Nigerian Judge Rules Gas Flaring Violates Constitutional Rights

BENIN CITY, Nigeria, November 15, 2005 (ENS) - A judge for the Federal High Court of Nigeria ordered Monday that the practice of gas flaring must stop because it violates the constitutional rights to life and dignity of Nigerian citizens.

Gas flaring is the practice of using open flames to burn off unwanted associated gases that are extracted from the Earth along with crude oil. Flaring generates greenhouses gases and subjects local communities to constant heat, light, noise, and air pollution.

In a case brought by Jonah Gbemre on behalf of himself and the Iwherekan Community in Delta State against Shell Petroleum Development Company of Nigeria and the Nigerian National Petroleum Corporation, the judge ruled that the Nigerian Constitution guarantees to citizens "the rights to clean poison-free, polllution-free healthy environment."

Justice C.V. Nwokorie determined that the actions of the two oil companies "in continuing to flare gas in the course of their oil exploration and production activities" in Gbemre's community "is a gross violation of their fundamental right to life (including healthy environment) and dignity of human person as enshrined in the Constitution."

The judge also ruled that the failure of the oil companies to carry out an Environmental Impact Assessment in the Iwherekan community "concerning the effects of their gas flaring activities is "a clear violation" of the Environmental Impact Assessment Act and "has contributed to a further violation of the said environmental rights."

The Shell Petroleum Development Company filed an immediate notice of appeal "challenging the validity of the judgment on the basis of violation of legal process," the company said.

Nigerian woman walks past a gas flaring source in the Niger Delta. (Photo courtesy Friends of the Earth International)

"This victory marks a new dawn in the struggle of the communities of the Niger Delta to have these flares of hell switched off," said Bassey. "For the first time there is a hope that children here can hope to have a dark, quiet night, enjoy the chirps of birds and rest their eardrums from the awful noise of these gas flares."

Nigerian environmental lawyers have come to Eugene, Oregon to work with the environmental lawyers at E-LAW U.S who provided scientific and legal support to help win this victory. E-LAW U.S. Staff Attorney Jennifer Gleason traveled to Nigeria to contribute her expertise to Gbemre's attorneys.

Bern Johnson, executive director for E-LAW U.S., expects the judge's decision to have far-reaching effects. "This sweeping decision against Shell should end flaring by all companies in the Niger Delta, including ExxonMobil, ChevronTexaco, TotalFinaElf, and Agip," said Johnson.

"We are thrilled to have helped bring justice to the people of the Niger Delta," Johnson said. "For too long, they have suffered while oil companies have made millions selling Nigeria’s oil."

Over the last 40 years, pollution from flares has destroyed crops and exposed Delta residents to an increased risk of premature death, respiratory illnesses, asthma, and cancer, Johnson said.

"Nigeria has been the world's biggest gas flarer, and the practice has contributed more greenhouse gases than all other sources in sub-Saharan Africa combined," Johnson said.

The practice costs Nigeria about US$2.5 billion annually, while about 66 percent of Nigerians live on less than US$1 a day.

Shell Petroleum Development Company (SPDC) restated the company's commitment to ending routine flaring of gas in its Nigerian operations, and said the company has invested US$2 billion over the last five years in the endeavor.

SPDC says on its website that since 1996 the company has been "committed to ending routine gas flaring in Nigeria through effective economic utilization of the gas for the benefit of Nigeria."

"This necessitated embarking on a major integrated plan to collect and put to economic use the gas otherwise flared from our network of 73 flow stations," the company said. "It also entailed a commitment from SPDC not to develop any new oil fields without a clear plan for the utilization of the associated gas from such fields."

Estimates of Nigeria’s proven natural gas reserves, are approximately 104 trillion cubic feet, the tenth largest reserves in the world, approximately 30 percent of African gas reserves.

Gas flaring in the Niger Delta. (Photo courtesy Friends of the Earth International)

"Growing pressure from environmentalists, has now led to increasing utilisation of the associated gas, and Shell has committed to ending all flaring of associated gas from their fields by the year 2008," the NNPC says.

But Shell Nigeria has already slipped the 2008 target date set for ending all flaring. Shell blames the Nigerian government for budgeting US$4 billion less than that agreed by the partners as necessary to support the joint venture program in the years between 1996 and 2004.

Shell says, "Gathering associated gas, developing gas pipelines and processing facilities involves huge costs. In spite of the fact that plans to gather and distribute associated gas have been on the drawing table for over thirty years, no single investor, or group of investors, including successive governments, were prepared to make the massive investment required until recently. For some time, fiscal and gas pricing policies have not encouraged investment, although this situation is now changing radically."

Peter Roderick, co-director of the Climate Justice Programme, said the judge's ruling requires the oil companies to stop flaring. “This is a landmark judgment. We applaud the courage of the judge in giving a clear message that flaring is an outdated practice that is not acceptable in Nigeria. We also applaud the court’s decision to apply rights guaranteed by the Nigerian constitution to an environmental case for the first time in Nigeria, in line with other countries.”

The ruling comes four days after the tenth anniversary of the death of Nigerian author, television producer and environmental activist who was hanged for his environmental activism by the Nigerian military government of General Sani Abacha, provoking the immediate suspension of Nigeria from the Commonwealth of Nations.

Saro-Wiwa was a member of the Ogoni community of the Niger Delta whose lands have been subject to oil extraction since the 1950s. As president of the Movement for the Survival of the Ogoni People, Saro-Wiwa led a nonviolent campaign against environmental damage associated with the operations of multinational oil companies, including Shell.