Overcoming Regulatory Failure in the Design and Implementation of Gas Flaring Policies: The Potential and Promise of an Energy Justice Approach

Abstract

Gas flaring is a major source of air pollution and a chief contributor to climate change. Addressing the adverse social, environmental, and economic impacts of gas flaring has therefore been identified as a fundamental objective of energy policy in oil- and gas-producing countries across the world. Despite this recognition however, gas flaring remains a significant threat to energy justice worldwide, especially in resource-rich Middle Eastern and African (MEA) countries. In Nigeria, for example, as far back as 1979, the primary legislation fixed 1 January 1984 as the deadline for all energy operators to stop gas flaring. More than three decades later, Nigeria remains one of the highest gas flaring countries on earth, with significant adverse social, environmental, and human rights impacts on local communities. While a number of existing studies have documented the perennial failure of gas flaring regulation and policies in Nigeria and other MEA countries, a detailed examination of the energy justice gaps that limit the design and implementation of gas flaring reduction policies has remained absent. This article fills a gap in this regard. Drawing lessons from Nigeria, this article analyzes the energy justice dimensions of regulatory failure in the design and implementation of gas flaring policies. Various legal and institutional drivers of regulatory failures in gas flaring reduction policies are examined in order to identify the ways in which an energy justice governance framework can help close these gaps. The study suggests that conceptualizing and elaborating the energy justice dimensions of gas flaring in energy policy design, enacting stringent and coherent gas flaring legislation, promoting the transparent reporting and disclosure of statistical data on gas flaring reduction programs, and reforming regulatory institutions to ensure coherent implementation of gas flaring policies are significant steps towards overcoming regulatory failure in the design and implementation of energy policies on gas flaring reduction.

1. Introduction

One of the most complex energy policy concerns facing oil- and gas-producing countries across the world is the problem of gas flaring. Flaring is the disposal or release of gas into the atmosphere, especially when there is insufficient infrastructure to process, sell, or use the gas [1]. In addition to its adverse ecological impacts on flora and fauna, gas flaring constitutes a waste of an important resource that could otherwise be processed and deployed to improve the availability, affordability, and reliability of energy worldwide, especially in the Middle East and Africa (MEA) region, where several of the world’s most energy-poor people live [2]. For example, in the period between 2014 and 2018, oil- and gas-rich Middle Eastern countries flared an average of about 40 billion cubic meters (bcm) of gas per year from 2014 to 2018; the equivalent of about 10 percent of their domestic natural gas consumption in 2018 [3]. Specifically, in Iran, Iraq, Algeria, Libya, and Oman, gas flaring represented more than 10 percent of domestic gas consumption levels in 2018 [4]. Given the recurring problems of inadequate access to electricity and modern fuels in these energy-rich countries, especially in Algeria, Iraq, and Libya, the continuous flaring and associated waste of gas that could be deployed to enhance domestic energy security represents a complex energy policy dilemma.

Nigeria presents an even more staggering picture of the perennial failure of energy policies designed to eliminate gas flaring. According to World Bank estimates, Nigeria has the seventh-largest amount of gas flaring of all countries (only less than Russia, Iraq, Iran, USA, Algeria, and Venezuela) [5]. Estimates suggest that an average of 18 percent of the total volume of gas produced every month in Nigeria is wasted via flaring [5]. Over the last five years alone, Nigeria has lost an average of USD 1.32 billion every year to gas flaring [6]. The continuous flaring of gas in Nigeria, a country with one of the highest electricity deficits in the world where about 50 per cent of the population still rely on non-commercial fuels for cooking, lighting, heating, and commercial activities, represents a significant waste of gas that could be utilized to address the severe energy poverty challenges facing the country [7].

To address the gas flaring conundrum, a wide range of energy policies, legislation, and industry guidelines have been released over the last decades by oil- and gas-rich countries that specify prohibitions and penalties for gas flaring. Yet, gas flaring remains a complex socio-economic and environmental problem across the world, especially in the MEA region. Across the MEA region, despite the release of deadlines and prohibition policies over the last decades aimed at zero routine gas flaring, a combination of inadequate penalties, lax enforcement, missed deadlines, lack of transparency and accountability in measuring compliance, and light-touch regulatory approaches has resulted in the perennial failures of such policies [3,8]. In Nigeria, for example, as far back as 1979, the primary legislation, the Associated Gas Reinjection Act 1979, fixed 1 January 1984 as the deadline for all energy operators to stop gas flaring. More than three decades later, and with seven further missed deadlines, gas flaring remains a significant energy justice concern in Nigeria [9].

Failed energy policies on gas flaring have significant implications for the environment, the climate, and society at large. Gas flaring pollutes the air, emits potent greenhouse gases (GHGs) such as carbon dioxide (CO₂) that cause climate change, results in the waste of an important energy source that could be processed to power homes and industries, and exacerbates human rights violations in local communities [10]. If not addressed, all of these impacts of gas flaring may hinder the attainment of several of the United Nations Sustainable Development Goals (SDGs), especially those relating to good health and wellbeing (SDG 3), affordable and clean energy for all (SDG7), sustainable cities and communities (SDG 11), responsible production and consumption (SDG12); climate change (SDG 13), and justice and human rights (SDG 16) [11]. The Paris Agreement emphasizes the need to significantly reduce GHG emissions from all sectors, and several countries have already committed, in their nationally determined contributions (NDCs), to eliminate gas flaring in the oil and gas sector through more stringent energy policies, prohibitions, and gas commercialization programs [12]. Similarly, the World-Bank-led Global Gas Flaring Reduction (GGFR) program has adopted a “zero routine flaring by 2030” initiative which emphasizes the need for the energy industry to eliminate gas flaring by the year 2030 [13]. Consequently, addressing the adverse impacts of gas flaring and fostering cleaner and low-carbon resource production technologies and processes have become top priorities for global energy policy and practice [14].

