Journal of World Energy Law and Business, 2023, 00, 1–16

https://doi.org/10.1093/jwelb/jwad003
Article

In the midst of so much injustice, can there be

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a seat for energy justice at the Nigerian table?
Ayodele Morocco-Clarke *

A BS TR A C T
The end of the 20th century and the start of the 21st century recorded an increase in demands for ac-
countability and justice on a plethora of levels. Social justice was a broad theme which was followed
by environmental justice and climate justice. Energy justice is a relatively new phenomenon that
advocates for the equitable sharing of both the benefits and burdens of energy sources and services.
Nigeria, the largest producer of oil and gas on the African continent, has for decades been beset by
issues of corruption, mismanagement of resources and wealth, a lack of accountability and a lopsided
discriminatory distribution of the benefits, proceeds and profits from the Nigerian oil industry. The
people of the Niger Delta region of Nigeria, which is the area responsible for Nigeria’s oil, feel impov-
erished by the exploitation of their land and left out of the profits, end products and projects which
result from resources on their land. The regulation of the Nigerian energy industry is one facet of the
industry that has come against heavy complaints and criticisms. The management of the country’s
natural resources and the sources, generation, provision and distribution of energy (both domestic
and industrial) within its geographical territory is an area that requires substantial work and overhaul.
This work examines the tenets of energy justice and recommends the adoption of the restorative just-
ice tenet as a path to improving the Nigerian energy system and correspondingly improving the envir-
onment and the lives and human rights of the people who live in the Niger Delta region.

1. INTRODUCTION
Energy is integral to the survival of the human race and has proved pivotal to the development and advance-
ment of mankind. The strategic role energy has played over the centuries in technological and industrial
development has cemented its status in every society as a much sought-after commodity which is available in
different forms.1 Over time, energy sources and systems have contributed to the financial prosperity of nu-
merous nations and individuals2 and have conversely been responsible for the impoverishment of commun-
ities and people living in close proximity to those sources.3

* Ayodele Morocco-Clarke, Legal Practitioner and Associate Professor at the Faculty of Law, Nile University of Nigeria, Abuja, Nigeria.
E-mail: ayomorocco@hotmail.com or ayomorocco@nileuniversity.edu.ng

1
Running the entire gamut from traditional fossil energy sources eg from wood, to coal, to oil, etc and down to renewable forms and sour-
ces of energy eg solar, hydro, geothermal, etc.
2
S Pain, ‘Power Through the Ages’ (2017) Nature <https://www.nature.com/articles/d41586-017-07506-z> accessed 19 September
2021.
3
Amnesty International, while addressing oil which is a major source of energy generation in Nigeria, stated that: ‘Widespread environmen-
tal damage associated with oil extraction has destroyed livelihoods, polluted water and undermined health. The same oil extraction that is

C The Author(s) 2023. Published by Oxford University Press on behalf of the AIEN. All rights reserved.
V

 1
2  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

Due to the importance of energy, the wealth it creates and the burdens associated with it, there have been
calls for principles of justice to be applied to the energy sector. This follows on the back of principles of social
justice, environmental justice and climate justice.
Energy justice is therefore a relatively new phenomenon anchored in social science that advocates for the
equitable sharing of both the benefits and burdens of energy sources and services. The basic aim of energy

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justice is the quest to ‘. . . embed principles of justice, fairness and social equity into energy systems and en-
ergy system transitions.’4 Energy justice involves scrutinizing energy systems from production to consump-
tion and addressing justice-based concerns within such systems. There are three major types of energy
justice. These are distributive justice, procedural justice and recognition justice. Other types of justice include
restorative justice and cosmopolitan justice. These types of justice apply in various forms within energy sys-
tems and sources, and the notion that there should be justice within energy systems transcends academic the-
orizing as it is fast becoming entrenched in practise in light of the fact that countries and companies
increasingly seek and apply just energy systems as well as just energy transition paths and processes.
With a maximum crude oil production capacity of 2.5 million barrels per day,5 Nigeria is the largest produ-
cer of oil on the African continent and used to be the sixth largest oil producer6 in the world, but as of 2021
has dropped to the 11th position.7 Despite being a major player in oil production, energy poverty is a deep-
rooted problem beleaguering the African oil production giant and it has been stated that ‘energy injustices
are prevalent throughout Nigeria, especially in the oil industry.’8 In light of the challenges faced within
Nigeria with regard to energy, it is imperative that the twin issues of energy poverty and energy injustice in
Nigeria are critically and robustly analysed with a view to determining a path that could be trodden in a bid
to proffer solutions for a more just and equitable energy regime.
Climate change has increasingly become an urgent issue that has seen most countries ramp up actions and
their commitments to combat rising global temperatures. Under the 2015 Paris Agreement, the major long-
term goal is to keep the rise in global temperature below 2 C compared to pre-industrial levels. In the fight
to reverse climate change, it is preferable and desirable to limit the temperature increase to 1.5 C as it is rec-
ognized that this would substantially reduce the effects of climate change. In keeping with the goals of the
Paris Agreement, emissions need to be cut by about 50 per cent by 2030.
When dealing with the climate change problem, the importance of addressing the energy industry and en-
ergy systems is underscored by the huge impact they have on the climate, the environment and on human
health, rights and lives. Thus, energy justice is one effective way to address the imbalance, attitudes, processes
and regime within the industry.
Though there has been a raft of research and articles on energy justice within the last decade, as stated
above, it is important that energy justice is not relegated as a concept to mere academic theorizing without
applying it to real-life situations. It is therefore imperative that energy justice as a concept moves successfully
into policy governing the energy industry and into practice within the energy industry.9 Heffron and McCauley
have advanced that, ‘energy justice needs to be more targeted . . . and have a more direct link with policy.’10

generating wealth for the few is deepening the poverty of many.’ Amnesty International, Nigeria: Petroleum, Pollution and Poverty in the Niger
Delta (1st edn, 2009) 13.
4
R Sari and others, ‘Energy Justice: A Social Sciences and Humanities Cross-Cutting Theme Report’ (2017) Cambridge: Shape Energy 2.
5
Nigerian National Petroleum Corporation, ‘Oil Production: Production’ <https://www.nnpcgroup.com/NNPC-Business/Upstream-
Ventures/Pages/Oil-Production.aspx> accessed 22 September 2021.
6
ibid.
7
World Population Review, ‘Oil Producing Countries 2021’ <https://worldpopulationreview.com/country-rankings/oil-producing-
countries> accessed 22 September 2021.
8
E Haggart, ‘Oil and Women’s Rights in Nigeria’ Energy Challenge þ Justice (March 2015) Dickinson College Blogs <https://blogs.dickin
son.edu/energy-justice/category/nigeria/> accessed 22 September 2021.
9
RJ Heffron and D McCauley, ‘The Concept of Energy Justice across the Disciplines’ (2017) 105 Energy Policy 658, 661–7.
10
ibid.
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  3

In addition to Heffron and McCauley’s stance above, there have been increasing calls for energy justice
scholarship approached from the law or legal discipline to engage more with other energy disciplines in a bid
to provide a more holistic solution to energy pollution, energy injustice and climate change. Registering a dis-
satisfaction recently,11 Heffron has further argued that legal scholars on energy need to ensure that just out-
comes are delivered in the energy sector.12 Furthermore, there is a dire need to ensure that legal scholars of

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energy justice transition from the traditional research of sticking solely to legal arguments and reach forward
to address energy law from a multi-disciplinary perspective and embrace ‘normative discussion[s] around the
trajectory of the energy sector’.13
This article shall cover and analyse the various tenets of energy justice available and bearing in mind the
2030 goals to be met under the Paris Agreement, will put forward the restorative justice tenet in what should
be a clear pathway to reducing energy poverty and achieving a just and equitable energy system and transition
in Nigeria. The choice of restorative justice is deliberate and strategic, as it is the tenet of energy justice that
due to its preventive and rehabilitative qualities can address the rot, ills and incompetence of the Nigerian en-
ergy industry.
Ultimately, this article carries on the energy justice legal scholarship baton by building on ground-
breaking and exciting research by respected scholars and authors of energy justice articles as well as a plethora
of serious energy justice literature published in this journal over the years. Finally, this article aims to ensure
that the academic debate on energy justice within energy law transcends literature and impacts energy policy
as well as the modus operandi of the energy industry.

