I. Introduction

Climate change is already having significant negative impacts across Africa, including on available natural resources, economies, security, and health.1 These impacts were portended in the Intergovernmental Panel on Climate Change (IPCC)’s assessment that Africa is one of the most vulnerable continents to climate change and its effects.2 For example, Nigeria is experiencing increasing incidences of climate change-related droughts, storms, conflicts, flooding, deforestation, loss of biodiversity, acid precipitation, forced migration, and sea-level rise, which negatively impact the nation’s socio-economic wellbeing.3 The Nigerian oil and gas industry is the nation’s major source of greenhouse gas (GHG) emissions through its massive gas flares,4 but is also the backbone of its economy.5 Indeed, Nigeria remains one of seven top gas flaring countries in the world that account for roughly 65% of global gas flare and, consequently, a significant amount of GHG emissions.6

Historically, the international community’s reliance on governments’ efforts to address climate change has hampered climate mitigation efforts.7 This is attributable to several factors, including the fact that: (1) ‘those seeking to end the problem [and who are arguably best positioned to do so] are also causing it’ by engaging in or permitting environmentally unsustainable development;8 and (2) efforts required to mitigate and adapt to climate change are often seen by governments as ‘expensive, unnecessary, futile, and remote from policies that yield immediate and politically popular economic benefits.’9 This failure has led to a global drive on the part of civil society actors to address the challenge of climate change through the courts,10 which approach has now been characterised as ‘climate change litigation.’11 Also, according to UNEP, as laws relevant to climate change which create new rights and duties have grown in number and specificity in the last decade, so has litigation challenging their validity and application, pressing governments to be more ambitious and thorough in their climate change approaches, and seeking to fill the gaps left by legislative and regulatory inaction.12

Climate change litigation does not negate the importance of policy and legislative measures. Rather, it can be an effective complementary tool in efforts to tackle climate change.13 Considering that state-based measures are lagging behind the rapidity of climate change, it has been argued that ‘the practice of law can move things forward and initiate much needed legal developments.’14 As Onyeabor et al have argued, climate change litigation ‘provides an alternative and attractive pathway to encourage mitigation of the causes and adaptation to the effects of climate change.’15 Indeed, successful climate change litigation – in the US, Australia, and several countries across Europe and Africa, among others16 – have forced the executive and legislative arms of several governments, as well as major private GHG emitters, to act or refrain in favour of addressing climate change.17 Even where the cases were not successful, they have nevertheless raised awareness about areas in need of reform,18 or provided an avenue for beneficial public participation in the climate change regulatory and governance process.19

In light of the above, this paper aims to assess the status and, more importantly, the future of climate change litigation in Nigeria given the recent Nigerian Supreme Court’s decision in the case of Centre for Oil Pollution Watch (COPW) v Nigerian National Petroleum Corporation (NNPC).20 As will be demonstrated hereunder, over the years climate change litigation in Nigeria has been impeded by a weak climate change regime, an unduly restrictive standing rule, and a judicial attitude that has privileged the economy over the environment.. However, the COPW case marks a sea change in Nigerian environmental and climate litigation: Firstly, it liberalizes the age-long restrictive standing rule by introducing environmental public interest litigation; secondly, it clearly indicates a major shift in the attitude of the court, from a pro-economy to a ‘greener’ approach to climate matters; and thirdly, it freshly and firmly establishes alternative constitutional and human rights grounds for addressing environmental and climate issues.

To achieve the aforementioned aim of this paper, the second section provides an overview of available climate change legislation and policies in Nigeria. The third section discusses the current status of climate change litigation in Nigeria, while the fourth analyses the future of climate change litigation in Nigeria considering the court’s decision in the case of COPW v NNPC. The fifth section is the conclusion.

