Environmental Impact Assessment Decree No. 86 1992

Environmental Impact Assessment Decree

No 86 of 1992

Laws of the Federation of Nigeria

10^th December1992

The Federal Military Government hereby decrees as follow: -

Part I

General Principles of Environmental Impact Assessment

1. The objectives of any environmental Impact assessment (hereafter in this Decree referred to as "the Assessment") shall be -

(a) to establish before a decision taken by any person, authority corporate body or unincorporated body including the Government of the Federation, State or Local Government intending to undertake or authorise the undertaking of any activity that may likely or to a significant extent affect the environment or have environmental effects on those activities shall first be taken into account;

(b) to promote the implementation of appropriate policy in all Federal Lands (however acquired) States and Local Government Areas consistent with all laws and decision making processes through which the goal and objective in paragraph (a) of this section may be realised;

(c) to encourage the development of procedures for information exchange, notification and consultation between organs and persons when proposed activities are likely to have significant environmental affects on boundary or trans-state or on the environment of bordering towns and villages.

2. (1) The public or private sector of the economy shall not undertake or embark on public or authorise projects or activities without prior consideration, at an early stages, or their environmental effects.

(2) Where the extent, nature or location of a proposed project or activity is such that is likely to significantly affect the environment, its environmental impact assessment shall be undertaken in accordance with the provisions of this Decree.

(3) The criterion and procedure under this Decree shall be used to determine whether an activity is likely to significantly affect the environment and is therefore subject to an environmental impact assessment.

(4) All agencies, institutions (whether public or private) except exempted pursuant to this Decree, shall before embarking on the proposed project apply in writing to the Agency, so that subject activities can be quickly and surely identified and environmental assessment applied as the activities being planned.

3. (1) In identifying the environmental impact assessment process under this Decree, the relevant significant environmental issues shall be identified and studied before commencing or embarking on any project or activity covered by the provisions of this Decree or covered by the Agency or likely to have serious environmental impact on the Nigerian environment.

(2) Where appropriate, all efforts shall be made to identify all environmental issues at an early step in the process.

4. An environmental impact assessment shall include at least the following minimum matters, that is -

(a) a description of the proposed activities;

(b) a description of the potential affected environment including specific information necessary to identify and assess the environmental effects of the proposed activities;

(d) an assessment of the likely or potential environmental impacts on the proposed activity and the alternatives, including the direct or indirect cumulative, short-term and tong-term effects:

(e) an identification and description of measures available to mitigate adverse environmental impacts of proposed activity and assessment of those measures;

(f) an indication of gaps in knowledge and uncertainly which may be encountered in computing the required information:

(g) an indication of whether the environment of any other State, Local Government Area or areas outside Nigeria is likely to be affected by the proposed activity or its alternatives;

(h) a brief and non technical summary of the information provided under paragraph (a) to (g) of this section.

5. The environmental effects in an environmental assessment shall be assessed with a degree of detail commensuration with their likely environmental significance.

6. The information provided as of environmental impact assessment shall be examined impartially by the Agency prior to any decision to be made thereto (whether in favour or adverse thereto).

7. Before the Agency gives a decision on an activity to which an environmental assessment has been produced, the Agency shall give opportunity to government agencies, members of the public, experts in any relevant discipline and interested groups to make comment on environmental impact assessment of the activity.

8. The Agency shall not give a decision as to whether a proposed activity should be authorised or undertaken until appropriate period has elapsed to consider comments pursuant to sections 7 and 12 of this Decree.

9. (1) The Agency's decisions on any proposed activity subject to environmental impact assessment shall -

(a) be in writing;

(b) state the reason therefor;

(2) The report of the Agency shall be made available to interested person or group.

(3) If no interested person or group requested for the report, it shall be the duty of the Agency to publish its decision in a manner by which members of the public or persons interested in the activity shall be notified.

(4) The Council may determine an appropriate method in which the decision of the Agency shall be published so as to reach interested persons or groups, in particular the originators or persons interested in the activity subject of the decision.

