous deadline dates. Second, is the fact that no current national law spells a current deadline.
The PIGB now serves as a replacement of the PIB which would have been the best bet for the country regarding gas flaring regulation. Third, is the attitude of the multinational oil and gas to gas flaring laws and judicial decisions. In the case of Gbemre v Shell Petroleum
Development Company Nigeria Limited and Others, there is a situation of non-compliance of the court order by Shell.807 Till date, there was no imposition of a sanction in that regard. This chapter also briefly considers the fact that several Clean Development Mechanisms Nigeria participates in under the platform of the Global Gas Flaring Development Mechanism lack positive results.
There is also the problem of adequate reporting on gas flaring reduction in the oil and gas sector. The federal government claims that so far, there is a more than the considerable reduction of gas flaring reduction in Nigeria‘s oil and gas sector based on a combination of factors such as regulation, an enforcement mechanism and the Clean Development Mechanism.
Legal scholars, however, argue that this is not the case. They point out that there is the appearance of a reduction in gas flaring due to militant activities in the gas flaring regions. The core argument in chapter three is that Nigeria will never be able to meet up the year 2030 phase- out target in light of its weak gas flaring laws and their enforcement mechanism. As a result, specific actions need to be taken thus leading to the ―How‖ question.
807 See Gbemre, supra note 483. 158
Chapter four of this research analyses the ‗How‘ question by considering two jurisdictions. First, is the United Kingdom. As explained in chapter one, there are two significant factors for the choice of the UK as a comparative jurisdiction.
First, is the fact that both jurisdictions practice a common law legal system. Next, is the fact that according to World Bank rankings, the UK is considered one of the world leaders in low carbon emissions in the oil and gas industry. The analysis of the UK‘s gas flaring laws and enforcement mechanisms in this chapter reveals that gas flaring in the UK oil and gas industry is a topic that is fast becoming obsolete. In the legislative union‘s NDC, there is no mention of gas flaring as one of its GHG commission commitments. The focus of the United Kingdom in its obligations is a transition to renewable energy sources. Also, Alberta‘s NDC does not mention phasing gas flaring as one of its strategies for reducing carbon emissions.
Regarding Alberta, Chapter three considers the theories of ownership of oil and gas in the province. The province‘s gas flaring reduction efforts have gained recognition as far back as 1998. The REDA, OGCA and CCEMA, as well as Alberta‘s provincial guideline in the form of the AER‘S Directive 60, binds the province. In its regulatory mechanism, Alberta is subject to the AER. The AER applies provincial laws as well as Directive 060 in regulating gas flaring as a hindrance to low carbon development.
About the relationship between the gas flaring and low carbon development in
Alberta, the AER has made impressive attempts to regulate gas flaring through the application of provincial laws and Directive 060.808 There is a more novel reporting mechanism in Alberta
808 T. Odumosu, supra note 664 at 898; Onuma, supra note 665 at 8. 159
through the AER‘S mode of reporting. So far, there is a steady decline in carbon emissions in oil and gas reporting ever since the enactment of laws with the goal of reducing GHG emissions, including carbon emissions in the oil and gas sector.
The preceding section identifies the strengths and weakness of the three comparative jurisdictions. The next question which arises is on how the lessons learned from the United
Kingdom can successfully apply to Nigeria.
5.3 A Comparison of the Nigerian, UK and Albertan Upstream Gas Flaring Regulatory
Systems
5.3.1 Ownership and Control of Oil and Gas
This thesis acquaints the reader with the fact that Nigeria and the UK adopt the domanial system of oil and gas ownership. Alberta on the other hand practices a provincial cum private ownership of oil and gas. Concerning control, in Nigeria, the regulation of the production and use of natural resources, including oil and gas, is by the federal government. The federal government performs this function predominantly with the CFRN and Petroleum Act.
Regarding environmental pollution regulation, the federal and state governments regulate. However, there is the exclusion of states from the management of pollution from the oil and gas industry. In the UK, under s. 2 and s.7 (9) of Schedule 1 of the Pollution Prevention and Control Act 1999, each member state of the legislative union is empowered to enact environmental regulations. In Alberta, environmental regulation lies with the province.
Provincial laws must be in tandem with federal requirements.
5.3.2 Gas Flaring Regulation
160
5.3.2.1 “Sustainability,” “Sustainable development” and “Conservation.”
Nigeria, UK and Alberta utilize the principles of ―sustainability‖ and ―sustainable development‖ which arise from ecocentrism, a branch of the philosophical school of environmental ethics in their attitude to gas flaring regulation, which is natural gas conservation.
The AGRA is the principal law which regulates gas flaring in Nigeria. First enacted in the year
1979, the Act has seen several amendments over the years. It prescribes several deadline dates for the phase-out of gas flaring, as well as penalties for companies which receive ministerial gas exemption certificates and continue to flare gas. The government also includes MBIs in oil and gas laws to encourage gas utilization. One of such incentives is a tax reduction for gas utilization in the PPTA. Despite the incentives discussed in chapter three, the continuous flaring of gas still exists in the country.
Before the Paris Agreement, the principle of CBDR protects Nigeria from any commitments to reduce GHG emissions in the Kyoto protocol. Although CBDR is very much existent in the Paris Agreement, Nigeria‘s NDC which is voluntary commits it to reduce GHG emissions with the phase-out of gas flaring as one of the strategies to achieve the same. The lack of a national law which reflects Nigeria‘s NDC in the Paris Agreement makes all the commitments therein ―mere words on paper.‖ Regarding Alberta and the UK, the types of gas flares that occur in both jurisdictions as identified in chapter four reveal that continuous flaring of gas is not permissible. Gas flaring in the upstream oil and gas industry in both jurisdictions is a common feature of either initial well start-ups or accidental flaring. Another distinguishing factor in the gas flaring regime of the three jurisdictions is that while Nigeria imposes gas flaring
161
penalties on oil and gas operators with gas flare exemption certificates, neither the UK or Alberta does.
The UK utilizes a right based MBI through the application of an emissions trading scheme in addition to the traditional command and control approach to gas flaring. The emissions trading scheme evident in the two programs, the UK FPTTS and UKETS analyzed in chapter four are a success in reducing gas flaring in the legislative union. In Alberta, carbon pricing exists as a disincentive MBI for GHG emissions.
5.3.2.2 Oil and Gas Operators’ Compliance with Regulatory Decisions
In Nigeria, there is a problem of flagrant disobedience to court orders to cease flaring in certain areas in Nigeria. Although this thesis does not find any court decisions ordering a cessation of gas flaring in the UK and Alberta, there is a situation of compliance with AER and
OGA decisions by oil and gas companies.
5.3.2.2.1 Public Participation in EIA
The analysis in chapters three and four of this thesis shows that EIA plays a prominent role in environmental regulation. Nigeria‘s EIA process as applied to gas flaring is weak for a failure to include the requirement that oil and gas operators consult local communities before the submission of EIA plans. The situation in the UK is not much different. However, in
Alberta, the AER ensures that there is community engagement in the EIA process before approving any oil and gas contract as can be seen from the Whaleback hearing.
5.3.2.3 Ministerial Discretion in the Grant of Gas Flare Certificates
162
In Nigeria, the Petroleum Minister grants gas flare exemption certificates discretionally. In the UK, OGA grants gas flare consents. Although the OGA reserves the discretion to grant gas flare consents, all requirements which applicants for approvals must meet are available on the OGA website. The implication of the preceding is that there would be no refusal of gas consents to oil and gas operators who meet the requirements. In Alberta, the AER grants flare consents as well. The procedure for the grant is similar to that of the UK because the requirements applicants must meet are also available for all to see. The preceding is very different from the situation in Nigeria where till date, there is no information to the public on any current information on the factors which guides the petroleum minister in the grant of gas flare exemption
5.3.2.4 Weak Gas Flaring Regulation Enforcement Mechanism
In Nigeria, the DPR and NNPC are regulators of the oil and gas industry. There is an overlap between the functions of the DPR and NNPC in reality, thus leading to criticisms.
Also, there is a prevalent problem of corruption within the NNPC. Regarding gas flaring regulation, there is no desirable input from either the DPR or the NNPC, which is reputed to be limited in this regard by its JVAs with leading gas flaring multinational companies in the country. In the UK, the OGA grants flaring consents and enforces the provisions of the Energy
Act 1976, Energy Act 2016, Petroleum Act 1998, and regulations. The OGA acts as an independent body and does not participate in JVAs with oil and gas companies. The analysis in
Chapter four reveals that the OGA‘s policy position and certain principles guide the body the exercise of its functions. These principles are the commission philosophy, installation and hook- up, commission and planning philosophy, and finally, the grant of gas flare consents.
163
In Alberta on the other hand, this thesis reveals that the AER possesses a lot of power in the exercise of its regulatory functions an energy regulator. As a sole regulator, it has no overlap of its functions with that of any other body; also, it does not participate in JVA‘s with oil and gas operators. Oil and gas companies are subject to gas flaring laws as well as the AER directives which are available to all and sundry to access. The AER also gives audience to persons with the requisite ―locus standi‖ to challenge an application for an oil and gas licence in activities that would involve gas flaring that would have an impact on the interested parties. The procedure for the AER‘s grant of gas flare consents and treatment of offending oil and gas operators is available on its website for interested parties to access.
5.3.2.5 Disclosure through Environmental Reporting in Corporate Social Responsibility
In Nigeria, there is no legal requirement for oil and gas operators to disclose information on gas flaring. The existing environmental reporting regime is voluntary and is a product of international and national pressure. Although the NNPC publishes gas flaring reports, its authenticity is questionable. The recent Flare Gas (Prevention of Waste and Pollution)
Regulation 2018 provides that oil and gas producers shall submit an annual report of gas flare data, it is relatively new, and it is not sure whether it would be another case of a failed regulation regarding enforcement.809 In the UK, there is a mandatory reporting mechanism for GHG emissions. First, the Companies Act provides that all company (including oil and gas company) directors must consider the environment before making business decisions. The Companies Act
Strategic Report and Directors’ Reports Regulations 2013 mandates company directors to
809 Flare Gas (Prevention of Waste and Pollution) Regulations, 2018, Federal Republic of Nigeria Official Gazette (July 9, 2018), 105:88
furnish Greenhouse Gas Reports. In Alberta, there is also a mandatory environmental reporting regime for companies which emit over 1000 tonnes of gas annually. Companies which emit lower than 1000 tonnes, are under no mandatory requirement to report. The AER also publishes its Upstream Petroleum Industry Flaring and Venting Report which is available to the public.
