Gas Flaring in Nigeria: The Decision of the Federal High Court in Context

by Engobo Emeseh

Although there has been jubilation in several quarters following the recent decision of the Federal High Court in Benin, presided over by Justice V. C Nwokorie, declaring the flaring of gas illegal, I have found in discussions that that there are questions in some quarters about the practicability of this decision in light of the technological and economic implications involved. A lot of these are people who are unaware of the nature and extent of gas flaring in Nigeria and the very long history of plans by the government and companies to end flaring by either re-injecting or utilising the produced gas. I therefore find that it is important to discuss the issue of gas flaring and the decision of the Federal High Court in the context of the Nigeria situation.

First, from a technological perspective, it is possible to stop gas flaring either through re-injection or utilisation. All that is needed is to set up the framework to achieve this. This may involve substantial investment and may be unsustainable economically if the volume of gas flared is not enough to recoup the investment. Even so, it may be a viable option on environmental or other grounds. There are countries such as the Netherlands where there is zero percent gas flaring.

However the issue of recouping investment does not arise at all in the case of Nigeria. Nigeria flares more gas than any other country in the world, both in absolute and proportionate terms and this is by no means an insignificant amount. It is estimated that the amount flared is about 2.5 bcf/d, which is about 75% of its produced gas. This would provide about 40% of Africa’s Gas consumption and perhaps meet the needs of the West African sub-region. In financial terms, at the average well head price of US$ 2.5 / MCF about US$6 million per day which amounts to about US$ 2 billion a year is being unnecessarily sent up in flames daily.

Flares are located close to local communities and people around these sites live in perpetual light and continuous noise. It is common to have places where there are two or more flare sites within a few hundred metres of each other. Quite apart from the heat and other discomforts arising from living close to these sites, various studies highlight the environmental and health impacts, including the risk of cancer and other respiratory problems from the gases emitted during flaring. A World Bank Report in 1995 suggested that low flare temperatures at some of the sites visited in Nigeria may result in incomplete combustion and consequently have more lethal effect.

While considerable investment is required to stop flaring, the issue of stoppage of flaring is not a sudden idea in Nigeria and both the companies and government have had more than enough time to evaluate and plan for the economic implications involved. The process has been on-going since 1969 and by 1983, companies were required to submit detailed plans on how they intended to re-inject or utilize the associated gas. The first legislation that prohibited gas flaring except with the permission of the Minister of Petroleum was in 1984. However, flaring simply continued unabated. Sometime in the mid 1990s, a target was set by both the companies and the government to stop flaring by 2008. The take-off of the Nigeria LNG project was expected to help towards greater utilization of gas. However, after almost four decades of planning, Shell has already announced that it will be unable to meet that target and has shifted the deadline by a year. In fact the company’s 2004 annual report showed an increase in the volume of its flared gas and hydrocarbon emissions. Some therefore believe that even this latter date may not be feasible. In any case, there have been so many shifts and inaction regarding this issue that many will only believe it when flaring actually stops.

The only reason why gas flaring continues at the rate it does in Nigeria is because of the lack of will to do so on the part of both the government and the oil companies. The environment and the well being of the local communities have for decades been sacrificed for short term economic benefits. But in real terms, especially to the nation, there is no long term economic benefit from continued flaring of gas which is nothing but a senseless waste of its resources. The unnecessary venting of this gas also makes no sense considering the concerns about climate change. Gas flaring in Nigeria is by no means a sustainable development of its petroleum resources.

For the local communities who live around these flares, their health and comfort is directly at stake. If indeed climate change does result in rises in sea levels, they, it will be, who will first be impacted considering that the Niger Delta is a wetland located at the mouth of the Atlantic Ocean, while the seat of power of the federal government and those who make decisions about the petroleum industry lies much further inland. The question really is how much is the lives and health of the millions who live in these communities worth?

For so long, these disenfranchised minority ethnic groups suffered in silence. More recently, their protests have usually been met with the might of the Federal security agencies. The United States has recently signed a pact with Nigeria to ensure security in the region, causing some to fear that this will lead to even more intimidation of the local communities. The Courts that ought to protect the rights of the individual have also in the past not been very helpful. This is because of strict application of the rules of locus standi which has meant that public interest litigation has not flourished in Nigeria as it has done in the Asian sub-continent. Therefore while this particular decision may not be enforced, it is however a victory for communities and environmental NGOs in the region who have fought so long for the recognition and alleviation of the n

egative impacts of oil operations on its environment and people.

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