10. When the Council deems fit and appropriate, a decision on an activity which has been subject of environmental impact assessment, the activity and its effects on the environment or the provisions of section 9 of this decree shall be subject to appropriate supervision.

11. (1) When information provided as part of environmental impart assessment indicates that the Environment within another State in the Federation or a Local Government Area is likely to be significantly affected by a proposed activity, the State, the Local Government Area in which the activity is being panned shall, to the extent possible -

(a) notify the potentially affected State or Local Government of the proposed activity;

(b) transmit to the affected State or Local Government Area any relevant information of the environmental impact assessment:

(2) It shall be the duty of the Agency to see that the provisions of subsection (1) of this section are complied with and the Agency may cause the consultations provided pursuant to subsection (1) of this section to take place in order to investigate any environmental derogation or hazard that may occur during the construction or process of the activity concerned.

12. Editorial Note: there is no section 12 within this Decree.

13. (1) When a project is described on the Mandatory Study List specified in the Schedule to this Decree or is referred to mediation or a review panel, no Federal, State or Local Government or any of their authority or agency Shall exercise any power or perform any duty or functions that would permit the project to be carried out in whole or in part until the Agency has taken a cause of action conducive to its power under the Act establishing it or has taken a decision or issue an order that the project could be carried out with or without conditions.

(2) Where the Agency has given certain conditions before the carrying out of the project, the conditions shall be fulfilled before any person or authority shall embark on the project.

Part II

Environmental Assessment of Projects

14. (1) Notwithstanding the provisions of Part I of this Decree, an environmental impact assessment shall be required where a Federal, State or Local Government Agency Authority established by the Federal, State or Local Government Council -

(a) is the proponent of the project and does any act or thing which commits the Federal, State or Local Government authority to carrying out the project in whole or, impact;

(b) makes or authorises payment or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except when the financial assistance is in the form of any reduction, avoidance, deferral, removed, refund remission or other form of relief from the payment of any tax, duty or excise under Customs Tariff (Consolidated) Act or any Order made thereunder, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the enactment, regulation or order that provides the relief to be carried out;

(c) has the administration of Federal, State or Local Government and leases or otherwise disposes of those lands on or any tests in those lands or transfers the administration and control of those lands or invest therein in favour of the Federal Government or its agencies for the purpose of enabling the project to be carried out in whole or in part.

(d) under the provisions of any law or enactment, issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.

15. (1) An environmental assessment of project shall not be required where -

(a) in the opinion of the Agency the project is in the list of projects which the President, Commander-in-Chief of the Armed Forces or the Council is of the opinion that the environmental effects of the project is likely to be minimal;

(b) the project is to be carried out during national emergency for which temporary measures have been taken by the Government;

(c) the project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety.

(2) For greater certainly, where the Federal, State or Local Government exercises power or performs a duty or function for the purpose of enabling projects to be carried out an environmental assessment may not be required if -

(a) the project has been identified at the time the power is exercised or the duty or function is performed; and

(b) the Federal, State, or Local Government has no power to exercise any duly or perform functions in relation to the projects after they have been identified.

16. Whenever the Agency decides, that there is the need for an environmental assessment on a project before the commencement of the project the environmental assessment process may include -

(a) a screening or mandatory study and the preparation of a screening report;

(b) a mandatory or assessment by a review panel as provided in section 25 of this Decree and the preparation of a report;

17. (1) Every screening or mandatory study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors, that is –

(a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in taking into consideration with other projects, that that have been or will be carried out;

(b) the significance or, in the case of projects referred to in section 43 44 or 45, the seriousness of those effects;

(d) measures that are technically and economically feasible and that would mitigate any significant or, in the case of projects referred to in sections 43, 44, or 45 any serious adverse environmental effects of the project.

(2) In addition to the factors set out in subsection (1) of this Decree every mandatory study of a project and every mediation or assessment by review panel shall include a consideration of the following factors, that is –

(a) the purpose of the project;

(b) alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means;

(d) the short-term or tong term capacity for regeneration of renewal resources that are likely to be significantly or, in the case of the projects referred to in sections 43, 44 or 45, seriously affected by the project; and

(e) any other matter that the Agency or the Council at the request of the Agency, may re require.