Unlike Nigeria where the NNPC report figures are questionable, this research is unable to find any critique of the AER‘S reporting mechanism.
5.3.2.6 International Participation in Commitments to Reduce GHG Emissions for LCD
There is the involvement of all three jurisdictions in global efforts to mitigate climate change through the reduction of GHG emissions for LCD. As parties to the UNFCCC,
Nigeria, UK and Canada, the body‘s two significant agreements on climate change mitigation; the UNFCCC Agreement, and the Paris Agreement, binds all three jurisdictions. While the UK and Canada are Annex I countries, Nigeria is a developing country. As such, there is a separation of Nigeria from the UK and Canada on the other end of the spectrum of ―CBDR.‖ In the past,
Nigeria had no binding obligation to specific steps for GHG emission reduction. However, with the introduction of NDCs in the Paris Agreement, Nigeria now has a binding commitment to reduce GHGs according to its capabilities. NDCs are voluntary and as such Nigeria‘s specific commitment to reduce carbon emissions by eradicating gas flaring is deemed a goal within its capabilities. It is interesting to note that neither the UK or Canada mention phasing out gas flaring in their NDCs. In my opinion, this means that both jurisdictions have moved beyond gas flaring as a pressing problem.
Concerning the implementation of local policies which reflect the commitments of each signatory to the UNFCCC Agreements, all three jurisdictions have the same stance. The
165
only way international agreements would be applicable in either Nigeria, the UK or Canada is by enacting domestic laws which give force to international agreements. In the UK, there is the
Climate Change Act which reflects the UK‘s stance on international commitments to reduce carbon emissions. In Alberta, there are several laws and which indicate its carbon emission reduction. These include the CLA and the CCIR. In Nigeria, there is no law which reflects its international commitments on carbon emission reduction. If indeed the country intends to fulfill its NDC commitment, there must be a local law incorporating recognizing the Paris agreement and the responsibilities therein including the eradication of gas flaring.
5.4 Recommendations
This research shows that there is a connection between continuous flaring of gas in the oil and gas industry and global low carbon development. In its use of Nigeria as a case study, we can see that the country suffers a set back in phasing out gas flaring primarily because of its weak regulatory and enforcement mechanism of upstream oil and gas flaring. In the UK, the application of the environmental ethics method of resource conservation through prescriptive-based regulation, which exists in the provisions of its laws on gas flaring and MBIs makes the legislative union‘s gas flaring regulation and enforcement mechanism desirable.
Alberta‘s prescriptive-based regulatory approach to gas flaring also inculcates the environmental ethics principle of sustainability by conservation and is deemed to be worthy of emulation. The discussions in preceding chapters show that Nigeria still has a long way to go in terms of reforming its gas flaring regulatory mechanism to terminate the practice of gas flaring.
166
The following recommendations can assist the country in actualizing its goal of phasing out gas flaring in 2030 as a contribution to low carbon emissions and global emissions reduction.
5.4.1 Enactment of a Law that Domesticates Nigeria’s Climate Change Commitments
Just as the UK and Canada, domestication of international laws and agreements must occur for such laws to have national force in the country. The UK Climate Change Act and the Alberta Climate Leadership Act are two examples of laws that domesticate the principles of
GHG emissions. These laws also include targets and a time frame for the actualization of the said targets. In Nigeria, what we see is a situation where no climate change law exists, as such, there is no sign that the country intends to keep up with international commitments, particularly gas flaring where the interest of this research lies. Nigeria should enact a climate change law which includes its NDC commitments.
5.4.2 Amendment of the Associated Gas Petroleum Act
There should be an amendment of the deadline for the phasing out of gas flaring in the Associated Gas Petroleum Act to reflect Nigeria‘s international commitment for the phase- out of gas flaring set at the year 2030.
5.4.3 Strengthening the Public Participation Process in EIA Assessment
Public participation in environmental matters in Nigeria continues to be a subject of criticism. Greater public involvement in the EIA process for oil and gas projects would help indigenes in the areas where the projects are planned to raise objections on gas flaring
167
issues. The preceding would force the oil and gas operators to take the objections to the projects into consideration and proffer appropriate solutions while preparing environmental statements.
5.4.4 Establishment of an Independent Regulatory Agency
In Nigeria, the second regulatory agency in the oil and gas sector, the NNPC, has so many responsibilities. The overburdening of the NNPC leads to accusations of mismanagement, corruption, and incompetence. The situation is different in Canada where each province has its regulatory agency. In Alberta, the AER exclusively regulates oil and gas operations. It is a subject of international recognition in its industry efforts to mitigate GHG emissions from industrial activities including flaring of natural gas. In the UK, the OGA exclusively regulates activities in the upstream onshore oil and gas sector. The OPRED governs activities in the UKCS. In Nigeria, for accountability reasons, there should be a separate regulatory agency for the upstream oil and gas industry with clear cut functions. One of the responsibilities of the said agency would be the monitoring of emission reductions, particularly carbon emissions in the oil and gas industry. The NNPC by its participation in prospecting for, refining and sale of petroleum should no longer be a quasi-regulator, but should report to the proposed independent regulatory body.
5.4.5 Accountability of the Multinational Oil and Gas Companies
The outcome of this research shows that the oil and gas industries in Nigeria do not comply with regulations and court orders.810 The preceding should not be the case. One of the characteristics of a real democratic society is the application of the principle of the rule of law that no one is above the law. As such, it is advisable that Nigeria adopts the approach of the
810 See Gbemre, supra note 483 at page 480. 168
UK and Alberta in imposing severe fines on errant gas flaring multinational companies in the oil and gas industry to serve as a deterrent. There should be the establishment of an emissions reduction fund where the fines should be deposited to contribute to gas conservation infrastructure.
5.4.6 State Regulation of Oil and Gas
The thirty-six states in Nigeria have no jurisdiction in regulating mineral resources, including oil and gas. Environmental regulation of all minerals and natural resources lies exclusively with the Federal Government. So far, federal government regulation continues to be a failure. As such, there should be the grant of each state the right to enact laws for the management of natural resources to suit their needs and interest. In Canada, where there is in existence, provincial regulation of the oil and gas industry in each province. Alberta‘s oil and gas industry is subject to provincial regulation which must be in tandem with federal laws. On whether implementing this recommendation would require a constitutional amendment, the answer is in the negative because s. 4 of the CFRN only vests exclusive ownership, exploitation, and regulation of natural resources in the federal governments. State governments possess jurisdiction to regulate environmental matters in their territories. There should be an extension of the power of environmental regulation of states to the oil and gas industry, particularly with regards to upstream oil and gas activities.
5.4.7 State Recognition of International Agreements on Climate Change
State governments will be able to enact laws on climate change to adapt to their interests if the Federal government adopts a national law on Climate Change. Also, state laws on
169
climate change will address environmental issues in the oil and gas industry, particularly gas flaring.
5.4.8 Adoption of Alternative Regulation
In the UK, there is the application of MBIs in the control of gas flaring. The
UKFPTTS and UKETS are two major MBIs in this regard. Although both schemes are not without criticisms, they are considered successful. In Alberta, there is no formal institutionalization of an MBI mechanism for gas flaring; however, the Alberta Government‘s involvement with the GGFR could be considered a form of applicability of an MBI in the province, through its partnership with the Global Gas Flaring Reduction Partnership. The GGFR is successful.
So far, Nigeria uses the prescriptive regulatory mechanism also known as
―command and control‖ by continuously setting unrealistic deadline dates for the complete phase-out of gas flaring. The exclusion of over half of oil and gas operators in the country from the gas flare deadline dates has successfully rendered Nigeria‘s prescriptive approach redundant.
Although there is an inclusion of certain MBI incentives such as tax reliefs and fiscal incentives in the country‘s laws, they have been unsuccessful in addressing the problem. There is the need for a more active MBI strategy because of the ineffectiveness of the current regime; thus it is necessary that the Nigerian government goes back to the drawing board to fathom adequate
MBIs that could help solve the menace of gas flaring once and for all. An excellent place to start would be adopting a right based MBI; an emissions trading scheme similar to the UKFPTTS or
UKEMTS, or a strict carbon pricing as that seen in the Alberta CCIR for GHG emissions. Other approaches would further help the above suggestion. First, The PIB which continues to sit on the
170
shelf could be enacted with a realistic deadline to end gas flaring this time. The PIB would also affect other problems such as inconsequential fines and the lack of adequate monitoring by the
NNPC to ensure complete compliance
5.4.9 Holding Countries Accountable for Failing to Meet their NDC Commitments
Generally, international Agreements are considered persuasive. The status of the
Paris Agreement is no different in this regard. The agreement encourages signatories to make commitments to reduce GHG emissions in line with their respective capabilities and establishes a reporting mechanism for the same but fails to state what would happen if there is no compliance with voluntary commitment deadlines. This research suggests that subsequent agreements should adopt an accountability mechanism that would be applied if countries fail to meet their respective targets. If this occurs, Nigeria would be more sincere in its quest to phase out gas flaring by the year 2030.
5.5 Further Research
This research focuses on the failure of the current regulatory mechanism in
Nigeria and its negative contribution to global efforts on low carbon development. It does not discuss the problem of inadequate infrastructure for the reduction of gas flaring in the upstream oil and gas industry. Also, it does not address the issue of carbon emissions from venting, as well as those from the midstream and downstream oil and gas sectors that also contribute negatively to global low carbon development. It is essential that further research address the areas mentioned.
5.6 Concluding Statement
171
If future generations are to remember us with more gratitude than sorrow, we must achieve more than just the miracles of technology. We must also leave them with a glimpse of the world as it was created, not just as it looked when we got through it.811
In its analysis, this thesis focuses on environmental protection through the sustainable use of gas to fulfill the needs of present and future generations. Gas flaring is a wasteful exercise that contributes negatively to low carbon development which exists as a vital factor in the fight against climate change. The biggest strengths of the UK and Alberta in gas flaring regulation as seen from the discussion in this thesis are first, the domestication of the commitments of both jurisdictions in local laws. Next, are the level of authority given the OGA and AER and also, compliance with existing laws by oil and gas operators. In terms of public participation, the AER‘s attitude of ensuring that oil and gas companies comply with public participation requirements in the EIA process for oil and gas projects approval is enviable.
Nigeria lacks all the advantages above. In its efforts to phase out gas flaring in the year 2030, the country has no option but to be proactive in its upstream oil and gas flaring regulations as well as a compliance mechanism. The recommendations analyzed above are ways to achieve a phase-out of gas flaring.