2. NIGERIA: THE STATUS QUO

In Nigeria, oil, which is a major source of energy, has been produced in commercial quantities since the
1950s.14 The discovery of oil in Nigeria proved a catalyst for the country’s rapid development and has earned
Nigeria a fortune in foreign earnings.15 In 2018, the Nigeria Extractive Industries Transparency Initiative
reported that Nigeria earned almost 678 billion dollars in the years it returned to democratic administration
between 1999 and 2016.16 The revenue derived from oil is the single largest source of revenue in Nigeria and
over the years has proven to be integral to the Nigerian government and people as it funds capital as well as
recurrent expenditure, and is used to service Nigeria’s foreign debt obligations.
The Niger Delta region of Nigeria is the area responsible for most of the oil derivable from the country
and has for numerous decades been embroiled with the Federal Government of Nigeria over income and
allocations to be made to that region. Communities and people from that region have agitated repeatedly for
more of the wealth that is derived from their land to be shared with them. Currently, the Constitution of the
Federal Republic of Nigeria has set a minimum allocation of 13 per cent to be disbursed by the government
to areas from which natural resources are produced.17 Despite the abundance of natural resources in the
Niger Delta region, many indigenes of the area live in abject poverty. According to a United Nations
Development Programme (UNDP) report

11
In an article published in May 2022 in the Journal of World Energy Law and Business (JWELB).
12
RJ Heffron, ‘Energy Law in Crisis: An Energy Justice Revolution Needed’ (2022) 15(3) The Journal of World Energy Law & Business
167, 172.
13
ibid 170.
14
Nigerian National Petroleum Corporation, ‘History of the Nigerian Petroleum Industry’ <https://nnpcgroup.com/NNPC-Business/
Business-Information/Pages/Industry-History.aspx> accessed 21 September 2021.
15
ibid.
16
C Okafor, ‘NEITI: Nigeria Earned $677bn from Crude Oil Sales in 18 Years’ This Day Newspaper (22 December 2018) <https://www.
thisdaylive.com/index.php/2018/12/22/neiti-nigeria-earned-677bn-from-crude-oil-sales-in-18-years/> accessed 20 September 2021.
17
s 162 of the Constitution of the Federal Republic of Nigeria (as amended).
4  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

Some amazing paradoxes have come from the development of the Niger Delta region. Ordinarily, the
Niger Delta should be a gigantic economic reservoir of national and international importance. Its rich
endowments of oil and gas resources feed methodically into the international economic system, in ex-
change for massive revenues that carry the promise of rapid socio-economic transformation within the
delta itself. In reality, the Niger Delta is a region suffering from administrative neglect, crumbling social

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infrastructure and services, high unemployment, social deprivation, abject poverty, filth and squalor,
and endemic conflict.18

Many people from the Niger Delta rely on their land for sustenance and survival. Lots of locals are farmers
or fishermen who rely on the rivers, streams and creeks for their daily livelihood. With intense production of
oil being carried out within close proximity of their dwellings, farms and waters, they have continuously suf-
fered the brunt of oil spills and gas flaring in their area. On 5 July 2021, the Nigerian Minister of
Environment said that Nigeria recorded 4919 oil spills between 2015 and March 2021 and the data provided
by the National Oil Spill Detection and Response Agency (NOSDRA)19 stated that the number of oil spills
resulted in the release of 235,206 barrels of oil into the environment.20 The minister further noted that
‘Several statistics have emphasised Nigeria as the most notorious country in the world for oil spills . . ..’21
As bad and discouraging as the NOSDRA data stated above, there have been reports and accusations that
the Nigerian government and its regulatory agencies do not possess or provide accurate records. It is alleged
that many oil spills go unreported and some undetected. Also, that oil companies operating in the Niger Delta
region are complicit in under-reporting or hiding some oil spill incidents which occur under their areas of op-
eration.22 In 2018, Amnesty International released a damning report which indicted some oil companies. The
report titled ‘Niger Delta Negligence’, described the Niger Delta as one of the most polluted places on earth.
Furthermore, Amnesty International asserted that it had helped the Bodo Community23 take legal action
against Shell Petroleum Development Company of Nigeria Limited for two massive oil spills in which the riv-
ers and creeks were polluted and contaminated.24 The resultant lawsuit was instituted in the UK.25 According
to Amnesty International, Shell ‘repeatedly understated the volume of oil spilled’ and admitted ‘it had made
false statements about the size of the spills.’26 Shell eventually settled out of court and paid £55 million to the
Bodo community and undertook to clean up the polluted area. The Amnesty International report further
stated that companies’ reports of oil spills are vastly different from that of the Nigerian government which had
recorded over double the amount of spills operators like Eni had recorded for the same timeframe.27
According to Rise for Bayelsa campaign, 40 million litres of oil are spilled every year across the Niger Delta.28
18
United Nations Development Programme, ‘Niger Delta Development Report’ (2006) 9. Although the report was released 15 years ago,
the situation substantially remains the same.
19
NOSDRA is the agency in charge of oil spill detection and response in Nigeria and was created by virtue of the National Oil Spill
Detection and Response Agency Act 2006.
20
Agency Report, ‘Nigeria Records 4,919 Oil Spills in 6 Years, 4.5trn Barrels Stolen in 4 years — Minister’ Premium Times (6 July 2021)
<https://www.premiumtimesng.com/news/headlines/471901-nigeria-records-4919-oil-spills-in-6-years-4-5trn-barrels-stolen-in-4-years-minister.html>
accessed 23 September 2021.
21
ibid.
22
M Watts and A Zalik, ‘Consistently Unreliable: Oil Spill Data and Transparency Discourse’ (2020) 7(3) Elsevier Public Health Emergency
Collection 790.
23
A fishing town in Rivers State of Nigeria.
24
Amnesty International, ‘Niger Delta Negligence’ (2018) <https://www.amnesty.org/en/latest/news/2018/03/niger-delta-oil-spills-
decoders/> accessed 23 September 2021.
25
The Bodo Community & Others v Shell Petroleum Development Company Nigeria Limited (2014) EWHC 958 (TCC).
26
Amnesty International (n 24); ibid.
27
ibid.
28
K Nwajiaku-Dahou and E Emeseh, ‘Finally, Shell Can No Longer Shirk Responsibility for Niger Delta Oil Spills’ African Arguments (18
February 2021) <https://africanarguments.org/2021/02/finally-shell-can-no-longer-shirk-responsibility-for-niger-delta-oil-spills/> accessed 24
September 2021.
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  5

In 2019, the Bayelsa State commissioner for environment Mr Udengs Eradiri granted an interview to the
UK Guardian newspaper. The Guardian wrote that ‘Bayelsa state once offered rich pickings for farmers and
fisherman, then oil companies arrived and wrought an environmental catastrophe.’29 Mr Eradiri stated

You just need to take a tour to understand the magnitude of the environmental abuse. [Bayelsa] used

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to be green, you could go to farm or fish. We used to have very impressive harvests. You would spend
just an hour in the water and you have a lot of fish. Today, you can spend the whole day without catch-
ing anything.30

