ISLAMABAD : Monitoring Desk – In a significant victory for environmental justice, the UK High Court has ruled that Shell and its former Nigerian subsidiary can be held legally responsible for decades of oil pollution in the Niger Delta.
This ruling allows the case, brought by two Nigerian communities, to proceed to a full trial, where they will seek compensation and cleanup of the damage caused by Shell’s operations. A trial is set to take place at the High Court in 2027.
The case was brought in 2015 by two Nigerian communities who allege the oil company’s operations in the Niger Delta have caused widespread and ongoing pollution, causing severe health issues and economic hardship. They are seeking compensation from Shell and asking for the companies to clean up the damage caused by the spills.
Claims for legacy pollution
- The judge found that a failure to clean up could be an ongoing breach of Shell’s legal obligation to clean up and could create a fresh right to make a legal claim for every day that the pollution remained…
Illegal bunkering and refining…
- Shell argued that it could never be liable for pollution arising from bunkering or illegal refining. The judge rejected Shell’s arguments and found that Shell could be liable for damage from bunkering or illegal refining if it failed to protect its infrastructure,…
Liability of Shell plc
- Shell argued at the preliminary issues trial that the Nigerian legal framework prevented claims against its parent company, Shell plc, for oil spills from pipelines. The judge rejected this argument and concluded that Shell plc can still be liable for these spills…
Next steps
The trial is a significant moment in the legal claim by the Bille and Ogale communities, who have been fighting UK-based Shell plc and oil company Renaissance, formerly Shell Petroleum Development Company of Nigeria Ltd, for a clean-up and compensation since 2015.
NADRA of Pakistan to Provide Identity Solutions to Nigerian NIMC
Shell’s Stance in the Court
Shell told the court it could not be held liable for the oil pollution because most of the spills were caused by criminal activity by third parties or illegal oil refining and occurred outside the five-year limitation period on bringing legal claims. The judge ruled while the legal claims for damage caused by illegal oil refining faced ‘very significant hurdles’ Shell could be sued over any oil spills that haven’t yet been cleaned up, even if they took place decades ago.
Shell said it welcomed the judgement. ‘For many years, the vast majority of spills in the Niger Delta have been caused by third parties acting unlawfully, such as oil thieves who drill holes in pipelines, or saboteurs,’ a company spokesperson said. ‘This criminality is the cause of the majority of spills in the Bille and Ogale claims, and we maintain that Shell is not liable for the criminal acts of third parties or illegal refining. These challenges are managed by a joint venture which Shell’s former subsidiary operated, using its expertise in spill response and clean-up.’
Expert Opinion
Experts say that the case is part of a growing trend of climate litigation against multinational companies over alleged failures to prevent environmental harms overseas. ‘Companies are increasingly under pressure to take responsibility, not just for their own operations but also for third parties in respect of human rights and environmental harms,’ says Lucy Blake, an investigations partner and co-chair of Human Rights and Global Strategy at Jenner & Block in London.
Blake says recently introduced corporate due diligence and transparency requirements in the EU are another example of the growing pressure on companies to root out human rights harms and environmental misconduct in their business operations.
Olawuyi, who is also an environmental law professor at Hamad Bin Khalifa University in Qatar, says that domestic courts in Africa are also responding to growing ESG trends noting that the notion of continued liability for business-related pollution was recently recognised by the Kenyan Supreme Court. ‘As more African countries adopt national action plans on business and human rights, we expect to see even more domestic case law developments that emphasize ESG obligations of businesses and investors,’ he says. ‘There is a strong business case, in terms of cost, reputation, and effectiveness, for business enterprises, and their lawyers alike, to comprehensively understand and manage the wide range of ESG-related risks across their entire value chains.’
Anaïs Tobalagba, senior legal advisor and natural resources lead at Global Rights Compliance, found it notable in the ruling that the judge recognised that under certain circumstances environmental harm could engage the right to life. ‘That is very much aligned with emerging jurisprudence worldwide, which is taking into consideration the intersection between environmental harm and human rights,’ she says.
Tobalagba says that the decision closely aligns with the UN Guiding Principles on Business and Human Rights which recognise that environmental harm can have significant human rights impacts and that businesses have a responsibility to protect human rights.
Babatunde Ajibade, Chair of the IBA’s Section on Public and Professional Interest who provided expert evidence on Nigerian law in the proceedings, says that one of the reasons the claimants took Shell to court in the UK is because of the perception that the same standards applied to oil companies in other parts of the world, to prevent and address pollution, haven’t been upheld in Nigeria. ‘A lot of historical pollution has taken place that has not been cleaned up and that continues to cause severe damage to the environment and to the inhabitants that live in those oil producing communities,’ he says.
Ajibade, who is also the managing partner at SPA Ajibade & Co in Nigeria, says that he commends the claimants for their ‘perseverance’ with the litigation, which has lasted for over a decade. ‘I salute their efforts, and I urge them to keep at it because what is left to see the claim to a conclusion is much less than what they have been through already’.
Olawuyi says that the continued liability doctrine established in the case could encourage many more Nigerian communities to file claims over legacy oil pollution. ‘I also expect the implications to be far reaching beyond Nigeria, across Africa and even to other continents where local communities have had to bear the burden of irresponsible business practices for decades,’ he says.