811 Gerhard Peters & John T. Woolley, ―Lyndon B. Johnson: "Remarks at the Signing of a Bill Establishing the Assateague Island Seashore National Park‖, online: The American Presidency Project
BIBLIOGRAPHIES/ TABLES OF AUTHORITIES
LEGISLATION
Legislation: Canada-Alberta
Alberta Energy Regulator Rules of Practice, Alta Reg. 99/2013 (CanLII).
Carbon Competitiveness Incentive Regulation, Alta Reg,225/2017 (CanLII).
Climate Change and Emissions Management Act, R.S.A 2003, c.16.7.
Climate Leadership Act, RSA 2016, c.16.9 (CanLII).
Energy Efficiency Alberta Act, RSA 2016, c. E-9.7.
Canadian Environmental Assessment Act, SC 2012, c19.
Oil and Gas Conservation Act, RSA 2000, c.O-6.
Alberta, Specified Gas Emitters Regulation, Alta Reg. 139/2007 (Repealed) (CanLII).
Responsible Energy Development Act, RSA 2012, c. R-17.3
The Constitution Act, 1867, 30 & 31 Vict, c. 3.
Municipal Government Act, RSA 2000, c. M-26 (CanLII).
Oil Sands Conservation Act, RSA 2000, c. O-7
Legislation: Nigeria
Associated Gas Re-injection Act, 1979, Laws of the Federation of Nigeria, 2004, c.26.
173
Associated Gas Re-injection (Continued Flaring of Gas) Regulations, 1990, Laws of the
Federation of Nigeria, 2004, c. 26.
Associated Gas Re-injection Act, Laws of the Federation of Nigeria, 2004, c.A25
Bill C.1687, Bill Gas Flaring (Prohibition & Punishment) Bill, 2008.
Bill C.1595, Gas Flaring (Prohibition) Bill, 2017.
Constitution of the Federal Republic of Nigeria 1999, Act No. 24, 1999.
Environmental Impact Assessment Act 1992, Laws of the Federation of Nigeria, 2004, c. e12.
Exclusive Economic Zone Act 1978, Laws of the Federation of Nigeria 1990, c.116.
Flare Gas (Prevention of Waste and Pollution) Regulations, 2018,
Federal Republic of Nigeria Official Gazette (July 9, 2018), 105:88
regulations-2018-gazette-cleaner-copy-1.pdf>. Industrial Development (Income Tax Relief Act) 1971, Laws of the Federation of Nigeria 1990, c.179. Land Use Act 1979, Laws of the Federation of Nigeria 1990, c.202. Nigeria LNG (Fiscal Incentives, Guarantees and Assurances) Act 1989, Laws of the Federation of Nigeria, 1990 c. N87 Cap at S.1 174 Nigerian Minerals and Oils Safety Regulations 1997, Laws of the Federation of Nigeria 1996, c.350. Nigerian National Petroleum Act 1977, Laws of the Federation of Nigeria 1990, c.320. Nigeria Petroleum (Drilling and Production) Regulations 1969, Laws of the Federation of Nigeria 2004. c.p 12. Petroleum Act, 1969, Laws of the Federation of Nigeria 2004, c. p10. The Associated Gas Re-injection (Continued Flaring of Gas) Regulation 1984, Supplement to Official Gazette 67: 71 of 29 November 1984, Laws of the Federation of Nigeria 2004, c. A 25. The Petroleum Profits Tax Act, 1999, Laws of the Federation of Nigeria, 1990, c.354. Legislation: United Kingdom Climate Change Act 2008, c.27, 26 November 2008 Companies Act, 2006, c.46, 8 November 2008 The Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, No. 1970, 1 October 2013 175 Continental Shelf Act 1964, c.29, 15th April 1964. Energy Act 1976, c.76, 22nd November 1976 Energy Act 2004, c. 20, 22nd July, 2004 Energy Act, 2016, c.16, 12th May 2016. < http://www.legislation.gov.uk/ukpga/2016/20/contents/enacted>. Environment Act 1995, c.25, 19th July 1995. < https://www.legislation.gov.uk/ukpga/1995/25/contents>. Petroleum Act 1998, c.17, 11th June 1998 Petroleum (Production) Act 1934, 24 & 25 Geo. 5 c. 36, 12th July 1934. < http://www.legislation.gov.uk/ukpga/Geo5/24-25/36/enacted>. The Offshore Combustion Installations (Pollution Prevention and Control) Regulations 2013, SI 2013/971 < http://www.legislation.gov.uk/uksi/2013/971/contents/made>. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/ 83 176 The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 < http://www.legislation.gov.uk/uksi/2017/571/contents/made>. The Town Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/567 The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, SI 2017/ 102 JURISPRUDENCE Jurisprudence: Canada-Alberta Alberta Energy Company Ltd v. Goodwell Petroleum Corporation Ltd 2003 ABCA 277. Anderson v Amoco Canada Oil and Gas 2004 SCC 49. Berkheiser v. Berkheiser [1975] SCR 387. Borys v. Canadian Pacific Railway [1953] AC 217. Imperial Oil Ltd v. Quebec [Minister of the Environment [2000] 2 S.C.R. 624, 2003 SCC 58. Old Man River Society v. Canada Minister of Transport [1992] 1 S.C.R.3 Ontario v. Canadian Pacific Ltd, [1995] 2 S.C.R 1031. Re Ainsworth Lumber Co [2000] AEABD No. 33. Jurisprudence: International 177 Gabčikovo-Nagymaros Project, Hungary v Slovakia (1998) 37 ILM 162. Jurisprudence: Nigeria Abacha v. Fawehinmi [2006] 6 NWLR (Pt. 660) at 228. A-G Federation v. A-G Abia State (2002) 6 NWLR (Pt. 762) at 542; [2001] 111NWLR 689. Federal Inland Revenue v. Mobil Producing Nigeria Unlimited (FHC/L/3A/2017). Gbemre v Shell Petroleum Development Company Nigeria Limited and Others (2005) AHRLR 151 (NGHC 2005). Mhwun v Minister of Health and Productivity & Ors [2005] 17 NWLR pt. 953 at 120. Mobil Producing (Nig.) Unltd v. F.I.R.S [2017] All FWLR. 543. PIPDC Ltd v. Philip Eblota and 5 Ors (2001) 64 FWLR at 374. Theophilus G. Metsagharun v. Chevron Ltd, Suit No: FHC/ABJ/CJ/130/2010. Jurisprudence: United Kingdom R v Thames Water Utilities Limited [2015] EWCA (Crim] 960. Jurisprudence: United States People’s Gas Co v. Tyner 31 NE 59. Ind. Supreme Court (1892). Hail v. Reed, 15 B. Mon. 479 (Ky. 1854). Hughes v. United Pipe Lines, iig N. Y. 423 (1890). Juliana, et al., .v. United States of America, 564 U.S. 410 (2011). 178 Westmoreland & Cambria Natural Gas Co v. Dewitt (1889)130 Pa. 235. SECONDARY MATERIALS: MONOGRAPHS AND COLLECTION OF ESSAYS Abuhesa, Musa Bashir. Investigation into Gas Flaring Reduction in the Oil and Gas Industry (Ph.D. Thesis, University of Salford, UK, 2010). Armstrong, Susan J. & Richard G. Botzler, Environmental Ethics Divergence and Convergence, 3rd ed., (New York: McGraw-Hill Education, 2004). Attfield, Robin. Environmental Ethics (Cambridge: Polity Press, 2014). Belshaw, Christopher. Environmental Philosophy (Oxon: Routeldge, 2001). Belshaw, Christopher. Environmental Philosophy: Reason, Nature and Human Concern (New York: Routledge, 2014). Beyerlin, Urlich & Thilo Marahun, International Environmental Law (United Kingdom: Hart Publishing Ltd, 2011). Birnie, Patricia; Alan Boyle & Catherine Redgwell, International Law and the Environment, (Oxford: Oxford University Press, 2009). Bodansky, Daniel; Jutta Brunnèe, & Lavanya Rajamani, International Climate Change Law, 1st ed., (Oxford: Oxford University Press, 2017). Breen, David H Alberta’s Petroleum Industry and the Conservation Board, (Alberta: University of Alberta Press, 1993) at 653. 179 Brunèe, Jutta; Meinhard Doelle &Lavanya Raajamani, eds. Promoting Compliance in an Evolving Climate Regime, (New York: Cambridge University Press, 2012). Bryne, Jason Anthony. ―Climate Ethics‖ in Julie Newman & Paul Robbins, eds., Green Ethics and Philosophy: an A-TO-Z guide (California: Sage Publications Inc., 2011). Cervigni, Raffaello; John Allena Rogers & Irina Dvorak, Assessing Low Carbon Development in Nigeria: An Analysis of Four Sectors (Washington DC: World Bank Publication, 2013). Clevland, Cutler & Christopher Morris, eds., Dictionary of Energy, 2nd ed. (Amsterdam: Elsevier Science & Technology, 2015). Conroy, Czech. ―Introduction‖ in Czech Conroy & Miles Litvinoff, eds, The Greening of Aid: Sustainable Livelihoods in Practice (London: Earth Scan, 1988). Daintith, Terrence & G.D.M Willoughby, A manual of United Kingdom Oil and Gas Law, (London: Oyez Publishing Ltd, 1977). De-Shalit, Avner. The Environment between Theory and Practice (Oxford: Oxford University Press, 2000). Des Jardins, Joseph R. Environmental Ethics: An Introduction to Environmental Philosophy, 5th ed. (Belmont, California: Wadsworth Publishing Company, 2013). DiMentro, Joseph F.C. The Global Environment and International Environmental Law (USA: University of Texas Press, 2003). 