The immediate causes of the pollution crisis are clear. The Niger Delta has suffered exceptional contamination of its water, land and air because of the excessive rate of leaks from oil facilities and infrastructure, which is further compounded by high levels of gas flaring.
As Chapter Two’s analysis shows, spill rates in the Niger Delta are vastly higher than those seen in other oil producing countries.
Evidence suggests that spills are often clustered, with a few high intensity leak sites – ‘hotspots’ – accounting for a disproportionate number of spills. Spills have distinctive geographical patterns and in these high-density sites known as hotspots the environmental consequences of multiple ‘hotspots’ are especially serious. For example, between 2014 and 2018, Eni (Agip) reported 262 spills along the 92 km stretch of the Tebidaba-Brass pipeline, leading Amnesty International to dub it ‘Africa’s leakiest pipeline’.297
The picture is clear. Oil infrastructure, and pipelines in particular, across the Niger Delta and in Bayelsa leak much more and with greater regularity than those in other countries. The question is: why?
Official government statistics issued by NOSDRA identify a primary cause: sabotage. According to data generated by the JIV process, 88 percent of leaks that occurred across the Niger Delta between 2006 and 2019, including over 3,000 in Bayelsa, were due to third party interference. Only 5 percent of spills, according to the data, are due to equipment or other operational failures.299
The narrative of sabotage and third-party intrusions is enthusiastically endorsed by the oil companies and supported by many within Nigeria’s oil and gas institutions, who argue that the exceptionally high level of pollution incidents is simply an unfortunate and unavoidable by-product of the operational environment. In an insecure, volatile and conflict-affected region, it is impossible to protect and secure vital oil installations and infrastructures. There is an historical narrative which justifies the belief that there is sabotage and theft, but not to the extent that is portrayed by the IOCs.
Levels of sabotage are heavily linked with the overall security situation and wax and wane with surges of militant activity and the electoral cycle. Sabotage can take a number of forms, some of which are more polluting than others. Pipelines may be attacked by militant or criminal groups to disrupt the operations of the companies or to extort money from them. Oil theft – locally known as bunkering - which often involves breaching pipelines to install taps, may also have severe ecological consequences.
A notable period of instability was between the years 2005 and 2009, when Bayelsa was the epicentre of an insurgency and a highly militarised zone. However, a Presidential Amnesty Programme launched in 2009300 effectively demobilised armed factions operating under the broad umbrella of MEND (Movement for the Emancipation of the Niger Delta) which had disparate aims (political and pecuniary). Sporadic militant / armed group activity continues in parts of the state, and beyond.301
Against this backdrop, it is clear that intentional human obstruction and damage does play a role in the story of oil pollution in the Niger Delta. However, after decades of environmental pollution which has destroyed the livelihoods of so many in Bayelsa, some are prompted to seek out a means of survival, which includes oil bunkering.302 The problem of sabotage is the result of IOC operations over time and at scale in Bayelsa, which have led to the socio-environmental degradation that makes bunkering and or 'security operations' among the few lucrative alternatives for young people. The oil industry first made guns available for 'security', a problem documented at length in research over the past two decades, and has benefited from the impoverishment in the Niger Delta that makes toxic dumping economically viable for them. Regional development via infrastructure and economic opportunities would make IOCs liable for much larger damages in dollar terms. Underdeveloping the region makes financial sense to transnational capital here. While some spills are the result of sabotage and oil infrastructure attacks (especially in the period 2005-2009 when MEND launched a number of offshore attacks most famously on the Bonga FSPO), these spills are invariably the result of IOC operational failures.
There is a significant (but unknown) quantity of onshore spills during which oil enters into the creeks and disperses into the Atlantic Ocean. During the wet season the impact is worsened as volumes of water in the river and creeks transport oil rapidly into coastal waters. The nature of the JIV process and the difficulty in determining quantities of oil which ultimately appear in the coastal water means that it is extremely difficult to determine the size and consequence of these onshore-offshore dynamics. There are strong reasons to believe that the official statistics significantly and systematically over-state the number of leaks caused by sabotage while downplaying those attributable to other causes. Grasping the scale of this statistical distortion and assessing the flawed nature of the sabotage narrative requires an examination of the ways in which the data itself is collected, which itself turns on the central role played by the JIV process.
As outlined in this report, there are serious concerns about the veracity and accuracy of the JIV framework through which the causes of spills are officially designated and their impact and scale assessed. Oil companies have a very strong incentive to attribute a spill to sabotage. The terms of the 1956 and 1990 Pipelines Acts, as Chapter One noted, means that oil companies do not have to pay compensation if spills are a result of third-party interference.
The JIV process has an important role to play but testimonies heard by the Commission overwhelmingly paint a picture of IOCs playing a prominent role throughout the process. This includes organising access and transport to the spill site, determining what NOSDRA staff see, deciding which community members will sit on the JIT, and determining the funding of investigative and remedial action. Often, oil producers’ staff take the lead in writing the JIV report. In some cases, these reports are not even shared with key community representatives before submission.303
Through its hearings and written testimony, the Commission learnt about the dysfunction and distortion of the JIV process and the impact it has had.
In Yenagoa LGA, the local leaders highlighted incidents of tampering with the results of JIVs, the absence of independent regulators, collusion on the part of contractors in sabotage, and disagreements over the date of spills. They also highlighted persistent discrepancies regarding the extent to which oil spills may have spread, the amount of oil spilled, and the unavailability of copies of the JIV itself. One representative testified that:
Given the confluence of oil producer incentives and their capture of the regulatory process, it is perhaps not surprising that JIVs report findings of sabotage so frequently.
International comparisons, analysis of independent data sources and critical examination of the NOSDRA statistics all reinforce the need to question the accuracy of official data.
