Introduction

Climate change is the most puzzling and convoluted can of worms which humanity is facing. In the past, many of these climatic disruptions had occurred by natural phenomena, but from scientific studies, it is evident that most climatic changes which mankind is witnessing are likely to result from anthropogenic activities.

As a result, the whole world is facing significant risks from climate change, therefore to mitigate the impact and adaptation to climate changes are top most priority for humanity, and many policy makers believes that international environmental law including significant new principles such as the precautionary principle, the “polluter pays” principle and the principle of common but differentiated responsibility and similar other can be a tool to combat global climate change.

However many others believe that despite the proliferation of international environmental agreements, environmental degradation has continued and new environmental challenges have continued to emerge. Why is it that, despite the huge volume of international environmental law, the state of the global environment has continued to worsen? There are many complex reasons for this.

Climate Change and the Law

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 Climate Change Act 2021, 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). 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. 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 1.5°C temperature limit but could be with moderate improvements.

Nigeria’s Climate Change Act 2021 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 2°C and pursuing efforts to limit the temperature increase to 1.5°C 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 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 for 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 standi to environmental litigation. The Supreme Court held that the outdated technical rules of locus standi 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 to have the locus standi 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 the Federal Republic of Nigeria 1999, 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 favourable 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.

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:

1. 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);

2. 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 the courts 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 1999 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 of 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.

There are several necessary measures needed to operationalize the Act. This 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.

Furthermore, we saw the first concrete signs of a move towards ending coal and fossil fuel subsidies. Promises to begin tackling emissions of methane, which has great potential to slow climate change. Pledges to end deforestation – not new, yes, but this time backed with real money. A commitment to double funding to climate adaptation in developing nations. The finalization of the Paris rule book with agreement on article six around carbon markets. A shift in the engagement and role of the private sector, for example, the Glasgow Financial Alliance for Net Zero.

But not everybody was happy. Inside the negotiations, the glass was half full. Outside, it was half empty. I am sure we can all understand the anger shown on the streets of Glasgow and across the world.

When we add up the promises, we do not land, yet, at the required ambition to meet the 1.5 degrees Celsius goal of the Paris Agreement. We are still looking at a temperature rise well above 2 degrees Celsius this century. Such an increase in global temperatures would be catastrophic.

What is worrying is that we are still witnessing a credibility gap. Promises are piling upon promises. Sufficient action is not following. It is this credibility gap that means many people are deeply concerned. It is this credibility gap that sends our youth to the streets. It is this credibility gap that we must now close if we are to almost halve greenhouse gas emissions over the next eight years – which we must do to take 1.5 off life support.

The task before us is clear. The world must act, and not only make pledge and promise. We must put words into action and increase ambition.

Let us not forget that climate change is only one prong of an interconnected triple planetary crisis – the climate crisis, the nature and biodiversity loss crisis, the pollution and waste crisis. We must think of, and act upon, these elements as one crisis because they are often driven by the same unsustainable practices.

Tackling this global planetary crisis requires a whole-of-economy and a whole-of-society approach, one that reforms or recalibrates the entire system. It requires collaboration and solidarity across all sectors of society and across all nations. Failure to succeed will mean huge injustice and damage. I will not rehash the numbers and apocalyptic warnings here. You have heard them. You understand them. More and more of us are living them with every passing year.

The Role of the Law in Getting the Job Done

You have, no doubt, heard the maxim from Roman statesman and lawyer Cicero that the welfare of the people should be considered the highest law. This line is often quoted including by politicians with a background in the classics. This line is often quoted for a very good reason.

Even after thousands of years, the principle remains valid. The welfare of the people, not the short-term profits of corporations, not the personal ambitions of politicians, and not the compulsion of the super-rich to add to their fortunes, but the welfare of the people.

This, in essence, is what we are trying to achieve by tackling the triple planetary crisis. The welfare, peace and prosperity of our species, humanity. The welfare of every other species, over which we exert so much influence. The welfare of our natural world. The full force of the law must be brought to bear on achieving the goals we have set out.

Environmental rule of law sets the foundation to achieve this. Since the Rio Earth Summit in 1992, there has been rapid growth in environmental laws.

Over 170 countries now have environmental framework laws. Some 150 countries have established the right to a healthy environment in their domestic legal frameworks – either through their constitutions, laws, jurisprudence or participation in regional human rights treaties.

At the international level, the recently adopted Human Rights Council resolution recognizing a human right to a clean, healthy and sustainable environment raises the bar even higher.

To drive action on the triple crisis, laws need to do many things at many levels. They need to be clear and effective, inclusive, participatory, rights based and capable of facilitating a just transition to greener industries, phase out coal and other fossil fuels, remove harmful subsidies and regulate greenwashing.

Laws need to create enabling conditions for investment in climate-resilient and nature positive development, including clear reporting and disclosure frameworks and harmonized taxonomies for sustainable investment.

They need to facilitate the transition to net-zero pathways for the private sector, setting clear and predictable regulatory conditions. They need to clarify how carbon trading will be regulated domestically now that the Paris Rulebook is completed.