180 Doelle, Meinhard. ―Assessment of Strengths and Weaknesses‖ in Daniel Klein et al. eds. The Paris Agreement on Climate Change (Oxford: Oxford University Press, 2017). Enabulele, Osamuyien; Mahdi Zahra, & Franklin N. Ngwu, ―Addressing Climate Change due to Emission of Greenhouse Gas Associated with the Oil and Gas Industry: Market-Based Regulation to the Rescue‖ in Maria Alejandra Gonzalez-Perez, ed., Climate Change and the 2030 Corporate Agenda for Sustainable Development (Wales, Emerald Group Publishing Ltd, 2017). Fagbohun, Olarenwaju. The Law of Pollution and Environmental Restoration (Lagos: Odoade Publishers, 2010). Frynas, Jedrzej. George Oil in Nigeria: Conflict and Litigation between Oil Companies and Village Communities (New Brunswick: Transaction Publishers, 2000). Gervet, Bruno. Gas Flaring Emission Contributes to Global Warming (Architecture, Luleȧ University of Technology) [Unpublished]. Guruswamy, Lukshman D & Brent R. Hendricks International Environmental Law in a Nutshell, 4th ed. (USA: Thompson Reuters, 2003). Hardin, Garrett. ―The Tragedy of the Commons‖ in John Benson ed. Environmental Ethics an Introduction with Readings, (London: Routledge, 2000). Hempel, Lamont C. Environmental Governance: The Global Challenge (Washington DC: Island Press, 1996) 181 Hofstee, Erik. Constructing a Good Dissertation: A Practical Guide to Finishing a Master’s, MBA or Ph.D. on Schedule (Sandton: Exactica, 2006). Holford, Mark R & Patrick J. Hettiaratchi, An Evaluation of Potential Technologies for Reducing Solution Gas Flaring in Alberta, (Calgary, Faculty of Engineering, 1998). Hutchinson, Terry C. Researching and Writing in Law, 3rd ed. (Sydney: Thomson Reuters, 2010). Hyne, Norman J. Nontechnical Guide to Petroleum Geology, Exploration, Drilling and Production, 2nd ed. (Tulsa: PennWell, 2003). Jamieson, Dale. (ed.), A Companion to Environmental Philosophy (Massachusetts: Black Well Publishers Ltd, 2001). Laitos, Jan with Juliana Okulski. Why Environmental Policies Fail, (United Kingdom: Cambridge University Press, 2017). Lamidi, Esther Omowunmi. Rethinking Poverty in Nigeria (PhD Dissertation, Bowling Green State University, 2016) [ProQuest Dissertations & Theses Global] [Unpublished]. Lang, W, H. Neuhold & K. Zemanek (eds.), Environmental Protection and International Environmental Law, (Boston: Graham & Trotman/ Martinus Nijhoff, 1991). Lazarus, Richard J. Making Environmental Law, (Chicago: University of Chicago Press, 2014). Leiss, William. ―Instrumental Rationality, The Domination of Nature, and Why We Do Not Need an Environmental Ethic‖ in Philip H. Hanson ed., Environmental Ethics: 182 Philosophical and Policy Perspectives (BC: Institute for the Humanities Simon Fraser University, 1986). Lowe, John S. Oil and Gas Law (USA: Thompson West Publishers, 2003). Lubeck, Paul M, Michael J. Watts & Ronnie Lipschutz,, Convergent Interests U.S Energy Security and the “Securing of Nigerian Democracy” (Washington DC: Center for International Policy, 2007). Matsui, Yoshiro. ―The Principle of Common but Differentiated Responsibilities‖ in Nico Schrijver & Friedl Weiss, eds., International Law and Sustainable Development (Dordrecht: Martinus Nijhoff Publishers, 2004). Nagle, John Copeland. Law’s Environment (Yale: Yale University Press, 2010). Nanda, Ved P. & George (Rock) Pring, International Environmental Law & Policy for the 21st Century, (New York: Transnational Publishers, 2003). Nyong, Reuben Umoh. Empirical Analysis of Determinants of Natural Gas Flaring in Nigeria (M.SC, Thesis, Umeḁ universitet, 2012) [Unpublished]. Odumosu, Ibironke Tinuola. Reforming Gas Flaring Laws in Nigeria (LL.M Thesis, University of Calgary, 2005) [unpublished]. Omorogbe, Yinka. Oil and Gas Law in Nigeria (Lagos: Malthouse Press Limited, 2003). Park, Chris & Michael Allaby, Dictionary of Environment and Conservation (Oxford: Oxford University Press, 2017). 183 Perry, Martin et al.,. (eds.), Climate Change: Impacts, Adaptation and Vulnerability (New York: Cambridge University Press, 2007). Piskarev, Alexey & Mikhail Shkatov, (eds.), Energy Potential of the Russian Artic Seas: Choice of Development Strategy, 1st ed. (Amsterdam: Elsevier Science, 2012). Pojman, Louis P. Global Environmental Ethics, (California: Mayfield Publishing Company, 2000). Rajamani, Lavanya & Emmanuel Guèrin, ―Central Concepts in the Paris Agreement and How They Evolved‖ in Daniel Klein et al.,. (eds.), The Paris Agreement on Climate Change (Oxford: Oxford University Press, 2017). Resta, Giorgio.―Systems of Public Ownership (July 1, 2015) in Michele Graziadei -Lionel Smith, eds., Comparative Property Law: Global Perspectives (Cheltenham: Edward Elgar Publishers, 2017). Ross, Michael L. The Oil Curse: How Petroleum Wealth Shapes the Development of Nations (New Jersey: Princeton University Press, 2012). Sands, Phillipe. Principles of International Environmental Law, 2nd ed., (Cambridge: Cambridge University Press, 2003). Shahar, Dan C. ―Climate Change and What to do about it‖ in David Schmidtz & Elizabeth Willott (eds.), Environmental Ethics, 2nd ed. (New York: Oxford University Press, 2012). 184 Shue, Henry. ―Global Environment and International Inequality‖ in Stephen Gardiner, et al.,, (eds.), Climate Ethics: Essential Readings (Oxford: Oxford University Press, 2014). Singer, Peter. ―One atmosphere‖ in Stephen M. Gardiner et al. eds, Climate Change Ethics: Essential Readings (Oxford: Oxford University Press, 2010). Stokke, Olav Schram; Jon Hovi & Gleir Ufstein, eds., Implementing the Climate Change Regime: International Compliance, (London: Earth Scan, 2005). Tarlock, A. Dan. ―History of Environmental Law‖ in A. Dan Tarlock & John C. Dernbach, eds., Environmental Laws and their Enforcement, (Oxford: EOISS Publishers Co, Ltd, 2009) vol. 1. Trarer, Robert, Doing Environmental Ethics, 2nd ed. (New York: Routledge, 2018). Tremmel, Joerg & K. Robinson, Climate Ethics (New York: I.B. Tauris & Co Ltd, 2014). Warne, Penelope &Norman Wisely, ―United Kingdom‖ in Christopher B. Strong ed., The Oil & Gas Law Review, 4th ed. (London: Law Business research, 2016). Wenz, Peter S. Environmental Ethics Today, (Oxford: Oxford University Press, 2001). Yermekkaliyeva, Ainur. Regulation of the Oil Industry: The Case of Kazakhstan (MA Thesis, University of Ottawa Department of Economics, 2013) [Unpublished]. SECONDARY MATERIAL: ARTICLES Adefi, Olong Matthew. ―Rewriting Concessions Agreement: Nigerian Viewpoint‖ (2015) 3:2 Global Journal of Politics and Law Research 79. 185 Aichele, Rahel & Gabriel Felbermayr, ―The Effect of the Kyoto Protocol on Carbon Emissions‖ (2013) 32:4 Journal of Policy Analysis and Management 731. Aghalino, Sam O. ―Gas Flaring, Environmental Pollution and Abatement Measures in Nigeria, 1969-2001‖ (2009) 11:4 Journal of Sustainable Development in Africa 219. Agrawal, Arun & Clark C. Gibson, ―Enchantment and Disenchantment: The Role of Community in Natural Resource Conservation (1999) 27:4 World Development 629. Ajugo, Anslem O. "Negative Effects of Gas Flaring: The Nigerian Experience‖ (2013) 1:1 Journal of Environment Pollution and Human Health 6. Aladeitan, Lanre. ―Ownership and Control of Oil, Gas, and Mineral Resources in Nigeria Between Legality and Legitimacy‖ (2012) 38 Thurgood Marshall Law Review 159. Aldy, Joseph A. & Robert N. Stavins, ―The Promise and Problems of Pricing Carbon: Theory and Experience‖ (2012) 21:2 Journal of Environment and Development 152. Allen, David T. et al.,., ―Carbon Dioxide, Methane and Black Carbon Emissions from Upstream Oil and Gas Flaring in the United States‖ (2016) 13 Current Opinion in Chemical Engineering Journal 119. Aniefiok, Ite E. & Ibok J. Udo, ―Gas Flaring and Venting Associated with Petroleum Exploration and Production in the Nigeria‘s Niger Delta‖ (2013) 1:4 American Journal of Environmental Protection 70. 186 Aniche, E.T. ―An Assessment of the Role of Nigerian State in Enforcing Zero-Gas Flare Regime, 1979-2012: The Imperatives of Environmental Diplomacy‖ (2015) 7:12 Civil and Environmental Research 29. Anunwan, Boniface. ―Corporate Governance in Nigeria‖ (2002) 37:3 Journal of Business Ethics 269. Aregbe, Azeez G. ―Natural Gas Flaring—Alternative Solutions‖ (2017) 5:1 World Journal of Engineering and Technology 139. Ayanlade, Sina at al.,―Perception on Effect of Gas Flaring on the Environment‖ (2010) 2:4 Research Journal of Environmental and Earth Sciences 188. Band, George C. ―Fifty years of UK offshore oil and gas‖ (1991) 157:2 The Geographical Journal 179. Borok, Maren I; Mangai M. Morgan & Golkus J. Ishaku, ―Energy Exploitation and Environmental Impact in Nigeria: The Way Forward‖ (2013) 13:3 Journal of Energy Technologies and Policy. Bortscheller, Mary J. ―Equitable But Ineffective: How The Principle Of Common But Differentiated Responsibilities Hobbles The Global Fight Against Climate Change.‖(2010) 10:2 Sustainable Development Law & Policy 49. Bray, Shirley. ―Finding the Public Interest at the Whaleback Hearing‖ (2003) 11(5) Wild Lands Advocate 6. 187 Brunne , Jutta & Charlotte Streck, ―The UNFCCC as a Negotiation Forum: Towards Common but Differentiated Responsibilities‖ (2013) 13:5 Climate Policy 589. Bushey, Douglas & Sikinna Jinnah, ―Evolving Responsibilty? The Principle of Common but Differentiated Responsibility in the UNFCCC‖ 6 (2010) Berkely Journal of International Law Publicist 1. Czarnezki, Jason J & Katherine Fiedler, ―The Neo-Liberal Turn in Environmental Regulation‖ (2016) Utah L. Rev. 1. De Montclos, Marc-Antoine Pèrous. ―The Politics and Crisis of the Petroleum Industry Bill in Nigeria‖ (2014) 52:3 Journal of Modern African Studies 403. Dechezlepreˆtre, Antoine; Matthieu Glachant & Yann Menie`re, ―The Clean Development Mechanism and the International Diffusion of Technologies: An empirical study‖ 2008 36:4 Energy Policy 1273. Delmas, Magali A. & Ann K. Terlark, ―A Framework for Analyzing Voluntary Agreements‖ (2001) 43:3 California Management Review 44. Dernbarch, John C. ―Achieving Sustainable Development: The Centrality and Multiple Facets of Integrated Decision Making‖ (2003) 10:1 Ind J Global Leg Stud 10. Desch, C.H. ―Conservation of Natural Resources‖ (1941) 148:3758 Nature 547. Du Pisani, Jacobus A. ―Sustainable Development-Historical Roots of the Concept‖ (2006) 3:2 Environmental Sciences 83. Duru, Uche & Anthony Nyong, ―Why Africa Needs Green Bonds‖ (2016) 7:12 Africa Economic Brief 1. 