In addition to having their environment, land, livelihood and properties despoiled by incessant oil spills,
the people of the Niger Delta also have to contend with the perennial flaring of gas in their communities.
Presently in 2021, operators within the oil and gas industry in Nigeria still carry out routine flaring of gas.31
Nigeria currently stands as the seventh largest gas flaring country worldwide.32 According to the World Bank,
the seven top gas flaring countries are responsible for approximately two-thirds or 65 per cent of global gas
flaring despite only producing 40 per cent of the world’s oil.33
Despite the current continued flaring of gas, gas flaring has been outlawed in Nigeria originally since 1984.
The banning of the flaring of gas initially occurred when the then-military government promulgated the
Associated Gas Re-injection Act in 1979.34 Under the Act, all flaring was to stop by 1 January 1984. The
Associated Gas Re-Injection Act made specific provisions regarding how companies could continue to flare
gas from 1 January 1984 only if they applied for and obtained a special certificate from the Minister which
allowed them to continue flaring gas. Applications were to be considered on a field-by-field basis. Dates to
end flaring of gas in Nigeria have been shifted several times by the Nigerian government since the original 1
January 1984 flares out date and routine flaring of gas in Nigeria continues to this day.
Indigenes of the Niger Delta who bear the brunt of exploration and production activities in their commun-
ities have resorted to instituting legal suits at various courts in a bid to enforce their fundamental rights to life
and dignity of the human person, as well as the right to a clean and decent environment. In the cases of
Jonah Gbemre & Others v Shell Petroleum Development Company Ltd & Others,35 Ikechukwu Okpara & 7
Others v Shell Petroleum Development Company of Nigeria Limited & 6 Others36 and Ikechukwu Okpara & 3
Others v Shell Petroleum Development Company of Nigeria Limited & 5 Others,37 the plaintiffs brought an action
for the enforcement of their fundamental rights and sought declarations from the courts that the flaring of
gas in their communities violated their fundamental human rights to life and dignity of human person
29
R Ratcliffe, ‘“This Place Used to Be Green”: The Brutal Impact of Oil in the Niger Delta’ (6 December 2019) <https://www.theguardian.
com/global-development/2019/dec/06/this-place-used-to-be-green-the-brutal-impact-of-oil-in-the-niger-delta> accessed 24 September 2021.
30
ibid.
31
Although the amount of gas flared by operators in Nigeria has declined over the years and Nigeria has improved from about a decade ago
when it was the second largest routine flarer of gas behind Russia, large volumes of gas are still routinely flared in the country. (A Walker,
‘Nigeria’s Gas Profits ‘Up in Smoke’’ (BBC News, 13 January 2009) <http://news.bbc.co.uk/1/hi/world/africa/7820384.stm> accessed 25
September 2021.
32
World Bank, ‘Global Gas Flaring Tracker Report’ (28 April 2021) <https://www.worldbank.org/en/topic/extractiveindustries/publica
tion/global-gas-flaring-tracker-report> accessed 25 September 2021. Also, B Bungane, ‘Worst Global Gas Flaring since 2009, Reveals World
Bank’ (2020) ESI Africa <https://www.esi-africa.com/industry-sectors/business-and-markets/worst-global-gas-flaring-since-2009-reveals-
world-bank/> accessed 25 September 2021.
33
World Bank, ‘Seven Countries Account for Two-Thirds of Global Gas Flaring’ (World Bank Press Release No: 2021/143/EEX, 28 April
2021) <https://www.worldbank.org/en/news/press-release/2021/04/28/seven-countries-account-for-two-thirds-of-global-gas-flaring>
accessed 25 September 2021.
34
ch A25 Laws of the Federation of Nigeria 2004. The Associated Gas Re-injection (Continued Flaring of Gas) Regulations (s 1, 43 of
1984) were made pursuant to the Associated Gas Re-injection Act.
35
Suit No FHC/CS/B/153/2005 (Unreported).
36
Suit No FHC/CS/B/126/2005 (Unreported).
37
Suit No FHC/PH/CS/518/2005 (Unreported).
6  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

enshrined in the Constitution and reinforced by the African Charter on Human Procedure Rules
(Ratification and Enforcement) Act.38
The court, in the case of Jonah Gbemre & Others v Shell Petroleum Development Company Ltd. & Others,39
issued a judgment stating that the constitutionally guaranteed fundamental rights to life and dignity of
Human person provided in sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria

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1999 and reinforced by Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights
(Ratification and Enforcement) Act, inevitably includes the right to a clean poison free, pollution free and
healthy environment. The court further declared that the provisions of section 3(2)(a) and (b) of the
Associated Gas Re-injection Act40 as well as the provisions of section 1 of the Associated Gas Re-injection
(Continued Flaring of Gas) Regulations,41 under which the continued flaring of gas may be allowed in
Nigeria, are inconsistent with sections 33(1) and 34(1) of the Constitution42 and Article 4, 16 and 24 of the
African Charter on Human and Peoples Right (Ratification and Enforcement) Act which guarantee the plain-
tiff’s right to life and dignity of human person. The court further court granted an injunction against the first
and second defendants from further flaring gas in the plaintiff’s community. Almost 16 years later, this deci-
sion has not been overturned on appeal, therefore gas flaring in Nigeria is still unconstitutional.43 However,
gas flaring never stopped in the plaintiff’s communities or in other parts of the country where oil exploration
and production activities are carried out.
The Jonah Gbemre case clearly shows that judges in Nigeria have identified that energy and environmen-
tal issues impacting the lives of individuals are fundamental human rights issues. Though this case relates to
pollution and the deleterious effects of oil exploration and production activities on the lives of people living
in close proximity to those activities, human rights with regard to energy goes much further than this. The
activities of the energy industry do not only have a bearing on those living in close proximity to operations,
but on the whole planet. CO2 emissions from the global energy industry have been identified as having a sig-
nificant effect on the environment and on climate change. Indeed, in the Netherlands, a court recently
decided in the case of Milieudefensie et al v Royal Dutch Shell,44 that Shell needed to reduce its global emis-
sions and ordered Shell to reduce its CO2 emissions by 45 per cent by 2030 from 2019 levels. According to
Heffron, the judgment of the Dutch court recognizes that ‘Shell’s corporate strategy, if continued, would in-
fringe on the human right to life. This right is considered to include the right to: life, family, health, minimum
subsistence, freedom, human dignity, water, healthy environment, clean air, culture, property, adequate hous-
ing, security and a fair trial. This decision represents an acceleration of a trend in challenging energy multi-
national companies worldwide.’45
Furthermore, the very access to energy is a human right. The ability to be able to access fuel for warmth,
cooking and domestic and family activities, comfort, etc is a right that should be available and provided to all.
Correspondingly, policies and decision-making on energy need to be just and equitable as they have a huge
impact on human lives and rights as well as the environment. Heffron also advocates that ‘to prevent energy
decision making continuing to be unfair, unjust, not inclusive and not equitable we need decisions in the
38
ch A9 Laws of the Federation of Nigeria 2004.
39
Gbemre v Shell, ibid fn 35.
40
ch A25 Volume 1 Laws of the Federation of Nigeria 2004.
41
s 1, 43 of 1984.
42
s 1(3) of the Constitution provides that if any Law is inconsistent with the provisions of the constitution, the constitution shall prevail,
and that other law shall, to the extent of the inconsistency, be void. As a result of finding s 3(2)(a) and (b) of the Associated Gas Re-injection
Act as well as s 1 of the Associated Gas Re-injection (Continued Flaring of Gas) Regulations inconsistent with the constitution, the court
declared both provisions null and void.
43
OJ Olujobi, ‘Analysis of the Legal Framework Governing Gas Flaring in Nigeria’s Upstream Petroleum Sector and the Need for
Overhauling’ (2020) 9(8) Social Sciences 132, 136 (5) <https://doi.org/10.3390/socsci9080132> accessed 25 September 2021.
44
C/09/571932/HA ZA 19–379 (2021).
45
RJ Heffron, ‘Energy Multinationals Challenged by the Growth of Human Rights’ (2021) 6 Nature Energy 849–51.
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  7

energy sector that remember that this is about human rights being protected and that is what in essence just-
ice should deliver for all citizens of the world in the energy sector.’46
It is important to point out that the standard of operations of international oil companies carrying out ex-
ploration and production activities in Nigeria is significantly lower than the standard they apply in developed
countries.47 This can be seen from instances like when Royal Dutch Shell issued a report about one of its