And let’s be honest. There is a big difference between passing a law and implementing it,  between passing a law and enforcing it, and between passing a law and the people complying with it. Environmental laws need to be implemented effectively, complied with and enforced by capable institutions and empowered citizens. Otherwise, they are meaningless.

An obvious starting point is for countries to review and strengthen their legal frameworks to make them fit-for-purpose to implement their commitments under the Paris Agreement. Good framework legislation helps put the right institutions in place. Enshrines stable and ambitious targets. Creates mechanisms for realizing these targets. Ensures proper oversight and accountability.

Beyond developing national framework legislation, we need a root and branch analysis and strengthening of laws relevant to all sectors – tax laws company laws, securities laws, trade practices laws, environmental laws, energy laws, land-use and planning laws, transportation laws, etc. You name virtually any law, and countries likely need to climate-proof it to see if it is climate friendly.

I am not going to run through every single law with specific suggestions. Let us instead look at framework climate laws, which over 30 countries, including the UK, have put in place. Good framework climate laws have many elements, which we do see signs of in countries across the globe;

1. Long-term emissions reduction targets for 2050 in line with science. Positive examples of this can be seen in Denmark, France, Germany, Norway, Sweden and the UK.
2. Intermediate and sectoral targets for 2030 in line with science. In the EU, the European Climate Law sets an intermediate target of reducing greenhouse gases by at least 55 per cent by 2030 compared to 1990 levels.
3. Risk and vulnerability assessments. The UK’s law requires five-year risk assessments and adaptation plans and provides for an independent evaluation of the same.
4. Climate change strategies and plans. Ireland’s law requires the preparation of a national mitigation plan to 2050, to be updated every five years based on national consultation.
5. Legislative backing of key policy instruments. France’s law, for example, includes a carbon tax and CO₂ emission performance standards.
6. Independent expert advice. Such as the UK’s Climate Change Committee, Ireland’s Advisory Council and Costa Rica’s Scientific Council on Climate Change.
7. Coordination mechanisms. For example, Kenya’s law establishes a National Climate Change Council, chaired by the President.
8. Stakeholder engagement. Colombia’s National Council for Climate Change and Peru’s law on the participation of indigenous stakeholders are good examples here.
9. The involvement of subnational government. Mexico’s law mandates states and municipalities to develop local decarbonization and adaptation programmes, for example.
10. Financing for implementation. Laws in France, Germany and Sweden connect the climate policy cycle with the annual budget process. Bangladesh’s laws, meanwhile, establish climate change funds for attracting public, private, national and international finance.
11. Measurement, reporting and verification. Mexico’s law mandates the development of a registry, methodologies and the system for monitoring, reporting, and verification of emissions.
12. Oversight. The UK’s law requires the secretary of state to report to Parliament annually on emissions, including a response to the independent scientific advisory body’s assessment on the status of implementation and further progress needed.

These twelve elements are all important, and it is heartening to see many of them emerging. But they form part of a jigsaw that must be pieced together in every framework in every nation – not scattered around the world where they do not form a full picture.

 Strengthening, Implementation, Compliance, and Enforcement.

To take this crucial step, countries need to invest in environmental rule of law. The UNEP’s International Advisory Council for Environmental Justice, in which Lord Carnwath participated, outlined by seven things:

Fair, clear and implementable laws, at every level, covering every sector.

Public participation in decision-making, and access to justice and information in environmental matters – in accordance with Principle 10 of the Rio Declaration.

Accountability and integrity of institutions and decision-makers, including through the active engagement of environmental auditing and enforcement.

Clear and coordinated mandates and roles, across and within institutions.

Accessible, fair, impartial, timely and responsive dispute resolution mechanisms. This includes developing specialized expertise in environmental adjudication, and innovative environmental procedures and remedies.

The Role of a Lawyer in the Fight Against Climate Change

Lawyers’ decision to work on climate is not merely an issue of personal preference, it is a duty. Greta Thunberg, the young Swedish climate activist says;

“The bigger your carbon footprint, the bigger your moral duty. The bigger your platform, the bigger your responsibility.”

Most of us lawyers have left behind an enormous carbon footprint. We also have significant platforms and a responsibility to use them for good. Our forefathers and mothers volunteered to defend our country in World War II and at other critical junctures in our history. It is now our turn to defend our common home.

Here are some ways that lawyers can make a difference in the campaign against climate change:

1. Legal and Policy Research

Curtailing each source of fossil fuel emissions requires rigorous factual and legal analysis and creative policy making.

For example, what powers do airports have to mandate biofuels to replace jet fuel? What city policies can promote electric vehicles and disincentivize gas-powered ones? How should city and country building codes be tweaked to keep natural gas out of new houses and to promote use of solar power in new construction? What incentive programs are necessary to develop electric airplane markets?

2. Litigation

Many legal violations pertaining to climate go unaddressed for lack of legal resources. For example, in Nigeria, people pollute the environment with a waste product without being prosecuted for same.