Despite these recognitions, however, several legal and institutional challenges continue to hinder the development and implementation of gas flaring reduction policies in the energy sector. Without addressing the root causes of recurrent policy failures on gas flaring reduction, as well as their overall energy justice dimensions, ongoing efforts to address gas flaring in energy producing jurisdictions are at risk of further failures. While a number of existing studies have documented the perennial failure of gas flaring regulation and policies in Nigeria and other MEA countries, a detailed examination of the energy justice gaps that limit the design and implementation of gas flaring reduction policies has remained absent [9]. This article fills a gap in this regard. Drawing lessons from Nigeria, this article analyzes the energy justice dimensions of regulatory failure in the design and implementation of gas flaring policies. Various legal and institutional drivers of regulatory failures in gas flaring reduction policies are examined, in order to identify the ways in which an energy justice governance framework can help close these gaps.

The rest of this article is structured as follows. After this introduction, Section 2 examines the implications of gas flaring for energy justice. It discusses how energy justice can provide a clear framework for considering gas flaring policy failures. Section 3 examines the drivers and dimensions of gas flaring policy failures, with specific reference to the Nigerian experience. Section 4 proffers recommendations on the guiding principles of an energy justice framework that could enable energy regulators worldwide to overcome regulatory failures in the design and implementation of gas flaring reduction policies. Section 5 is the concluding section.

2. Gas Flaring Policy Failure as an Energy Justice Dilemma

The literature on energy policy failure seeks to investigate the root causes and consequences of failed energy policies [15]. Energy policy failure has been defined as “any energy policy which does not meet local, national, and international energy and climate goals across the activities of the energy life-cycle and where just outcomes are not delivered” [16]. In this article, the term failed gas flaring policies therefore refers to policies and legislation that do not achieve the objectives of eradicating the root causes of gas flaring and its associated impacts across the energy production and distribution value chain in an inclusive and rights-based manner. Gas flaring policy failure (or success) is analyzed and assessed with respect to how such policy frameworks effectively achieve targets and deadlines on gas flaring eradication, pollution control, improved health outcomes, and overall advancement of environmental justice and sustainable development in local communities.

Energy justice provides a coherent framework for understanding the sustainable development implications of gas flaring policy failures. The energy justice discourse emphasizes the growing adverse impacts of energy access projects on the fundamental human rights of local communities and the role of law in addressing those impacts [17]. Energy justice therefore entails the fair and equitable distribution of the benefits and burdens of energy development and the meaningful participation of all members of the public concerned in decision-making across the entire energy value chain. As Sokołowski and Heffron note, “energy justice is about the application of human rights across the energy life cycle, from extraction, production, and operation (plus supply) through consumption to waste management (including decommissioning).” [16]. The energy justice discourse reflects ongoing global debates on the need for business enterprises across all key sectors to respect, protect, and fulfil fundamental human rights in all spheres of their operations [17]. Several resolutions, declarations, and expert reports such as the United Nations’ Guiding Principles on Business and Human Rights, and the African Union’s 2012 Resolution on a Human Rights-Based Approach to Natural Resources Governance have emerged, which state that business enterprises, including energy operators, have a responsibility to respect, protect, and fulfil human rights in their operations and investments [18]. Without an energy justice perspective, projects aimed at advancing access to modern energy services for all may result in air, water, and land pollution and may exacerbate climate change and complicate human rights situations, especially in already vulnerable communities [19].

Studies identify five forms of energy justice: procedural, distributive, restorative, recognition, and cosmopolitan [16,17,20]. The failure of gas flaring policies exacerbates energy injustice across each of these five elements. Firstly, gas flaring often triggers distributive injustice in oil- and gas-producing communities where oil and gas deposits are located. In Nigeria, for example, although the Niger Delta region is home to the country’s oil wealth, the region remains one of the least developed communities in Nigeria, with elevated levels of air and water pollution, poor education and healthcare infrastructure, and a low human development index [21]. Furthermore, due to pre-existing marginalization, retrograde customs, and stereotypes that limit the access of women to education and executive roles, the impacts of gas flaring on lands and crops in those communities are felt more by women, who depend on such lands for subsistence [22]. Without an energy justice perspective, broadly framed policies and legislation aimed at addressing gas flaring in oil- and gas-producing communities may neglect the extreme vulnerabilities of indigenous communities and marginalized groups, who may suffer disproportionate impacts. An energy justice approach requires “the holistic and widespread implementation of five core principles of distributive justice (the PANEL principles)—Public participation, Accountability, Non-discrimination and equality; Empowerment and Access to Information; Legality and access to justice—in the design and implementation of energy projects and programs” [18].

Secondly, and flowing from the first, is procedural injustice. The failure of gas reduction policies to address the disproportionate burdens of energy production on marginalized and vulnerable groups such as women and young people lays a foundation for procedural injustice, as a large segment of the population may find themselves without any concrete remedies. For example, even when compensation and remedies are provided for gas flaring, studies indicate that such payments are often made to community leaders and landowners, which in most cases are men [23]. Procedural justice emphasizes the right of all members of the public to participate in decision-making regarding energy projects and policies that affect them [16,17]. Without an energy justice perspective that provides fair and adequate opportunities to marginalized and vulnerable groups to participate in decision-making, policies and legislation aimed at addressing gas flaring in oil- and gas-producing communities may result in a lack of effective remedies for all members of the affected public.