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British operations which involved laying pipelines from Stanlow in Cheshire to Mossmoran in Scotland. Shell
stated as follows

A painstakingly detailed Environmental Impact Assessment covered every metre of the route, and each
hedge, wall and fence was catalogued and ultimately replaced or rebuilt exactly as it had been before
Shell arrived. Elaborate measures were taken to avoid lasting disfiguration and the route was diverted
in several places to accommodate environmental concerns . . ..48

Another example of better accountability by international oil companies in developed countries can be
seen from the British Petroleum (BP) Deepwater Horizon disaster of 2010 which resulted in the release of
millions of barrels of oil into the marine environment. The US government clamped down heavily on BP,
ordering it within two months to set up a 20 billion dollar fund to compensate the victims of the spill.49 BP
was also made to carry out and fund clean-up operations and it was mandated to fully restore the impacted
area. It was estimated at the time that the disaster could cost BP up to 60 billion dollars,50 but as of 2018 the
amount BP had paid for the oil spill had risen to 65 billion dollars51 and BP is still paying.52
A further issue regarding deprivation and lack in the Niger Delta is the issue of energy poverty. Energy
poverty is generally acknowledged as occurring when there is non-availability of energy or an inability to ac-
cess energy resources or services due to a lack of financial wherewithal.53 Thus in Nigeria, access to electricity
is generally poor, with only about 40 per cent of the population having access to the national electricity
grid.54 It is worse in the rural areas, where access drops to about 10 per cent.55 Most people living in close
proximity to the operations of the oil industry in the Niger Delta live in the rural areas and have challenges of
access to electricity supplied via national channels. Furthermore, refined petroleum products are not supplied
46
RJ Heffron, ‘Editorial: Human Rights at the Heart of Energy Justice’ (2021) 2(2) Global Energy Law and Sustainability v, vii–viii.
47
With regard to this double standard, the decision in Milieudefensie et al v Royal Dutch Shell is welcome as Shell shall be held to account on
its global operations which include its operations in Nigeria.
48
A Rowell, Shell-Shocked: The Environmental and Social Costs of Living with Shell in Nigeria, (Greenpeace International 1994). Also, Shell,
Shell and the Environment (SIPC 1992) 5. This attention and dedication by Shell when laying the Stanlow to Mossmoran pipeline should be jux-
taposed against the position adopted in the Niger Delta of Nigeria, where Andrew Rowell observed when comparing the UK pipeline operation
with that adopted in Nigeria, that—‘This is a far cry from Shell’s practices in Nigeria. The Ogoni have never seen, let alone been consulted
over, an environmental impact assessment.’ Rowell ibid.
49
BBC News, ‘BP to Fund $20bn Gulf of Mexico Oil Spill Payout’ (17 June 2011).
50
R Mason, ‘BP’s Gulf of Mexico Oil Spill Bill Could Hit $60bn, Moody’s Warns’ (The Telegraph, 20 April 2011).
51
A Vaughan, ‘BP’s Deepwater Horizon Bill Tops $65bn’ The Guardian (16 January 2018) <https://www.theguardian.com/business/2018/
jan/16/bps-deepwater-horizon-bill-tops-65bn> accessed 24 September 2021. Also, R Bousso, ‘BP Deepwater Horizon Costs Balloon to $65
Billion’ Reuters (16 January 2018) <https://www.reuters.com/article/us-bp-deepwaterhorizon-idUSKBN1F50NL> accessed 24 September
2021.
52
J Nocera, ‘BP Is Still Paying for the Deepwater Horizon Spill’ Bloomberg News (4 February 2020) <https://www.bloomberg.com/news/
articles/2020-02-04/bp-is-still-paying-for-the-deepwater-horizon-spill> accessed 24 September 2021.
53
A Nwozor, S Oshewolo and O Ogundele, ‘Energy Poverty and Environmental Sustainability in Nigeria: An Exploratory Assessment’
(2019) IOP Conference Series: Earth and Environmental Science 331, 138 (8) <https://iopscience.iop.org/article/10.1088/1755-1315/331/
1/012033> accessed 24 September 2021.
54
EO Diemuodeke and others, ‘Domestic Energy Demand Assessment of Coastline Rural Communities with Solar Electrification’ (2017)
4(1) Energy and Policy Research 1. The portion of the population that is linked up to the national grid do not have constant power supply as
there are incessant interruptions in the supply of power. Also, AS Aliyu, JO Dada and IK Adam, ‘Current Status and Future Prospects of
Renewable Energy in Nigeria’ (2015) 48 Renewable and Sustainable Energy Reviews 336.
55
Nwozor, Oshewolo and Ogundele (n 53) 2.
8  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

with ease in these rural areas and therefore many indigent people are forced to pay higher than the official
prices for petrol,56 diesel, kerosene, cooking gas, etc and they often have to travel some distance to get access
to these products.57 Many people within the region still depend on wood as a source of fuel for cooking,
lighting, heating and domestic needs.58 Large portions of the region that lays the golden egg for the nation
are often left in darkness59 and are forced to rely predominantly on firewood, charcoal and kerosene as sour-

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ces of energy.60
The Niger Delta is rich in natural resources which are exploited for the nation. However, the region and
its people wallow in poverty (including energy poverty). The situation showing the contrasting wealth and
deprivation is a paradox that has no place in the 21st Century. At a time when human rights, climate change
and environmental concerns are addressed with deserved urgency, can energy justice change the Nigerian
Niger Delta story?

3. HOW DOES ENERGY JUSTICE FIT INTO THE NIGERIAN SITUATION?

Energy justice is a concept that emerged from social science and can be referred to as an offshoot or con-
tinuum of social justice.61 Energy justice has been defined as ‘. . . a global energy system that fairly dissemi-
nates both the benefits and costs of energy services, and one that contributes to more representative and
impartial energy decision-making.’62 Energy justice concentrates on building a foundation and framework for
policies, decisions, plans and actions regarding energy. This includes systems, security, sources, development,
production, distribution, consumption, waste, transition, decommissioning and generally the effect of energy
on humans, the environment, and of increasing urgency, its effects on climate change. Energy justice basically
aims at applying justice principles to the energy process, with the major goal of combatting and eliminating
injustices in energy systems.63 The energy justice concept is based on an agenda which ‘seeks to apply justice
principles to energy policy, energy production and systems, energy consumption, energy activism, energy se-
curity and climate change.’64
There are a set of acknowledged principles and tenets underpinning the energy justice concept.
Traditionally, energy justice scholars and practitioners identified three core tenets of energy justice.
These are Procedural Justice, Distributional Justice and Recognition Justice.65 Over the years, two further
tenets have been added to the original three. These extra tenets are Restorative Justice66 and Cosmopolitan
Justice.67 In addition to the energy justice tenets, there are eight energy justice principles68 that have
56
Thus, the poor have to pay more than the ‘rich’ to access energy. O Oyebamiji and R Kigbara, ‘Energy Use and Usage Perceptions in the
Niger Delta’ (2011) International Institute for Environment and Development and Stakeholder Democracy Network 7. <https://pubs.iied.
org/sites/default/files/pdfs/migrate/G03233.pdf> accessed 24 September 2021.
57
ibid 16.
58
J Jack and T Zibima, ‘Gas Flaring and the Energy Poverty Paradox in the Niger Delta’ (2018) 5(2) AJSS 168, 173–4.
59
Many rely on private generators to provide electricity. These are noisy, exacerbate the pollution problem and can be expensive to run since
they utilize petrol or diesel.
60
Oyebamiji and Kigbara (n 56) 17.
61
L Wood, ‘Energy Justice: What Is It and Why Do We Need It?’ (February 2018) Energy <https://www2.monash.edu/impact/articles/en
ergy/energy-justice-what-is-it-and-why-do-we-need-it/> accessed 24 September 2021.
62
BK Sovacool and others, ‘Energy Decisions Reframed as Justice and Ethical Concerns’ (2016) Nature Energy (Online version: Sussex
Research Online) 12 <http://sro.sussex.ac.uk/id/eprint/61327/1/sovacool%20NENERGY-15090249-file001.pdf> accessed 28 September
2021.
63
M Christensen, ‘What Is Energy Justice and Why Should You Care?’ (LinkedIn, 2020) <https://www.linkedin.com/pulse/what-energy-
justice-why-should-you-care-phd-physics/?articleId=6659870679942463488> accessed 24 September 2021.
64
K Jenkins and others, ‘Energy Justice: A Conceptual Review’ (2016) 11 Energy Research & Social Science 174.
65
ibid 3–4. Also, Sari and others (n 4) at 5.
66
Heffron and McCauley (n 9) 658–67.
67
Sovacool and others (n 62) 3–4. Also, BK Sovacool and others, ‘Decarbonization and Its Discontents: A Critical Energy Justice
Perspective on Four Low-Carbon Transitions’ (2019) 155 Climatic Change 581.
68
For the purpose of this article, the focus shall be on the energy justice tenets and not the principles.
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  9

been identified. These are (i) availability; (ii) affordability; (iii) due process; (iv) transparency and
accountability; (v) sustainability; (vi) intra-generational equity; (vii) inter-generational equity; and (viii)
responsibility.69