(3) For greater certainty, the scope of the factors to be taken into consideration pursuant to subsection (1) (a), (b) and (d) and subsection (2) (b), (c) and (d) of this Decree shall be determined –

(a) by the Agency; or

(b) where a project is referred to mediation or a review panel, by the Council, after consulting with the Agency, when fixing the terms of reference of the mediation or review panel.

(4) An environmental assessment of a project shall not be required to include a consideration of the environmental effects that could result from carrying out the project during the declaration of a national emergency.

18. (1) The Agency may delegate any part of the screening or mandatory study of a project, including the preparation of the screening report or mandatory study report, but shall not delegate the duly to take a course of action pursuant to section 16(1) or 34(1) of this Decree.

(2) For greater certainty, the Agency shall not take a course of action pursuant to section16 (1) or 34(1) unless it is satisfied that any duty or function delegated pursuant to subsection (1) thereof has been carried out in accordance with provisions of this Decree or any relevant enactment.

19. (1) Where the Agency is of the opinion that a project is not described in the mandatory study list or any exclusion list, the Agency shall ensure that –

(a) a screening of the project is conducted; and

(b) a screening report is prepared.

(2) Any available information may be used in conducting the screening of a project, but where the Agency is of the opinion that the information available is not adequate to enable it to take a course of action pursuant to section 16(1) of this Decree it shall ensure that any study and information that it considers necessary for that purpose are undertaken or collected.

20. (1) Where the Agency receives a screening report and the Agency is of the opinion that the report could be used as a method of conducting screening of other project within the same class, the agency may declare the report to be a class screening report.

(2) Any declaration made pursuant to subsection (1) of this Decree shall be published in the Gazette and the screening report to which it relates shall be made available to the public at the registry maintained by the Agency.

(3) Where in the opinion of the Agency a project or part of a project is within a class in respect of which a class screening report has been declared, the Agency may use or permit the use of that report and the screening on which it is based to whatever extent the Agency considers appropriate for the purpose of complying with section13 of this Decree.

(4) Where the Agency uses or permits the use of a class screening report, it shall ensure that any adjustments are made that in the opinion of Agency are necessary to take into account Local circumstances and any cumulative environmental efforts that in the opinion of the Agency are likely to result from the project in combination with other project that have been or will be carried out.

21. (1) Where a proponent proposes to carry out, in whole or in part a project for which a screening report has been prepared but the project did not proceed or the manner in which it is to be carried out has subsequently changed or where a proponent seeks the renewal of a licence, permit or approval referred to in section 5(d) of this Decree in respect of a project for which a screening report has been prepared, the Agency may use or permit the use of that report and the screening on which it is based to whatever extent the Agency considers appropriate for the purpose of complying with section 13 of this Decree.

(2) Where the Agency uses or permits the use of a screening or screening report pursuant to subsection (1) of this section, the Agency shall ensure that any adjustments are made that in its opinion are necessary to take into account any significant changes in the circumstances of the project.

22. (1) After completion of a screening report in respect of a project, the Agency shall take one of the following courses of action, that is –

(a) where, in the opinion of the Agency;

(i) the project is not likely to cause significant adverse environmental effects, or

(ii) any such effect can be mitigated,

the Agency may exercise any power or perform any duty or function that would permit the project to be carried out and shall ensure that any mitigation measures that the Agency considers appropriate are implemented;

(b) where, in the opinion of the Agency;

(i) the project is likely to cause significant adverse environmental effects that may not be mitigable; or

(ii) public concerns respecting the environmental effects of the project warrant it,

the Agency; shall refer the project to the Council for a referral to mediation or a review panel in accordance with section 25 of this Decree; or

(c) where, in the opinion of the Agency, the project is likely to cause significant adverse environmental effects that cannot be mitigated, the Agency shall not exercise any power or perform any duty or function conferred on it under any enactment that would permit the project to be carried out in whole or in part.