Thirdly, and flowing from procedural injustice, are the implications of gas flaring for social and recognition justice. Recognition injustice is driven by pre-existing social ills such as conflicts, political instability, social exclusion, and discrimination based on caste, race, gender, or indigeneity that worsen the vulnerability of local or indigenous communities to environmental impacts. For example, as resource curse studies indicate, resource-rich countries often witness elevated levels of conflicts and stunted socio-economic development, which is often worsened by the failure of governments to address the environmental impacts of oil and gas production activities in local communities, including gas flaring [24]. Gas flaring often triggers protests, restiveness, and conflicts in local and indigenous communities, who usually clamor for environmental restoration. For example, many years of unabated gas flaring has resulted in militancy, insurgency, kidnapping, and restiveness in Nigeria and several other oil- and gas-rich MEA countries [23]. The high level of insecurity continues to significantly weaken investor confidence in several MEA countries, which further weakens the cross-border inflow of SDG-related investments needed to advance energy infrastructure and energy transition projects. Several MEA countries are therefore trapped in a vicious cycle of trying to attract the critical investments and technologies needed to address gas flaring and advance low-carbon development, while the high risk of insecurity on the ground means that most developed countries often prefer to situate their investments in safer and less risky energy markets. Without addressing the wide range of social, economic, and environmental impacts of gas flaring on local communities, recognition justice may remain elusive in energy-rich countries, and this may slow the progress of global efforts to advance energy security and transition.

Fourthly, one of the most recurrent impacts of gas flaring is its restorative injustice dimension. Restorative justice requires “even-handed enforcement of energy statutes and regulations, as well as access to remedies when legal rights are violated” [16]. Gas flaring triggers restorative injustice in cases where the policies laid down on remediation or restoration are unclear, inadequate, or are applied selectively or inconsistently. For example, a key driver of restorative injustice associated with gas flaring is the lack of stringent penalties that can deter gas flaring in the first place. For example, several MEA countries do not have comprehensive legislation on gas flaring, or in cases where penalties or fines do exist, they are meagre and insufficient to deter flaring [3]. Similarly, a lack of comprehensive financial assurance mechanisms such as security deposits, insurance, or environmental performance bonds may trigger restorative injustice. Financial mechanisms are required to ensure that, in all cases, energy operators that flare gas bear the full cost of environmental restoration in line with the polluter pays principle. Without financial mechanisms to ensure remediation and restoration, operators may simply abandon or transfer production licenses and operations, which may leave the public without any remedy for the pollution and harm suffered due to gas flaring.

Fifthly, gas flaring results in significant cosmopolitan injustice. Cosmopolitan justice emphasizes the need to address the cross-border impacts of energy activities, projects, and policies. Given that the environment knows no borders, the environmental impacts of gas flaring in one country may result in climate change, air pollution, and other transboundary environmental impacts in other countries. As countries, corporations, and other stakeholders worldwide are announcing plans to rapidly lower GHG emissions and achieve net-zero emissions by the year 2050, eliminating gas flaring is crucial to achieving such targets. According to the World Bank, an average of 145 billion cubic meters (bcm) of gas was flared annually in the Arab region from 2014 to 2018, resulting in over 350 million tons of CO₂-equivalent emissions per year [3,5]. The impacts of climate change are already being felt in low-lying island states, which are documenting increased levels of flooding, the spread of diseases, and displacements [25]. Consequently, more than 1550 climate-change-related litigation cases have been filed in 38 countries, suing companies for the direct and indirect impacts of climate change due to a failure to address GHG emissions from their operations, including gas flaring [11]. Debates on cosmopolitan injustices are bound to increase as countries adopt climate-change-focused laws and regulations. There is therefore a need for policymakers and stakeholders across the energy sector to design and implement holistic energy policies and guidelines that effectively address the transboundary implications of gas flaring across the entire value chain. Without a cosmopolitan justice perspective, energy operators risk rising levels of reputational, transition, non-compliance, and human rights risks associated with routine gas flaring activities.

Given these significant energy justice implications of gas flaring, there is an urgent imperative for energy policymakers worldwide to design and implement effective gas flaring reduction policies that address all dimensions of the energy justice risks related to gas flaring. By understanding the root cause of the failure of gas flaring reduction policies, energy policymakers may be better equipped to design effective policies that can overcome such gaps. Drawing lessons from Nigeria, the next section develops a profile of key legal issues and non-structural gaps that must be addressed to overcome gas flaring policy failures.

3. Drivers and Dimensions of Gas Flaring Policy Failures

Nigeria presents a classic case of how the lack of an energy justice approach in the design and implementation of gas flaring reduction policies may result in policy failure. This section examines the drivers and dimensions of gas flaring policy failures, with a focus on how lessons from Nigeria can help energy policymakers worldwide to overcome regulatory failure in the design and implementation of gas flaring reduction policies.

3.1. Methodology

This study relies primarily on published reports that document the scope and status of the energy policy and strategies currently being implemented to address gas flaring in Nigeria. These include publicly accessible legislation, policy documents, and periodic reports collated and released by the Federal Government of Nigeria and the World Bank [26]. A qualitative analysis of these documents has allowed conclusions to be drawn on how gas flaring reduction policies are progressing in Nigeria and the challenges to their implementation. Furthermore, an analytical review of the published literature is adopted because existing research in the field has satisfactorily compiled the perennial failure of gas flaring regulation and policies in Nigeria. However, a detailed examination of the energy justice gaps that limit the design and implementation of gas flaring reduction policies has remained absent. This section moves the discussion forward by analyzing the legal and institutional drivers of regulatory failures in gas flare reduction policies, in order to identify the ways in which an energy justice governance framework can help close these gaps. It provides an analytical profile of, and insights on, the root causes of the regulatory failure of gas flaring reduction policies.

3.2. Results

As seen in Table 1, since 1979, Nigeria has set seven deadlines for energy operators to end gas flaring, all of which have been missed. Similarly, Nigeria subscribes to voluntary global initiatives on gas flaring, such as the World Bank’s Zero Routine Flaring by 2030 Initiative; the Global Methane Initiative; and the Climate and Clean Air Coalition [27]. Nigeria is also a party to the UNFCCC and the Paris Agreement. Nigeria submitted its first NDC in 2015, and made an updated submission in 2021, both of which reflect Nigeria’s plans and ambitions to end gas flaring and venting [13,26].