It is difficult to accept NOSDRA’s findings regarding leaks in the context of data from other oil producing countries. NOSDRA states that, on average, 88 percent of the leaks that occurred in the Niger Delta between 2006 and 2019 – including over 3,000 in Bayelsa – were due to sabotage.307 Similarly, NOSDRA data shows that in a six-year period between 2014 and 2019, 1,449 oil spill incidents were caused by sabotage.308 To put these figures in international context, this represents over three times the number of attacks on Iraqi pipelines, oil installations and personnel experienced in Iraq over six years of intense conflict between 2003 and 2009,309 even though the country has a pipeline network of 10,437 km compared to Nigeria’s 12,714 km.310
Moreover, NOSDRA findings of sabotage do not appear to be consistent with patterns of militant activity and regional insecurity. The official statistics claim to show that losses due to sabotage rose around the time when an amnesty was granted to militants in 2009; the figures for alleged sabotage incidents remained elevated and rose even further in 2014, despite the fact that overall levels of militant violence and the insecurity that normally accompanied attacks on pipelines had fallen sharply.311
The concerns that these findings raise over the quality of the official statistics are further buttressed by the results of detailed work carried out by Amnesty International on JIV reports published by the IOCs themselves. On the basis of photographic evidence compared with JIV submissions alone, Amnesty International was able to identify serious inconsistencies and inaccuracies in over 10 percent of all attributions of sabotage in a large sample of JIV reports that were analysed.312
The profile of spills recorded by NOSDRA also stands at odds with the agency’s emphasis on sabotage. According to the official statistics for the period 2006-2019, 10 percent of the leaks reported as the largest spills accounted for over 90 percent of the total volumes lost.313 It is debatable as to whether leaks of this magnitude would normally be caused by third-party interference: leaks due to sabotage tend to be relatively small, involving drilling a hole in a pipeline so that a tap can be fitted.
Independent studies raise further questions, painting a very different picture of the causes of spills in the Niger Delta. A granular study of 300 spill incidents that involved site visits and detailed survey data concluded that over 80 percent of these spills were due to equipment or other forms of operational failure.314 A similar conclusion was reached by a DPR analysis which attributed almost 90 percent of spills to equipment failure.315 Even Shell Nigeria’s own reporting paints a similar picture. Regarding oil pipelines in Rivers State, which adjoins Bayelsa State, an internal Shell email sent in 2009 revealed that the firm was ‘corporately exposed as the pipelines in Ogoniland have not been maintained properly or integrity assessed for over 15 years'.316
Taken together, these analyses suggest not only that we need to look to a wider set of causes other than sabotage, but also that we need to understand why such problems have occurred and why they have had such a profound effect.
The causes of pollution incidents are complex, overlapping and often mutually reinforcing. Unpicking them and separating cause from effect can be challenging. In doing so, we need to differentiate between the immediate or proximate causes of pollution and their deeper, structural drivers. For instance, corrosion may cause a pipeline to rupture. But to fully understand the spill, we will need to unpack why the corrosion went undetected and untreated. Why did the pipeline operators not take preventative action earlier? Why did regulators not pick up and assess the problem earlier?
In this section, we will identify the critical immediate causes of Bayelsa’s pollution before delving into the deeper forces that underlie the issue in the next section. Though the causes of Bayelsa’s environmental crisis are complex and varied, the Commission’s analysis suggests that blame for the ongoing oil pollution catastrophe engulfing the communities of the Niger Delta must rest in the first instance at the door of the oil companies. Failures by the IOCs, other producers and oil servicing companies at every link in the chain have fuelled the pollution crisis which Bayelsa faces today.
There is a diversity of immediate causes of pollution. But our analysis suggests that they can mostly be traced back to four fundamental systemic failures:
We examine each of these failures in turn below.
Some of Bayelsa’s pollution happens by design; a consequence of conscious business decisions made by oil field operators and producers. One obvious example is gas flaring. While overall levels of flaring have fallen, oil companies continue to burn large volumes of associated natural gas across Bayelsa, despite the fact that this practice is banned in many other national jurisdictions. Not only is intense flaring harmful, but 80 percent of gas flared could actually be cost-effectively harnessed for energy production or reinjection. Failed efforts to significantly reduce gas flaring are largely a result of the lack of necessary investment by IOCs.317
Similarly, in many instances, firms have chosen to minimise upfront costs in designing and building pipelines and facilities without due consideration of the environmental, health and social risks these entail. Commission investigations found that in many cases pipelines have been laid through vulnerable areas without appropriate environmental impact assessments (EIAs).318 In particular, facilities have been built without adequate buffer zones to protect the local population or have been designed in ways that fail to fully account for the risks posed by third-party interference.
Moreover, IOCs have chosen to minimise investment in decommissioning and clean-up of wells at the end of their operational life, leading to a heightened risk of seepage and long-term environmental damage. The fate of Oloibiri offers a stark warning of the risks of such a strategy.
SPDC initially paid paltry, periodical rents to the land owners of the Oloibiri oil field, these being families in Otuabagi, Otuogidi, and Opume communities, though these rents were stopped when production ceased. After experiencing minor spills throughout its productive life, the oilfield was abandoned in the late 1980s; nevertheless, crude oil still leaks from the drilling locations into the bushes and waterways.
Oloibiri oilfield yielded over 20 million barrels of crude oil in its lifetime, before operations ceased. Some two decades after the wellheads were capped, and without any serious effort at decommissioning, severe poverty and environmental devastation remain Oloibiri’s fate. Shell carefully negotiated its exit, offering miserly compensation to a limited number of families, thereby sowing the seeds of internal community dissent while abrogating any responsibility to adhere to international decommissioning standards.
Today, Oloibiri is actually part of an oil mining licence (OML29), which is the subject of controversy and legal action because of the circumstances surrounding Shell’s divestment and its sale to a Nigerian oil conglomerate, Aiteo, in 2016. Since then, a catastrophic history of leaks and major oil spills has been associated with OML29, including, most recently the Santa Barbara wellhead blowout of late 2021, which lasted a whole month before Aiteo was able to bring it under control with outside assistance. Not surprisingly, much of the environmental damage perpetrated by Shell has not been addressed, nor have the social investment commitments undertaken by Shell under GMOU agreements, come to fruition. Legacy questions are enormous and pressing: how are the obligations for massive environmental and social destruction to be met, once the operating company leaves? And how will decommissioning be ‘built-in’, as per international standards, into operating models?