188 Eaton, Joshua P; ―The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment‖ (1997) 15. B.U. Int‘l L.J. 261 at 262 (Heinonline). Egbegbulem, Joseph C; Dickson Ekpe & Theophilus Oyime Adejumo, ―Oil Exploration and Poverty in the Niger Delta Region of Nigeria: A Critical Analysis‖ (2013) 4:3 International Journal of Business and Social Science 279. Ekhator, Eghosa.―Environmental Protection in the oil and gas industry in Nigeria: The Roles of Governmental Agencies‖ (2013) International Energy Law Review 1. Elvidge , Christopher D. et al.,―A Fifteen Year Record of Global Natural Gas Flaring Derived from Satellite Data‖ (2009) 2:3 Energies 599. Emam, Emam A.―Gas Flaring in Industry‖ (2015) 57:5 Petroleum and Coal Journal 532. Fagbohun, Olarenwaju. ―Reappraising the Nigerian Constitution for Environmental Management,‖ (2002) 1 AAU Journal 44. Fluker, Shaun. ―The Right to Public Participation in resources and Environmental Decision-Making‖ (2015) 52:3 Alberta Law Review 562. Frynas, Jeḑrzez George. ―Corporate Social responsibility in the Oil and Gas Sector‖ (2009) 2:5 Journal of World Energy Law and Business 178. Giwa, Solomon O. et al.,., ―Gas Flaring Attendant Impacts of Criteria and Particulate Pollutants: A Case of Niger Delta Region of Nigeria‖ (2017) 30 Journal of King Saud University-Engineering Sciences 1. 189 Gatson, Kevin J. ―Biodiversity and Extinction: Species and People‖ (2005) 29:2 Progress in Physical Geography 239. Gogo, Kingston Kato.―The Dilemma of Minerals Dependent Economy: The Case of Foreign Direct Investment and Pollution in Nigeria‖ (2011) 1:1 African Journal of Social Sciences 1. Gray, Joe; Ian Whyte and Patrick Curry, ―Ecocentrism: What it means and what it implies‖ (2018) 1:2 The Ecological Citizen 130. Guha, Ramachandra. ―Radical American Environmentalism and Wilderness Preservation: A Third World Critique‘‘ (1989) 11 Environmental Ethics 71. Hassan, Aminu & Reza Kouhy, ―Gas Flaring in Nigeria: Analysis of Charges in its Consequent Carbon Emission and Reporting‖ (2013) 37:2 Accounting Forum 124. Hutchinson,Terry & Nigel Duncan, ―Defining and Describing What We Do: Doctrinal Legal Research‖ (2012) 17:1 Deakin Law Review 83 (Ebscohost Academic Search Complete). Ingwe, R.―The Nigeria Gas Master Plan, Investment Opportunities, Challenges, Issues Affecting Power Sector: An Analysis‖ (2014) 59:2 Studia UBB Geographia 115. Isa, Rehanet.―Greenhouse Gas(GHG) Emissions and Oil & Gas Revenue‖ (2014) 3:7 Academic Journal of Interdisciplinary Studies at 127. Jodoin, Sebastién & Sarah Mason-Case, ―What Difference Does CBDR Make: A Socio-Legal Analysis of the Role of Differentiation in the Transnational Legal Process for REDD+‖ (2016) 5:2 Transnational Environmental Law 255. 190 Light, Andrew. ―The Urban Blind Spot in Environmental Ethics‖ (2001) 10:1 Environmental Politics 7. Lynch, Colum F. ―Global Warming‖ (1996) The Amicus Journal 20. Lyon, Thomas P. & John W. Maxwell, ―Self-Regulation, Taxation and Public Voluntary Environmental Agreements‖ (2003) 87:1-8 Journal of Public Economics 1453. Maduka, Onosovie & Chares Tobin-West, ―Is living in a Gas Flaring Host Community Associated with being Hypertensive? Evidence from the Niger Delta Region of Nigeria‖ (2017) 2:4 BMJ Global Health 1. Malumfashi, Garba I. ―Phase-out of Gas Flaring in Nigeria by 2008: the Prospects of a Multi-win Project‖ (2007) 1(4):2 Petroleum Training Journal 1. Meffe, Garry K. ―Sustainability, Natural Law and the Real World‖ (1993) 10:4 The George Wright Forum 48. Michaelowa, Axel. ―Failures of Global Carbon Markets and CDM‖ (2011) 11:1 Climate Policy, 839. Mulugetta, Yacob & Faruke Urban, ―Deliberating on Low Carbon Development‖ (2010) 38:2 Energy Policy Journal 7546. Newport, Dave; Thomas Chesnes & Angela Linder, The ―environmental sustainability‖ problem: ensuring that sustainability stands on three legs‖ (2003) 1:4 International Journal of Sustainability in Higher Education 357. Nie, Martin. ―The Underappreciated Role of Regulatory Enforcement in Natural Resource Conservation‖ (1998) 41:2 Policy Sciences 139. 191 Noga, Dolores. ―Sour Gas Well Application Denied‖ (2004) 19:1 Environmental Law Centre 1. Nwanya, Stephen C. ―Climate change and Energy Implications of Gas Flaring for Nigeria‖ (2011) 6:3 International Journal of Low-Carbon Technologies 193. Obanijesu, E.O et al.,., ―Air-borne SO2 Pollution Monitoring in the Upstream Petroleum Operation Areas of Niger-Delta, Nigeria‖ (2009) Part A 31:3 Energy Sources 223. Obi, Cyril I. ―Oil Extraction, Dispossession, Resistance, and Conflict in Nigeria's Oil-Rich Niger Delta‖ (2010) 30:1 Canadian Journal of Development Studies / Revue canadienne d'études du développement 219. Obi, E.O & Osang J.E, ―Thermal effect of gas flaring activities in Ogba-Egbema Ndomi Community, Rivers State, Nigeria‖ (2015) 3:3 International Journal of Energy and Environmental Research 1. Odjugo, P.A.O & E.J Osemwenkhae, ―Natural Gas Flaring Affects Microclimate and Reduces Maize(Zea Mays) Yield (2009) 41 International Journal of Agriculture and Biology 408. Odumosu, Ibironke T. ―Transferring Alberta‘s Gas Flaring Reduction Regulatory Framework to Nigeria: Potentials and Limitations‖ (2007) 44:4 Alta. L. Rev. 863 at 89. Odularu, Gbadebo O.―Crude Oil and the Nigerian Economic Performance‖ (2008) Oil and Gas for Business 1. 192 Okeke, V.O.S & E.T Aniche, ―A Critique of the Enforcement of Nigeria Extractive Industries Transparency Initiative (Neiti) Act 2007 in the Nigerian Oil and Gas Sector‖ (2013) 14:2 British Journal of Arts and Social Sciences 98. Okonkwo, Theodore. ―Ownership and Control of Natural Resources under the Nigerian Constitution 1999 and Its Implications for Environmental Law and Practice‖ (2017) 6:1 International Law Research Journal 162. Olah, George A. ―Beyond Oil and Gas: The Methanol Economy‖(2006) 44:18 A Journal of the Gesellschaft Deutscher Chemiker 2636. Ologunorisa, Temi A. ―The Effects of Gas Flaring on the Nigeria Delta‖ (2001) 8:3 International Journal of Sustainable Development and Ecology 249. Onuma, Orieji. ―Mainstreaming Sustainability: An Evaluation of Alberta‘s Legal and Regulatory Regime for Gas Development‖ (2015) 116 Canadian Institute of Resources Law 1. Orji, Uchenna Jerome. ―An Appraisal of the Legal Frameworks for the Control of Environmental Pollution in Nigeria‖ 2012 38:2 Common Wealth Law Bulletin 321. Osuoha, Christopher A. ―Gas Flaring in Niger Delta region of Nigeria: Cost, Ecological and Human Health Implications‖(2017) 16:2 Environmental Management and Sustainable Development 390. Oyewunmi, Olabode & Adebukola E. Oyewunmi, ―Managing Gas Flaring and Allied Issues in the Oil and Gas Industry‖ (2016) 7:4 Mediterranean Journal of Social Sciences 643. 193 Pereira, Ricardo & Orgla Gough, ―Permanent Sovereignty over Natural Resources in the 21st Century: Natural Resource Governance and the Right to Self-Determination of Indigenous Peoples under International Law‖ (2013) 14:2 Melbourne Journal of International Law 451. Pillay, Surendran. ―An Assessment of Clean Development Mechanism Project Contribution to Sustainable Development in Nigeria‖ (2016) 15:6 International Business and Economics Research Journal 315. Plummer, Ryan. A Review of Sustainable Development Implementation through Local Action from an Ecosystem Management Perspective‖ (2005) 4 Journal of Rural and Tropical Public Health 33. Porter, Michael E. & Claas Van der Linde, ―Green and Competitive: Ending the Stalemate‖ (1995) 73:5 Harvard Business Review 120. Pūraitė, Aurelija. ―Origins of Environmental Regulation‖ (2012) 19:2 Jurispudencija 657. Randolph , Justus J. ―A Guide to Writing the Dissertation Literature Review‖ (2009) 13:14 Practical Assessment, Research and Evaluation Journal 1.Rodina, Anastasia. ―Burning Through: Reducing Associated Petroleum Gas Flaring to Enhance Natural resources governance‖ (2016) Law in Transition Journal 83. Roulet, Nigel T. ―Peatlands, Carbon Storage, Greenhouse gases, and the Kyoto Protocol: Prospects and Significance of Canada‖ (2009) 29:4 Wetlands 605. Roy, K.C. ―Issues in resource conservation and sustainable development: Indian Situation‖ (1988) 25:1 International Journal of Social Economics 6. 194 Shaif , Habibu Ahmed et.al., ―Gas Flaring: When will Nigeria Decrbonise the Oil and Gas Industry‖ (2016) 3 International Journal of Economy, Energy and Movement 40. Smith, Stephen & Joseph Swierzbinski, ―Assessing the performance of the UK Emissions Trading Scheme‖ (2007) 37:1 Environmental & Resource Economics 131. Streck, Charlotte. ―New Partnerships in Global Environmental Policy: The Clean Development Mechanism‖ (2004) 13:3 The Journal of Environment and Development 295. Streck, Charlotte & Jolene Lin, ―Making Markets Work: A Review of the CDM Performance and the Need for Reform‖ (2008) 19:2 The European Journal of International Law, 409. Streck, Charlotte; Paul Keenlyside & Mortiz von Unger,―The Paris Agreement: A New Beginning‖ (2016) 13 Journal for European Environmental & Planning Law 3. Thompson, Janna. ―A Refutation of Environmental Ethics‖ (1990) 12:2 Environmental Ethics 147. Tor, Peter & Larisa Mantativa. ―Philosophical Underpinnings of Environmental Ethics: Theory of Responsibility by Hans Jonas‖ (2015) 214 Procedia-Social and Behavioral Sciences1055. Ucha, Chimobi.