II. An Overview of the Climate Change Regulatory Framework in Nigeria

The availability and quality of a national climate change regulatory framework (that is, legislation in particular, and policies to a lesser extent) reveals the level of the government’s commitment (particularly, the executive and legislative arms) to tackling the phenomenon. It may also determine the possibility and effectiveness of climate change litigation (before the judicial arm). In other words, a clear and direct climate change regulatory framework is likely to encourage and engender successful climate change litigation.21

Given that Nigeria is not only highly vulnerable to the diverse negative effects of climate change, but is already experiencing these, one would expect that over the years it must have evolved a reasonably coherent, efficient and effective climate change regulatory framework. However, unlike Kenya and some other countries,22 Nigeria has no binding, detailed legislative instrument specifically focused on climate change that creates a foundation for unified national action with respect to mitigating and adapting to climate change. Such a foundation can be achieved by legislation that articulates targets, standards, duties, monitoring and reporting requirements, penalties, and institutional regulatory powers among other measures specifically designed to ensure climate change mitigation and adaptation. Importantly, such specific climate change laws, compared to general environmental laws, could be relied upon to legally challenge policies, projects or activities that do not give inadequate consideration to climate change.

Attempts by the Nigerian government to provide legislation specifically targeting climate change has so far not been successful. For example, there was a rather insipid National Climate Change Commission Bill, 2007,23 that mainly aimed to create a National Climate Change Commission, but it was never passed into law by the Nigerian National Assembly. There is currently a relatively broad Climate Change Bill 201724 before the National Assembly that seeks to provide a legal framework for mainstreaming climate change responses and actions into government policy formulation and implementation at the federal, state and local government levels.25 The Bill establishes the National Climate Change Council (amongst other bodies) to coordinate climate change governance in the country,26 which may include imposing additional climate change duties on any public or private entity in Nigeria.27 Private persons are empowered to enforce these duties against such entities in court;28 indeed, this opportunity has the potential to foster the rapid growth of climate litigation in Nigeria. An earlier version of the Bill was passed by the National Assembly but was rejected by the President in 2019 due to disagreements over a few of its provisions. The latest revised version of the Bill is slowly making progress on the floor of the National Assembly.29

Despite the absence of specific climate change legislation in Nigeria, there are several laws relevant to climate change. The African Charter on Human and People’s Rights (Ratification and Enforcement) Act30 (the African Charter Act) domesticates the African Charter on Human and People’s Rights.31 This Act provides in Article 24 that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’, thus establishing a statutory environmental right that could prove useful in a climate litigation strategy. The 1999 Nigerian Constitution (as amended)32 does not expressly provide for a similar environmental right, but makes provision for environmental protection in Section 20 which is generally non-binding. The utility of the statutory environmental right will, however, depend on the judiciary’s approach to this protected right.

The Environmental Impact Assessment (EIA) Act33 aims to mainstream environmental-related concerns into development decisions, including through EIA studies and public engagement.34 While such a process can be used to prevent or limit the climate change effects of potential projects and activities, the provisions of the Nigerian EIA Act are on their own generally too weak and outdated to effectively deliver on this aim,35 and the Act is currently undergoing extensive review.36 The Associated Gas Re-injection Act37 could also feature in climate litigation. Section 3 of the Gas Re-injection Act provides for the cessation of gas flaring, but also gives the Minister of Petroleum unduly wide powers to authorize a company to flare gas with conditions and upon the payment of such fees as prescribed by the Minister. Unfortunately, the Minister has consistently elected to exercise his powers in favour of the presently cheaper and more environmentally-unfriendly option of allowing large-scale gas flaring.38 This is because requiring oil companies to modernise and ‘green’ their production processes is an immediately more expensive option, which is likely to negatively affect government’s revenue from the industry in the short-term as it is a major stakeholder in the foremost oil companies under various joint venture agreements.39

Apart from legislation, there are a few policy measures to guide government action in this context. In 2012, the Federal Executive Council adopted the Nigeria Climate Change Policy Response and Strategy.40 The strategic goal of this policy strategy is to foster low-carbon, high growth economic development and build a climate-resilient society through the attainment of objectives that include implementing mitigation and adaption measures.41 Also, as reflected in its Intended Nationally Determined Contribution (INDC), Nigeria has voluntarily committed to the reduction of greenhouse gases under the Paris Agreement (unconditionally by 20% and conditionally on receipt of climate finance, by 45%).42 However, as this commitment is not domesticated through legislation in accordance with Section 12 of the Nigerian Constitution,43 the courts cannot compel the Nigerian government to comply with it.

A section of the revised 2016 Nigerian National Policy on the Environment44 also addresses climate change specifically. In tacit recognition of the fact that the regulatory framework for climate change in Nigeria is weak in several aspects and requires considerable improvement, the 2016 Policy contains the government’s commitment to domesticate the UNFCCC, implement the NDC and Paris Agreement, mainstream climate change consideration into all sectors of the economy, and strengthen national climate change institutions and governance.45 But similar to the NDC, the Nigerian Environmental Policy is not justiciable and could not ground an action in court.