Today, a rusting sign sits next to the “Christmas tree” – the capped wellhead – at Oloibiri, Well Number 1. It reads: "Drilled June 1956. Depth: 12,000 feet (3,700 metres)”. The abandoned wellhead is a monument to an exploit-and-abandon culture. Today Oloibiri is a rural slum, home to barely 1,000 people with no running water, no electricity, no roads, and no functioning primary school. The local creeks have been so heavily dredged, canalised, and polluted that traditional rural livelihoods have been eviscerated.
As the town has sunk into abject poverty, the community has fractured and split, with younger generations having few opportunities for personal advancement and almost inevitably venting their frustrations. The town has been rocked by youth violence, and the Aso Rock armed ‘cult group’ has dethroned the traditional ruler amid allegations of corruption and half-finished community development projects.
A gaudy plaque dating from a Presidential visit in 2001 sits next to that of Oil Well 1. It was supposed to be a foundation stone for the Oloibiri Oil and Gas Research Institute along with a museum and library. But nothing has been built since. Regularly defaced, the plaque is policed by local residents looking for a commission from erstwhile visitors who want to record where it all began.
The most effective way to minimise oil pollution is to prevent spillages and other discharges occurring in the first place.
Prevention, risk mitigation and risk management play a central role in any complex industry susceptible to high impact operational failures. The effective implementation of rigorous processes, systems, controls and response mechanisms, all underpinned by appropriate skills, capacity, performance management and governance, is essential to preventing catastrophic failures, especially in an environment as operationally challenging as the Niger Delta.
In most developed markets, oil companies maintain extensive programmes to monitor and minimise leak risks and ensure their facilities are operating to international standards. These standards are based on a mix of US ‘Integrity Management’ regulations and best practice integrity and monitoring benchmarks, such as Alaska’s ‘Best Available Technology’ standard.322 These regulations set out detailed requirements for pipeline integrity and monitoring, the technologies that operators are expected to use, and the operational governance, processes, capacities and underlying skill sets that oil companies are required to maintain to ensure the overall regime is effective.
Much of the operators’ prevention activity in these markets is focused on the maintenance of pipeline integrity. It is widely understood across the oil industry that corrosion is the primary threat to the integrity of iron and steel pipelines, although other, location-specific risks can also play an important role. A substantial body of best practice has developed around the mitigation and monitoring of corrosion risk. Companies use a combination of periodic inspections to identify pipeline abnormalities and regular pipeline cleaning to remove corrosive build up, as well as providing protective coatings and cathodic protection to significantly reduce leak risk.
This approach to integrity management is normally complemented by a thorough programme of pipeline monitoring, featuring a blend of remote monitoring technology, aerial and ground patrols, controller surveillance and around the clock monitoring by trained controllers working from a control room to allow companies to detect any failures almost immediately. As part of this mix of measures, it is standard practice for companies to deploy remote shutdown technology to enable the rapid shutdown of pipelines in hard-to-access locations should a leak occur.
Best practice integrity and monitoring programmes also feature a high degree of tailoring to reflect the particular challenges and risks that different facilities and stretches of pipeline may face. For instance, pipelines situated in ‘High Consequence Areas’ (HCAs), where leaks would have a particularly damaging impact, are usually subject to additional checks and measures, as are facilities in regions with an elevated risk of third-party interference. For instance, operators in the US have an obligation to inspect any pipeline that could affect an HCA at a minimum of once every five years.323
The relative effectiveness of these programmes is underpinned by proactive and often intrusive regulatory regimes. For instance, in the US, companies are required to develop and submit plans for the inspection and maintenance of their facilities that are reviewed by regulators annually. These plans include procedures for dealing with a wide range of specific operational, maintenance and emergency scenarios and to effectively contain spillages should they occur. Frequent regulatory inspections are undertaken, with the location, age, risk posed, and operator history all determining the frequency of supervision.324 It is difficult to make definitive statements about the nature of the oil operators’ prevention and risk management plans as they are rarely made public.
The Commission saw little evidence to suggest that the IOCs are operating to the same standards in Bayelsa as they do in advanced industrialised countries. A judgement in The Hague, Netherlands, in January 2021 that found in favour of local farmers who brought a case against Shell supports the contention that oil producers need to implement more effective prevention and risk management to avoid oil spills such as those that have caused Bayelsa’s pollution crisis.325 In December 2022, Shell agreed to pay €15 million compensation to the affected communities.
IOCs claim to be adopting the best international practice standards. For instance, Eni (Agip) stated in its letter to the Commission that:
However, in a review of Shell’s practices around pipeline integrity conducted for Friends of the Earth in 2010, Professor Richard Steiner, formerly of the University of Alaska, concluded that "Shell Nigeria continues to operate well below internationally recognised standards to prevent and control oil spills."
Professor Steiner’s report also identified failures to implement "Good oilfield practices" with regard to pipeline integrity and highlighted delays in running an asset integrity review and the adequacy of the company’s pipeline integrity management system as major sources of concern.326
The Commission’s observations about practices seen in Bayelsa and across the Niger Delta concur with Steiner’s conclusions. The evidence suggests that IOCs fail to meet even basic standards for remediation, clean-up, waste removal and the commissioning of EIAs.
Furthermore, Shell itself admitted in its submissions for the Bodo Community 2008-2009 oil spill court case that it has failed to deploy remote monitoring and control technology that would be seen as standard in other jurisdictions, as it was worried about theft.327 The failure to fit the remote monitoring and shutdown systems appears to be common practice across IOC operations in the Niger Delta. The January 2021 judgement in the Hague ruled that Shell was not only liable for the actions of its subsidiary SPDC, but was also responsible for pipeline integrity and associated leakages whatever their provenance.328
In addition, findings from other studies, such as one conducted by Amnesty International in 2013, reinforce the evidence that oil producers have not put adequate or appropriate prevention and risk management regimes in place.329
Given the threat posed by unchecked corrosion over time, leak risk is directly linked to pipeline age, and programmes of pipeline replacement and upgrading form a key part of any pipeline integrity regime.332
Research by Amnesty corroborates the conclusions of a leaked internal Shell presentation from 2002 that "the remaining life of most of the Shell Oil Trunk lines is more or less non-existent or short, while some sections contain major risk and hazard".333
Considering the age of many of the assets, it is not surprising that analysis undertaken by the NNPC of 47 pipeline failures in Bayelsa found that 40 percent of them were due to corrosion or mechanical failures.334 The evidence suggests that despite the risk posed by leaks, operators have simply not made the investments they should have in renewing their pipeline network. In addition, the Commission noted in its investigations in Bayelsa that numerous pipelines ran above the ground and were lightly attached to fences roughly one metre in height, thereby making them easily accessible for sabotage, vandalism and illegal bunkering.
