Tackling Bayelsa’s oil pollution crisis will require a total paradigm shift in the way the oil sector works to ensure it puts the interests of the environment and the people of host communities first. Incremental improvements will not be enough and the moment is ripe. The global economic downturn, the COVID-19 pandemic and its disproportionate impact on the poorest and most marginalised, including black people all over the world, has created a historic window of opportunity.75 Heightened awareness of social and racial injustice, alongside a widespread critique of the fossil fuel industry and global capitalism more broadly, generated by the climate crisis, have all created unique conditions that could enable a radical transformation of the way Bayelsa’s environmental crisis has been dealt with to date.
There will need to be immediate and sustained on-the-ground action to mitigate the damage already done and prevent its potential recurrence. This should be combined with parallel reforms to the existing legal framework, policy, regulation and enforcement mechanisms in order to create a totally new regime that deals with pollution and polluters in a fundamentally different manner.
Mitigating the damage done by pollution over the last 60 years will be a mammoth undertaking. Such a vast area of land, river and sea has been exposed to contamination to the extent that physical clean-up and environmental recovery could take decades.
Any physical remediation will need to be accompanied by a comprehensive programme to address the human, social and economic dimensions of the crisis. Given the health problems that pollution has created, programmes to provide ongoing medical screening and treatment now and in the future for hundreds of thousands of people will be required. Investment in sustainable livelihoods and viable employment opportunities for tens of thousands of people whose land and fishing waters have been blighted by pollution and who are unlikely to be able to return to them will also be required. In addition, investment will urgently be needed to rebuild the social fabric, address the social and political turmoil and widespread disruptions caused by a pervasive lack of access to justice, and remedy the lack of inclusion of those most directly affected by oil pollution in the management of pollution incidents. As part of this approach, drastic action to address the exploitation of the vulnerable and the deep social divisions and competition created by the mismanagement of community level engagement will also be required. The Commission has put forward ten recommendations to bring about a paradigm shift and a permanent end to the pollution crisis.
This must begin with a comprehensive environmental assessment of the state, as was conducted for Ogoni (by the UN in 2011). To do this, a first step will be to develop and implement a multi-year plan, informed by best practice, to address the main effects of hydrocarbon pollution. Elements of the plan should include a highly tailored physical remediation programme for polluted land and waterways drawing on a variety of best practice techniques, an environmental recovery programme, and a systematic livelihood support programme to address the economic impact of pollution on families and communities.
These measures should be supported by a comprehensive public health programme, featuring immediate interventions to address urgent health risks such as contaminated drinking water and be combined with comprehensive health screening and the establishment of a long-term treatment system to support those who develop chronic or acute conditions related to pollution. Initiatives to foster social cohesion should also be included. As well as long-term remediation, the plan will also need to include immediate action to alert affected communities regarding the health hazards that they face and facilitate urgent access to safe, clean drinking water and food supplies for a sustained period.
Set up a fund based on an assessment of the Bayelsa Recovery Plan’s requirements and a detailed understanding of implementation costs drawn from other cases with the advice of remediation experts. The Commission estimates that the plan could cost US $12 billion to implement.76 A fund should be established endowed through payments from the IOCs, NNPC and other actors following the broad formula used in the UNEP environmental assessment of Ogoni to cover this cost. The fund should pay particular special attention to best international practice for governance, transparency and accountability and be overseen by a board including international agencies to learn the lessons and avoid the pitfalls of past practice in the Niger Delta.77
Establish a specialist agency to manage the delivery of the recovery programme. The Agency should draw on international experts and local staff to ensure best practice implementation and performance management of the Recovery Programme. To minimise the risk of misappropriation of funds, the Agency should be overseen by an international panel and be subject to regular international on-the-ground audits and assurance. The Agency should operate to international standards of transparency and separate independent scrutiny bodies should be established.
Provide access to compensation for those who have suffered losses as a result of pollution through a new compensation mechanism to help them secure appropriate payments. This should include oil and gas related financial receipts being deposited into a trust fund to cover the costs of cleaning up oil spills that may occur within the next decade from ageing facilities that have been divested. This would include the financing and establishment of a new grievance scheme that could be used if claimants are not satisfied with the award they are offered. The establishment of this mechanism would provide an alternative for those who do not want, or do not have, the capacity to undertake court action. Legal advice and support should also be made available for those filing claims. The compensation payment scheme should be accompanied by a robust consultation mechanism responsible for engaging individuals and communities directly affected by oil pollution in all remediation planning and implementation processes.
