By Prof. Muhammed Tawfiq Ladan, Phd*
Countries around the world have increasingly adopted climate change laws over the last two decades. This is partially attributable to the dynamism in international climate negotiations but also a growing appreciation of the crucial role that national laws and policy measures play. Legislative instruments play a critical role in empowering governments to take urgent and strategic actions to mitigate and adapt to climate change and can significantly impact the growth of climate litigation in a particular jurisdiction.
In 2021, Nigeria promulgated the 2021 Climate Change Act, which provides a framework for climate actions at the national level. Most of the initiatives envisioned in Nigeria’s new Climate Change Act build on prior climate change policies, most of which were adopted in 2021 (i.e., the Revised National Climate Change Policy; national climate change programmes; the 2050 Long-Term Low Emission Vision; the First Nationally Determined Contribution; see here). The law is the first stand-alone comprehensive climate change legislation in West Africa.
In 2020, greenhouse gases (GHG) in Nigeria totalled 126.9 million tonnes (see country profile here). The energy sector accounts for the largest source of GHG emissions (60% of total emissions). In 2017, Nigeria’s GHG emissions per capita (including land use) was 3.37 tonnes of CO2 equivalent, far below the global average of 7 tonnes. GHG emissions for Nigeria in 2030 are estimated to be 435 million tonnes of CO2 equivalent, representing a 31% increase in total emissions between 2018 and 2030. In its revised NDC, Nigeria has recommitted to its unconditional contribution of 20% below business as usual by 2030 and increased its conditional contribution from 45% to 47% below business as usual by 2030, provided that sufficient international support is assured. The updated NDC covers an enhanced contribution by the waste and water resources sectors and articulates nature-based solutions. The Climate Action Tracker (CAT) rates Nigeria’s climate targets and policies as “almost sufficient,” indicating that its commitments are not yet consistent with the Paris Agreement’s 1.5oC temperature limit but could be with moderate improvements.
Overview of the Climate Change Act 2021
Nigeria’s 2021 Climate Change Act provides for an ambitious framework for mainstreaming climate actions in line with national development priorities and sets a net-zero target for 2050-2070. The Act codifies national climate actions by mandating the Ministry of Environment to set, among others, a carbon budget, keeping average increase in global temperature within 2oC and pursuing efforts to limit the temperature increase to 1.5oC above pre-industrial levels. It further approves of formulation of a National Climate Change Action Plan in every five-year cycle to ensure that the national emission profile is consistent with the carbon budget goals and prescribes measures for identifying actions for climate adaptation and mitigation.
The Act applies to both public and private entities within Nigeria’s territorial jurisdiction and directs both to implement mechanisms geared towards fostering a low-carbon emission, environmentally sustainable, and climate resilient society. The Act obligates any private entity with employees numbering 50 and above to put in place measures to achieve the annual carbon emission reduction targets in line with the Action Plan; and designate a climate change officer responsible for submitting annual reports to the National Climate Change Secretariats, at meeting its carbon emission reduction and climate adaptation plan.
The Act also establishes the National Council on Climate Change, chaired by the President of Nigeria, with members from both the public and private sectors, including members of the civil society, women, youth, and persons with disabilities. It empowers the Council with significant powers to coordinate national climate actions, administer the newly established Climate Change Fund, mobilize resources to support climate actions, and collaborate with the Nigerian Sovereign Green Bond in meeting Nigeria’s NDC. The Climate Change Fund is envisioned as a financing mechanism for prioritized climate actions and interventions. The promotion and adoption of nature-based solutions to reducing GHG emissions and mitigate climate change is encouraged.
Legislative oversight is enabled through the Secretariat’s obligation to partner with civil society organizations, promote climate education, report annually to the National Legislative Assembly on the state of the nation’s climate change activities, and evaluate reports on the performance of climate change duties by private and public entities in Nigeria. The Act also imposes obligations on ministries, departments, and agencies to establish desk officers for ensuring compliance with National Climate Change Action Plan. The Council can further impose obligations relating to climate action on public and private entities.
The Future of Climate Change Litigation in Nigeria
The Climate Change Act provides a solid framework for climate action to achieve Nigeria’s short, medium, and long-term goals on climate mitigation and adaption. Particularly relevant are the obligations imposed on public and private entities to promote low carbon economy and sustainable livelihood, as well as the responsibility of the Council and its Secretariat to partner with relevant stakeholders, especially civil society organizations. These measures provide a sound legal foundation for potential climate litigation. The Act makes it actionable to bring a claim for the potential failure of the Council to regulate offenses and penalties from non-compliance with the climate obligations imposed by the new law on any person, private or public entity that acts in a manner that negatively affects efforts towards mitigation and adaptation measures made under the Act.