This is of particular concern, given that much of the Niger Delta would, in other jurisdictions, be classified as a HCA. This factor does not appear to have been taken into account by the oil companies operating in Bayelsa.
Researchers from Environmental Rights Action and elsewhere have gathered further evidence of frail and insecure pipelines.
For instance, in Brass, researchers heard:
This was a view echoed by a Nembe LGA community member that spoke to the BSOEC.
The IOCs’ failure to run adequate programmes of prevention and risk reduction also bears directly on the vulnerability and exposure of their assets to sabotage. Despite the costs it imposes upon them, it is not clear that oil producers have always taken appropriate steps to protect their assets and minimise the risk of oil theft.
Many of Bayelsa’s oil spills are clustered in a limited number of locations. This is particularly true in instances of oil theft. According to a recent study, 40 percent of all oil theft in the entire state takes place along a 126 km stretch of pipeline in Southern Ijaw.339
Yet even where third-party interference is concentrated in hotspots, it is not clear that oil producers have acted in a timely manner to address the risk. In the case of the Tebidaba-Brass pipeline, which suffered 260 breaches attributed to sabotage in just four years, NOSDRA had to make 162 separate requests to Eni (Agip) to enhance surveillance and security on the pipeline. Once action was finally taken through increased aerial and ground patrols, the reported sabotage rate fell by 97 percent.341 In this example, the IOC’s failure to act quickly allowed sabotage to continue along with the enhanced risk of additional pollution.
The conclusion that levels of third-party interference are driven, at least in part, by the failure of the oil companies to invest in their infrastructure is underlined by the different levels of sabotage that different IOCs claim to suffer from. Evidence suggests that companies that have invested in best practice protection for their pipelines appear to suffer lower levels of third-party interference.343
Some of the oil operators’ slowness to act may reflect the incentives they currently face. The volumes of oil on which they have to pay taxes and royalties to the Nigerian government are only measured when they are loaded onto tankers for shipping. Oil lost through pipeline breaches is not taxed.
Some of the experts the Commission talked to have also raised questions about the potential involvement of oil company staff in sabotage operations. According to them, pressurisation levels must be reduced to allow pipelines to be tapped without the risk of an explosion. This would require collusion between those undertaking ‘bunkering’ thefts and staff operating the pipeline flow stations. If true, this would reinforce the view that the oil companies are not taking sufficient and timely action to minimise risks to pipelines.
Taken together, this evidence all points to the oil companies’ systematic failure to invest in standard remote monitoring and shutdown technology, to run effective programmes of spill prevention and risk mitigation, and to operate to international standards – standards they adhere to as a matter of course in their home jurisdictions.
Chapter Two introduced the issue of regulatory capture by the IOCs. This problem of regulatory capture has its roots in the lack of capacity and resources that NOSDRA faces. Unlike the DPR, NOSDRA has few streams of revenue and is systematically underfunded. As a consequence, NOSDRA lacks even the basic capacity and capabilities needed to discharge its regulatory duties in an independent manner. It is often forced to rely on the IOCs to help undertake some basic tasks. For instance, in many cases, NOSDRA is unable to access the spill sites through its own independent resources and is forced to rely on the oil companies to provide helicopter and ground transportation to the sites.344
The Commission heard evidence that it is often the oil companies that organise the JITs and critically, the companies choose which community representatives sit on them. The Commission has heard testimony in numerous communities across Bayelsa alleging that oil producers have rigged community representation on JITs, forced community members who were not given access to spill sites to sign reports, and even subjected residents to threats and pressure to get them to sign reports that minimise the exposure of the oil companies. Where community members manage to give NOSDRA’s staff alternative views that are opposed to those of the oil companies’, they claim those views are routinely ignored. A sample of the evidence the Commission has received is set out below. The oil companies deny these claims.345
A properly conducted JIV process must include communities affected by the oil spill in question. Communities claim that often the voices of those most affected are ignored. The BSOEC has heard testimony in numerous locations about how local people are marginalised through the JIV process. A selection is below:
The goal of an effective prevention programme is to minimise the risk of pollution occurring in the first place. But once contamination has occurred, the key to limiting the potential damage is a prompt and effective response. Yet the evidence shows that IOCs are failing to respond rapidly or effectively, significantly exacerbating the harm caused by the pollution incidents that occur.
Under the terms of Nigerian law, oil producers are required to form a JIT and conduct a JIV within 24r hours of a spill being reported to the authorities.
However, independent analysis of IOCs’ JIV forms by Amnesty International suggests that adherence to the law is patchy and there is significant divergence between different IOCs in their level of compliance. In the period between 2014-2017, Eni (Agip), despite suffering more spills, was found to have held a JIV within the prescribed time period in 76 percent of its cases.352 It took Eni (Agip) two days on average to hold a JIV. By contrast, Shell took on average seven days to hold a JIV and only met the legal requirement on timing in a quarter of all its cases.
These averages hide considerable variation. On at least 10 occasions, it took more than 100 days to organise a JIV; in one case an inspection was delayed for 430 days.353
On 12 March 2015 former Bayelsa State Commissioner for the Environment, Iniruo Wills, stated that
Wills was speaking in response to the failure of SPDC and NAOC to respond in a timely manner to two large spills affecting the Ikibiri community in the Ogboinbiri River in Southern Ijaw LGA and along Agip’s Ogboinbiri-Tebidaba pipeline. The frustration Wills expressed echoed the views of many who spoke to the Commission. Numerous witnesses spoke of the lack of effective responses to pollution incidents and the impact that this had on their communities.
One witness in Nembe told the Commission that
Witnesses also claimed that NOSDRA had failed to help them seek information and redress from polluting oil companies. In April 2020, lawyers representing the Opu Nembe Kingdom wrote to NOSDRA pertaining to spills linked to Aiteo’s operations in the area. The community called on NOSDRA to facilitate the immediate release of the JIV reports covering spills in the area and waited for them to lead the conduct of a joint post-spill impact assessment. However, this was never addressed and the reports never released. Opu Nembe Kingdom was subsequently forced to initiate legal action against the oil producer.
