THE LEGAL STATUS OF GAS FLARING AFTER THE PETROLEUM INDUSTRY ACT 2021: IS ROUTINE FLARING STILL INDIRECTLY LEGAL IN NIGERIA?1
Abstract
Gas flaring has been a source of pollution in the Niger Delta region for more than six decades, polluting the atmosphere the soil, and eroding the lives of communities living in one of the most oil-rich regions in Africa. The Nigerian government's efforts at solving this environmental problem have been characterized by delay and capture. The enactment of the Petroleum Industry Act 20212 represents the most ambitious legislative attempt yet to bring routine flaring to an end, through an explicit statutory prohibition, mandatory monetisation planning, and a new institutional architecture anchored around the Nigerian Upstream Petroleum Regulatory Commission. But the fundamental issue that this paper seeks to address is whether or not these regulations have truly outlawed flaring or whether they, unintentionally, created escape clauses that were responsible for flaring under previous regulations. This paper undertakes an analysis of the PIA 2021, its subsidiary regulations, the seminal Associated Gas Re-injection Act 1979, the Flare Gas (Prevention of Waste and Pollution) Regulations 2018, and the Gas Flaring, Venting and Methane Emissions Regulations 2023 to show that routine flaring still stands legal in Nigeria. The existence of fee-based exceptions, regulatory discretion, non-enforcement structures, and the non-deductibility clause that does not make compliance costly enough work together to ensure the legality of flaring. The article further situates this analysis within the human rights consequences of flaring, the landmark judgment in Gbemre v Shell Petroleum Development Company of Nigeria Ltd,3 and comparative regulatory practice, before offering reform recommendations aimed at closing the gap between the law on paper and the law in action.
Keywords: Gas flaring; Petroleum Industry Act 2021; NUPRC; Niger Delta; environmental rights; routine flaring; Nigeria.
1. Introduction
Walk through any of the oil-producing communities of Bayelsa or Delta State, and the sky at night carries a peculiar, unsettling glow. These are not the lights of development. They are the flames of associated natural gas being burned off at wellheads across the Niger Delta, a practice that has continued, almost without pause, since crude oil was first discovered at Oloibiri in 1956.4 Gas flaring is the controlled combustion of associated gas, natural gas released as a by-product of crude oil extraction, when that gas cannot, or will not, be captured and commercialised. The result is a perpetual bonfire: wasteful, toxic, and well-documented as a major source of greenhouse gas emissions and environmental degradation.
Nigeria has held the deeply unflattering status of one of the world's top gas-flaring countries for decades. According to the World Bank Global Gas Flaring Tracker, Nigeria consistently ranks among the top seven gas-flaring nations globally.5 In 2025 alone, Nigeria flared over four billion cubic metres of gas, ranking among the top ten gas-flaring countries globally.6 According to the National Oil Spill Detection and Response Agency (NOSDRA), flaring volumes in recent years have been equivalent to approximately $450 million in fines annually, many of which remain unpaid. 7 This is not a disaster of nature but a failure of institutions, a failure of the law, of regulation, and of politics both civilian and military.
The Nigerian laws against gas flaring have a long and disappointing history. The practice of gas flaring has been made illegal since 1984 via the Associated Gas Re injection Act of 19798 (AGRA), yet the same statute created a ministerial exemption mechanism that became the operational standard for the industry. This process would occur over four decades, where legislation sets a date to stop flaring, which is not met owing to exemptions, followed by another deadline to meet the same goal through legislation or policy statement. The 2018 Flare Gas (Prevention of Waste and Pollution) Regulations9 raised the financial stakes somewhat but still fell short of achieving meaningful deterrence.
The Petroleum Industry Act 2021 came along after two decades of calls for reform. Assented to by President Muhammadu Buhari on 16th August 2021,10 the PIA was widely heralded as a transformation of Nigeria's petroleum governance architecture. Regarding gas flaring in particular, it has instituted a statutory ban through its section 104 gas flare elimination and monetization requirement in addition to section 108, and the ability of the NUPRC to confiscate flare gas without compensation through section 105. To a casual observer, this seemed like a clean break from the past.
This article contends that this is not necessarily the case in this particular scenario. The analysis of the gas flaring provisions of the PIA along with the Gas Flaring, Venting and Methane Emissions (Prevention of Waste and Pollution) Regulations 2023,11 and the institutional and practical realities of enforcement, reveals that routine flaring remains indirectly legal in Nigeria. The exemption framework of the PIA, the threshold permitting system in the 2023 Regulations, the failure to make flaring penalties an effective deterrent, and the weaknesses of NUPRC's enforcement capacity all contribute to maintaining a legal loophole for flaring. The issue identified in this article is not just whether flaring is explicitly prohibited by law; it is whether the overall legal regime has succeeded in removing the conditions that allow routine flaring to take place legally or quasi-legally.