However, despite the plenitude of instruments and regulatory approaches adopted to address the gas flaring conundrum, the lack of a clear energy justice approach that addresses practical and on-the-ground challenges to implementation has resulted in incoherent application. The energy justice gaps in the design and implementation of gas flaring reduction policies in Nigeria are discussed below, with general analyses of how other countries can better understand and assess the legal preconditions and barriers to implementing an energy justice approach to gas flaring in local contexts. Table 1

History of failed gas flaring reduction policies in Nigeria (1979 to date).

Instrument Type	Instrument	Summary
Command-and-control	Associated Gas Rejection Act of 1979	Section 3 (2) of the Act sets 1 January 1984 as the end date for oil companies to stop gas flaring, unless with a permission from the Minister.
	Associated Gas Re-Injection (Continued Flaring of Gas) Regulations of 1984	Sets out conditions that oil companies must fulfil to qualify for a permit or certificate to be issued by the Minister for continued flaring of gas.
	Associated Gas Re-Injection (Continued Flaring of Gas) Regulations of 1985	Sets the fine for gas flaring at 2 kobo (equivalent to USD 0.0009 in 1985) against the oil companies for each 1000 standard cubic feet (scf) of gas flared.
	Associated Gas Re-Injection (Continued Flaring of Gas) Regulations of 1990	Increased the fine from 2 kobo to 50 kobo per 1000 scf.
	Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 1991 (as subsequently revised and updated in 2002, 2016, and 2018)	Prescribes mandatory industry guidelines that must be complied with by all operators to address all forms of pollution in the oil and gas sector, including gas flaring.However, the lack of stringency of the standards prescribed by EGASPIN, as well as the exemptions it provides for the Director to provide waivers for gas flaring and pollution activities, remain key concerns.
	The Associated Gas Re-Injection (Continued Flaring of Gas) Regulations of 2000)	Raised the flare penalty from 50 kobo to NGN 20 per 1000 scf. It also sets 1 January 2004 as the new deadline for the end of gas flaring in Nigeria.The fine increase represented a more than 300 percent increase in the prescribed fine for gas flaring within the space of 20 years. However, the penalties remained meagre when converted to foreign currencies.
	Nigerian Gas Master Plan 2008	Sets 31 December 2008 as the new deadline for the end of gas flaring in Nigeria.
	Gas Flaring (Prohibition and Punishment) Act 2009	Sets 31 December 2010 as the new deadline for the end of gas flaring in Nigeria.
Market and incentives based	Nigerian Gas Flare Commercialization Programme (“NGFCP”) 2016	The NGFCP program was designed to provide a framework for investors and operators to capture and commercialize flared gas for supply into Nigeria’s domestic market.However, despite the clear and innovative aim of the NGFCP, its implementation has been marred by hesitancy, missed deadlines, policy somersaults, and stagnation. Since 2019, when an initial shortlist of 203 qualified bidders was announced, the process leading to the final shortlist and award of permits has stagnated.
	Flare Gas (Prevention of Waste and Pollution) Regulations 2018	Section 3 (2) of the 2018 Regulation allows any producer to apply to the Minister for a permit to commercialize and produce flared gas.The flare gas commercialization program is also underpinned by command-and-control provisions. For example, section 13 increased the penalty for gas flaring to USD 2.0 for each 28.317 cubic metres of gas flared for large facilities that produce more than 10,000 barrels of crude oil per day. Small facilities that produce less than 10,000 barrels of crude oil per day are to pay USD 0.50. Section 4 (2) of the Regulation also sets a mandatory reporting requirement under which producers must provide flare-gas data within 30 days of a request by the regulators. Under Section 5 of the Regulation, failure to provide data or providing inaccurate or incomplete data would attract a fine of NGN 50,000 and/or imprisonment of not more than 6 months. Section 21 also includes additional fine (USD 2.50 for each 28.317 cubic metres of gas flared or vented) for failure to maintain or provide gas flaring data.Despite the significant increase in the penalties prescribed, they remain meagre when converted to foreign currencies and have not been stringent enough to deter flaring. Lack of an express provision for financial assurance mechanisms also remained a key gap.
	Petroleum Industry Act (PIA) 2021	Section 104 expressly prohibits gas flaring except when permitted by the Minister, while section 105 prescribes penalties and fines in case of default.To encourage operators to commercialize gas, section 108 mandates the submission of a Natural Gas Flare Elimination and Monetization plan within 12 months of the effective date of the license or lease. The flexible approach of the legislation is designed to create incentives for licensees to adopt the most cost-efficient and suitable technologies and approaches that will make gas flaring reduction economically viable for them.However, the discretionary powers of the Minister to grant authorizations for gas flaring remains a key gap under this Act. Greater clarity is required on the procedure and criteria that will be followed by the Minister to grant such waivers for gas flaring in order to ensure transparency and accountability.
National visions and targets	1999 Constitution of the Federal Republic of Nigeria	Section 20 (Fundamental Objectives and Directive Principles of State Policy) provides that “the state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.”Questions on the justiciability and enforceability of this provision have, however, remained persistent despite recent judicial decisions that clarify this point.
	Nigeria’s National Vision 2020; Petroleum Industry Roadmap; and the National Gas Policy	These documents set an objective of reducing gas flaring in Nigeria by 10 percent by the year 2020 and ending it completely by 2030.These aspirational documents provide essential foundations for increased regulatory action on gas flaring, but the targets are not binding or enforceable.
	2050 Long-Term Vision for Nigeria (LTV-2050).	Outlines Nigeria’s vision to achieve a 50 percent emission reduction in the energy sector by the year 2050 and net-zero emissions across all sectors by 2099.This is another important aspirational document, but the targets are not binding or enforceable.

Source: Authors.

3.2.1. Weak Conceptualization of the Energy Justice Dimensions of Gas Flaring

The first real barrier to an energy justice governance approach to gas flaring reduction is the failure to clearly integrate human rights norms into energy policies and legislation. This is the question of whether, and to what extent, human rights principles underpin or form part of the rules of the game with respect to the licensing, approval, and implementation of energy projects. Does the overarching energy policy or legislation specifically mention or recognize gender justice, public participation, empowerment, and the other elements of the PANEL principles?