It was a similar story in Yenagoa LGA. There, the Commission heard evidence of how delays to clean-up operations and tardy oil company responses were commonplace, meaning that by the time the companies tackled the issue, the oil would have already spread through farmlands, damaging crops and affecting livelihoods.356
Oil companies claim that many of the delays are due to the inaccessibility or insecurity of spill sites. Although there are notable exceptions, in general these claims do not stand up to scrutiny. Many of the spill sites have been located close to population centres or access points, as the map of leak sites shows. In some of the most high-profile cases, there appears to be little correlation between accessibility and response times. For instance, it took Shell 252 days to arrange a JIV for the leak in its Ugbuegungun pipeline, despite the fact that the breach took place just metres outside a major Chevron installation.357 Similarly, in the Aghoro community in Ekeremor LGA in Bayelsa, it took almost three weeks to address a leak that was less than several kilometres from a major facility.358 Similar analysis of the most excessively delayed visits finds that, in most cases, no explanation for the delay is recorded.
The pattern of delays, and the variations in company performance, suggests that in many instances, these reflect primarily the failure of the oil producers to put in place adequate processes and capacity.
These failures in timely responses matter, as the flow of oil is normally not halted nor any containment or remediation activity begun until after the JIV has taken place. Spills that would be shut down in minutes in other countries are permitted to continue for days, sometimes even weeks. The delays directly exacerbate the levels of pollution and the damage caused by the spills, as do failures to assess spills accurately.
This failure to file responses significantly degrades the effectiveness of the response system and impedes any remediation activities. So too does the weakness of the methodologies for estimating the impact of potential spills. JIVs tend to use relatively crude techniques, based on visual assessment, to evaluate the volume and spread of oil pollution. More sophisticated techniques that are widely found in other jurisdictions, such as the use of satellite imagery and drones to better assess the size of spills, are rarely if ever used in Nigeria.
Especially when applied to leaks occurring in water where much of the spill volume may be washed downstream, these methods may lead to a systematic under-estimation of the size of spills. For example, in 2008, Shell estimated the size of the leak from its pipeline in Bodo, Rivers State, at 1,640 barrels. Independent experts estimate that the figure was some 60 times higher, at over 100,000 barrels. Based on its original estimate, Shell offered only £4,000 of compensation. When the case came to court in the UK, Shell abandoned its estimate and settled the case by paying residents £55 million.361
Even where there is a response, containment measures are often not effective, especially if delays allow the pollution to spread. For instance, in the case of the large offshore Bonga and Koluama spills, delays and lack of containment led to massive spill volumes directly impacting coastal communities.
Notwithstanding the new PIA passed by the Federal Government in 2021, the existing regime provides strong incentives to the parties involved to minimise the alleged size of an incident and thereby reduce the potential compensation and clean-up liabilities they are exposed to. The Commission heard evidence that as a consequence of these incentives, the oil company operators have tended to exercise undue influence over the process and, ultimately, the content of the JIV reports.364 365
The problems created by the failures of response measures are significantly compounded by multiple and profound failures of remediation.
Analysis from a number of different sources all point to the same conclusion: in the overwhelming majority of oil pollution cases, no clean-up ever takes place.366
The IOCs claim that their remediation practices meet both Nigerian and international standards. Furthermore, one IOC told the Commission that its oil spill management processes and its remediation practices have been certified as being fully compliant by an independent third-party assessor.367
Official statistics tell a different story. According to analysis of NOSDRA’s JIV data from the period 2010-2015, only a mere 3.6 percent of all spill sites – just 229 out of over 6,300 – were recorded as having undergone any kind of remediation at all. Only 12 percent of sites were subject to a post clean-up inspection and only in a scarcely believable 0.1 percent of cases was any post clean-up impact assessment undertaken.368
Mirroring the weaknesses in the response system, the remediation and compensation forms officially required to be submitted as part of every JIV process were in fact not filed in 88 percent of the cases reviewed.370
The reality is that the IOCs are all too often simply failing to fulfil their obligations to clean up pollution and provide compensation where liability is proven. To take the example of just one producer, a recent study shows that Eni (Agip) has a clean-up backlog of over 400 sites in Bayelsa alone.371 Shell admitted in its correspondence with the Commission that in 2018, it cleaned up only 116 of the 202 sites it said it had liability for remediating.372
The lack of action by oil producers to remediate their spills was raised in community after community that the Commission and its researchers visited.
In its hearings and through written testimony, the Commission heard repeated stories of the failure to remediate properly.
The Chair of the Community Development Committee of Kalaba community in Okordia told the BSOEC that most spills are “abandoned after clamping, recovery and, in some cases, haphazard clean-up... the law demands that the company carries out proper clean-up and remediation, but in our community, there are several unclean spill sites here and there. The recent spills that need attention include the spill site at the back of the community that they came to clamp on the 30th of July 2018; it’s abandoned.” 375
Former State Environment Commissioner Wills said:
Even where remediation activity is undertaken, it is often inadequate. As was discussed in the previous section, remediation efforts are often undermined by the serial underestimation of the volume and dispersal of contamination. Such efforts are also hamstrung by a reliance on clean-up methods that do not reflect international best practice.
Traditionally, many of the remediation projects across the Niger Delta and in Bayelsa have used a method known as ‘Remediation by Natural Attenuation’ (RENA). Under this approach, the topsoil of polluted land is ploughed over to increase aeration and fertiliser is added to supplement the nutrient requirements of bacteria as they break down the pollutants. The 2011 UNEP report and subsequent work by the IUCN381 found the technique to be largely ineffective, especially over depths of one metre, given that pollution in the Niger Delta can penetrate as far as five metres down. The IUCN have therefore advised against the use of these methods in the Niger Delta. Extensive reliance on RENA techniques in the past has meant that much of the remediation previously undertaken has, unfortunately, only been partially effective.382
Over the past few years, the IOCs have acknowledged the limitations of RENA approaches and have sought to switch to the use of bioremediation as their primary remediation approach.383 There is emerging evidence of this approach’s effectiveness in remediating certain forms of pollution, but there remains significant disagreement about its general efficacy and its applicability.