The Act empowers a Federal or State High Court, before which a suit regarding climate change or environmental matters is instituted, to make an order to: (a) prevent , stop or discontinue the performance of any act that is harmful to the environment; (b) compel any public official to act to prevent or stop the performance of any act that is harmful to the environment; (c) compensate victims directly affected by the acts that are harmful to the environment. These specifically include climate change harms.
Climate litigation citing the Act can also build on previous litigation efforts in Nigeria. Climate litigation in the country is still in its initial stages. In Gbemre v. Shell, the Federal High Court of Nigeria ruled that oil companies must stop gas flaring in the Niger Delta due to the flaring’s impact on the communities’ collective survival and its contribution to adverse and potentially life-threatening environmental effects, including acid rain. The court held that the practice of massive and unceasingly intense gas flaring in the community violates the citizens’ fundamental rights to life and human dignity guaranteed in the Nigerian Constitution and the African Charter. More recently, the Supreme Court of Nigeria, in Centre for Oil Pollution Watch v. NNPC, expanded the frontiers of locus standing to environmental litigation. The Supreme Court held that the outdated technical rules of locus standing should not be used to prevent an individual or group from bringing a matter of unlawful environmental conduct to the attention of the court. Every person, including NGOs, who bona fide seek the due performance of statutory functions or enforcement of statutory provisions or public laws, especially laws designed to protect human lives, public health and environment, should be regarded have standing to request adjudication on issues of public nuisance that are injurious to human lives, public health and environment.
Having read together the provisions of sections 20 and 33 of the Constitution of Nigeria (1999 Constitution, as amended) and Articles 16 and 24 of the African Charter on Human and Peoples’ Rights, the Court held that the right to a clean and healthy environment to sustain life is a fundamental human right of citizens and the State, owing the community (represented by the plaintiff) a duty to protect against noxious and toxicant pollutants from the exploration and production activities of oil companies. While the case broadly deals with environmental litigation, it is significant for future climate claims. Its significance lies in its purposive interpretation of the constitutionally guaranteed right to life, the constitutional obligation of the State to protect the environment and the right of all people to a general satisfactory environment favorable to their development guaranteed under the legally binding African Charter on Human and Peoples Rights, as a basis for recognizing the right to a clean and healthy environment and for establishing a range of qualitative human rights standards that Nigeria must observe in order to protect her citizens. Such purposive interpretation can be extended to climate litigation, because climate protection is a legal obligation under the Climate Change Act and a basic human right.
Potential avenue for rights-based climate litigation in Nigeria
This case law provides a baseline for future climate litigation that is grounded on the right to a clean and healthy environment. The possible interaction between rights-based climate litigation with climate litigation under the 2021 Climate Change Act lies in the following approaches:
- Any action against the State relating to its failure or inadequate implementation of the Act in a timely manner could be purposively interpreted as offending the constitutional fundamental rights to life (Section 33) which includes the right to a clean and healthy environment (Article 24 of the African Charter on Human and People’s Rights) and the right to human dignity (Section 34);
- These fundamental rights should be read together with the State’s constitutional obligation to protect the environment against harm (section 20) and the principles of: (i) equality of rights, obligations and opportunities before the law (Section 17(2)(a)); (ii) independence, impartiality and integrity of courts of law, and access to justice (section 17(2)(e)). These provisions should provide the necessary judicial toolkit to monitor the government’s response to climate change as mandated by the Act.
This conclusion is supported by the following statutory obligations of the courts in Nigeria to protect the environment and would fail in that duty if they do not facilitate the protection that the laws have put in place under sections 16(2), 17(2)(d) and (3) and 20 of the constitution and section 34(2) of the Climate Change Act, 2021 as well as Section 17(4) of the Oil Pipeline Act.
From a comparative perspective, this approach accords with the following features of the Pakistani case Leghari v. Pakistan:
- It represents a successful use of rights arguments as the legal foundations of a climate change claim;
- Its focus on government inaction to address adaptation challenges, as required by the country’s Climate Change Policy, 2012, which ties in closely with the human consequences of climate change;
- Its submission that climate protection is a legal responsibility of all levels of government and a basic human right of citizen; and that climate change posed a serious threat to water, food and energy security and ultimate harm to the vulnerable groups, point to its potential model for future rights-based, adaptation-focused litigation, likely to be more receptive as a persuasive authority by the Nigerian judiciary than systemic mitigation cases which focus on emission targets and carbon budgets approaches.
While there are several necessary measures needed to operationalize the Act, it demonstrates the seriousness with which Nigeria is approaching climate action. Being the first stand-alone comprehensive climate change legislation in West Africa and among few both globally and regionally, it has the potential to become a strategic tool for climate change advocacy and a legal foundation for potential climate litigation in Nigeria.
* This blog post is part of the Sabin Center’s Peer Review Network of Global Climate Litigation and was edited by Maria Antonia Tigre. Prof. Ladan is the national rapporteur for ECOWAS and Nigeria.