In Nigeria, for example, a review of all the applicable legislation in the energy sector indicates that human rights or gender justice are not even mentioned. Similarly, the integration of core human rights principles into energy-sector guidelines, including those relating to gas flaring, remains a moving target [23]. Furthermore, the lack of an express constitutional recognition of enforceable human rights related to the environment means that efforts to evoke human rights language in gas flaring cases are always subjected to prolonged and complex litigation. While recent case law and studies increasingly indicate that this provision, which recognizes a right to a clean and healthy environment, is justiciable and enforceable in Nigerian courts and can be evoked in gas flaring cases, the lack of a clear and express recognition means that enforcing such rights will, to a large extent, depend on successful litigation in the courts [28]. However, the high cost of litigation, coupled with the long delays (in some cases more than 20 years), the indeterminacy of court cases, and the slow enforcement of judgment even in successful cases all reduce the efficacy and value of accessing justice through litigation. A more preventive and proactive approach that emphasizes the responsibility of oil operators to eliminate gas flaring and to provide timely compensation in cases of gas flaring could provide more determinate and effective remedies to local communities, who often remain for several decades without energy justice.

Furthermore, procedural barriers such as inadequate representation of vulnerable and marginalized groups such as women and young people in decision-making processes, insufficient access to governmental records and information, and lack of formal mechanisms to provide legal representation and aid for victims of gas flaring that cannot afford litigation continue to stifle the practical efficacy of gas flaring policies in Nigeria, as well as in several other MEA countries [3,23]. The design of gas flaring reduction policies without due consideration of the specific patterns of vulnerabilities of local communities and marginalized groups provides lopsided and incompatible energy policies that do not deliver distributive and restorative justice to the communities most affected by gas flaring.

The starting point for formulating effective gas reduction policies should therefore be a rights-based conceptualization and assessment of the drivers and implications of gas flaring in local contexts. This includes a clear identification of the specific locations of gas flaring sites, volumes of gas flaring in such locations, the vulnerable communities most affected by gas flaring sites, the patterns of their vulnerability to the social, economic, and environmental impacts of gas flaring, targeted measures to holistically prevent and address such vulnerabilities through greater stakeholder engagement and participation, and specific time frames for implementation or responses. Furthermore, a national strategy on gas flaring must clearly identify the structural and infrastructure gaps that make efficiency, elimination, and commercialization programs difficult or impracticable. In cases of infrastructure and technology gaps, such policies must identify opportunities for multi-sectoral, multi-stakeholder, multi-level implementation of gas infrastructure expansion projects for gas processing, transmission, and grid connection, as well as the roles of different stakeholders in the public and private spheres.

Contextualizing the specific energy justice barriers to gas flaring reduction will provide the essential foundation for formulating holistic and comprehensive national energy policies and strategies on gas flaring. Such holistic policies will not only foster acceptance and trust by local communities but will also yield additional co-benefits that could advance progress on industry–community partnerships, energy citizenship, and the integration of human rights into climate actions.

3.2.2. Inadequate or Incoherent Legal Framework on Gas Flaring

Another key challenge is the absence of stringent and coherent laws on gas flaring reduction. Recent studies indeed indicate that while national visions and strategies that set the target of achieving zero routine gas flaring by the year 2030 are increasing across the MEA region, several MEA countries are yet to enact specific or comprehensive laws to achieve those targets and deadlines [3]. For example, as shown in Table 1, Nigeria has enacted a wide range of laws that specify different deadlines for gas flaring reduction, yet gas flaring remains a key driver of energy injustice in the country. Adopting national visions and ultimatums on gas flaring without comprehensive laws that set out specific and measurable steps that must be taken by stakeholders across the various stages of project planning and implementation will only result in missed deadlines and eventual policy failure. It is essential for national authorities and energy regulators to support existing national gas flaring strategies and programs with clear, comprehensive, and legally binding legislative frameworks that address all the potential energy justice impacts of gas flaring across the entire project value chain.

Secondly, in formulating gas flaring laws, stringent and comprehensive standards that ensure that all polluters responsible for gas flaring bear the full cost of remediation and compensation are essential, in line with the polluter pays principle. As can be learned from Nigeria, one of the key causes of energy policy failure in this context is the existence of gas flaring policies and legislation stipulating fines that are meagre or not stringent enough to deter pollution in the first place. A stringent gas flaring legislation must align penalties and fines with international best practices in comparator jurisdictions, otherwise a country risks becoming a haven for gas flaring, as the so-called “pollution haven hypothesis” indicates [29]. Another driver of energy policy failure in this context is the existing legislation providing significant levels of discretion to the Minister or regulator to intervene and permit discharges, even when limitation standards are exceeded. In Nigeria, for example, the phrase “unless otherwise permitted by the Minister or Director of Petroleum Resources” appears in a number of key laws and policies, including the PIA 2021. Yet, a lack of transparent guidelines on how such waivers and approvals are to be granted, a lack of information on how many such applications have been made and subsequently granted or denied, and a failure to align the minimum standards on permissible flaring, as well as the fines and penalties in cases of default, with international best practices have all created a culture of approvals in which politically sensitive projects have been able to escape regulatory scrutiny. Lack of consistency and transparency in the design and implementation of energy policies will result in eventual failure. To ensure stringency and consistency, prescribed penalties and fines must be aligned with benchmarks in comparative jurisdictions, while discretionary decision-making by regulators should be eliminated as much as possible or kept at the barest minimum, with reasons adduced for each decision.