Form the above, it is clear that aspects of the regulatory framework relevant to climate change in Nigeria could potentially be exploited to provide support for climate litigation. However, the regulatory framework in general leaves much to be desired, as it does not lend itself to easy and adequate support for climate litigation. This because, among other issues, the framework lacks detailed actionable measures to directly address climate change, several of the existing legislative Acts are weak and create opportunity for climate-unfriendly activities to thrive, and aspects of the framework with key provisions, like the INDC, are non-justiciable.

III. The Status of Climate Change Litigation in Nigeria

The prominent cases in Nigeria that may be termed climate change-related involve individuals and NGOs taking legal action against public and private entities in the oil and gas industry on an issue directly related to climate change. At the forefront is the 2005 case of Gbemre v Shell Petroleum Development Company Nigeria Ltd and Nigerian National Petroleum Corporation, and Ors.46 While this is usually the only Nigerian case recognized in prominent climate law databases47 and literature48 as climate litigation given its explicit reference to ‘climate change’, there are a few other cases (discussed below) that add to this oeuvre considering their direct and immediate relevance to climate change.49

In Gbemre, the Federal High Court50 adopted a constitutional human rights approach to gas flaring for the first time. In this case, coming under a simplified constitutional procedure for enforcing human rights,51 the Plaintiff, Gbemre, acting in both an individual capacity and on behalf of his community, alleged that the oil production activities of the Defendants (private and government-owned companies), particularly gas flaring, violated their human rights to life and dignity considering the adverse effect of such activities on their health and immediate environment. Importantly, the Plaintiff cited, amongst others, the contribution of gas flaring to climate change and its impact on his community as a basis for their constitutional and human rights claims.

The court held, inter alia, as follows: (1) that the rights to life and dignity of the human person guaranteed under Sections 33(1) and 34(1) of the Nigerian Constitution, and reinforced by Articles 4, 16 and 24 of the African Charter Act, ‘inevitably included the right to clean poison-free, pollution-free and healthy environment’; and (2) that the actions of the Defendants in continuing to flare gas in the course of their oil production activities in the Plaintiff’s community violated their rights to life (including healthy environment).52 In reaching its decision the court referenced and reaffirmed the Plaintiffs’ assertions in their affidavit that ‘gas flaring leads to the emission of carbon dioxide, the main greenhouse gas’ and ‘contributes to adverse climate change’.53

The court’s order ‘restrained [the Defendants]… from further flaring of gas in… [Plaintiff’s] Community’ and ordered them ‘to take immediate steps to stop the further flaring of gas.’54 It also ordered the federal government to take steps to legally, expressly and permanently prohibit gas flaring in Nigeria, while declaring that Section 3 of the Associated Gas Re-Injection Act (and any other legislation) (which allows the Minister to authorize gas flaring, as noted above) is inconsistent with the aforementioned provisions of the Nigerian Constitution and the African Charter Act, and is thus unconstitutional, null and void by virtue of Section 1(3) of the Nigerian Constitution.55

The Respondents appealed the Federal High Court decision in the Court of Appeal, but the appeal was never heard. On this issue, Roderick of the Climate Justice Programme56 noted that the appeal ‘litigation is mind numbingly procedural [and actually gives the Appellant companies the chance to delay and frustrate the appeal], as if there is too much fear to deal with the substantive issue’,57 considering that it may have led to a barrage of successful litigation against oil companies and the government. While the Respondents and the government ought to have complied with the order of the Federal High Court in the interim, as there was no effective subsisting order for a stay of execution, this did not occur.58All efforts by the Plaintiff’s counsel to enforce the judgment have failed,59 in a manner that not only suggests the complicity of law enforcement agencies and the judiciary, but is reflective of the latter’s ‘economy-over-environment’ approach to justice.60