Procedural justice

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Procedural justice under energy justice mirrors its counterparts under environmental and climate justice.70 It
advocates for and emphasizes ‘principles of due process, representative justice, and justice as public participa-
tion.’71 Procedural justice seeks the engagement and participation of stakeholders and those who might be
affected by energy policies, decisions and actions in the decision-making process. It seeks to entrench princi-
ples of fairness and equality in those decision-making processes in a bid to ensure that every stakeholder is
given the opportunity to participate in the process and no person, group, community, etc that could be
affected by decisions are left out or marginalized.
Within the Nigerian petroleum industry, procedural justice will ensure that communities and individuals
within the Niger Delta region are consulted and have a say in decisions regarding projects and activities being
carried out in their community or which are likely to affect them. The Nigerian Environmental Impact
Assessment (EIA) Act72 mandates that an EIA must be carried out on a project where it is likely to have a
significant impact on the environment73 and a decision shall not be taken by the agency in authority until an
opportunity has been given to government agencies, members of the public, experts in any relevant discipline
and interested groups to make comment on the EIA of the activity.74 While on the surface, it would seem
that the EIA Act has opened the door for the application of procedural justice, the EIA Act and the EIA proc-
esses and procedures in Nigeria have become notorious for being honoured more in breach than in obser-
vance. It has been stated, ‘. . . [e]xperience especially in respect of infrastructural projects has shown that EIA
is hardly undertaken prior to the approval of most projects in Nigeria.’75
The people of the Niger Delta have always complained about being marginalized and left out of the im-
portant decisions which are taken on projects and activities in their communities. On the other hand, the oil
companies operating in that region often lay the blame for oil spills on the surrounding communities, saying
that their pipelines or equipment had been sabotaged. There are also accusations by oil companies of oil theft
and illegal refining of oil.76 It can be argued that where there is truth to these accusations, it is probably be-
cause the locals do not feel a sense of ownership or partnership in these projects or operations and feel they
somehow deserve a share of the ‘spoils’. According to the Bayelsa State commissioner for environment, ‘If
you want to resolve the issues in the Niger Delta, if you want to totally eradicate the compromise on infra-
structure, you must involve communities in the contractual agreement. That means it is not just owned by
other people with other interests.’ The strict and continuous application of procedural justice should go a
long way in solving some of the problems within the Niger Delta.

69
Sari and others (n 4) 5. Also, DU Nnam, ‘Is Energy Justice an Ambitious Paradigm for Nigeria’s Energy System?’ (2021) 3(1)
International Review of Law and Jurisprudence 106, 110.
70
Initiative for Energy Justice, ‘Defining Energy Justice: Connections to Environmental Justice, Climate Justice, and the Just Transition’ The
Energy Justice Workbook (2019) 15 <https://iejusa.org/wp-content/uploads/2019/12/The-Energy-Justice-Workbook-2019-web.pdf> accessed
28 September 2021.
71
Sovacool and others (n 62) 5.
72
ch E12 Laws of the Federation of Nigeria 2004.
73
s 2 of the EIA Act.
74
ibid.
75
AA Ibrahim and others, ‘Environmental Impact Assessment in Nigeria-A Review’ (2020) 8(3) World Journal of Advanced Research and
Reviews 330, 333.
76
Ratcliffe (n 29).
10  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

Distributional justice
Distributional justice as a tenet of energy justice also mirrors its counterparts under environmental and cli-
mate justice.77 It focuses on the fairness and injustice of the siting and distribution of energy systems and
services. As McCauley and others put it, energy justice ‘. . . is an inherently spatial concept that includes both
the physically unequal allocation of environmental benefits and ills and the uneven distribution of their asso-

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ciated responsibilities, eg exposure to risk.’78 Distributional justice deals with the benefits and risks of energy
systems and these include issues like the location of energy production facilities or access to energy
services.79
In Nigeria, majority of the oil and gas deposits are found in the Niger Delta region and this means that
that region is a beehive of exploration and production activities. Many indigenes and residents of commun-
ities abutting areas where these activities are carried out are the ones who directly feel the brunt of those
activities, especially when things go wrong. Unfortunately, being resource rich has proven over the decades
to be more of a curse than a blessing as the livelihood of many locals have been interrupted or truncated due
to oil spills contaminating their land and waters, thus leaving them to live a life of penury. Furthermore, indi-
genes and residents have to deal with pipelines criss-crossing their lands and are forced to endure the ubiqui-
tous ever-burning flares used to routinely burn off associated gas. According to the UNDP, ‘. . . inequities in
the allocation of resources from oil and gas and the degradation of the Niger Delta environment by oil spills
and gas flares continue to adversely affect human development conditions. The inequities fan increasingly in-
tense and frequent conflicts.’80
There is also the issue of the loss of property as a result of the presence of natural resources on the land.
By the provisions of section 44(3) of the Constitution of the Federal Republic of Nigeria, the entire property
in and control of all minerals, mineral oils and natural gas under or upon any land in Nigeria or in, under or
upon the territorial waters and the Exclusive Economic Zone of Nigeria and Section 44(2)(m) of the consti-
tution supports laws which authorize people or authorities to enter, survey or dig any land, or to lay, install
or erect poles, cables, wires, pipes, or other conductors or structures on any land, in order to provide or main-
tain the supply or distribution of energy, fuel, water, sewage, telecommunication services or other public
facilities or public utilities.
From the foregoing, it is clear that people who live in close proximity of the operations of the oil industry
suffer disproportionately compared to other members of the populace and their disadvantaged situation is
exacerbated by multinational oil companies that are operators within the industry and who clearly apply a far
lower operating standard in comparison to their operations in developed countries as has been shown above.
In addition, the people resident in the Niger Delta do not have easy and free access to refined petroleum
products like their counterparts in big towns and cities and often have to pay much higher than the official
prices for such products81 and often higher than other people in big towns or cities who are better off than
them financially. This is in addition to many needing to go out of their way or communities to source such
products. Electricity supply is also a mirage for many living in this region. It always appears that the country
and operators will move mountains to get at the crude oil in their region, no matter how remote such a loca-
tion is, but when it comes to supplying them with basic amenities like electricity and petroleum products,
excuses are made about logistics and the difficulty of access to certain places.
The application of distributional justice in the Nigerian energy matrix will advance the march for energy
justice in Nigeria.