―Poverty in Nigeria: Some Dimensions and Contributing Factors‖ (2010) 1: 1 Global Majority E-Journal, 46 https://pdfs.semanticscholar.org/1e17/521182f3a4498eccd8eb1b8e390513 0de971.pdf. Ukala, Eferiekose. Gas Flaring in Nigeria‗s Niger Delta: Failed Promises and Reviving Community Voices, (2011) 2:1 Wash. & Lee J. Energy, Climate & Env‘t. 97. 195 Van Hoecke, Mark. ―Methodology of Comparative Legal Research‖ (2015) Law and Method 1. Vlavianos, Nickie & Chidinma Thompson, ―Alberta‘s Approach to Local Governance in Oil and Gas Development‖ (2010) 48:1 Alberta Law Review 55. Yunusa, Nairu et al.,., ―Gas Flaring Effects and Revenue Made from Crude Oil in Nigeria‖ (2016) 6:3 International Journal of Energy Economics and Policy 617 (Proquest). Waas, Tom et al.elshawls,, ―Sustainable Development: A Bird‘s Eye View‖ (2013) 3:10 Sustainability 1637. Weiman, Kairn A. ―US Oil Companies, the Nigerian Civil War, and the Origins of Opacity in the Nigerian Oil Industry‖ (2012) 99:1 The Journal of American History 155. Weiss, Edith Brown. ―The Contribution of International Environmental Law to International Law: Past Achievements and Future Expectations‖ (2011) 54 Japanese Y.B. Intl. L. 1. SECONDARY MATERIAL- OTHERS International Treaties and Agreements Kyoto Protocol to the United Nations Convention on Climate Change, 11 December 1997, 1771 UNTS 107; 37 ILM 22(1998) (entered into force 16 February 2005). Paris Agreement, 12 December 2015, 55 ILM 740 (2016) (entered into force 4 November 2016). Permanent Sovereignty over Natural Resources Assembly Resolution 1803 (XVII) adopted on 14 December 1962. 196 Rio Declaration on Environment and Development, 14 June, 1992, UN Doc.A/CONF.151/26 (vol.1) 31 ILM 874 at Principle 3 (entered into force on 29 December, 1993). U.N. Conference on Environment and Development (UNCED), Agenda 21, 8.7 U.N. Doc. A/CONF.151/26/Rev.1 (Vol.1) U.N. Sales No. E.93.1.8 (1992) United Nations Framework Convention on Climate Change, 09 May 1992, 1771 UNTS 107; 31 ILM 801 (1992) (entered into force 21 March 1994). UNFCCC, Decision 1/CP.13, Bali Action Plan, UN Doc. FCCC/CP/2007/6/Add.1 UNFCCC, Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention. UN Doc. FCCC/CP/2010/7/Add.1. UNFCCC, Decision 2/CP.15, Copenhagen Accord, UN Doc.FCCC/CP/2009/11/Add.1. 27 UNFCCC, Decision 1/CP.16, The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention. UN Doc. FCCC/CP/2010/7/Add.1. UN Resolution 1803 (XVII), Dec 14, 1962. Government Papers and Special Reports. Government Paper Federal Environmental Protection Agency, National Policy on the Environment, (Abuja: FEPA, 1999). 197 Non- Governmental Reports Justice in Nigeria Now, ―Gas Flaring in Nigeria: an Overview‖ (April 2010), online: Justice in Nigeria Now 2010-Gas-Flaring-an-overview.pdf>. Organization for Economic Co-operation and Development, National Climate Change Policies and the Kyoto Protocol, (Paris: OECD Publishing, 1999). The World Bank, Global Gas Flaring Reduction Initiative Report on Consultation with Stakeholders (Washington DC: World Bank, 2004) World Commission on Environment and Development, Our Common Future, 3rd ed., (Oxford: Oxford University Press, 1990). Technical Report Bachman, John. Black carbon: ―A Science Policy Primer‖ (2009), online: Centre for Climate and Energy Solutions primer.pdf.> Addresses and Papers Delivered at Conferences Ho, Simon et al.,., ―A Comparison of EIA Practice in Hong Kong and the United Kingdom (A Paper delivered at the Impact Assessment The Next Generation Program, Calgary, Alberta, Canada, May 13-16 2012) [Unpublished] online: s%2013/A%20COMPARISON%20OF%20EIA%20QUALITY%20PRACTICE %20IN%20HONG%20KONG%20AND%20THE%20UNITED%20KINGDOM.pdf>. 198 Ibikunle, Abiodun. ―Reducing Green House Emission‖ (Paper delivered at the OPEC-EU CDM Conference, Riyadah Saudi Arabia, September 2006) [Unpublished]. Pyagbara, Legborsi Saro. ―The Adverse Impacts of Oil Pollution on the Environment and Wellbeing of a Local Indigenous Community: The Experience of the Ogoni People of Nigeria‖ (Paper delivered at International Expert Group Meeting on Indigenous Peoples and Protection of the Environment August 27-29 August 2007) at 7 [Unpublished] online: Svensson , Bent. ―Gas Flaring Reduction-A Global Perspective‖ (Paper delivered at the Natural Gas Star Programme Annual Implementation Workshop, (25 October 2005) [Unpublished] online: 06/documents/svensson_2005aiw.pdf.> Course Material Mascher, Sharon. United Nations Convention on Climate Change, Lecture Note (Faculty of Law, University of Calgary, Winter 2017). Newspapers Asu, Femi. ―Nigeria Lost 217bn to Gas Flaring in 2016-NNPC‖ Punch Newspapers, (23 February, 2017) online: nnpc/>. Declan, Harrison. ―What Gas Flaring Prohibition bill will achieve‖ Punch Newspaper, (17 November 2016) 199 Ebiri, Kelvin & Kingsley Jeremiah ―Nigeria: Why Nigeria Cannot End Gas Flaring in 2020- Experts‖ The Guardian (6 May 2018), online: nigeria-cannot-end-gas-flaring-in-2020-experts/>. Figueras, Amanda. ―Nigeria‘s Unfulfilled Gas Flare Targets‖ Egypt Oil and Gas News Paper (May 4 2016), online: Howden, Daniel ―Visible from space, deadly on Earth: the gas flares of Nigeria‖ The Independent (April 26, 2010) online: earth-the-gas-flares-of-nigeria-1955108.html>. Mostyn, Sam. ―The Paris Agreement is a Game -Changer-and Business Risks being Left Behind‖ The Guardian (6 November 2016), online: NAN ―Nigeria Plans Africa‘s First Sovereign Bond‖ The Guardian ( 23 February 2017) The Guardian Omoregie, Uyiosa ―Sixty years of gas flaring in Nigeria: Flare reduction‖, Business Day (29 December 2016) online: nigeria-flare-reduction-implementation-deficit/>. This Day, ―Will New National gas Policy Outlive Buhari‘s Administration‖, This Day (July 18 2017),online: national-gas-policy-outlive-buharis-administration/>. 200 Umoru, Henry.―Nigeria accounts for 40% of gas flared annually in Africa-Senate‖ Vanguard (1 June 2017), online: flared-annually-africa-senate>. Uwaegbulam, Chinedum. ―Buhari Ratifies Agreement on Climate Change‖ The Guardian (March 29, 2017), online: climate-change/>. Vanguard, ―Strange Black Soot Blankets Port-Harcourt‖ Vanguard (February 14, 2017) online: Working and Briefing Papers Hough, David. ―UK offshore oil and gas industry‖, (2017) House of Commons Library Briefing Paper No. 07268. Muŭls, Mirabelle. ―Evaluating the EU Emissions Trading System: Take it or leave it? An assessment of the data after ten years‖ (October 2016), Grantham Institute Briefing paper No. 21. Occhiali, Giovanni & Giacomo Falchetta ―The Changing Role of Natural Gas in Nigeria‖ (2018) Fondazione Eni Erico Mattei Working Paper No.010. Thurber, Mark C; Ifeyinwa M. Emenife, & Patrick R.P Steller ―NNPC and Nigeria‘s Oil Patronage Ecosystem‖ (2010) Freeman Spogli Institute for International studies Working Paper online: 201 NPC,_16_September_2010.pdf>. Websites. Adebiyi Tax & Legal, ―Federal High Court Holds it‘s Illegal to Flare Gas without Written Permission of the Minister for Petroleum‖, online: Adebiyi Tax & Legal without-written-permission-of-the-minister-for-petroleum/>. Adewumi, Oludamola.―Nigeria: Gas Flaring Charges in Nigeria‖ (November 20, 2018) Mondaq (blog), Charges+In+Nigeria>. Alberta ―Carbon Competitiveness Incentive Regulation‖, online: Alberta < https://www.alberta.ca/carbon-competitiveness-incentive-regulation.aspx>. Alberta, Carbon Levy Exemptions‖, online: Alberta pricing.aspx>. Alberta Culture and Tourism, ―The Provincial Government and Conservation‖, online: Alberta Culture and Tourism plant/history-of-the-turner-valley-gas-plant/challenging-times/the-provincial- government-and-conservation.aspx>. Alberta Energy, ―Natural Gas Facts‖, online: Alberta Energy 202 Alberta Energy and Utilities Board, “Decision 2003-101: Polaris Resources Ltd-Applications for a Well Licence, Special Gas Well Spacing, Compulsory Pooling and Flaring Permit‖, online: Alberta Energy Regulator < https://www.aer.ca/documents/decisions/2003/2003-101.pdf>. Alberta Energy, ―About Mineral ownership‖, online: Alberta Energy Alberta Energy Regulator, ―Compliance Assurance Program‖, online: Alberta Energy regulator program>. Alberta Energy Regulator, ―Directive 060‖ (12 March 2018), online: Alberta Energy Regulator Alberta Energy Regulator, ―Directive 071‖ (2 February, 2017), online: Alberta Energy Regulator Alberta Energy Regulator, ―Flaring and Incineration‖(September 2015), online: Alberta Energy Regulator fact-sheets/enerfaqs-flaring>. Alberta Energy Regulator, ―Gas Flaring Detection and Characterization‖, online: Alberta Energy Regulator Alberta Energy Regulator, ―How does the Alberta Energy Regulator regulate energy development in Alberta?