Therefore, considering that the appellate process was not exhausted, the fresh approach taken in the Gbemre case is mainly of persuasive value as higher courts and those of coordinate jurisdiction may reach different conclusions in a similar case. It should be noted that the quality of the judgement of the Federal High Court has been questioned on some technical grounds,61 including its ‘sparseness’ and the fact that ‘it does not explicitly analyze the question of whether and under what circumstances climate change impacts can provide a basis for finding a violation of that right.’62 Nevertheless, it remains a landmark decision in Nigeria and the position taken on the substantive issues is difficult to fault. It is a clear departure from the generally rigid, traditional, economy-over-environment posture of Nigerian judges in such matters,63 and accords with the growing global norm of reading environment-related agendas into traditional human right norms and making real efforts to ensure that development progresses in an environmentally sustainable manner.64

Regrettably, the Nigerian courts have generally maintained a default attitude of placing the economic interests of the oil and gas industry way above the need to ensure environmental and climate justice in relation to the activities in the industry.65 For instance, in the case of Chinda v Shell-BP,66 (an action under the common law tort of negligence), the Plaintiff’s demand for a court injunction restraining the Defendant from carrying out further gas flaring activities close to his village was rejected. The gas flaring had contributed to the destruction of the Plaintiff’s land, houses and trees, but the court found that the demand was ‘absurdly and needlessly wide.’67 The outcome in this case was emblematic of the ‘inexcusable reluctance’ of Nigerian courts in general to grant an injunction against the polluting activities of oil and gas companies in order not to hinder their economic output,68 while being willing to only order (relatively light) compensation for the damages suffered by the plaintiff in some deserving cases.69 Instructive for Nigerian courts is the observation by the US Supreme Court in the case of Amoco Production Co. v Village of Gambell, Alaska,70 that environmental injury, considering its nature, can seldom be adequately remedied by monetary compensation and is often permanent or long lasting, and therefore the issuance of an injunction is critical to protecting the environment.

Another climate-related litigation matter – that was unsuccessful due to the court’s application of an unduly restrictive standing rule – concerns the Nigeria Liquified Natural Gas (NLNG) project, for which some background information is important. The NLNG project was incorporated in 1989 – with production commencing in 1999 - as a joint venture company by the Nigerian government and some multinational oil companies. The project aimed to harness and monetize Nigeria’s vast natural gas resources by converting associated gas that would have been flared in the process of crude oil production to the cleaner Liquified Natural Gas (LNG) and Natural Gas Liquids (NLG) for export and sale.71 The NLNG project is perceived as Nigeria’s most significant response to climate change, reportedly reducing drastically the country’s flare profile.72 Indeed, while the Nigeria is unenviably still the seventh largest flaring country, the World Bank has noted its steady progress in reducing gas flaring ‘by some 70 percent over the past 15 years… from over 25 bcm in 2000 to close to 7 bcm in 2020, while oil production has remained essentially flat at around 2 million barrels a day.’73 Though a ‘greening’ mechanism, the NLNG project could also be a source of avoidable GHG emissions (in the course of gas production and transportation),74 and could be made ‘greener’ and less environmentally harmful if basic procedural requirements for its establishment or expansion are followed.

The NLNG project got off to a shaky start when a civil society Plaintiff sued the Defendants (several oil companies and the Nigerian federal government) for non-compliance with the procedural requirements of the EIA Act (including public participation in the EIA process) in the 1997 case of Oronto Douglas v Shell Petroleum Development Company Nigeria Limited and Ors.75 The Federal High Court struck the case out on the ground that the Plaintiff had no standing to sue. The court, applying the restrictive Nigerian standing rule to discard the Plaintiff’s claim, held that the Plaintiff could show no prima facie evidence that his private right was affected or that any direct injury had been caused to him by non-compliance with the EIA Act.76

The court disregarded that argument that Douglas had both a private interest in the suit as a native of a village affected by the project, and a public interest as a well-known environmentalist. Although a retrial of the case was later ordered for other reasons by the Court of Appeal,77 it did not take place because the project had already been completed by the time the Court of Appeal gave its judgement.78 However, Ogowewo rightly posited that a retrial would have made no difference to the outcome if the plaintiff failed to show how his private legal right had been violated; he stressed that ‘[i]t makes no difference that section 7 of the [EIA] Act makes provision for public involvement in the decision-making function of the environmental agency, since this does not confer a civil right’ at least going by the courts’ restrictive jurisprudence on the ‘civil rights’ test that formed the basis for the historically restrictive standing rule in Nigeria.79