There are also questions about how effectively and how often such techniques are actually implemented on the ground. This may reflect, in part, the fact that the remediation contractors charged with implementing a bioremediation approach often lack the capacity to do so effectively.
Most remediation work in the Niger Delta is subcontracted to local companies.384 In many cases, they are chosen primarily for their record of achieving regulatory certification from the government and because of their connections with the oil producers, rather than reasons related to their technical capabilities. All too often it is alleged that remediation contracts are used not to deliver effective pollution clean-ups but rather as vehicles for the distribution of patronage and economic rents to favoured local groups. The Commission has heard evidence that the strength of incentives these relationships create are such that some involved in remediation work have even been alleged to have sponsored members of the local community to sabotage pipelines to increase the flow of remediation funds.385
Underpinning much of this is a flawed approach to community engagement. The IOCs have no senior level representation in Bayelsa. Community liaison officers manage relationships at community level, often supporting factions without widespread legitimacy and weakening community cohesion. Many voices are excluded from the decision-making processes, often outlined in a GMOU, about the allocation of IOC social investment commitments. Moreover, all too often, communities that are impacted by pollution, in particular those downstream of spill sites, are excluded altogether from GMOUs and, as a result, receive little if any support.
Even where such agreements are struck, many of those who testified to the Commission confirmed that the commitments are often not followed through and instead become a source of community conflict.
During its investigations, the BSOEC heard repeated testimonies from across the state about the failure of oil companies to honour their commitments under GMOUs and MOUs and the extent to which these agreements were fuelling conflict.
As well as failing to address the immediate need for physical rehabilitation of the environment, IOC remediation efforts often fail to adequately address the humanitarian and social dimensions of the damage done.
Despite the huge public health, economic and social impacts of pollution, remediation projects are confined primarily to the physical clean-up of the spill area.
IOC support for affected communities after spills is normally restricted to a limited immediate grant of funds; many communities get little. Moreover, there is little if any systematic long-term support, health monitoring or investment in environmental recovery.
And even where short-term support is offered, case studies suggest that it is often utterly inadequate, with remediation efforts often failing to address issues as basic as ensuring a supply of clean drinking water, let alone tackling issues such as the loss of livelihoods. Communities are left to fend for themselves in dealing with the long-term consequences of pollution.391
Similarly, IOC investment in the remediation of the economic effects of pollution is minimal. IOCs do contribute, as they are legally obliged to, to the running of the Niger Delta Development Commission (NDDC), whose mandate is to undertake economic development activity across the region. However, not only has the NDDC been mired in corruption, but both the scale and impact of these contributions have been limited.392 Between 2014 and 2019, the NDDC’s 3 percent annual budget levy from oil companies operating in the region delivered more than US $3.2 billion from subsidiaries of Chevron, CNOOC (China), Eni, Equinor, ExxonMobil, Royal Dutch Shell Plc, Total SA and other companies.393 IOCs also run a small number of high-profile economic projects. Shell, for instance, launched 84 development projects in the state in late 2019, following the launch of the Commission.394 Unfortunately, all of these interventions have done little to address the economic damage oil pollution has caused.
Finally, compensation payments are rare and almost always wholly inadequate. The fact that that the oil companies have been taken to court almost 58,000 times since 1996 in Bayelsa alone by plaintiffs seeking restitution for damage from oil pollution indicates how inadequate the IOCs’ approach to compensation has been.395
Much of the responsibility for the current crisis must be borne by the IOCs, whose activities have inflicted such unimaginable damage upon Bayelsa. Their four failures – of strategy, prevention, response and remediation – have formed the immediate drivers of the pollution crisis. But the failures of the oil producers are themselves rooted in a set of deeper institutional, legal and political problems that go to the very heart of how the Nigerian federation works. These must be addressed if the pollution crisis is to be tackled on a sustainable basis.
In this section, we identify five deeper structural drivers of the pollution crisis:
The behaviour of the oil producers cannot be assessed separately from the dysfunction of the regulatory system. At the most fundamental level, Bayelsa’s pollution crisis is rooted in profound and systemic regulatory failures at both federal and state levels of government. Flaws in almost every aspect of the design and operation of the supervisory regime have enabled or exacerbated the catastrophe now engulfing the state.
This report has already laid out in detail how the central supervisory process for the monitoring and control of oil spills is hopelessly compromised, captured by and reflecting the interests of the very companies it is meant to police. The impact of this failure of the regulatory process is significantly magnified by complementary failures to adopt international standards.
Important elements of both Nigeria’s broad regulatory standards and the country’s detailed technical guidelines fall below generally accepted international benchmarks. The overall environmental standards framework under the Petroleum Act regime, EGASPIN, granted significant discretion to the former DPR to permit contaminated discharges even when their own standards were exceeded. The regime employed a confusing system of dual standards to differentiate between levels of toxins seen as safe and levels of toxins that require intervention. While some levels are based on those seen in the Netherlands, it is often the case that those intervention levels are set to permit far higher concentrations of contaminants than those allowed in other jurisdictions or deemed safe by international authorities. Furthermore, at a technical level, the framework omits reference to important contaminants that are covered as a matter of course in other jurisdictions. For instance, the regulations only cover 10 types of highly toxic poly-aromatic hydrocarbons. Comparable US standards, by contrast, cover 16.397
Similarly, Nigeria’s pipeline integrity practices fall below international benchmarks, as they do not reflect widely accepted best practice processes for routine pipeline inspection and monitoring by regulators, and enforcing renewal when due.398
Moreover, critical weaknesses in the capacity and powers of the main regulatory agencies mean that they struggle to enforce even these limited standards. Unlike the DPR, which was generally well-resourced, NOSDRA lacked and still lacks access to sufficient statutory sources of funding and is severely under-resourced. The agency lacks the capacity and capabilities to supervise the IOCs and is reliant on them for access to pollution sites. This not only limits the agency’s effectiveness, but creates a conflict of interest. This lack of capacity has implications that go beyond NOSDRA’s ability to react effectively to pollution incidents. It also means that they have little ability to conduct the kind of proactive supervision of oil producers’ risk management approaches that form the cornerstone of any effective preventative system. Pipelines are rarely, if ever, inspected in the absence of a pollution incident, and there is little scrutiny of producers’ risk management plans and capacities. All these factors compound the impact of the already compromised pipeline integrity regime.