77
Initiative for Energy Justice (n 70).
78
DA McCauley and others, ‘Advancing Energy Justice: The Triumvirate of Tenets’ (2013) 32(3) International Energy Law Review 107.
79
Christensen (n 63).
80
United Nations Development Programme (n 18) 11.
81
Oyebamiji and Kigbara (n 56).
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  11

Recognition justice
Recognition justice is about respecting and acknowledging the needs, weaknesses, vulnerabilities and grievan-
ces of a particular group, sect, community or section of society. Recognition justice addresses issues regarding
groups that are vulnerable,82 ignored or misrepresented within a society, and calls for better ‘recognition of
these groups to reduce social inequalities.’83 The role of recognition justice is to examine, understand and ul-

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timately address the basis and cause of inequalities in the energy system. Recognition justice advocates that
the various needs, rights and experiences of those affected by energy systems and decisions are respected,
acknowledged and appreciated.84 Under this form of justice, individuals and groups must be respected and all
given equal and complete rights.85 There must be a recognition of their differences or peculiarities and needs.
A lack of recognition or refusal to acknowledge the needs, weaknesses or vulnerabilities can lead to injustice.
According to Jenkins and others, a lack of recognition may manifest, ‘not only as a failure to recognise, but
also as misrecognising . . .’86 They further put forward that recognition justice ‘includes calls to acknowledge
the divergent perspectives rooted in social, cultural, ethnic, racial and gender differences.’87 It must be added
that religious differences should also come under this umbrella of differences to be acknowledged.
In Nigeria, there is often a lack of recognition given to the plight, grievances and peculiarities of those in
the Niger Delta. Agitations and complaints about ill health, respiratory issues and a lack of social amenities
are often brushed aside and ignored. Many residents do not have portable water as their streams, rivers and
creeks have been heavily polluted by oil. There is no recognition of the delicate and dire situation many live
in and there are no special provisions made by the government to address these issues. Agitators for better
living conditions and better protection of the environment are often labelled militant individuals who are out
to either disrupt the government or cause havoc to the economy.88 One example of the Nigerian State declar-
ing complainants and protesters as the enemy is with the trial and murder of the Ogoni 9. On 10 November
1995, nine Ogoni men were executed by the Nigerian government for their protest against the activities of
Shell Petroleum Development Company and the Nigerian government which had enriched everyone but the
Ogoni, had resulted in pollution from spills and gas flaring and had ‘led to the complete degradation of the
Ogoni environment, turning [their] homeland into an ecological disaster.’89 Ait should be clearly stated that
there are numerous indigenes of the Niger Delta who simply want a better quality of life and a decent
pollution-free environment. This can be seen from cases like Gbemre v Shell,90 in which the plaintiff did not
ask for any financial recompense and only sought a declaration from the court about the illegality of gas flar-
ing in his community and a declaration to stop same.
Another example of lack of recognition was the incident during the sponsoring of a legislative bill in the
Senate of Nigerian National Assembly by Bayelsa State Senator, Ben Murray-Bruce. It was a bill aiming to
phase out petrol vehicles and introduce electric cars in the country by 2035. In his argument to support the
bill, Senator Murray-Bruce said that electric cars are healthy, economical and would not deplete the ozone
layer. The bill was rejected by almost all senators and did not make it to a second reading, thereby causing
82
Sovacool and others (n 67) 581–619.
83
Sari and others (n 4) 5.
84
R Gillard and others, ‘Advancing an Energy Justice Perspective of Fuel Poverty: Household Vulnerability and Domestic Retrofit Policy in
the UK’ (2017) 29 Energy Research and Social Science 53.
85
D Schlosberg, ‘The Justice of Environmental Justice: Reconciling Equity, Recognition, and Participation in a Political Movement’ in A
Light and A De-Shalit (eds), Moral and Political Reasoning in Environmental Practice (MIT Press 2003) 125–56.
86
Jenkins and others (n 64) 8.
87
ibid.
88
Amnesty International, ‘Nigeria: Shell Complicit in the Arbitrary Executions of Ogoni Nine as Writ Served in Dutch Court’ (29 June
2017) <https://www.amnesty.org/en/latest/press-release/2017/06/shell-complicit-arbitrary-executions-ogoni-nine-writ-dutch-court/>
accessed 28 September 2021.
89
HW French, ‘Nigeria Executes Critic of Regime; Nations Protest’ (11 November 1995) <https://www.nytimes.com/1995/11/11/world/
nigeria-executes-critic-of-regime-nations-protest.html> accessed 28 September 2021.
90
Gbemre v Shell, ibid (n 35).
12  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

Senator Murray-Bruce to withdraw it. However, during the debate over the bill, the then Deputy Senate
President, Senator Ike Ekweremadu when opposing the bill dismayingly stated, ‘Besides, in economic sense,
we are an oil producing country. So, we should do everything possible to frustrate the sale of electric cars in
Nigeria to enable us to sell our oil.’91 This showed a lack of concern and appreciation for environmental con-
cerns, climate change, the pollution occurring daily due to oil operations in Nigeria and the impact of oil ex-

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ploration and operations on people living in abysmal conditions in Niger Delta communities. All he was
concerned with were the economic gains. There was no recognition or concern about how high the associ-
ated costs of the oil industry are.

Restorative justice
Heffron and McCauley define restorative justice as a duty to rectify injustices arising from energy decision-mak-
ing.92 Restorative justice originates from criminal jurisprudence, but within energy justice, it isn’t the criminal or
penal angle that is at the fore. Here, restorative justice seeks to ‘repair the harm done to people (and/or soci-
ety/nature)’.93 Restorative justice deals with the ‘ethical’ angle of the energy justice agenda and the ability to
atone for a misdeed or an injustice even if it occurred as a result of an accident. It seeks to restore and make
whole any wrongs or actions within the energy system which has caused some harm, loss, deprivation or gap.
This tenet of energy justice champions fairness as ‘applying energy justice decision-making forces
decision-makers to engage with justice concerns and consider the full range of issues, as any injustice caused
by an energy activity would have to be rectified.’94 Under restorative justice, the victims are at the centre of
the justice plan and this tenet makes room for gauging the type of harm, the degree of harm or the injustice
that has been or would be inflicted on a victim, person, community or group and the appropriate or commen-
surate remedial response or repair to be exacted.95
According to Sullivan and Tifft, ‘restorative justice makes society think about how to respond to injustices
that have occurred and also in defining what injustices society gives attention to in the first place.’96 It must
be emphasized that restorative justice as a concept does not only apply to past acts, harms or injustices, but
can also be applied in a progressive and forward-looking stance wherein harms or injustices are anticipated
and while policymakers might take steps or put in procedures to prevent those harms, they know and ac-
knowledge that all exigencies might not be adequately covered and policies and procedures must be put in
place to address and remediate any accidents, harms or injustices that might occur as a result of a cause of ac-
tion or where a system is activated or followed. The processes adopted and used in EIAs (and Strategic
Environmental Assessments) have restorative justice as a guiding principle.97 Restorative justice lies at the
heart of principles like the polluter pays principle. As a tenet of energy justice, the foremost goal of restorative
justice is therefore not to punish, but to restore, remediate or compensate for injustice. Thus, the careful
measures taken by Shell in laying pipelines from Stanlow in Cheshire to Mossmoran in Scotland,98 is an ex-
ample of restorative justice in practice. The Deepwater Horizon disaster remediation, clean-up, compensation
91
The Punch, ‘As Oil Producers, We Should Frustrate Sale of Electric Cars in Nigeria —Ekweremadu’ The Punch Newspaper (17 April
2019) <https://punchng.com/as-oil-producers-we-should-frustrate-sale-of-electric-cars-in-nigeria-ekweremadu/> accessed 28 September
2021. Also, D Shibayan, ‘Ike Ekweremadu, Deputy Senate President, Says as an Oil Producing Country, Nigeria Ought to Frustrate the Sale of
Electric Cars’ The Cable Newspaper (17 April 2019) <https://www.thecable.ng/ekweremadu-as-an-oil-producer-nigeria-should-frustrate-sale-
of-electric-cars> accessed 28 September 2021.
92
Heffron and McCauley (n 9) 660.
93
ibid 659.
94
ibid 660.
95
Nnam (n 69) 109.
96
D Sullivan and L Tifft, ‘Introduction: The Healing Dimension of Restorative Justice – A One-World Body’ in D Sullivan and L Tifft (eds),
Handbook of Restorative Justice: A Global Perspective (Routledge 2006) 1–16.
97
M Hazrati and RJ Heffron, ‘Conceptualising Restorative Justice in the Energy Transition: Changing the Perspectives of Fossil Fuels’
(2021) 78 Energy Research & Social Science 1.
98
Rowell, ibid (n 48). Also, Shell (n 48).
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  13

and restoration in the USA99 and the Shell Bodo community compensation and remediation in Nigeria,100
are examples of restorative justice in action.
In Nigeria, there are a plethora of legislation that embrace and mandate restorative justice. These include
laws governing the energy industry eg the National Environmental Standards and Regulations Enforcement
Agency (NESREA) Act 2007,101 the National Oil Spill Detection and Response Agency (NOSDRA) Act