Indeed, the possibility of an individual bringing a successful action for breach of the EIA Act, or any other environmental or climate change-related law, against an entity is curtailed by the highly restrictive and commonly applied standing rule, which has frustrated many environmental cases in Nigeria.80 To be clear, according to the court-created rule, standing will only be accorded to a plaintiff who shows that his/her ‘civil rights’ – narrowly construed by the courts to mean ‘private legal right’ – have been or are in danger of being violated or adversely affected by the act complained of.81 Undeniably, this standing rule has had a ‘court-closing’ effect, and it ‘immunizes from judicial review a substantial aspect of the [non-]exercise of governmental power’.82 This strict standing rule constitutes a major barrier to environmental and climate change litigation in Nigeria, as it does not admit public interest ligation or any action not completely based on one’s private legal rights even where it is clear that an environmental and climate change-related law has been breached in a manner that unduly contributes to adverse climate change.

The analysis above clearly reflects the fact that Nigerian courts have generally not been sufficiently ‘green’, given their usual conservative and restrictive approach to environmental and climate change-related cases and their tendency to weigh economic considerations above those of environmental and climate change.83 Considering this discouraging judicial posture, potential environmental and climate change litigants are usually wary of approaching the courts with their grievances. A one-time head of the Nigerian judiciary, Chief Justice Mohammed Uwais, acknowledged as much when he noted that: ‘[t]he greatest deterrent to prosecution of [oil-related] environmental damage in Nigeria today is skepticism with which prosecutors are likely to approach the courts having regard to what is known of the judicial posture.’84 He therefore urged Nigerian judges to ‘assimilate and understand the evidence before them’ and ‘apply “new” principles such as sustainable development and other germane environmental consideration to issues in a way that goes [beyond] an unflinching devotion to the [traditional common law] principles of nuisance, negligence and trespass.’85

IV. The Future of Climate Change Litigation in Nigeria – COPW v NNPC in Focus

The above analysis shows that, though it might have a role to play, climate change litigation is in its infancy in Nigeria. As discussed above, the potential to bring climate change-related cases has been hampered over the years by the lack of an adequate climate legislative regime, an unduly restrictive standing rule and a discouraging judicial posture to environmental claims. It was also made obvious that a variety of changes – especially in the attitude of Nigerian courts to climate-related claims – are required to engender the growth of (successful) climate change litigation in Nigeria, and to realize its climate change mitigation and adaptation potential more fully and effectively. In this section, it is argued that some of these required changes, which were proposed in earlier research,86 are reflected in the 2018 judgement of the Nigerian Supreme Court in the case of COPW v NNPC, in a manner that, compared to the preceding situation, indicates a brighter future for climate change litigation in Nigeria.

In that case, the Appellant NGO, Centre for Oil Pollution Watch, commenced legal action against the Respondent, Nigerian National Petroleum Corporation (the Nigerian government’s national oil company) in the Federal High Court, over an oil spillage in Acha Community of Abia State, Nigeria, allegedly caused by the Defendant’s negligence. The NGO claimed that the oil spillage had negatively affected the community and its environment, including contaminating two streams that were the major sources of water supply to the community. The NGO therefore claimed: (1) the reinstatement, restoration and remediation of the impaired and/or contaminated environment, especially the two streams; (2) the provision of potable water supply to the community as a substitute for the contaminated streams; and (3) provision of medical facilities for the evaluation and treatment of affected victims of the oil spillage.

The Respondent challenged the locus standi of the Appellant to institute the action, and sought an order striking out the suit in limine. On the basis of this application and the strict rule on standing, the trial court determined in its ruling that the Appellant had no standing to sue, and it struck out the suit. Dissatisfied, the Appellant appealed the ruling to the Court of Appeal which dismissed the appeal and reaffirmed the ruling of the trial court. Still dissatisfied, the Appellant appealed to the Supreme Court – the highest court in the land, beyond which no appeal lies – which unanimously granted the appeal in favour of the Appellant, and remitted the matter back to the trial court for the determination of the substantive matter. In arriving at this landmark decision, the dynamic and multifaceted reasoning of the Supreme Court indicates a paradigm shift in the judiciary’s attitude to environmental and climate change-related matters, as explored below.