‖, online: Alberta Energy Regulator 203 what- matters/holding-industry-accountable/how-does-the-AER-regulate-energy- development- in-alberta>. Alberta Energy Regulator, ―Investigations‖, online: Alberta Energy Regulator accountable/investigations>. Alberta Energy Regulator, ―Upstream Petroleum Industry Flaring and Venting Report‖ (September 2018), online: Andrew, Brennan & Lo Yeuk-Sze, ―Environmental Ethics" (21 July 2015), online: The Stanford Encyclopedia of Philosophy Athanasius, Joseph. ―Functions of Department of Petroleum Resources (DPR)‖ (21 February 2018), online (blog), Info Guide Nigeria department-petroleum-resources-dpr/>. Bankes, Nigel; Amy Matychuk & David Rennie, ―Digest of Alberta Energy Regulator Participatory and Procedural Decisions Between 30 September 2015 and 1 February 2017‖, (6 February 2017), ablawg (blog), content/uploads/2015/06/AER-Decisions_digest_feb6_2017.pdf>. Bankes, Nigel. ―The Supreme Court of the United Kingdom (fka the House of Lords) Decides an Oil and Gas Case‖ (12 August, 2010), ABlaw.ca (blog), of-lords-decides-an-oil-and-gas-case/>. 204 Benette Jones Law Library, ―Negative Effects of Gas Flaring ,contains,NEGATIVE%20EFFECTS%20OF%20GAS%20FLARING&tab=ever ything&mode=basic&vid=UCALGARY&sortby=rank>. Business & Human Rights Centre, ―Gas Flaring Lawsuits (re-oil companies in Nigeria), online: Business & Human Resources Centre lawsuit-re-oil-companies-in-nigeria>. Canadian Association of Petroleum Producers, ―Flaring and Venting‖, online: Canadian Association of Petroleum Producers venting>. Canada‘s Natural Gas, ―Flaring and venting is regulated, online: Canada’s Natural Gas venting>. Cap-OP Energy Inc., ―Flaring in Canada: Overview and Strategic Considerations‖ (March 31 2017), online: Cap-OP Energy Inc., _part_2_20170331.pdf>. Center for Public Legal Education Alberta, ―The Canadian Legal System‖ (02 January 2016), online: Centre for Public Legal Education Alberta content/uploads/.../Canadian-Legal-System.pdf>. 205 Climate Nexus, ―Common But Differentiated Responsibilities and Respective Capabilities (CBDR-RC)‖ (30 July 2015), online: Climate Nexus responsibilities-and-respective-capabilities-cbdr-rc/>. CMS Law-Now, ―Scrapping of DECC and Creation of BEIS-What does it mean for the UK Oil and Gas Industry‖ (July 28 2016), online: CMS Law-Now lawnow.com/ealerts/2016/07/scrapping-of-decc-and-creation-of-beis--what-does-it- mean-for-the-oil--gas- industry?cc_lang=en>. Cochrane, Alasdair. ―Environmental Ethics‖ (September 2008), online: LSE Research Cooke, Kieran. ―Waste Gas Flared by Oil Industry Rising Warns World Bank‖ (29 December 2016), online: Climate Home News rising- warns-world-bank/.> Committee on Climate Change, ―Global Action on Climate Change‖, online: Committee on Climate Change landscape/global-action-on-climate-change/>. Committee on Climate Change, ―UK climate action following the Paris Agreement‖ (October, 2016), online: Committee on Climate Change content/uploads/2 at 7-14>. Countrymeters ―Nigeria Population‖, (20 March 2017) , online: Country meters < http://countrymeters.info/en/Nigeria>. 206 Coxall, Michael & Elizabeth Hardacre, ―Environmental Law and Practice in the UK (England and Wales): Overview‖ (1 February 2008), online: Thompson Reuters Practical Law Department of Climate Change, Federal Ministry of the Environment, Abuja ―Registered CDM, Projects in Nigeria‖, online: Climate Change gov. org nigeria/>. Department for Environment Food and Rural Affairs, ―Framework for the UK Emissions Trading Scheme‖, online: DEFRA, w.defra.gov.uk/environment/climatechange/trading/uk/pdf/trading-full.pdf>. Department of Petroleum Resources, ―Functions of DPR‖, online: Department of petroleum Resources Ebrahim, Zoheir & Jorg Friedrichs, ―Gas flaring: ―The Burning Issue‖ (3 September 2013), online: Resilience burning-issue/>. Edigbolu, Ezgi. ―Effectiveness Analysis of the United Nations Climate Change Regime‖ (28 February 2018), University of Aberdeen School of Law (blog), online: change-regime/>. 207 Edmonton City, ―City Policy: Oil and Gas Facilities‖ (2007), online: Edmonton City, < https://www.edmonton.ca/city_government/documents/PoliciesDirectives/ C515.pdf>. Emmas, Rachel. ―The Concept of Sustainable Development: Definition and Defining Principle‖, online: Brief for GDSR 2015 015_SD_concept_definiton_rev.pdf >. Engineering 360, ―Gas Flares Information‖, online: Engineering 360 air_quality/gas_flares>. Environmental Law Alliance Worldwide, ―Juliana v. United States” (10 November 2016), online: ELaw Enviros Consulting Limited, ―Appraisal of Years 1-4 of the UK Emissions Trading Scheme‖ (2006), online: DEFRA p://www.defra.gov.uk/environment/climatechange/trading/uk/pdf/ukets1-4yr- appraisal.pdf>. European Commission, ―EU Emissions Trading System (EU ETS)‖, online: European Commission < https://ec.europa.eu/clima/policies/ets_en>. Ezeigbo, Chinwe. ―The Petroleum Industry Bill: Achieving its Intended Reform Objectives?‖(6 March 2014) Natural Resource Charter (blog), online: 208 intended-reform-objectives>. Federal Ministry of Environment, ―Green Bonds‖, online: Federal Ministry of Environment < http://environment.gov.ng/index.php/green-bonds>. Federal Ministry of the Environment, ―National Environmental Standards Regulatory and Enforcement Agency (NESREA)‘, online: Federal Ministry of the Environment < http://environment.gov.ng/index.php/portfolio/nesrea>. Fieser, James & Bradley Dowden ed., ―Environmental Ethics‖ Internet Encyclopedia of Philosophy, online: Internet Encyclopedia of Philosophy Flare Transport Pilot Trading Scheme, ―Framework for the Voluntary Transfer Scheme 2006‖ (April 11, 2006), online: Flare Transport Pilot Trading Scheme Friends of the Earth International, ―Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity, online: Friends of the Earth International Gas Flare Tracker, ―Mapping Nigeria‘s Gas Flares‖, online: Gas Flare Tracker < http://gasflaretracker.ng/>. Ge, Mengpin & Kelly Levin, ―Insider: What‘s Changing as Countries Turn INDCs into NDCs? 5 Early Insights‖ (18 April 2018) (blog), 209 early-insights>. Gillies, Alexandra.―Reforming corruption out of Nigeria oil? Part two: progress and\ prospects‖ (April 2009), online: CHR. Michelsen Institute two.pdf>. Hargrove, Eugene C. ―A Very Brief History of the Origins of Environmental Ethics for the Novice‖, online: Environmental Ethics< http://www.cep.unt.edu/novice.html>. Hartridge, Olivia. ―The UK Emissions Trading Scheme‖, online: Department for Environment Food and Rural Affairs Hastings-Simon, Sara. Alberta‘s current carbon pricing plan is a big improvement from days gone by‖ (18 June 2018), (blog) online: Pembina Institute gone>. ICF International, ―Nigeria: Carbon Credit Development for Flare Reduction Projects‖ (June 2006), online: World Bank ook_ICF.pdf>. IPIECA, ‖Flaring Classification‖ (10 April 2013), online: IPIECA 210 Igor, Shishov & Velantin Bellasin, ―10 lessons from 10 years of the CDM‖ N0.37, (October 2012), online: CDC Climat Research http://www.cdcclimat.com/IMG/pdf/12-10- 05_climate_report_37_-_10_lessons_from_10_years_of_cdm.pdf. Iloba-Aninye, Okechukwu & Abdullahi Mohammed Kontagora, ―An Appraisal of the Ownership Theories of Oil and Gas with Particular Reference to Nigeria and the United States of America (USA), online: Unimaid 1/Doc%2015.pdf>. International Bar Association, ―Achieving Justice and Human Rights in an Era of Climate Disruption: International Bar Association Climate Change Justice Task Force Report‖ (2014), online: International Bar Association bf43-cfcab196cc04>. Israel, Benjamin.―The Real GHG trend: Oil Sands among the most carbon-intensive cuds in North America‖ (4 October 2017), Pembina Institute (blog), Jiménez, Estefanía. ―The Principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR&RC) and the Compliance Branch of the Paris Agreement‖, online: The Organization of American States %20of%20Common%20but%20Differentiated%20Responsibilities%20and%20 211 Respective%20Capabilities%20(CBDRRC)%20and%20the%20Compliance%20 Branch%20of%20the%20Paris%20Agreement.pdf>. Kaupa, Clemens. ―The International Climate Change Regime‖ (12 November 2016), Climate Change Law (blog), online :< https://medium.com/climate-change-law/5-the-international- climate-change-regime-15a45d33988>. Khan, Brian. ―Gas Flaring: Major Source of Climate Change,‖ ( 23 May 2010), BP Oil Spill Solution (blog), online: climate-change-bp-oil-spill-solution>. KPMG Professional Services, “Nigeria’s Oil and Gas Industry Brief‖ (June 2014), online: KPMG Professional Services content/uploads/2016/10/Nigerias-oil-and-gas-Industry-brief.pdf >. Levi, Michael ―Two Cheers for the Paris Agreement on Climate Change‖ Council on Foreign Relations (blog) online: change>. Levine, Sarah. ―Bill 20: The Climate Change Implementation Act-Now What?