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2006102 and even the new Petroleum Industry Act 2021.103

Cosmopolitan justice
Cosmopolitan justice is the energy justice tenet that deals with global externalities.104 Cosmopolitan justice is
anchored on the concept that energy justice should not be restricted or addressed on a single project basis,
nor on a community or even national basis, but should be addressed globally. Cosmopolitan justice acknowl-
edges that all ethnic groups belong to a single community based on a collective morality.105 Sovacool and
others make a case for what they put forward as the core elements of cosmopolitan justice and state that
issues like individualism, universality, responsibility and identity have different explanations. They explain as
follows:

• Individualism: Human beings and persons are the ultimate concern, not communities or nation-
states.
• Universality: Justice concerns apply to everyone equally, regardless of their gender or social status.
• Responsibility: The way to individual and communal mutual benefit is to treat others as they them-
selves would wish to be treated.
• Identity: Although we are influenced by cultures and diversity of perspectives, one is a member of a
global community of human beings.106
It can be argued that the foregoing core elements are essential in the cosmopolitan justice debate because
all human beings are equal and important irrespective of their locality, status, cultures, abilities, sex, diversity
or status and thus, there should be collective as well as individual responsibility with regard to energy issues
which should be addressed worldwide or universally and not just nationally, communally or locally.
The importance of cosmopolitan justice as an integral tenet of the energy justice agenda is underscored by
the knowledge that the world is a global village and it is imperative that energy issues, like poverty, environ-
mental and climate issues, should not only be tackled and addressed on a piecemeal, community or national
level but on an international and global level.
In the race to reverse climate change and to protect the environment, it is futile if groups or countries de-
cide to apply energy justice locally and are unperturbed about energy systems and practices in other jurisdic-
tions. For example, where is the justice if a country like the USA applies and enforces the highest standard of
energy justice within its borders but is unconcerned about practices in places like Nigeria from which it
imports a significant amount of its oil, especially when it is notoriously known that those from whose land
and region in Nigeria where the oil is sourced live in degrading and appalling conditions and their land and

99
BBC News, ibid (n 49), Mason, ibid (n 50), Vaughan, ibid (n 51) and Nocera, ibid (n 52).
100
Amnesty International, ibid (n 24). Also, The Bodo Community v Shell, ibid (n 25).
101
s 28 of the NESREA Act states, ‘The Minister for the purpose of implementing the provisions of this Act, shall by regulations prescribe
any specific removal method, financial responsibility level for owners or operators of vessels, or onshore or offshore facilities, notice and report-
ing requirements.’
102
ss 5 and 6 of the NOSDRA Act 2006.
103
ss 102 and 103 of the Petroleum Industry Act 2021.
104
Sovacool and others (n 82).
105
D Moellendorf, Cosmopolitan Justice (Westview Press 2002) 171. Also, Sovacool and others (n 62) 3.
106
Sovacool and others (n 62) 4.
14  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

lives have been ravaged and destroyed by incessant oil spills107 and gas flaring? The environment and climate
do not keep scores of individual/national achievements especially when others are not applying the same
standards. A co-operative collective universal approach is therefore desirable and advocated. Under cosmo-
politan justice, every individual or country be considered only as strong as the weakest individual/country
(link). For then only can a regime emerge that would truly reflect justice in its true manifestations. The ruling

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by a Dutch civil court in May 2021 ordering Shell Petroleum to reduce its CO2 global emissions by 45 per
cent by 2030 compared to 2019 levels to bring it in line with the Paris climate agreement108 is a stellar ex-
ample of cosmopolitan justice in action as this will include Shell’s operations in places like Nigeria.
It is advocated that the ‘neighbourhood principle’ be applied when dealing with energy systems and poli-
cies. The neighbourhood principle should lead policymakers to ask, ‘If it isn’t good enough for me, why
should it be good enough for my neighbour (or others)?’ It should lead to the consideration and application
of better technology, methods, siting, procedures, mechanisms, etc, so that there will as practicable as possible
be minimal negative impacts and less injustice.

4. ADVANCING THE RESTORATIVE JUSTICE TENET AS A SOLUTION IN NIGERIA’S

ENERGY QUAGMIRE
There has been serious research carried out on energy justice over the last decade which has helped in driving
policy regulating the energy industry and has started to form a base on which a more just and equitable en-
ergy regime is currently being driven. Having addressed the five tenets of energy justice above, it is advocated
that restorative justice is a tenet that can be driven to chart a course in policy making and practice within the
energy industry in Nigeria. Restorative justice is being singled out here because at its core lies a duty to rectify
injustices and the goal to repair harm committed to society and the environment.
While the other four tenets of energy justice are pertinent in the quest to achieve a just energy system and
transition, restorative justice is important because it champions fairness within energy processes and systems
as it aims to atone for any misdeeds or injustices within the energy sector, even if it occurred as a result of an
accident. Heffron and Talus have advocated a paradigm shift in energy law wherein scholarship on energy
law bridges the gap between academics and professionals in practice.109 This will ensure that the stellar theo-
ries put forward by academics find their way and are utilized in energy policies and practice. Since restorative
justice is not only retrospective in nature, but also forward-looking in that it forces decision-makers to con-
sider and engage with justice concerns and potential costs when deliberating and coming up with policies,110
restorative justice theories have a good opportunity to transition into policy and practice.
With grave climate change concerns and the obligations of sovereign States with their Nationally
Determined Contributions (NDCs) under the Paris Agreement, it is important that Nigeria backs its usual
rhetoric with serious policies to regulate its energy industry. In this instance, Nigeria needs to borrow a leaf
out of the US book. Upon assumption of office in January 2021, the president of the USA, Joe Biden,
appointed Professor Shalanda H Baker as a deputy-director for energy justice. This appointment was made
on the back of Professor Baker’s work and prominence in the energy justice field. And upon her assumption

107
A Vaughan, ‘Oil in Nigeria: A History of Spills, Fines and Fights for Rights’ Guardian Newspaper (4 August 2011) <https://www.theguar
dian.com/environment/2011/aug/04/oil-nigeria-spills-fines-fights> accessed 28 September 2021. Also, Amnesty International (n 3).
108
D Boffey, ‘Court Orders Royal Dutch Shell to Cut Carbon Emissions by 45% by 2030’ The Guardian (26 May 2021) <https://www.the
guardian.com/business/2021/may/26/court-orders-royal-dutch-shell-to-cut-carbon-emissions-by-45-by-2030> accessed 28 September 2021.
Also, European Coalition for Corporate Justice, ‘Landmark Ruling: Shell Ordered to Slash CO2 Emissions throughout Its Global Value Chain’
(28 May 2021) <https://corporatejustice.org/news/landmark-ruling-shell-ordered-to-slash-co2-emissions-throughout-its-global-value-chain/>
accessed 28 September 2021.
109
RJ Heffron and K Talus, ‘The Development of Energy Law in the 21st Century: A Paradigm Shift?’ (2016) 6(3) Journal of World Energy
Law and Business 1–2 and 13–14.
110
Heffron and McCauley (n 9) 660.
 Ayodele Morocco-Clarke •Can there be a seat for energy justice at the Nigerian table?  15

of office, Professor Baker immediately started ‘diving into key policy changes’.111 Unfortunately, Nigeria cur-
rently lags behind in its quest, seriousness, drive and commitment in putting an urgent priority on clean en-
ergy, an equitable distribution of energy, just energy systems and a just energy transition. Numerous
instances bear witness to the weak political will to drive necessary policy and enforce laws and regulation.
These include the failure or refusal to phase out routine gas flaring despite the fact that gas flaring has been

