Court bars states on issuance of EIA approval certificate

ALL states environmental agencies, which have been meddling and issuing an approval certificate for Environmental Impact Assessment (EIA) Report on several projects within their domain cannot continue to carry on business as usual as a Court of Appeal, sitting in Kaduna, has considered such action illegal and unconstitutional. 

 But such power, according to the court, in a judgment delivered recently by Justice Amina Wambai, is vested on a Federal Government body, known as the National Environmental Standards and Regulations Enforcement Agency (NESREA).

   However, the Court of Appeal, agreed that state agencies only have role to play in conducting EIA in respects of projects or development to be carried out within their territories, but affirmed that such roles must be played in conjunction with or at the behest of NESREA.

  With this verdict, a telecommunication outfit, Helios Towers Nigeria Limited, lost an appeal, where it contended that state government environmental agency could approve and issue a certificate for an EIA report.

  The appeal, which emanated from the decision of the Federal High Court, Kaduna Division, wherein judgment was entered in favor of NESREA.

  At the High Court, the appellant, a contractor with MTN Telecommunication outfit, was the first defendant, while the second respondent, Kaduna Environmental Protection Agency (KEPA) was the second defendant.  NESREA was the plaintiff.

  NESREA in the suit sought the determination of whether the construction and installation of a huge telecommunications mast by the Helios Towers in a residential area was not an activity or undertaking that may likely or to a significant extent affect the environment, within the contemplation of the Environmental Impact Assessment Act, Cap. E12, laws of the Federation of Nigeria, 2004?

  It also wanted to know whether the firm could construct and install a huge telecommunications mast in a residential area without conducting an environmental impact assessment in accordance with the EIA Act, and whether it was within the contemplation of the EIA Act, for KEPA to issue an environmental impact assessment permit?

   The Federal Government Agency therefore asked that the trial court among other things declare that the law governing environmental impact assessment of all projects that may likely or to a significant extent affect the environment is the Environmental Impact Assessment Act, Cap. E12, Laws of the Federal of Nigeria, 2004 and that the construction, erection and installation of a huge telecommunications mast in a residential area by the first defendant without conducting an environmental impact assessment in accordance with the Environmental Impact Assessment Act was illegal and unlawful.

  NESREA also asked the court to declare that the EIA permit issued by the KEPA was illegal, unlawful, null, void and of no effect and use whatsoever.

  Not done, it sought an order directing the Helios to dismantle and remove the mast erected and installed in a residential area (at No. 12A, Keffi Road, Kaduna South, Kaduna) immediately, as its erection and installation is a gross violation of the constitution of the Federal Republic of Nigeria 1999, the Environmental Impact Assessment Act, Cap. E12, Laws of the Federation of Nigeria 2004, and the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007.”

  The facts of the case was that Helios Towers on behalf of the M.T.N on or about the month of May, 2007 installed a gigantic steel mast at No. 10/12A Keffi Road, Barnawa, GRA, Kaduna South, in a residential plot adjacent to the house of one Ambassador Musa Bello, which installation was said to had become a source of nuisance, agony and health concerns to him, his family and neighbours from the noise and air pollution emitted 24 ours daily from the heavy duty generators.

  The Ambassador Musa Bello immediately raised alarm to the Kaduna State urban planning development authority, the Kaduna state environmental protection agency and the Federal Ministry of Works.

  Still, the Ambassador briefed the law firm of Akinlolu Kehinde & Co. to complain to the firm, which in turn wrote NESREA for intervention.

  Responding, NESREA convened a meeting with the firm to resolve the issue. But, it was later discovered that the appellant only registered the environmental impact assessment (EIA) of the project with the Ministry of Environment after the mast was installed and without completing the impact assessment in compliance with the Environmental Impact Assessment Act E12 LPN, 2004. 

  By a letter NESREA communicated to Helios that the installation of the mast was done in violation of its Act, 2007 and the EIA Act, and that KEPA acted ultra vires. The first respondent then directed the appellant to within seven days of the receipt of the letter, remove the mast. But that was not done. 

  In defence, KEPA said the Kaduna State Government enacted the Kaduna State Environmental Protection Authority (KEPA) Law (Edict No. 1) 1998, pursuant to the EIA Act, which agency after satisfying itself to the Environmental Impact Assessment issued to the appellant, its approval certificate to install the mast;

  It contended that the agency had the power to issue the EIA certificate as environmental issues are neither in the exclusive, legislative nor in the concurrent list, but are residual, which are within the competence of the states to legislate upon and that NESREA’s Act was enacted contrary to the intendment and express provision of the 1999 constitution as its claim would also defect the principle of federalism enshrined in the Constitution.

  Therefore, it contended that the EIA Assessment Certificate issued to Helios was valid effectual and binding, that NESREA’s directive to the appellant to remove the mast was null, void and illegal.

After considering all the processes before the court, the trial judge entered judgment for NESREA by answering all the three questions in the negative and granted to it all the reliefs sought.

  Dissatisfied, Helios Towers sought Court of Appeal’s intervention claiming a miscarriage of justice and requested a reversal of the judgment.

  Both counsel in their arguments, agreed that the erection of such a gigantic mast in residential area required an environmental impact assessment to be conducted, the only issue in contention between them was as to who has the authority to conduct and more importantly, issue an environment impact assessment certificate?

  Their lordships, including Isaiah Akeju, Habeeb Abiru and Amina Wambai answered the question in the affirmative and dismissed the appeal in its entirety.

  “…NESREA… is the statutory body established by the National Assembly to replace Federal Environmental Protection Agency (FEPA) and the body (Agency) entrusted with the enforcement of environmental standards and regulations in Nigeria.  It is therefore the body that is vested with powers to issue Environmental Impact Assessment Certificates.

  “In conclusion therefore I hold that while state agencies have a role to play in conducting the Environmental Impact Assessment in respect of projects or development to be carried out in their states, which role is to be played in conjunction with or at the behest of the first respondent, NESREA, which has now replaced the repealed FEPA, it is only the first respondent that has the power at the completion of all assessments, to issue an Environmental Impact Assessment approval Certificate”, Wambai held.

  She continued: “I therefore resolve this issue partly in favor of the appellant to the extent that the state agencies are not completely excluded from playing any role in Environmental Impact Assessment and ultimately issuing the Environmental Impact Assessment Certificate, I resolve the issue in favor of the first respondent and against the appellant.”

  While affirming the lower court’s earlier order, Justice Wambai said: “On the whole, the three issues having been resolved against the appellant, the appeal lacks merit and is hereby dismissed.  I affirm the judgment of the lower court.”