(2) For greater certainty, where the Agency takes a course of action referred to in subsection (1) (a) of this section, the Agency shall exercise any power and perform any duly or function conferred on it by or under any enactment in a manner that ensure that any mitigation measures that the Agency considers appropriate in respect of the project are implemented.

(3) Before taking a course of action in relation to a project pursuant to subsection (1) of this section, the Agency shall give the public an opportunity to examine and comment on the screening report and any record that has been filed in the public registry established in respect of the project pursuant to section 51 of this Decree and shall take into consideration any comments that are filed.

23. Where the Agency is of the opinion that a program is described in the mandatory study list, the Agency shall –

(a) ensure that a mandatory study is conducted, and a mandatory study report is prepared and submitted to the Agency, in accordance with the provisions of this Decree; or

(b) refer the project to the Council for a referral to mediation or a review panel in accordance with section 25 of this Decree.

24. (1) Where a proponent proposes to carry out, in whole or in part, a project for which a mandatory study report has been prepared but the project did not proceed or the manner in which it is to be carried out has subsequently changed, or where a proponent seeks the renewal of a licence, permit or approval referred to in section 5(d) of this Decree in respect of a project for which a mandatory study report has been prepared, the Agency may use or permit the use of that report and the mandatory study on which it is based to whatever extent the Agency considers appropriate for the purpose of complying with section 17 of this Decree.

(2) Where the Agency uses or permits the use of a mandatory study or a mandatory study report pursuant to subsection (1) of this section, it shall ensure that any adjustments are made that in its opinion are necessary to take into account any significant changes i n the circumstances of the project.

25. (1) After receiving a mandatory study report in respect of a project, the Agency shall, in any manner it considers appropriate, publish in a notice setting out the following information –

(a) the date on which the mandatory study report shall be available to the public;

(b) the place at which copies of the report may be obtained; and

(2) Prior to the deadline set out in the notice published by the Agency, any person may file comments with the Agency relating to the conclusions and recommendations of the mandatory study report.

26. After taking into consideration the mandatory study report and any comments filed pursuant to section 19(2), the Council shall –

(a) refer the project to mediation or a review panel in accordance with section 25 of this Decree where, in the opinion of the Council -

(i) the project is likely to cause significant adverse environmental effects that may not be mitigable; or

(ii) public concerns respecting the environmental effects of the project warrant. it; or

(b) refer the project back to the Agency for action to be taken under section 34(l)(a) of this Decree where, in the opinion of the Council –

(i) the project is not likely to cause significant adverse environmental effects; or

(ii) any such effects can be mitigated.

27. Where at any time the Agency is of the opinion that –

(a) a project is likely to cause significant adverse environmental effects that may not be mitigable; or

(b) public concerns respecting the environmental effects of the project warrant it,

the Agency may refer the project to the Council for a referral to mediation or review panel in accordance with section 25 of this Decree.

28. Where at any time the Agency decides not to exercise any power or perform any duty or function referred to in section 19 of this Decree in relation to a project that has not been referred to mediation or a review panel, it may terminate the environmental assessment of that project.

29. Where at any time the Agency decides not to exercise any power or perform any duty or function referred to in section 25 of this Decree in relation to a project that has been referred to mediation or a review panel, the Council may terminate the environmental assessment of the project.

30. Where at any time the Council is of the opinion that –

(a) a project is likely to cause significant adverse environmental effects that may not be mitigable, or

(b) public concerns respecting the environmental effects of the project Warrant it,

the Council may, after consultation with the Agency, refer the project to mediation or a review panel in accordance with section 25 of this Decree.

31. Where a project is to be referred to mediation or a review panel under this Decree, the Council shall, within a prescribed period, refer the Council project –

(a) to mediation, if the Council is satisfied that -

(i) the parties who are directly affected by or have direct interest in the project have been identified and are willing to participle in the mediation through representatives, and

(ii) the mediation is likely to produce a result that is satisfactory to all of the parties: or

(b) to a review panel, in any other case.

32. Where a project is referred to mediation, the Council shall, in consultation with the Agency –

(a) appoint as mediator any person who, in the opinion of the Council possesses the required knowledge or experience; and

(b) fix the terms of reference of the mediation.