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outlawed in Nigeria for approximately 40 years, and the Nigerian legislature’s disinterest and refusal to con-
sider a sponsored legislative bill aimed at phasing out petrol vehicles and introducing electric cars in the
country by 2035.112 When it comes to the strict enforcement of laws by regulators and the enforcement of
and compliance with court orders/judgments, Nigeria’s past record is unimpressive as strict adherence to
laws/orders and the enforcement thereof is a lottery that is dependent on which influential or powerful inter-
est is vested and at stake.113
The foregoing nevertheless, Nigeria is taking little baby steps forward in various sectors and with the grad-
ual emergence of younger and more progressive Nigerians at the helm of affairs and in key positions, there
are increasing developments and optimism that the country is slowly but surely turning a corner. However,
in order to make a discernible difference, it is imperative that the right policies are put in place as there are
unconventional mediums of enforcement if necessary114 and developing, entrenching and enforcing restora-
tive justice into policy will move Nigeria firmly in the right direction. In order to forge the right path, deter-
mination and resilience are key factors in charting a different course and making a paradigm shift to a just
and equitable energy system and transition.
Energy justice does not enure in isolation. It is a principle of energy law which is one of many principles
that guide processes and policy within the energy industry. In ‘A Treatise for Energy Law’, Heffron and
others advocate, among others, the energy law principle of resilience, which is stated to be ‘the ability to pre-
pare plan for, store, recover from, and more successfully adapt to adverse events.’115 This energy law principle
alongside energy justice will aid in the development and improvement of energy provision and the reduction
of energy poverty in Nigeria.

5. TOWARDS 2030: A WAY FORWARD FOR A JUST ENERGY REGIME AND

TRANSITION IN NIGERIA
Having gone through the essence of energy justice by dealing with its tenets, there is no gainsaying that
Nigeria and particularly the people of the Niger Delta would gain a lot of energy justice was at the forefront
of energy policy in Nigeria and if it not only drives policy, but is applied rigorously and faithfully.
This work has looked extensively at the concept of energy justice which is a principle of energy law. The
five tenets of energy justice (distributional, procedural, recognition, restorative and cosmopolitan justice)
were analysed and restorative justice was put forward as the energy justice tenet capable of tying together
deliberations and decisions driving energy policy in Nigeria. The choice of restorative justice was strategic, as

111
H Chabot, ‘She’s Bringing Her Energy Justice Mission to the Biden Administration’ (23 January 2021) <https://news.northeastern.edu/
2021/01/23/shalanda-baker-is-bringing-her-energy-justice-mission-to-the-biden-administration/> accessed 18 March 2022.
112
The Punch (n 91). Also, D Shibayan (n 91).
113
There have been recorded incidents of the Nigerian government and/or key official figures refusing to adhere to laws and court decisions,
eg the refusal of the government to comply with the judgment of the court in Gbemre v Shell (Unreported) Suit No FHC/CS/B/153/2005 and
the refusal of Shell to comply with the decision of the Nigerian House of Representatives and the court with regard to paying the Ijaw people
of the Niger-Delta $1.5 Billion in the case of Ijaw Aborigines of Bayelsa State v Shell I (Unreported Suit No FHC/YNG/CS/3/05. Judgment
delivered by Justice Okechukwu Okeke, Federal High Court Port Harcourt, Rivers State on 24 February 2006).
114
On a number of occasions, aggrieved Nigerians have successfully taken their grievances before foreign courts to hold operators within the
Nigerian petroleum industry accountable for various infractions of the law and of their rights eg the case of Okpabi & Ors v Royal Dutch Shell
Plc & Anor [2021] UKSC 3.
115
RJ Heffron and others, ‘A Treatise for Energy Law’ (2018) 11(1) Journal of World Energy Law and Business 39 and 46–7.
16  Ayodele Morocco-Clarke • Can there be a seat for energy justice at the Nigerian table?

it is the tenet that can address the ills and correct any wrongs or harms that arise out of energy activities and
also cater for potential issues that might arise in the future, as well as how to address and rectify such issues.
Globally, energy has far-reaching ramifications. It impacts the environment and is a major contributor to
climate change. Equally importantly, it touches and impacts on the lives of people all over the world, affecting
human rights and potentially the ability of future generations to thrive and meet their needs by living in a

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safe and healthy environment. The impact energy has on human rights is one that is internationally recog-
nized and which is receiving action in various jurisdictions. The decision in Gbemre v Shell and the Dutch de-
cision in Milieudefensie et al v Royal Dutch Shell show that increasingly human rights are being juxtaposed
with energy activities and courts are not shying away from holding energy operators, regulators and compa-
nies accountable for the violation of human rights as a result of their actions and for the protection of those
rights. In addition, appointments like that which President Biden made of Professor Shalanda Baker show
that sovereign States are increasingly making the issue of energy justice within the energy industry and energy
systems paramount, and it is hoped that Nigeria will follow such necessary steps.
As has been stated previously, Nigeria has consistently suffered from the twin problems of enforcement
and compliance over the years. While the statute books are replete with thousands of legislations at different
levels in Nigeria, most of these laws are seldom stringently or adequately enforced by the appropriate regula-
tory bodies and this means that many get away without complying with various laws.116 Also, Nigeria grap-
ples with institutionalized corruption and this alongside the enforcement and compliance issues are capable
of derailing any good intentions with regard to energy justice. Furthermore, Nigeria suffers from the weak
political will. The government has again announced that gas flaring will finally cease in the country in
2030,117 and in line with its obligations under the United Framework Convention on Climate Change
(UNFCCC) and the Paris Agreement, it submitted an updated NDC to the UNFCCC.118 However, it must
be pointed out that this has not been the first, second or even sixth time that Nigeria has issued gas flaring
deadlines119 and the new Petroleum Industry Act 2021120 shall prove of little difference in the face of a lack
of political will on the part of the Nigerian government.
Time will tell if the Nigerian State is determined to change its regulatory narrative and begin to hold itself
and its citizens accountable and to operate to a higher standard. If it does, the adoption and application of en-
ergy justice tenets and principles in Nigeria will go a long way in protecting the environment, dealing with cli-
mate change and improving the living standards and lives of citizens and residents of Nigeria. It will also aid
Nigeria in meeting its obligations under the Paris Agreement.
Finally, it is important that the international community holds Nigeria accountable for its obligations and
ensures that it meets its 2030 Paris Agreement obligations and does not get away with lower standards and
practices on account of being a developing country.

116
A Morocco-Clarke, ‘Holding Operators in the Nigerian Petroleum Industry to a Higher Environmental Standard’ (2021) 2(2) Global
Energy Law and Sustainability 202, 203–8.
117
J Lo, ‘Nigeria to End Gas Flaring by 2030, under National Climate Plan’ Climate Home News (13 August 2021) <https://www.climate
changenews.com/2021/08/13/nigeria-end-gas-flaring-2030-national-climate-plan/> accessed 28 September 2021.
118
Federal Ministry of Environment, ‘Nigeria’s Nationally Determined Contribution’ (2 July 2021) <https://www4.unfccc.int/sites/ndcstag
ing/PublishedDocuments/Nigeria%20First/NIGERIA%202021%20NDC-FINAL.pdf> accessed 28 September 2021.
119
Y Akinpelu, ‘Analysis: As Nigeria Continues to Miss Gas Flaring Deadlines, Huge Revenue Is Lost’ (30 April 2021) <https://www.pre
miumtimesng.com/news/headlines/458507-analysis-as-nigeria-continues-to-miss-gas-flaring-deadlines-huge-revenue-is-lost.html> accessed 28
September 2021.
120
eg, ss 104–108 on gas flaring.