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Oil Spills in Nigeria Highlight Lack of Legal Accountability

Scott McKenzie - 4th September 2010

In the summer of 2010, one news story dominated headlines in America.  The explosion on the Deepwater Horizon oilrig and the subsequent leaking oil from the Macondo well had a stranglehold on the news cycle.  It was an ecological disaster, economic fiasco, and political nightmare.  Depressingly, the intense media spotlight on the Gulf threatens to obscure the pollution in other places around the world that have been ruined due to our world’s quest for oil.  This problem was highlighted by fellow blogger David Ritter, in his post “Let's be honest: Oil really is disgusting.” In my post, I would like to talk about the deplorable situation in the Niger Delta.  The American domestic legal response can be contrasted with weak environmental protections in Nigeria and the gaps in international laws to protect the environment.

The BP oil spill is well reported, the Nigerian disaster is forgotten
Many media consumers might have a hard time understanding the size and scope of an oil spill. British Petroleum's chief executive Tony Hayward tried to take advantage of this confusion by saying, “The Gulf of Mexico is a very big ocean. The volume of oil and dispersant we are putting into it is tiny in relation to the total water volume.” Grasping the true size of a spill can require graphs, charts, and websites to put the problem into context and make the magnitude easier to comprehend.  Unfortunately, most other oil spills, particularly the situation in Nigeria, have not been as closely examined and it is much more difficult to visualize the problem.

American government experts, independent scientists, and BP itself all worked under the media spotlight to estimate the size of the leak.  In Nigeria, the National Petroleum Corporation works in relative obscurity and has to base its reports on the operating company reports.  These self-reporting estimates show that around 2,300 cubic meters of oil are spilled each year.  The oil pours out on average in 300 separate incidents every year.  Some experts are concerned that because these numbers are self-reported by oil companies the real numbers are much higher.  Conservative independent analysis estimates the real number is ten fold higher.  Further, unlike in the Gulf of Mexico where there is a significant effort to clean up as much oil as can be found, the spills in Nigeria are left to pollute the environment.  Some spill sites are over 10 years old.  The Department of Petroleum Resources estimates that of spills from 1976 to 1996, around 77 percent of the oil was not recovered.  To compare the spills, the Gulf accident is estimated to have leaked a total of 780,000 cubic meters verses a very low estimate of 23,000 cubic meters each and every year in Nigeria.  Higher end estimates place the size at around 546 million gallons, or a size of the Exxon Valdez every year.  Some have estimated spills on this magnitude have been going on for 50 years, giving Nigeria the distinction of being the most oil polluted place on earth.

These estimates are only rough guesses.  The oil spill problem in the Niger Delta may be much greater but there is not even an true study of it yet.  The United Nations has undertaken a $9.5 million environmental review, but the results of this study will not be published until next year.  Some recent stories have speculated the UN report will find a large amount of the pollution is caused by local people tapping pipelines in an effort to siphon off oil for sale and use on the black market, not oil company negligence.  The UN has tried to quash these stories, pointing out that the full report is not yet ready.  However the suggestion points to the troubling intersection of extreme poverty in a country that could have comfortable wealth from oil exports.

Niger delta oil spills destroy the environment and violate human rights
Most Westerners have become accustomed to nightly TV images of sea birds covered in thick viscous oil.  Patient volunteers collect these birds, wash them with Dawn soap, and return them to the wild.  As important as the Gulf ecosystem is, the Niger Delta is also important.  It has been listed as one of the 10 most important wetland and coastal marine ecosystems.  Eyewitnesses from around the world have reported that thick sticky oil now fills mangrove swamps that were once teeming with life.

An Amnesty International report in 2009 said that the oil spills have created an environment where many of the human rights in the United Nations Covenant on Economic, Social and Cultural Rights are violated.  Much like in the Gulf of Mexico, the livelihoods of many people come from working with the natural environment.  When oil pollution destroys this way of life, their human rights to health and a healthy environment, the right to an adequate standard of living (including the right to food and water) and the right to gain a living through work can be violated.  Unlike in the Gulf, there is not a massive fund to ensure that workers maintain their way of life.  In Nigeria, fishermen still try to bring in the days catch.  They find few fish, but daily are covered in oil.  Despite these human rights violations, there has been little movement on an international level to rein in oil pollution and international courts have been reluctant to make judgments based on environmental violations.

Nigerian government has trouble dealing with pollution and international law is little help
Historically, Nigeria has been unable to solve these persistent spills.  A lack of corporate regulation, coupled with corruption and a lack of accountability has created a situation where polluters know that they will face few sanctions.  A violation on a similar scale may result in much stronger response in many developed countries, as BP is learning currently.  This accountability vacuum leaves companies with almost self-regulation, a state that is frequently exploited by violating environmental laws.

American laws and Nigerian oil came together in the case of Bowoto v. Chevron Corporation, which could have had the ability to rein in some of the bigger abuses of this government corruption.  This case was filed under the Alien Tort Statute (ATS), a provision of American law that is gaining interest by human rights lawyers.  The ATS has been law since 1789, and says "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."  Relevantly, it allows limited grounds for US courts to hear cases of human rights abuses.  In Bowoto, Nigerian citizens who had been victims of physical abuse at the hands of the Nigerian military claimed that Chevron had backed these violent actions and should be liable for them.  However, the jury disagreed that Chevron was responsible, and returned a unanimous verdict against the plaintiffs.  While this was a legal defeat, it did help bring some publicity to the corruption in Nigeria and the problems in the oil sector.

Cleaning up this oil will be tricky.  The new Nigerian President Goodluck Jonathan needs to make good on his promise to seriously confront the culture of lax regulation.  However, he must also do so in such a way to maintain the strength of the oil sector, which accounts for 40 percent of the GDP and a staggering 80 percent of the Nigerian foreign exchange earnings.  There are many causes of the oil problem including issues of national poverty as well as greedy companies with old equipment.  The oil is being sucked from the earth by innovative oil companies use a multi-national approach to finding and selling their product, effectively regulating their pollution will require a solution that is equally modern and international.
 

 

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Some readers may be interested in the excellent Facebook page of Nigerian President Goodluck Jonathan.  His posts are personal, thoughtful, and topical.