While the PIA has introduced some new initiatives on the environment, significant gaps remain and a fundamental reform of the existing regulatory regime based on best practices is still needed.78 Critical elements of reform should include:
The PIA fails to address the environmental concerns of oil producing states. Rather, the Act retains most of the original Petroleum Act’s provisions, and has failed to adopt a ‘no fault’ liability system of the kind that has been adopted in several other oil producing countries. To address this shortcoming, statutes should be amended to unambiguously and fully enshrine the concepts of ‘polluter pays’ and ‘no fault liability’ at the heart of environmental legislation: producers should therefore be fully responsible for internalising all environmental externalities, including clean-up and compensation regardless of whether there was third party interference or not. Legislation should be updated to permit class action suits and introduce individual as well as corporate liability for pollution incidents. Fines that can be levied for non-compliance should be significantly increased and legislation should be passed to maximise the freedom of regulators to impose penalties without a court order. This should be complemented by an overhaul of compensation legislation to define fairness and establish compensation funds, financed by the oil companies, on the US model* and by the introduction of an independent, first-of-its-type fast-track dispute resolution and awards body to adjudicate compensation awards. The body should be overseen by a panel of both Nigerian and international experts.80
* The Oil Spill Liability Trust Fund-26 USC 9509 was established pursuant to the US Oil Pollution Act 1990. The fund was initially financed by a tax on companies for every barrel of oil produced domestically, as well as on petroleum products imported into the US. Other sources of funding include cost recovered from responsibilities for spills together with any fines or civil penalties imposed. The fund is put towards clean-up and removal costs in instances where the responsible party is not identifiable or where they refuse to pay for clean up. The fund allows the government to step in, in a timely manner, and pursue the polluter for costs at a later date.
The role of state government should be enhanced to ensure effective scrutiny of both oil companies and regulators. As part of this, states’ legal powers should be strengthened and confirmed. These include the right for state governments to act under existing powers, such as the Land Use Act, should facilities and/ or producers repeatedly breach regulations and fail to comply with regulatory directions. State and local governments’ role as a channel for the voices of their constituents should also be strengthened.
The Bayelsa State Government should conduct an immediate review, to be completed within six months, of the social and environmental performance of all companies with Oil Mining Licences in the State. Where companies are found to have a record of unresolved and uncompensated oil spills and pollution, the Bayelsa State Government should immediately revoke their right to operate on state-registered land, pending clean-up of the spills and resolution of compensation claims.
To drive an enduring change in IOC behaviour, a sea-change in regulation within Nigeria will need to be complemented by increased accountability, scrutiny and oversight internationally and in the IOCs’ home jurisdictions. The Bayelsa State Government and stakeholders from within Nigeria and beyond should push for the establishment of a new international framework on pollution and corporate responsibility - assessing environmental, social, economic and communal impacts - to complement those that already exist. In addition, they should lobby governments in key countries such as the UK to update their domestic legislation, as France has done, to place more obligations upon their international companies to ensure their subsidiaries exercise due diligence to mitigate and prevent serious human rights and environmental impacts. Such measures would reflect the approach already taken on issues such as bribery and modern forms of slavery, wherein a number of countries enforce world-wide obligations on their companies.
The PIA has introduced legal requirements for oil and gas companies to standardise practices for development project investments in host communities, including setting up trusts to manage community development expenditure. The Commission is concerned that the PIA disproportionately empowers companies relative to the host communities, local governments and the state government and entrenches and increases the risk of more divide and rule tactics being employed by companies. These tactics pit communities against each other in the competition over development goods and could continue to generate the types of communal conflicts associated with GMOU processes in the past.
By unfairly placing the responsibility for policing petroleum infrastructure on the host communities, the Commission is concerned that PIA would exacerbate conflicts between communities and companies over sabotage claims. The Commission also believes that there is a risk of incentivising those working for the oil companies to prevent protests, which may then provoke intra-communal wars. The PIA does not define what is meant by ‘the community’ and how the company may determine who to consult with. The Commission believes that the Government of Bayelsa should intervene, in line with its Constitutional mandate, to bridge this definitional gap and reduce potential tensions. The government and the oil and gas companies should ensure that the new PIA Boards of Trustees, Management Committees, and Host Communities Advisory Committees of the community development trusts are fully inclusive of diverse community interests and are managed with full transparency. In parallel, an independent body that can provide regulatory scrutiny and scientific analysis, should be established to ensure that mechanisms exist to enable the voices of the most affected communities in Bayelsa to be consistently heard throughout the process.81
Steps should be taken to ensure that IOCs are obliged to integrate decommissioning into the entire life cycle planning of their oil and gas operations according to international standards. Such measures will oblige IOCs to fulfil their environmental and social responsibilities for the legacies that their oil and gas operations have left behind. This will include the impacts of pollution and contamination from spills, along with effluent waste disposal, dredging, gas flaring and other associated hazards. While the PIA currently requires licence holders to establish decommissioning and abandonment funds to be domiciled and managed by separate institutions and to prepare and submit decommissioning and abandonment plans, the Commission proposes a contribution should be paid by oil producers for every barrel pumped towards a decommissioning trust for each oil field to cover the costs of cleaning up of oil spills that may occur within the next decade from ageing facilities that have been divested. Previous operators should also be required by law to contribute to the trust fund in proportion to their pollution footprint. Each operator should develop a decommissioning plan for each well it operates.