Furthermore, where agencies choose to take action, their enforcement powers are limited. As Chapter One described, NOSDRA’s powers to levy fines is highly constrained by legislation and the agency lacks the power to close facilities. Moreover, court rulings have further restricted NOSDRA’s ability to impose administrative fines under the statute, one of the few enforcement powers it appeared to possess under the statute. This runs counter to similar powers that regulators have in other jurisdictions such as the UK.400 DPR and its successors do theoretically have broader enforcement powers, although these too may be circumscribed by recent court judgements. It is also evident that the DPR was consistently unwilling to use its powers because the Department’s remit covered the promotion of oil and gas production business activity alongside its regulatory role.
Many of the problems related to agency dysfunction and inadequate transparency trace their roots back to fundamental problems of institutional remit and design. The institutional landscape of oil and pollution regulation in Nigeria is profoundly flawed.
Key regulatory roles were fragmented across a number of different bodies, creating a mismatch that hamstrung the effectiveness of the regulatory regime as a whole. Until August 2021, the DPR had primary responsibility for developing regulatory standards and driving their enforcement, but it was not involved in monitoring adherence to them or responding to incidents.
The agency charged with environmental response, NOSDRA, had little input in drafting the regulations it was meant to monitor and wields few enforcement powers. Its remit is also tightly drawn, excluding many forms of oil pollution.
Before it was replaced by the NUPRC and NMDPRA, the previous dual remit of the DPR was the source of a fundamental tension at the heart of the regulatory process. The conflict between the department’s revenue maximising and regulatory roles consistently meant that regulatory priorities were relegated. The imperative to maintain and expand oil production, along with the department’s close commercial relationships with the oil producers it was meant to regulate, shaped weak standards and lax enforcement. Unfortunately, it is likely that these conflicting priorities will continue to weaken the functionality of the agencies established to succeed DPR.
The problems created by the DPR’s focus on revenue maximisation at the expense of effective regulation were reinforced by the overlapping and competing nature of institutional remits. NOSDRA is tasked with spill remediation but, as outlined above, only the DPR had any substantive enforcement powers. While NOSDRA’s oil spill detection and remediation processes and standards are enshrined in law, the DPR’s EGASPIN regulations were not, forming only a set of inadequate guidelines that were typically ignored. Furthermore, the confused nature of the law means that, for instance, although oil operators are required to notify NOSDRA of spills, they have not been obliged to inform the DPR and its successors. The fragmentation of regulatory roles across an ‘alphabet soup’ of agencies that have overlapping remits but differing powers only adds to the challenge of making the oil and gas sector safe and secure.
The distortions of the regulatory regime are magnified by the flawed nature of the legal framework.
A strong legal framework is essential for regulation to be effective and for individuals and communities to be empowered to hold companies to account. Yet many aspects of Nigeria’s legal framework are incomplete and do not reflect international best practice, thereby allowing polluters to escape scrutiny and accountability.
The lack of ‘no fault liability’ and comprehensive ‘polluter pays’ principles in Nigerian law has had deep and profound consequences.402 Together with a lack of effective enforcement, the structure of the law creates huge incentives for oil producers to underinvest in pollution prevention and drives their behaviour in gaming the JIV regime, leading in turn to an operational culture that permits higher levels of contamination than they would allow in other countries. The fact that they are unlikely to have to pay compensation or even to undertake remediation encourages the IOCs to take risks they would not take in other jurisdictions and discourages IOCs from investing in the prevention and mitigation of environmental damage.403
This process is reinforced by inconsistency and other weaknesses in the legal code. The laws governing the regulation of oil contain numerous gaps and do not define the legal duties of regulators and other actors in a consistent or rigorous manner, thereby creating loopholes that oil producers exploit.
The impact of flaws in the legal codes is compounded by the absence of an effective court and dispute resolution system. Plaintiffs often lack the considerable resources required to pursue action through the courts and the process often takes years, with well-funded defendants able to bog down proceedings on an almost indefinite basis to prevent any unfavourable rulings. There are no mechanisms for class action suits or collective legal actions by communities against polluters. And even where fines are levied, they are rarely paid.404
The lack of liability, accountability and transparency enshrined in the legal and regulatory regimes have contributed to the alienation of local communities, as has their treatment by oil producers and the Federal Government.
The nationalisation of subsurface mineral rights and the complexities of local property and customary land rights provides little leverage for communities – particularly communities hosting oil industry installations – to bargain with IOCs. The legally binding obligation of companies to establish community development trusts (overseen by the NUPRC and NMDPRA) and to make community development expenditures provides an opportunity to address the problems with GMOU provisions, which are often stacked against communities, while the companies’ obligations and responsibilities are rarely fulfilled. IOC community development programmes are perfunctory, uneven in their effects, and, for the most part, inadequate given the endemic poverty that blights communities across the Niger Delta.407 Alleged off-budget cash payments by companies and a perceived lack of transparency in the allocation of legitimate monies to those affected by the industry’s activities has fostered deep antagonisms and conflicts within and between host communities. It is, in fact, hard to find a host community that has not been marked by conflicts associated with what is widely perceived as the ‘divide and rule’ approach of the IOCs and the lack of transparency and disclosure in company-community relations.408 However, while the host community trust provisions have been hailed as an improvement on the GMOU, it is imperative that they operate side by side. They should not replace GMOUs. This is because the latter, while not mandatory, tend to provide for active engagement of host communities by way of employment, contracting, supplies, etc. These are absent from the PIA, which basically mandates “Settlors” to make financial contributions for the development of host communities, but does not extend to active engagement by way of employment or contracting.
In many of the communities, the state – federal and local – is to all intents and purposes absent. The destabilisation of communities, the use of young men as ‘pipeline security’, and the collapse of customary authority structures have all driven increases in the sabotage and vandalization which CSR and other community development schemes undertaken by IOCs and the government were meant to address. All too often, IOCs are under-investing both in communities and in safety in ways that they would not be permitted in other countries.