Thirdly, it is not enough to set high and consistent penalties and standards for gas flaring. Financial assurance mechanisms that ensure that defaulters eventually bear the full cost of remediation and compensation are equally fundamental. The importance of financial assurance mechanisms such as cash or security deposits, irrevocable letters of credit, trust funds, and environmental performance bonds for ensuring that sufficient funds are available for environmental restoration and compensation or surety has been well documented in the literature. Financial assurance refers to the availability of funds to complete remediation or compensation, even if the operator goes bankrupt or otherwise abandons the project or is unable to offset the costs at the end of the project [30]. Yet, as seen in the Nigerian case, the failure by policymakers to integrate financial assurance mechanisms as a prerequisite for licensing or commencing exploration and production works remains a key reason for the failure of gas flaring reduction. To overcome such regulatory failure, it is essential for gas flaring policies and laws to establish the percentage of minimum financial provisions that must be provided to cover the costs of pollution during or at the end of the life cycle of energy operations. The specific level of assurance should be established on a project-by-project basis and should be guided by the levels of energy justice risks involved. Since absolute certainty about the cost of closure cannot be achieved in advance, the financial provisions should be subject to periodic review during the life of the petroleum operation, in order to reflect changes.

Overcoming regulatory failure in the design and implementation of gas flaring policies will require clear and comprehensive regulatory frameworks that mandate operators to anticipate and address the drivers of gas flaring across the entire value chain of their operations. A clear and comprehensive legislation should provide specific guidelines to operators, financial bodies, and other investors in terms of gas flaring risk identification and anticipation, impact assessments, and required efficiency standards and technologies, as well as documentation, verification, and reporting and monitoring of gas flaring reduction measures. Such comprehensive legislation can also provide a basis for financial institutions and other stakeholders to require compliance before financing any oil and gas development.

3.2.3. Data Transparency Gaps

Another key driver of the regulatory failure of gas flaring reduction policies is the lack of transparent and verifiable statistical data on the implementation of gas flaring programs [3]. As can be seen in the case of Nigeria, even when gas flaring reduction standards have been specified, a lack of transparent and accessible statistical data on levels of compliance with gas flare reduction and commercialization standards, penalties assessed for non-compliance, and the number of operators that have been sanctioned or have lost their licenses due to non-compliance remains a key barrier to energy justice, as local communities simply do not know who is complying and who is not. Such data are simply not publicly available on the websites of regulators, while publicly searchable databases that collate such data are equally unavailable. Apart from their informational value for local communities, as well as their value in showing that a country is strict about maintaining standards in the sector to act as a deterrent to defaulters, such databases can serve the purpose of eliminating companies eligible to participate in open and closed bidding rounds for a license to use flare gas. Such data can also enable other government agencies and ministries to design and implement their sustainable development programs in an informed manner.

This raises the need to enforce comprehensive data collection by all oil and gas companies, in order to observe the level of compliance with gas flaring reduction obligations under applicable laws. In addition to data collection on gas flaring, there is also a need for improved and more precise data collection and measurement of gas venting, in order to prevent operators from replacing gas flaring with gas venting [31]. Remote sensing technologies can help regulators to better detect, monitor, and measure the gas venting practices of operators and to make informed regulatory decisions that will holistically prevent both gas flaring and venting [32].

The Extractive Industries Transparency Initiative (EITI) emphasizes the importance of transparent disclosure of relevant data on oil and gas production activities, including data on environmental compliance with respect to gas flaring and gas venting. For example, as one of the signatories to EITI, the Nigerian Extractive Industry Transparency Initiative (NEITI) has a key role to play in streamlining and enforcing data transparency and disclosure in all petroleum activities [33]. As net-zero emission policies take center stage worldwide, there is a need for national regulators such as NEITI to enforce data reporting and verification requirements. This includes creating greater awareness of the obligations of energy operators to transparently disclose statistical data on the volume of gas captured, processed, and commercialized and the revenue resulting from such commercialization, within a specific period. Verifying and publishing information about gas commercialization is fundamental for providing regulators with reliable and searchable data on the success or otherwise of gas commercialization programs and for indicating how the resulting gaps can be addressed.

3.2.4. Institutional Gaps

Developing a clear and comprehensive legal framework on gas flaring is one part of the task but creating the right institutional set up for practical coordination and cooperation of the diverse stakeholders and institutions involved in gas flaring reduction programs is another complex challenge. As discussed earlier, the problems of turf wars, lack of interoperability, and the reluctance of energy agencies to cooperate or even speak to one another, represent a key challenge for the implementation of gas flaring policies in Nigeria and across the MEA region [3,23]. The lack of institutional coordination and coherence between supervisory bodies and regulatory institutions leads to piecemeal approaches to addressing the different energy justice concerns associated with gas flaring, which ultimately results in regulatory failure in the overall implementation of gas flaring reduction programs.

Fragmentation problems arise when different legislation delegates oversight functions to various competing agencies and ministries, without clearly delineating their scope and spheres of operations or providing a framework for their effective coordination. In Nigeria, for example, there is the Ministry of Petroleum Resources, Ministry of Environment, the Nigerian Upstream Petroleum Regulatory Commission (NUPRC), the National Oil Spill Detection and Response Agency (NOSDRA), the National Environmental Standards and Regulations Enforcement Agency (NESREA), the National Human Rights Commission of Nigeria, and the NEITI, among others, all of which have different functions in terms of the enforcement of environmental and human rights standards in the energy sector. With the adoption of the PIA in 2021, Nigeria has taken a first commendable step to streamline the functions of the different regulatory agencies and reduce role duplication. However, ensuring the consistency and continuity of relevant gas flaring programs such as the NGFCP permit-granting process remains a key concern. For example, since 2016, when the NGFCP was announced, there have been substantial changes in the legal and institutional framework in Nigeria’s energy sector, including the sudden replacement of the Minister of State responsible for petroleum, the unbundling of the Department of Petroleum Resources which hitherto served as the technical arm of the Ministry of Petroleum Resources, and the re-registration of Nigeria’s national oil company, the Nigerian National Petroleum Corporation (NNPC), from a public corporation to a private entity now known as NNPC Limited. All of these changes have stagnated the regulatory focus on the NGFCP. The persistent hesitancy and delays by the Nigerian Government in launching the permit-granting system for gas flare commercialization has resulted in the continued entrenchment of energy injustice in the Niger Delta.

