Natasha Affolder

Oil and gas is the linchpin of the Nigerian economy. However, oil exploration and exploitation processes of petroleum products, particularly in the Niger Delta, have generated unpleasant social and environmental challenges ranging from oil spill, gas flaring and discharge of waste and effluents which have wreaked havoc on the health of the Niger Delta people and the ecosystems upon which they depend. This thesis is particularly concerned with gas flaring: the burning of associated natural gas found with oil deposits. Nigeria is currently ranked as the world’s fifth-largest gas flaring country in the world. This wasteful practice of burning non-renewable energy results in the release of greenhouse gases into the atmosphere which cause extreme climatic changes. Climate change is said to be the current greatest environmental and social threat to sustainable development. Although no region of the world will be entirely spared, scientific research has shown that there are uneven effects of these challenges and vulnerabilities to these challenges across world territories. Some continents, more than others, are vulnerable to the catastrophic effects of climate change. For instance, it is feared that African countries like Nigeria might experience the most severe impacts of climate change compared to other continents in the world and they are the least prepared to handle these impacts as a result of poverty and low technological development. Litigation has been heralded as a promising, effective, and alternative path to encourage climate change mitigation and victim compensation. This thesis analyzes the core assumptions that guide current scholarly enthusiasm for the capacity of climate change litigation to reduce environmental harm based on the experiences in the United States of America and Australia and contrasts that with the unique contextual factors that have impeded the overarching success of climate change litigation in Nigeria. The current state of climate change litigation in Nigeria reveals the lack of political will to enforce the court’s judgment because of the economic importance of the Oil and Gas Industry, lack of judicial independence, the lack of gas conservation infrastructure and the Joint Venture arrangement between the state and the Transnational oil companies.

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Climate change represents a vexing challenge for infrastructure design. There is increasingly widespread acknowledgement that design practices need to change in order to ensure that structures built today can withstand changes in average climate conditions, growing climate variability, and more frequent and extreme weather events over the coming decades. Yet substantial uncertainty persists with respect to the specific future conditions that structures should be designed for, leading to regulatory paralysis: despite the need for urgent action, regulation continues to require that infrastructure design be based on the assumption that past climate will be representative of future climate. This thesis argues that, in the face of this bedevilling combination of urgency and uncertainty, government regulation will be required to generate the changes in design practices needed to ensure that structures designed today will be resilient and robust to the climate impacts they are likely to confront over their lifetimes. Using the example of the National Building Code of Canada, this thesis identifies several stress points in existing regulatory frameworks for infrastructure design. In particular, this thesis demonstrates that existing methods for dealing with uncertainty in infrastructure design regulation are likely to be overwhelmed by the deep uncertainties surrounding climate change, and that the poor adaptive capacity of existing frameworks renders them unable to keep pace with the increasingly rapid pace of change. Responding appropriately and proactively to these challenges demands a new regulatory paradigm. This regulatory paradigm should draw guidance from new governance theory in the legal scholarship, as well as a range of ‘adaptive’ approaches developed in other disciplines — adaptive management, adaptive governance, and adaptive policymaking. The core of a new, adaptive regulatory paradigm should be a structured, iterative regulatory process that is capable of responding quickly and appropriately to new knowledge and unfolding realities, and formal and informal, multi-level networks that foster learning, cooperation, collaboration, and innovation. Without such a paradigm shift, the existing regulatory paradigm will fall into crisis, rendering structures designed today vulnerable to failure in the face of tomorrow’s climate, and thereby compromising substantial infrastructure investments and increasing risks to public safety.

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