The limited power of communities in their relations with companies and state agencies is mirrored among civil society groups. The Niger Delta has a vast array of organisations, including advocacy groups with a particular remit for the oil and gas sector, such as Social Action and Environmental Rights Action. However, as the experience of the NEITI shows, these voices have a very limited role in regulation and oversight.409
Many of the flaws detailed in this chapter are ultimately built on the bedrock of the mutually beneficial relationship between the IOCs, politicians and the bureaucracies at the federal, state and local government levels.
All of these actors, in particular those at the federal level, have strong incentives to keep oil flowing as it provides not just a stream of profits to the IOCs, but also the primary source of revenues to the Federal Government. It is these revenues that finance state, local and federal government budgets and also provide the main pool of public funds from which rents linked to public office can be misappropriated.410
This alignment of interests between government actors and the oil companies in the maximisation of oil production and taxable profits along with the minimisation of pipeline operation costs has led to the development of symbiotic, co-dependent and, ultimately, complicit relationships that account for the failures to legislate and regulate effectively. This resource provisioning pact that links IOCs and government serves to protect a corrupt and flawed oil and gas sector from any serious scrutiny, reform or regulation.*
The relationship between politicians and oil companies, which the late Ken Saro-Wiwa termed ‘the Slick Alliance’, is the fundamental foundation from which many of the problems of oil pollution stem.
A wide range of institutions in the transparency and accountability sector, most prominently those associated with the Extractive Industries Transparency Initiative (EITI) and advocacy organisations such as Global Witness, Friends of the Earth and the Center for Research on Multinational Corporations (SOMO), have devoted significant efforts to documenting the unprecedented scale of graft and theft associated with the massive illicit flows in Nigeria’s oil sector. Property rights assigned to companies, politicians and the military often resemble clear appropriation without oversight: these include oil prospecting and oil mining leases acquired by members of the political class and sold, along with huge bribes paid to secure mega-engineering contracts. And not least, there is outright theft and pillage perpetrated at the highest levels of political leadership.
During the late military period in Nigeria from 1995-1999, the stolen assets sent out of the country by President Abacha to offshore financial centres was estimated to amount to as much as US $5 billion. The misappropriation of assets has continued since then. In 2008, Albert J. Stanley, a former executive with a Halliburton subsidiary (KBR), pleaded guilty to charges that he conspired to pay US $182 million in bribes to Nigerian officials in return for contracts to build a US $6 billion liquefied natural gas complex.411 The legal case over OPL245, involving Shell, Eni and former oil minister Dan Etete, while unsuccessful in the UK High Court, is simply the tip of an iceberg in terms of alleged high-level corruption. Diezani Alison-Madueke, who was Nigeria’s oil minister when Goodluck Jonathan was President, has been embroiled in several global corruption scandals. It is widely understood that the theft of oil monies, historically endemic, continued to grow to unprecedented levels over the decade up to 2015.412 Nuhu Ribadu, who led a Petroleum Revenue Special Task Force in 2012, estimated that political elites had stolen US $29 billions worth of oil and oil revenues.413 While the theft involved can be substantially attributed to corrupt political elites, the role of the national oil companies, along with international oil companies and trading houses, is central to any understanding of the unfathomable scale of financial haemorrhaging from the public purse.
* The concept of a provisioning pact is taken from Dan Slater, Ordering Power: Contentious Politics and Authoritarian Leviathans in Southeast Asia, Cambridge University Press, 2012. A provisioning pact in which political and economic elites acquiesce in the expansion of state power and the building of state capacity, refers to the centrality of the political and economic elites who enrich themselves through the capture of rents and corruption of public office and thereby undermine state effectiveness and state capacity. Resource-dependent states like petro-states typically exhibit these powerful provisioning dynamics.
The failures seen in Nigeria have been reinforced by the omission of international institutions and the home jurisdictions of the IOCs to effectively scrutinise their activity.
There have been numerous interventions by bilateral and multilateral agencies over the last two decades aimed at improving transparency and accountability and fighting corruption in oil producing states. The IMF’s fiscal transparency codes, OECD anti-corruption engagements on National Oil Companies (NOCs), stolen asset and foreign corrupt practice laws, the Nigeria Extractive Industry Transparency Initiative (NEITI), and the important advocacy work of organisations such as Global Witness and Public Eye, have all collectively focused on the endemic corruption in oil states and, especially, the relations between the IOCs, NOCs, trading houses, and political elites.
However, these programmes were not designed to address the operational practices of oil companies, oil service contractors and local regulators, or the environmental consequences that result. While some countries are increasingly enforcing anti-corruption standards on their companies worldwide, as, for instance, in the UK via the Bribery Act and the US through the Foreign Corrupt Practices Act and the Dodd-Frank legislation, these countries have yet to take the same approach to minimum environmental standards. As a consequence, there has been a failure to scrutinise the broader behaviour of IOCs in host communities or to hold them to the operating standards that would be expected of them in their home jurisdictions.
The causes of Bayelsa’s pollution crisis are complex and the blame for every oil spill cannot be laid at the feet of the IOCs or the Government of Nigeria. But, at the root of the problem, there lies a toxic cocktail of serial oil producer intransigence which has given rise to the four failures that form the most immediate causes of the pollution crisis, all of which arise from and are perpetuated by ineffective regulation, a flawed legal framework, the dysfunctional politics of the ‘slick alliance’, and a lack of international scrutiny of operational practises.
All of these findings are underpinned by a fundamental institutional neglect for the people whose lives have been blighted. The Federal Government has repeatedly ignored the interests of those living in affected communities, while the IOCs behave in ways they would never contemplate in their home jurisdictions. Intentional or not, the conduct of the oil producers shows many of the hallmarks not just of gross negligence but of environmental racism, with the interests of Bayelsa’s communities discounted because of who they are and where they are from.
Stemming the tide of pollution and the human suffering it brings with it will require a root and branch reform of the whole edifice of regulation, law and politics upon which Nigeria’s oil sector is built.
But, as importantly, it will require decisive and far-reaching action to address the damage that has already been done. That action forms the focus of Chapter Four.