‖ (25 July 2016), online: McLennan Ross LLP Leadership_Implementation_Act_Now_What_.cid1746?utm_source=Mondaq& utm_medium=syndication&utm_campaign=View-Original>. Lauber, Uwe. ―Stop burning flares gas‖ (November 9 2017), online: Handelsblatt Global 212 Ludwick, John. ―Incident Response‖ (11 September, 2016), online: Alberta Energy Regulator Resource becomes-intervention>. Mace, Philip et al. ―Oil and Gas Regulation in the UK: Overview ―(April 4, 2017), online: Clyde & Co LLP Regulation_in_the_UK.pdf>. MacEachern, Kaitlyn ―Market-based Instruments within the Green Economy‖ (September 2013), online: Conservation Ontario http://conservationontario.ca/fileadmin/pdf/policypriorities_section/Green Economy_Literature_Review.pdf Maich, Steve. ―Kyoto Protocol‘s Short Comings‖ (13 December 2013), online: The Canadian Encyclopedia protocols-shortcomings/>. Makinde, Oghogho & Temitayo Adegoke, ―Environment Law in Nigeria‖ (20 November 2007), Mondaq (blog), online: http://www.mondaq.com/Nigeria/x/53804/Energy+Law/Environment+La w+In+Nigeria>. Merdan, Ersin. ―Gas Flaring in the Era of Climate Change‖ (15 May 2015), online: AA Energy /13960>. 213 McInerney, Thomas W. & Duncan M. McPherson, ―Alberta Replaces Specified Gas Emitters Regulation with Carbon Competitiveness Incentive Regulation‖ (January 3, 2018) Bennett Jones (blog), Replaces- Specified-Gas-Emitters-Regulation-with-Carbon-Competitiveness-Incentive- Regulation>. NDC Registry (Interim), ―Nigeria First NDC‖ online: NDC Registry /Approved%20Nigeria%27s%20INDC_271115.pdf>. Nigeria Law, ―The Petroleum Industry Bill, 2012‖, online: nigeria-law.org 0Industry%20Bill%20%202012.pdf>. Nigeria LNG Limited, ―NLNG and the Nigerian Economy,‖ online: NLNG Economy.aspx>. Nigeria LNG Limited, “Profile,” online: Nigeria LNG Limited Company/Pages/Profile.aspx>. Nigeria-South Africa Chamber of Commerce, ―Gas Commercialization and Monetization in Nigeria: The Journey So Far‖ (12 January 2016), online: NSACC policy-option-going-forward/>. 214 Nigerian National Petroleum Corporation, ―Development of Nigeria Oil Industry,‖ (24 March 2017), online: NNPC Business ia/DevelopmentoftheIndustry.aspx>. Nigerian National Petroleum Corporation, ―Oil production‖ (19 March 2017), online: NNPC Official Journal of the European Law, ―Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment‖, Doc: 32014l0052, online: EUR- Lex Ohio EPA, ―Understanding the Basics of Gas Flaring‘ (November 2014)‖, online Ohio EPA %20of%20Gas%20Flaring.pdf>. Oil & Gas Authority, ―Flaring and venting during commissioning‖ (October 2016), online: Oil & Gas Authority consents/consents/flaring-and-venting>. Oil & Gas Authority, ―Flaring and Venting during commissioning‖ (October, 2016) available online: Oil & Gas Authority commissioning-1016.pdf>. 215 Oil & Gas Authority, ―Flaring and Venting During the Production Phase‖, online: Oil & Gas Authority < https://www.ogauthority.co.uk/media/2467/flaring-and-venting- during- the-production-phase-1016.pdf>. Oil & Gas Authority, ―OGA policy position: Offshore flaring and venting‖, online: Oil & Gas Authority venting-policy-position-website.pdf>. Oil and Gas Authority, ―Oil and Gas Authority Framework Document‖ (29 September, 2016), online: Oil and Gas Authority < https://www.ogauthority.co.uk/media/2718/framework-document-29-september-2016.pdf>. Oil & Gas Authority, ―Production‖, online: Oil & Gas Authority < https://www.ogauthority.co.uk/exploration-production/production/>. Okumagba, Edward O. ―Gas Flaring Abatement. Kaleidoscopic View of UK‘s Regulatory Approach and the Need for a Paradigm Shift by Nigeria‖, online: Academia KALEIDIOSCOPIC_VIEW_OF_UKS_REGULATORY_APPROACH_ AND_THE_NEED_FOR_PARADIGM_SHIFT_BY_NIGERIA>. Organization of the Petroleum Exporting Countries, ―Nigeria Facts and Figures,‖ online: OPEC: Pauw, Pieter et al. ―Different Perspectives on Differentiated Responsibilities‖ (2017), online: German Development Institute Peters, Gerhard & John T. Woolley, ―Lyndon B. Johnson: "Remarks at the Signing of a Bill Establishing the Assateague Island Seashore National Park‖, online: The American Presidency Project signing-bill-establishing-the-assateague-island-seashore-national- park.[ Plastow, Robert. ―Neoliberalism in environmental governance: a paradoxical double movement?‖(May2010), online:academia.edu rnance_a_paradoxical_double_movement>. Rab, Suzanne. ―Legal Systems in UK (England and Wales): Overview‖ (01 April 2017), online: Thomas Reuters Practical Law, 2498?transitionType=Default&contextData=(sc.Default)&firstPage=true& bhcp= >. Read, Andrew, Benjamin Israel & Sara Hastings-Simon, ―Understanding the pros and cons of Alberta‘s new industrial carbon pricing rules‖ (December 2017), online: Pembina Institute carbon-pricing.pdf>. Rowe, J. Stan. ―Ecocentrism and Traditional Ecological Knowledge‖, online : Ecospherics Ethics traditional-ecological-knowledge.pdf.\>. 217 Sahara Reporters, ―Buhari Reiterates Nigeria‘s Commitment to Addressing Climate Change at Morocco Conference‖, online: Sahara Reporters addressing-climate-change-morocco-conference>. Sezr, Özcan & Șenay Ișin, ―Sustainable Development-Environmental Ethics within EU Environmental Policies‖, online: Eprints Shore, Gerard. ―Recovering Flare Gas to Reduce Environmental Impact‖, online: Costain lindsey-oil-refinery/>. She, Kay et al., ―Canada: Lowered threshold for Emissions Reporting for Alberta Facilities‖ (January 11 2018), online: Mondaq For+Emissions+Reporting+For+Alberta+Facilities>. Stewart, Jamie R. ―A Review of Flaring and Venting at the UK Offshore Oil Fields‖ (November 2014), online: Scottish Carbon Capture and Storage Venting.pdf>. Strathcona County, ―The Strathcona County protocol for Seismic Surveying, Drilling, Construction and Operation of Oil and Gas Facilities in Strathcona County‖ (January 2017), online: Strathcona County 218 The Department for Business, Energy and Industrial Strategy, ―About Us‖, online: The Department of Business, Energy and Industrial Strategy industrial-strategy/about#our-responsibilities>. The Institute of Chartered Accountants in England and Wales, ―Environmental issues and UK annual reporting‖ (2015), online: ICAEW ln12453-eiafr- annual-report-2nd-edition-final.ashx?la+en\>. The UK Government, ―Local Government Power‖, online: UK GOV < http://www.environmentlaw.org.uk/>. UNFCCC, ―INDCs as communicated by Parties‖ online: UNFCC http://www4.unfccc.int/submissions/INDC/Submission%20Pages/submiss ions.aspx>. Union of Concerned Scientists, ―Environmental Impacts of Natural Gas‖ Union of Concerned Scientists (blog), online: other-fossil-fuels/environmental-impacts-of-natural- gas#.WrS71mpzb3g>. United Nations Convention on Climate Change, ―Nigeria‖, online: United Nations Convention on Climate Change < http://unfccc.int/tools_xml/country_NG.html>. United Nations Convention on Climate Change, ―Paris Agreement-Status of Ratification‖, online: United Nations Convention on Climate Change 219 United Nations Convention on Climate Change, ―Nationally Determined Contributions (NDCS)‖,online: United Nations Convention on Climate Change https://unfccc.int/process/the-paris-agreement/nationally-determined- contributions/ndc-registry#eq-4>. United Nations Convention on Climate Change, ―Uniting on Climate Change‖ (November, 2007), online: United Nations Convention on Climate Change United Nations Framework Convention on Climate Change, ―Project Search‖ online: United Nations Framework Convention on Climate Change United Nations Treaty Collection, ―Kyoto Protocol to the United Nations Framework Convention on Climate Change‖, online: United Nations Treaty Collection =XXVII-7-a&chapter=27&clang=_en>. United Nations Treaty Collection, ―Paris Agreement‖, online: United Nations Climate Change no=XXVII-7-d&chapter=27&clang=_en>. United States Energy Information Administration, ―Country analysis brief: Nigeria‖ (May, 2016), online: USEIA /nigeria.pdf>. 220 U.S Energy Information Administration, ―United Kingdom Increases OilProduction in 2015, but New Field Development Declines‖ (28 March 2016), online: U.S Energy Informationn Administration World Bank, ―Global Gas Flaring Reduction Partnership‖, online: World Bank World Bank, ―Nigeria Endorses 2030 Flaring Initiative; Raises Own Goal to 2020‖ (18 August 2016), online: World Bank flaring-by-2030/brief/nigeria-endorses-zero-flaring-initiative>. World Bank, ―Nigeria‘s Flaring Reduction Target: 2020‖ (10 March 2017), The World Bank, online: reduction-target-2020>. World Bank, ―Overview of Onshore and Offshore Gas Flaring and Venting in the United Kingdom‖, online: World Bank World Bank, ―Top 30 Flaring Countries 2013-2016‖, online: World Bank < http://www.worldbank.org/en/programs/gasflaringreduction#7>. World Bank ―UK Flaring Policy‖ online: World Bank 1258067586081/UK_Flaring_Policy.pdf>. World Bank, ―Zero Routine Flaring by 2030‖ online: World Bank 221 World Energy Council, ―World Energy Sources: A Summary‖ (2013), Calgary Economic Development ―World Leaders in Responsible Energy Production‖, online: Calgary Economic Development Worldometers, ―African Countries by Population (2017)‖ (20 March 2017), online: Worldometers population/>. Yang, Tongjin ―Towards an Egalitarian Global Environmental Ethics‖ (2006), online: Environmental Ethics and International Policy < http://publishing.unesco.org/chapters/978-92-3-104039-9.pdf>. Online Videos. YouTube, ―Oil and Gas Abuse in Nigeria‖ (March 17, 2017), online: YouTube YouTube, ―West Africa‘s gas flaring-curse‖, (Jul 4, 2010), online: 222