1. The Liberalization of the Rule of Standing

In deciding that the Appellant NGO had the standing to sue the Respondent, the Supreme Court effectively broadened the rule of standing. It arrived at this decision, based on several considerations, including: the views of some amicus curiae invited by the court to address it on extending the scope of locus standi for environmental matters; global trends and the liberalization of standing by the English courts and other common law jurisdictions; and the writings of academic scholars.87

COPW v NNPC effectively creates an opening for public interest litigation on environmental issues in Nigeria.88 In this regard, the court held that ‘public-spirited individuals and organizations’ (that is, those, like environmental/climate change NGOs and activists, acting in the interest and for the good of the public, and not in their personal interest) can bring an action in court against relevant public authorities and private entities to demand their compliance with relevant laws and to ensure the remediation, restoration and protection of the environment.89 It further recognized that they have sufficient interest in ensuring that public authorities and private entities submit to the rule of law, especially as ‘no particular person owns the environment’ which is in fact a public good.90 ‘Accordingly, 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 [the] environment, should be regarded as proper persons clothed with standing in law to request adjudication on such issues of public nuisance.’91

This COPW decision, greatly improves the chances of more climate change litigation in Nigerian courts in future, and of these cases being successfully prosecuted to achieve climate justice. In effect, Nigeria joins other countries like Kenya where environmental public interest litigation is evolving to enable better public access to climate justice, hitherto largely frustrated by restrictive standing rules.92 Indeed, as noted earlier, the usual deterrent ‘judicial posture’ had been a source of discouragement for potential litigants of environmental and climate change issues, and some of those who braved the odds to approach the court had their petitions struck out for lack of standing to sue. The Supreme Court also acknowledged that recognizing public interest litigation will help to address some other barriers to access to justice, as poor communities without ‘the financial muscle to sue’, which usually and disproportionately bear the brunt of environmental and climate change problems, will have the benefit of public-spirited persons and organizations fighting their cause.93

The utility of this landmark decision is evident in the fact that if the same set of facts as those in the Oronto Douglas case (discussed above) were to present themselves today, the new rule on public interest litigation would have enabled him, as one suing for the public good, to compel Shell and the government to comply with the EIA Act. In other words, future ‘Oronto Douglas’’ will no longer have their environmental and climate change actions struck out for want of proof of any effect on their ‘private legal rights’ arising from the actions or omissions that are the subject matters of their complaint. This creates an invaluable opportunity for entities like NGOs and persons maintaining an action for public good to subject to judicial review, decisions, actions and inactions of government and private entities which simply do not comply with climate-related laws, or adversely affect or threaten the physical environment and climate, but does not necessarily affect or threaten the ‘private legal rights’ of humans as it relates to their direct, personal environmental interests. Indeed, this change is a materialization of the decades-old popular view expressed by Tobi JCA (as he then was) in the case of Busari v Oseni,94 that the concept must move with time and in the spirit of a dynamic society to be able to address unique and evolving, challenging circumstances in society and the litigation process.

2. Raising the Profile of Climate Change Concerns

It is important that the judiciary is reasonably knowledgeable on climate change issues and expressly considers it as a critical challenge worth addressing. In other words, where generally the judiciary does not consider climate change as a critical challenge, it is more likely – like the Nigerian judiciary over the years – to unduly prioritize economic and other interests at the expense of environmental and climate change concerns. The same applies to the executive branch of government – for instance, the non-recognition by Donald Trump’s administration of climate change as a critical global challenge, led the US to withdraw from relevant international climate change regimes.95

Hence, according to Fagbonhun, even though ‘one or two lower courts in recent times have in Nigeria shown deference to the green culture and… given judgements geared towards protection of the environment…[it] is respectfully submitted that such an approach may not go too far. What is required is for the Supreme Court as the apex court, to set the tone for other courts to follow.’96 The Supreme Court in the case of COPW v NNPC has begun, in a significant manner, to set the tone of environmental and climate change enlightenment in the judiciary. Apart from its relaxation of the hitherto restrictive rule on standing and its recognition of public interest litigation in environmental matters, the Supreme Court, for the first time, made some striking statements in recognition of key concepts and concerns in a manner that can only be beneficial to future climate change litigation, and which formed part of the bases for relaxing the rule on standing. Particularly, the court noted that:

Indeed, the above references to ‘climate change’, ‘global warming’, and the need to protect the interests of ‘present and future generations’, are delightfully new terminologies from the Nigerian apex court, especially in the context of their usage in that case. This serves as a clear recognition by the apex court of the challenges of climate change and global warming, and the fact that the courts have a key role to play in tackling these challenges for the benefit of present and future generations.99 To be sure, if properly construed, this decision of the Supreme Court is a ‘marching order’ for lower courts (and itself) to change their historical posture of ‘economy-over-environment’ – as evident in the Chinda case, referred to earlier, and others – and be driven by the need to ensure sustainable development through their judgements. This new approach which expressly raises the profile of climate change concerns within the Nigerian judiciary, is a significant encouragement for genuine future climate change litigators, as it arguably paves the way for increased climate change litigation and justice in Nigeria.

3. ‘Greening’ the Constitution and Confirming Environmental Human Rights

In COPW v NNPC, the Supreme Court also made significant strides in ‘greening’ the Nigerian Constitution and confirming the existence and enforceability of environmental human rights in Nigeria, in a manner that increases the possibility of successful climate change litigation in the country, especially (but not only), by allowing public interest litigation. To be sure, the Supreme Court and other lower courts,100 have confirmed in much earlier non-environmental cases that the African Charter in general is enforceable in Nigeria having been properly domesticated through the African Charter Act, in accordance with the Nigerian Constitution (as earlier noted).101 But in COPW v NNPC, the Supreme Court had the opportunity to specifically confirm, for the first time, that Article 24 of the African Charter – which provides that ‘[a]ll peoples should have the right to a general satisfactory environment favourable to their development’ – is indeed enforceable before the Nigerian courts.102

An important effect of the judgement above is the final resolution of the rather unfounded doubt of some lawyers and scholars in Nigeria. They erroneously argue that since Section 20 of the Nigerian Constitution103 on environmental protection is generally non-justiciable, Article 24 may not be considered to have ‘elevate[d] environmental rights from non-justiciable to justiciable.’104 They further opine that the environmental right in Article 24 ‘may be an illusion’,105 as it appears inconsistent with the Constitution that is superior to the Charter.106 Indeed, Article 24 (and other provisions of the Charter) complements, and is not in conflict with, the Constitution, as the latter in Section 12 makes room for its adoption into the body of enforceable Nigerian laws.107

Contrary to established belief, in COPW v NNPC the Supreme Court specifically held that Section 20, Chapter II of the Nigerian Constitution dealing with environmental protection is justiciable.108 According to Section 6(6)(c) of the Constitution, the provisions in Chapter II are non-justiciable, ‘except as otherwise provided by this Constitution’. The Supreme Court, relying on earlier decisions on the point,109 held that the aforementioned proviso in Section 6(6)(c) meant that the section did not render Chapter II absolutely and totally non-justiciable, and that it is possible for other provisions of the Constitution to make sections of the Chapter II justiciable.110 Thus, as Section 4(2) of the Constitution empowers the National Assembly to make laws to promote and enforce the observance of matters contained in Chapter II,111 this provision read together with the laws resulting therefrom and the specific provision(s) of Chapter II to which they relate, makes the later justiciable.112 On the basis of this reasoning, the Supreme Court held that Section 20 is justiciable when read together with, and in the context of, a provision like Section 4(2) and other environmental legislation made to ‘activate’ or give effect to Section 20.113

Furthermore, in COPW v NNPC, the most significant step of the Supreme Court in greening the Constitution is its explicit recognition, also for the first time, that Section 33 of the Nigerian Constitution which guarantee’s the ‘right to life’, implicitly includes and constitutes a fundamental right to a clean and healthy environment for all.114 This is because acts and omissions which degrade the environment and threaten the health of people also threaten their lives which all others have a constitutional duty to refrain from violating, and which the government has a duty to protect.115 This derivation of an environmental human right from the traditional right to life provision, which has been done by other courts around the world 116 is an additional and potentially effective tool for environmental and climate protection and justice.117

It is vital to note the further implication of the apex court’s (1) affirmation of the enforceability of the environmental right in Article 24 of the African Charter as domesticated by the African Charter Act (which the Supreme court has previously held to be superior to all other domestic legislation – given its international favour – and inferior only to the Constitution118), and (2) its explicit constitutionalization of environmental rights and duties via its progressive interpretation of Sections 20 and 33 of the Constitution. Indeed, if these aspects of the court’s decision are properly construed and applied, they will serve to raise the status of environmental and climate change-related claims in Nigeria vis-à-vis the usual competing economic interests that has swayed the Nigerian courts for years, and hopefully lead to court decisions that engender sustainable development.119