Similarly, a lack of policy continuity and institutional coherence has resulted in conflicting priorities and deadlines from different agencies. For example, while the Minister of State for Petroleum has declared 2025 as the next deadline for ending gas flaring in Nigeria, the LTV-2050 released by the Ministry of Environment sets the deadline as 2030 [34,35]. These incoherent declarations and guidelines raise the need to further improve interoperability, in order to ensure coherence, cooperation, and information sharing amongst the different agencies and regulators.

Recent studies have underlined the importance of a nexus governance approach that brings together the relevant agencies and institutions “through pragmatic and standardization approaches that foster cooperation and minimize duplication” [36]. Such nexus thinking is essential to promote knowledge and information sharing between relevant energy regulators and institutions through open and interlinked data sharing platforms, as well as joint programs and initiatives that promote synergy in the design and implementation of gas flaring reduction programs. Closely related to issues of institutional coordination and inter-agency linkages is the need for governments and energy sector stakeholders to invest in required infrastructure and technologies that can promote institutional efficiency and interoperability. For example, one of the perennial problems in Nigeria is the lack of relevant site inspection equipment, patrol vans, and technology tools needed by regulators to promptly visit flare sites and enforce anti-flaring laws and policies. Without addressing such equipment deficits, it will be difficult for the relevant institutions to effectively monitor and enforce compliance with gas flaring laws and standards.

4. Failure-Proofing the Design and Implementation Gas Flaring Policies and Regulation: Opportunities and Ways Forward

The Nigerian experience shows that regulatory success in gas flaring reduction goes beyond legislation and policy instruments alone. Reactive and incoherent gas flaring reduction policies that do not address practical barriers to implementation are bound to fail and may not address all the dimensions of energy injustice associated with gas flaring. Given the significant energy justice implications of gas flaring for sustainable development, there is a need for countries to implement fail-safe mechanisms to prevent and address the failure of gas flaring reduction energy policies. Failure-proofing gas flaring policies will require an energy justice approach, i.e., an anticipatory, preventive, and multi-centric approach that integrates human rights standards into the design and implementation of gas flaring policies and regulation. An energy justice governance framework will provide adequate energy policy foundations such as rights-based energy policies and legislation, coherent and comprehensive gas flaring legislation, transparency in data collection and management, and the structural integration of relevant programs and institutions that could help in moving towards successful transformation. The complexity of advancing rights-based energy policies across the energy industry should not be underestimated. However, the step-by-step approach discussed below could provide a framework for addressing the complexities and challenges associated with integrating energy justice norms into the design and implementation of gas flaring reduction policies and decision-making.

4.1. Integrate Human Rights Norms into Energy Legislation and Policies

To implement an energy justice governance framework on gas flaring, a comprehensive integration of human rights norms, especially those relating to the PANEL principles, is essential. Recent legislative developments in Alberta, Canada, which is regarded as having one of the most successful gas flaring reduction policies, suggests that integrating rights-based procedural safeguards into the design and implementation of gas flaring policies is indeed possible and essential for regulatory success. For example, Alberta’s gas flaring reduction framework emphasizes a decision tree and a rights-based management framework [37]. The decision tree recognizes multi-stakeholder consensus-based decision-making involving all stakeholders (industry, the public, NGOs, and regulators), both in the formulation of gas flaring standards and in the implementation of such standards. In addition to providing opportunities for all stakeholders to participate in policy formulation, Alberta’s decision tree also emphasizes the transparent reporting of volumes of flared gas, as well as the volumes of gas flaring reduction achieved by operators. The Alberta Energy Regulator (AER) then publishes these data in its annual report, which breaks down the data in terms of the volumes and operators involved. Alberta’s approach demonstrates the importance of emphasizing human rights norms relating to public participation, access to information, transparency, and access to justice at all stages of the design and implementation of gas flaring policies. On the other hand, a number of countries have developed National Action Plans (NAPs) that set out the government’s expectation for all businesses to integrate human rights due diligence, especially those relating to the PANEL principles, in all key sectors [18]. These emerging solutions show the increasing value of human rights in energy policies. Without a legal framework that clearly defines corporate accountability requirements to implement the PANEL principles at all stages of energy operations, many of the key issues of exclusions, lack of compliance, and limited stakeholder engagement that exacerbate gas flaring are left either unaddressed or unprotected under local laws.

Many of the existing energy laws and petroleum agreements that do not fully reference human rights standards will need to be carefully updated in line with emerging international best practices on business and human rights. A national law or regulation that mandates prospective licensees to undertake human rights impact assessments (HRIAs) in addition to general environmental impact assessments could enable energy operators to fully assess the likely and potential implications of gas flaring on local communities, even before the commencement of the project. It is especially important to understand the specific implications of such human rights impacts on women, young people, and vulnerable indigenous groups, through data segregation and vulnerability analysis. Such proactive assessments of potential human rights impacts could go a long way towards mandating energy operators to integrate justice and human rights thinking into their entire project value chain. Such comprehensive laws will also provide opportunities for project financiers and other participants to integrate human rights requirements into their financing guidelines.

Furthermore, a comprehensive integration process will identify regulations, rules, and procedures that act as barriers and disincentives to energy justice governance. For example, cases of archaic or meagre fines, unrealistic or conflicting deadlines, overly broad discretionary powers to approve flaring, inconsistent target and intervention values on gas flaring, lack of financial assurance mechanisms, and duplicative regulatory mandates will need to be addressed. Furthermore, specific time frames will need to be specified, while clear provisions that specify stringent penalties that the regulator must apply, such as license revocation in cases of non-compliance or failure to provide statistical data, will be essential for driving action. Similarly, the legislation will need to clearly establish different opportunities for stakeholders to access remedies throughout the entire life cycle of a project. For example, it is imperative for energy operators to establish public complaints units, through which they can receive direct feedback and complaints about gas flaring. By so doing, public complaints about gas flaring can be resolved in a timely manner through active engagement, which will reduce the potential for conflicts and litigation.