There is an opportunity to bring lawsuits to force them into compliance, but such suits would require significant lawyer time and creativity. No such suit has yet been brought for lack of legal resources.

3. Legislative Advocacy

Lawyers are needed to advocate for local and state government climate action. City, country and state governments make many decisions daily that bear on carbon emissions, usually with little or no citizen oversight.

These issues range from governments’ unnecessarily purchasing gasoline-powered vehicles, permitting new gas stations, paying for city staff to fly unnecessarily to far-away meetings, allowing destruction of valuable greenspace or encouraging driving by expanding the road system.

Legislative advocacy takes many forms, from organizing groups of citizens within a legislative district, to speaking to legislators, to testifying in favour of a bill, etc. More strong legislative advocates would make a big difference in passing state and local climate legislation. Many lawyers are skilled organizers, adept at rallying groups of people to a cause.

Citizen advocates need high quality research to guide their advocacy. Lawyers can help focus citizen advocacy on legally tenable strategies most likely to bear fruit.

4. Communication

Many lawyers are brilliant communicators, extraordinarily skilled at finding the narratives and language necessary to guide ordinary citizens to understand and act on unfamiliar and complex concepts.

These same skills are needed to generate public support for the rapid and far-reaching changes necessary to cut carbon emissions on an accelerated timetable.

5. Financially Supporting Climate Work

Organizations working on climate are grossly underfunded. Less than 2% of all charitable giving goes toward combatting climate change.

Some lawyers may wish to help the climate movement, but don’t want to leave behind their work. These lawyers can still make a big difference by donating a percentage of their income or a sizable chunk of a contingency fee to organizations working to improve the climate, and by tapping their networks to do the same.

6. Reducing the Bar and Bench’s Carbon Footprint

Lawyers and judges can slash the carbon footprints of their workplaces and their families. They should avoid organizing conferences, meetings and hearings in locations to which people have to fly, and they should incentivize participation by video wherever possible.

7. Working Through the Bar

Bar associations must step up as well. Decarbonization must become a focus of the bar. Climate working groups should be formed, and legal publications should regularly report on how lawyers are tackling climate issues.

It is no overstatement to say that we live in a time when the future of our society, and the natural world, are in grave peril. Lawyers must meet this challenge with energy, determination, skill and solidarity with all those who will be affected by climate change.

Lawyers are known for not going down without a fight, even when the odds are stacked against us. In the near future, your children or grandchildren may look you right in the eye and ask you, “What did you do about climate change?” That question must be answered now with action.

Recognition of the Mutually Reinforcing Relationship Between Human Rights and the Environment

We all have a role to play. If we each play our parts, we can get the job done.

To our policy makers, you know what needs to be done in terms of frameworks and legislation that gets us moving faster. It’s time to drive these solutions, over and above just talking about them.

To members of the judiciary, you are all climate judges now. The tidal wave of climate litigation is growing. There have been over 1,800 cases so far, including against fossil fuel companies. They will keep growing.

To law students, you are the people who will be hit the hardest, by the impacts to come. On the other hand, you are also the generation that will benefit the most of the international human right to a clean, healthy and sustainable environment. A safe climate, healthy nature, and pollution-free world are aligned to this right.

Your responsibility is to do whatever you can through the law to help your country and other countries transition to a safe climate and nature positive reality.

Law enforcement agencies, the Security agencies or Law enforcement agencies also have a crucial role to play in actualizing a healthy and sustainable environment. They are to ensure that environmental laws are properly enforced in order to achieve a pollution-free world.

Conclusion

Many people want to do the right thing. Many will do the right thing. But even these people need to be guided by laws and regulations. Equally, many people will not do the right thing, including those with the wealth and power to do great damage to the planet. History, and even the present, show this quite clearly that the law is the force, for good, that can shape and correct this behaviour.

Environmental rule of law will not just save us from climate disaster, it will make our lives better. It will guide us to a world of more equity and justice. A world of enough to go round. A world of greener jobs. A world of better human health. A world of trust in the government and our institutions. A world in which we preserve the wonder and diversity of nature. Fundamentally, a world of peace, security, and prosperity a world that safeguards the welfare of the people.

Given the upheaval we are facing right now, this world may seem very far away. But I say to you that it is far closer than you may think. And you, the community that shapes and serves the law, can help the whole world to reach out and grab it.

Reference

1. The Nigerian Oil Pipeline Act Cap 07 LFN 2004.
2. African Charter on Human and Peoples’ Rights.
3. The Constitution of the Federal Republic Nigeria 1999 (as amended).
4. https://www.abajournal.com/voice/article/7–ways–lawyerscan–join–the–fight–to–curb–climate–change
5. https://www.iucn.org/news/commission–environmentaleconomic–and–social–policy/202203/a–review–nigerias–2021climate–change–act–potential–increased–climate–litigation
6. https://www.unep.org/news–and–stories/speech/law–climatechange–and–welfare–people

About the Author

C.E Obielozie is a legal researcher and author and has numerous publications to his name. He writes from.