From several perspectives, these new constitutional and human rights approaches collectively provide a better alternative opportunity for climate change litigation in Nigeria, than common law torts mechanisms (such as nuisance and negligence) that also constitute platforms for private persons to possibly argue for climate justice through the courts. First, in the hierarchy of laws in Nigeria, they represent a stronger claim and a superior mechanism compared to common law mechanisms.120 This is because they are not limited by such defenses as ‘statutory authority’ and others (that in most cases unduly shield defendant emitters) which apply to and have increasingly weakened the effectiveness of common law mechanisms in providing protection against environment-related issues.121

Second, they are relatively easier to litigate upon in efforts to ensure environmental and climate protection, as they are not limited by several hurdles associated with establishing a tort in common law. For instance, a tort claimant in oil and gas litigation would have to prove, scientifically, the source of the pollution and causal link between the pollution and the specific injury suffered,122 which is a huge burden on injured parties and prevents positive outcomes for litigants and the environment.123 Third, while the relevant constitutional and human rights provisions can be deployed proactively to prevent acts and omissions with potential adverse or irreversible environmental and climate change effects, common law mechanisms are unfortunately reactive in nature as they can only provide remedies to the injured party after the pollution has occurred.124 This means they are of little use when irreversible harm has been done to the environment. In sum, while the expression of ‘right’ (and even ‘duty’) can more easily be interpreted creatively to provide solutions to evolving issues in changing contexts, common law torts mechanisms have developed more rigidly and their ‘remedies are inherently inadequate to…[address] contemporary environmental problems’ like ‘climate change’.125

Lastly, the decision in COPW v NNPC aligns with the constitutional human rights approach to environmental and climate protection taken by the lower court in Gbemre’s cases. It can arguably be relied on in future court actions seeking to render unconstitutional and void all legislative provisions, including section 3 of the Associated Gas Re-injection Act, which enable gas flaring and unsustainable development that leads to environmental degradation and adverse climate change. Indeed, this paradigm shift by the Supreme Court confirms and provides additional human rights and constitutional tools for addressing the challenges of global warming and climate change in Nigeria.126

V. Conclusion

This paper aimed to assess the status and, more importantly, the future of climate change litigation in Nigeria in light of the Supreme Court’s recent decision in the case of COPW v NNPC. Whilst the analysis of the few available cases – particularly on gas flaring – showed some attempt, and an almost successful one, in achieving a measure of climate justice, it revealed that litigation has not made a meaningful contribution to efforts to tackle adverse climate change in Nigeria. Some of the reasons for the persistence of this situation include, among others: a relatively weak domestic legislative regime relating to climate change that potentially works against, or has not substantially inspired or clearly supported adequate climate change litigation; a historically restrictive standing rule that has discouraged and made access to court in several environmental and climate change matters impossible; and the predominant conservative and economy-over-environment posture of the Nigerian judiciary..

The recent Supreme Court decision in COPW v NNPC demonstrates a significant positive paradigm shift in the attitude of the Supreme Court to environmental and climate change-related claims. This precedent binds lower courts and the entire Nigerian judiciary and could engender the growth of successful climate change litigation in Nigeria. In COPW, the Supreme Court liberalized the age-long restrictive standing rule by introducing public interest litigation in environmental matters. Secondly, it raised the profile of climate change claims by expressly recognising the challenges of climate change and the key role the courts had to play to address the situation. Thirdly, the Supreme Court, for the first time, explicitly constitutionalized environmental rights and duties via its progressive interpretation of sections 20 and 33 of the Nigerian Constitution, and specifically recognized the enforceability in Nigeria of the environmental right in Article 24 of the African Charter. This has the effect of raising the profile of environmental and climate change claims vis-à-vis other competing claims. Certainly, these changes portend a bright future for climate change litigation in Nigeria, and it is hoped that relevant future litigants and the courts will take full advantage of them in order to compel relevant private entities and the Nigerian government to adopt a sustainable and climate-friendly approach to development.