The MoE or an independent body should develop clear decommissioning clean-up standards and processes for auditing, reporting and post-relinquishment monitoring of decommissioning sites. The MoE or an autonomous body should conduct a performance assessment of remediation needed in specific cases, including addressing all environmental, economic, social and health impacts and ensure that IOC plans address legacy damage and pollution from their operations. Full accounting for the liability of transnational JV partners for CO2 emissions should also be included in such assessments to cover any future liability arising from climate change action for such emissions in Bayelsa. For wells that are no longer producing or face a limited remaining operational life, the MoE should assess the clean-up and decommissioning measures needed and require the well owners to undertake the work. Where companies seek to divest of a well, a portion of the sale price should be set aside by the regulator to cover decommissioning costs. Clawback provisions should also be explored to allow the authorities to recover remediation costs from owners who have already divested of wells and other assets to avoid decommissioning costs.
In addition, targeted investments should be included to expand the MoE’s decommissioning review and enforcement capacity. This should include the ability to recommend the immediate revocation of the Oil Mining Licences of those found to be the biggest polluters in Bayelsa.
For decades, the oil sector has wrought what the Bishop Lord Sentamu has called ‘environmental genocide’ in the Niger Delta. But now, the oil industry globally is under scrutiny, profiteering from global price hikes and in the longer term by the growing international recognition of the need to move towards a post-oil future in the face of accelerating climate change. The oil industry has no choice but to pay more heed to its environmental legacy and environmental concerns if its stated commitment to a low carbon world is to be taken seriously.82
For years, companies have acted in Nigeria in ways that they would never contemplate in their home markets. They have behaved as though Nigerian lives and the lives of people throughout Bayelsa simply do not matter. Intentional or not, oil producer conduct bears many of the hallmarks not just of gross negligence but also of what the late Oronto Douglas, founding member for Friends of the Earth Nigeria, unabashedly labelled ‘environmental racism’.83 Like the poorest Black communities in the US, communities in Bayelsa are discounted because of who they are and where they are from. The Black Lives Matter movement has brought social injustice and corporate social responsibility and accountability to the fore. This makes it harder for international corporations such as oil companies to shy away from their negative social impact in black communities the world over.84
This report can be used as a catalyst for Bayelsa, and Nigeria as a whole to seize the opportunity for change that global activist trends offer to not only Nigeria, but all oil-producing states worldwide grappling with the challenge of transition to a post-oil economy. Capitalising on these trends will require a new strategic approach. Real and lasting change will require a concerted and coordinated effort on the part of the Bayelsa State Government, the Nigerian Government, the IOCs, the governments of their home jurisdictions, and the international community to commit to environmental justice and sustainable development outcomes for the people of Bayelsa.
Over 60 years of oil production in Nigeria has generated enormous profits for international oil companies and hundreds of billions of dollars in tax revenue for the Nigerian Federal and State Governments. But little of this wealth has been shared with most people in the Niger Delta, and the generated wealth comes at an incredibly high price for those living in oil-producing communities.86 Millions have seen their health, their livelihoods and their environment blighted by oil pollution. And few have suffered more than the people of Bayelsa. Located at the heart of the Niger Delta, Bayelsa is Nigeria’s smallest state. Less than half the size of Wales, it is home to over 2 million people.87 Yet despite accounting for only slightly over 1 percent of Nigeria’s population, it has suffered over 25 percent of its oil spill incidents.88
The contamination has been so ubiquitous in Bayelsa, that for every man, woman and child living in the state today, as much as a barrel and a half of oil has been spilled. The effects have been devastating, unleashing an environmental and human catastrophe on an enormous scale. So much damage has already been done with many lives blighted or cut short. And time is fast running out for justice to be done for those who have suffered, to mitigate the harm done so far, and to prevent further devastation in the future. IOCs are already beginning to divest of their onshore assets to shield themselves from liability for historic pollution. There is an urgent need for action now.
The need for action is why the Government of Bayelsa State established the Bayelsa State Oil and Environmental Commission (BSOEC) in March 2019. The Commission, chaired by the Bishop Lord Sentamu, is made up of an international panel of political leaders and academic experts drawn from a range of disciplines. Its purpose is to document the environmental, human and economic impact of oil pollution on Bayelsa and to develop a rigorous set of recommendations to mitigate the pollution that has already occurred and to prevent further pollution in the future.
Over three years the Commission has undertaken extensive work to uncover the true scope and scale of the pollution catastrophe that has befallen Bayelsa. As well as reviewing the extensive existing body of research, it has undertaken and reviewed original scientific research into the effects of oil pollution in Bayelsa, conducted field research on specific case studies, and carried out numerous site visits.
Throughout this time, the Commission has endeavoured to listen to the voices of those who have suffered most, holding evidence-gathering sessions in affected communities across the state.