June 24, 2014

Bad information: Oil spill investigations in the Niger Delta


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Hundreds of oil spills occur in Nigeria every year, causing significant harm to the environment, destroying local livelihoods and placing human health at serious risk. These spills are caused by corrosion, poor maintenance of oil infrastructure, equipment failure, sabotage and theft of oil. For the last decade oil companies in Nigeria – in particular Shell – have defended the scale of pollution by claiming that the vast majority of oil spills are caused by sabotage and theft of oil.

There is no legitimate basis for this claim. It relies on the outcome of an oil spill investigation process – commonly known as the Joint Investigation Visit or JIV process – in which the companies themselves are the primary investigators. This report exposes several serious deficiencies and abuses within the JIV process that render it wholly unreliable as a basis for making claims about the cause of oil spills, the volume of oil spilt or the area impacted.

The report is based on an examination of the JIV process and – critically – of how data are recorded during the process. It draws on expert analysis obtained from a US pipeline specialist who reviewed JIV investigation documents and data provided by oil companies and regulators to researchers in the course of investigations.

The report presents evidence not only of serious and systemic flaws in the oil spill investigation process, but also specific examples of instances where the cause of an oil spill appears to have been wrongly attributed to sabotage. The evidence includes a secretly filmed video of an oil spill investigation. In addition, the report exposes serious problems with how the volume of oil spilt is assessed and recorded; it is likely that the volume of oil recorded as spilt in many cases is incorrect.

The human rights impacts are serious – both the cause of a spill and the volume spilt affect the compensation a community receives. If the spill is recorded as caused by sabotage or theft, the affected community gets no compensation, regardless of the damage done to their farms and fisheries. This is based on a provision in Nigeria's oil legislation which Amnesty International and the Centre for Environment, Human Rights and Development believe needs to be amended. Oil companies should be held responsible for a spill that is due to sabotage or theft if they have failed to take sufficient measures to prevent tampering with their infrastructure.

The majority of the report's findings relate to the Shell Petroleum Development Company, which is the major onshore operator in the Niger Delta. The report acknowledges improvements in Shell's JIV process since 2011, when the company began to publish JIV reports on its website. Other companies have yet to do this.

However, serious flaws remain within Shell's post-2011 oil spill investigation process. These include weaknesses in the underlying evidence used to attribute spills to sabotage and the fact that the JIV reports are filled out by Shell after the joint investigation process – not as part of the joint investigation process. There is, consequently, a lack of transparency and oversight in terms of what is recorded on the new JIV reports.

The report also reviews Shell's pre-2011 JIV process. Although Shell has made some improvements in its process since 2011, findings related to the pre-2011 process are important for two reasons: firstly, numerous pre-2011 oil spills are the subject of ongoing disputes between Shell and communities over the data recorded on JIV reports. Secondly, Shell uses pre-2011 data to make claims to investors and the media about the cause and volume of oil spilt in the Niger Delta in the last five years.

Despite its frequent references to sabotage and theft, Shell has failed to take effective measures to protect its infrastructure from tampering. Vulnerable infrastructure has been left exposed to vandalism and theft.8 In addition, evidence has recently emerged to suggest that Shell's own contractors may be involved in oil theft.

The report also makes a number of findings in relation to the Nigerian Agip Oil Company, a subsidiary of the Italian company, ENI. Although Agip operates over a smaller area than Shell, there have been almost twice as many spills reported from its operations in recent years. In 2012, there were a staggering 474 spills from Agip's operations, compared with 207 from Shell. Agip attributes the vast majority of spills to sabotage but provides absolutely no information to support this allegation. Furthermore, such a high number of spills, from whatever cause, is indefensible for a responsible operator.

Sabotage and theft of oil are serious problems in the Niger Delta. However, international oil companies are overstating the case in an effort to deflect attention away from the many oil spills that are due to corrosion and equipment failure. Moreover, securing oil infrastructure against such acts is – to a substantial extent – the responsibility of the operator.

While many of the issues covered in this report relate to actions and failures of oil companies, it is clear that the government of Nigeria is failing in its duty to control the oil industry and prevent environmental damage and human rights abuses. Regulatory oversight of the oil industry in the Niger Delta is extremely weak. The report confirms what others, including UN agencies, have found in relation to a lack of capacity and conflicts of interest affecting the main regulators. It is clear that regulatory certification of companies' oil spill processes is not credible.

The report also notes that almost everyone involved in oil spill investigations is male. In general the oil companies and Nigerian oil regulators only deal with chiefs and other elite male members of spill-affected communities, reinforcing gender stereotypes and economic disadvantage in the Niger Delta.

While oil spills are a significant problem in themselves, the impact on human rights is exacerbated by the failure to clean up and remediate the affected areas properly and swiftly. The final chapter of the report looks specifically at Shell and the company's claims about clean up of oil spills, following a damning report by the United Nations Environment Programme in 2011. Shell has repeatedly claimed that it cleans up all oil spills, regardless of the cause. The report questions Shell's statements and data on clean up and remediation. It concludes that Shell's public claims do not stand up to scrutiny and are inconsistent with existing evidence.

The report concludes that the JIV process lacks credibility and cannot be relied upon to provide either accurate information on individual spills or as a basis for wider claims about the proportion of oil spilt due to sabotage, theft, corrosion or any other cause. Based on the available evidence corrosion and operational failures remain a significant cause of oil spills, and more oil has been spilt due to operational failures in the past six years than Shell has claimed.

This report also concludes that data from Shell operations in Nigeria – whether on the cause of oil spills or the nature of clean up – cannot be the basis for any meaningful assessment of the company's impacts because of the serious flaws in how the data is compiled. The report therefore strongly questions how media and investors can rely on Shell's claims about the company's environmental impacts in Nigeria.

Finally, the report makes recommendations to further improve JIVs and to address past injustices that have been the result of inadequacies in the JIV process. This includes taking all feasible steps to ensure oil spill investigations can be independently verified, ensuring that women are not excluded from the process, and ensuring that all members of the affected communities have full access to all relevant information in an accessible format.

Oil companies have challenged the findings contained in this report and their responses and reflected in the text.

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