4.2. Establish Channels for Proactive Reporting and Disclosure of Information

To enable informed decision-making on gas flaring, timely and proactive reporting of gas flaring data and information is essential. Several factors that hinder the proactive reporting, verification, and disclosure of gas flaring data will need to be carefully addressed at all levels. First, there is a need for clear specific regulation and policies that require operators to proactively report volumes of flared and vented gas within clear and specific time frames. Such regulation should elaborate the type and level of information to be provided, which will vary from country to country [38]. Relevant information will include the locations of flare sites, volumes of gas flared, ongoing programs and plans for flare minimization, operational information, budgets and investments in minimization technologies, and community response and development programs implemented within the reporting period, among other information. Furthermore, stringent penalties and sanctions should be specified for late, erroneous, or fraudulent reporting, while specific guidelines on the language and format of such reports should be clearly specified in order to ensure their accessibility for local communities.

In addition to mandating proactive reporting, there is a need for energy regulators to proactively analyze and disclose gas flaring data so that members of the public can fully understand the efforts made to enforce compliance. A starting point is to establish a searchable online enforcement and compliance database that provides clear and transparent information on gas flaring investigations, penalties levied on defaulters, and programs implemented to enhance access to remedies for affected members of the public. There is a need for governments and regulators to invest in modern technology infrastructures that will improve and modernize data collection and information sharing across the entire project life cycle.

4.3. Promote Institutional Cooperation and Capacity

Knowledge and information sharing between relevant energy regulators and institutions is essential for advancing energy justice in gas flaring regulation [39]. It is therefore essential to dismantle institutional constraints on knowledge sharing, coordination, and cooperation among regulatory agencies. The most effective approach to promote interoperability and institutional coherence in the design and implementation of gas flaring reduction policies will vary from country to country. One approach is to designate a focal institution to coordinate the supervision of gas flaring reduction programs. For example, one key pillar of Alberta’s successful gas flaring program was the establishment of the AER as the single energy regulator for all aspects of enforcement and supervision in Alberta’s energy sector [37]. Apart from serving as the one-stop shop overseeing licensing, impact assessments, monitoring, and enforcement in the energy sector, it also analyzes and publishes gas flaring statistics and data. While the single energy regulator approach in Alberta provides a good example of the coordination required, the process of streamlining such institutions into one may be complex and politically charged in countries with multiple energy institutions.

Promoting institutional coordination does not always mean establishing a single agency or building new ones. It is also possible to establish a coordination mechanism that will bring together a wide range of institutions (from energy and human rights to infrastructure sectors) to share resources and jointly implement gas flaring reduction programs. For example, developing a memorandum of understanding that spells out a clear coordination framework for all relevant ministries, agencies, and departments could allow regulators to develop joint programs and initiatives that promote synergy in the design and implementation of gas flaring reduction programs. Such a coordination framework may include establishing a central working group or committee made up of representatives of relevant ministries and agencies, as well stakeholders from civil society and academia and representatives of oil-producing communities. There is also a need to establish interlinked knowledge sharing systems that allow government agencies to access the latest and most up-to-date information about relevant programs in other agencies, in order to address the challenges of role duplication and conflicting information. This would help ensure systematized documentation and standardization of gas flaring plans, timelines, and programs across the energy industry.

Implementing an energy justice governance framework will also require regulators to address capacity gaps that limit the effective verification, monitoring, and enforcement of gas flaring standards. Perennial constraints relating to limited staff capacity, lack of equipment and technologies, and limited opportunities for training and capacity development will need to be addressed through increased funding of energy justice programs. Announcing deadlines for gas flaring reduction without providing the corresponding resources and training for regulators to effectively implement gas flaring policies will culminate in energy policy failure.

5. Conclusions and Policy Implications

Failed gas flaring policies have significant adverse implications for human rights, a low-carbon energy transition, energy security, and the attainment of the SDGs worldwide. Energy policy failure in the context of gas flaring reduction is often exacerbated by overly broad, fragmented, and reactionary policies that fail to conceptualize and address the human rights dimensions and implications of gas flaring on societies and livelihoods. Overcoming such failure will require an energy justice governance approach which integrates human rights norms into the design and implementation of gas flaring reduction policies and legislation in a coherent and integrated manner.

To ensure the practical implementation of an energy justice framework on gas flaring, fragmented and sector-based legislation and institutions that stifle interoperability must be comprehensively dismantled. Energy policy failure can be avoided by establishing a stringent and rights-based regulatory framework on gas flaring that stipulates clear and comprehensive standards on gas flaring risk levels, data reporting, verification, and stakeholder engagement in line with emerging norms in international law regarding business and human rights. Furthermore, country-specific analyses of the opportunities and requirements for strengthening cooperation and information exchange by relevant agencies and institutions is essential for providing a strong foundation for improving coherent, multi-stakeholder and industry-wide implementation of gas flaring policies. Ensuring sustained financing for gas flaring programs and monitoring agencies can also enable regulators to keep pace with the ongoing technological transformations in the energy sector through technical training and systems modernization.

Author Contributions

Conceptualization, A.A.B.; Formal analysis, D.S.O.; Funding acquisition, A.A.B.; Investigation, D.S.O.; Project administration, D.S.O.; Resources, A.A.B.; Supervision, A.A.B.; Writing—original draft, D.S.O.; Writing—review & editing, A.A.B. All authors have read and agreed to the published version of the manuscript.

Institutional Review Board Statement

Not applicable.

Informed Consent Statement

Not applicable.

Data Availability Statement

Not applicable.

Conflicts of Interest

The authors declare no conflict of interest.

Publisher’s Note: MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

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