33. (1) In the case of a dispute respecting the participation of parties in a mediation, the Council may, on the request of the mediation, determine those parties who are directly affected by or have a direct interest in the project.

(2) Any determination by the Council pursuant to subsection (1) of this section shall be binding

34. (1) A mediator shall not proceed with a mediation unless the mediator is satisfied that all of the information required for a mediation is available to all of the participants.

(2) A mediation shall, in accordance with the provisions of this Decree, and the terms of reference of the mediation –

(a) help the participants to reach a consensus on

(i) the environmental effects that are likely to result from the project,

(ii) any measures that would mitigate any significant adverse environmental effects, and

(iii) an appropriate follow-up program;

(b) prepare a report setting out the conclusions and recommendations of the participants; and

35. Where at any time after a project has been referred to mediation the Council is of the opinion that the mediation is not likely to produce a result that is "satisfactory to all parties, the Council may terminate the mediation and refer the project to a review panel.

36. Where a project is referred to a review panel, the Council shall, in consultation with the Agency –

(a) appoint as members of the panel including the Chairman thereof, persons who, in the opinion of the Council, possess the required knowledge or experience; and

(b) fix the term of reference of the panel.

37. A review panel shall, in accordance with the provisions of this Decree and its terms of reference –

(a) ensure that the information required for an assessment by a review panel is obtained and made available to the public;

(b) hold hearing in a manner that offers the public an opportunity to participate in the assessment;

(i) the conclusions and recommendations of the panel relating to the environmental effects of the project and any mitigation measures or follow-up program, and

(ii) a summary of any comments received from the public; and

(d) Submit the report to the Council and the Agency.

38. (1) A review panel shall be the power of summoning any person to appear as witness before the panel and or ordering the witness to –

(a) give evidence, orally or in writing; and

(b) produce such documents or things as the panel consider necessary for conducting its assessment of the project.

(2) A review panel shall have the same power to enforce the attendance of witnesses and to compel them to give evidence and produce documents and other things as is vested in the Federal High Court or a High Court of a State.

(3) A hearing by review panel shall be in public unless the panel is satisfied after representation made by a witness that specific, direct and substantial harm would be caused to the witness by the disclosure of the evidence, documents or other things that the witness is ordered to give or produce pursuant to subsection (1) of this section.

(4) Where a review panel is satisfied that the disclosure of evidence documents or other things would cause specific, direct and substantial harm, to a witness, the evidence, documents or things shall be privileged and shall not, without the authorization of the witness, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, documents or other things pursuant to this Decree.

(5) Any summons issued or order made by a review panel pursuant to subsection (1) of this section may, for the purposes of enforcement, be made a summons or order of the Federal High Court by following the usual practice and procedure.

39. On receiving a report submitted by a mediator or a review panel, the Agency shall make the report available to the public in any manner the Council considers appropriate and shall advise the public that the report is available.

40. (1) Following the submission of a report by a mediator or a review panel or the referral of a project back to the Agency pursuant to section 30(b) of this Decree, the Agency shall take one of the following courses of action in relation to the project, that is –

(a) where in the opinion of the Agency -

(i) the project is not likely to cause significant adverse environmental effect, or

(ii) any such effect can be mitigated or justified in the circumstances,

the Agency may exercise any power or perform any duty or function that would permit the project to be carried out in whole or in part and shall ensure that any mitigation measures that the Agency considers appropriate are implemented; or

(b) where, in the opinion of the Agency, the project is likely to cause significant adverse environmental effects that cannot be mitigated and cannot be justified in the circumstances, the Agency shall not exercise any power or perform any duty or function conferred on it by or under any enactment that would permit the project to be carried out in whole or in part.

(2) For greater certainty, where the Agency takes a course of action referred to in subsection (1) (a) of this section, it shall exercise any power and perform any duty or function conferred on it by or under any enactment in a manner that ensures that any mitigation measure that the Agency considers appropriate in respect of the project is implemented.

Environmental Impact Assessment Decree No. 86 1992

Commencement. 10^th December1992