After the introduction above, this article goes into the historical trajectory of Nigeria's gas flaring legal framework from AGRA 1979 to the eve of PIA, which is the subject of section 2. Section 3 examines in detail the PIA's anti-flaring provisions. The subsidiary regulatory framework such as the Nigerian Gas Flare Commercialisation Programme (NGFCP) and the Regulations of 2023 are discussed in section 4. Section 5 scrutinises the enforcement gap and structural loopholes that maintain indirect legality of routine flaring. The constitutional and human rights aspects of flaring are discussed in section 6, focusing on the case of Gbemre v Shell. Comparative lessons are drawn in section 7 and reform recommendations are provided in section 8, prior to the concluding section.
2. Historical Evolution of the Gas Flaring Legal Framework in Nigeria
2.1 The Colonial and Early Post-Independence Period
The practice of gas flaring in Nigeria predates any regulatory framework designed to address it. When Shell-BP struck oil in commercial quantities at Oloibiri in 1956, associated gas was regarded as a troublesome by-product with no commercial value. Flaring was the cheapest and easiest disposal mechanism. The Petroleum Act 1969,12 and the Oil Pipelines Act 1956,13 contained general provisions governing petroleum operations but contained no specific prohibition on gas flaring. The legal vacuum was complete.
2.2 The Associated Gas Re-Injection Act 1979
The first serious legislative intervention came with the Associated Gas Re-injection Act of 1979, promulgated by the military government of General Olusegun Obasanjo. The AGRA required every oil and gas company operating in Nigeria to submit, not later than 1 October 1980, detailed programmes for either the re-injection of all produced associated gas or schemes for its viable utilisation.14 Crucially, section 3(1) of the AGRA prohibited gas flaring after 1 January 1984 without the written permission of the Minister of Petroleum Resources.15 The penalty for violation was the forfeiture of the relevant concession.
Nevertheless, the very same law contained the germs of future failure in regulation. Under section 3(2), the Minister could issue a certificate allowing for gas flaring where injection and utilization of gas were not possible provided that a certain fee would be paid for each unit of gas flared.16 The cost-based exemption system, which started off at a minimal level of NGN 0.50 per million standard cubic feet and was subsequently increased to NGN 10 per Mscf starting from January 1998,17 proved fatal to the statute's prohibitory intent. The cost of flaring was so cheap that it was cheaper for the operators to pay the fine and flare the gas rather than install infrastructure for capturing the gas. The ban became in reality a license with a small administrative fee.
Under the Associated Gas Re-injection (Continued Flaring of Gas) Regulations 198418 this trend was further reinforced by the creation of procedure for seeking extended flaring permits, thereby entrenching as procedure that which was originally conceived as an exception in the parent Act. The 1984 deadline was not met, and successive governments were left with the embarrassment of extending or reneging on their deadlines.
2.3 Amendments, Policy Statements, and Missed Deadlines (1985–2017)
From 1984 until the passage of the PIA, there was a discouraging series of amendments to laws, declarations, and flare-out deadlines that were not met in Nigeria. The Associated Gas Re-injection (Amendment) Act of 1985, and further amendments in 2004, reiterated the companies' legal requirement to prepare their gas utilization plans but maintained the ministerial waiver process.19 The National Gas Policy of 2017 openly admitted that the existing fee of NGN 10 per Mscf encouraged flaring rather than the use of gas.20 The government set a "Vision 2020 flare-out" target, which was never achieved.
This was evident from the investigations conducted by investigative journalists and non-governmental organizations into Nigeria’s inability to meet its gas-flaring goals, dating back to 1984.21 It was not the lack of relevant laws that was the problem, but rather the existence of cheap exemptions and the lack of enforcement. There were no incentives for operators to cease their flaring.
2.4 The Flare Gas (Prevention of Waste and Pollution) Regulations 2018
Issued by President Buhari in his capacity as Minister of Petroleum Resources, the Flare Gas (Prevention of Waste and Pollution) Regulations 2018 represented a more sophisticated regulatory attempt. The 2018 Regulations introduced three significant innovations. First, they substantially increased the flare payment rates: companies producing at least 10,000 barrels of oil per day became liable to a charge of USD 2 per 28.317 standard cubic metres of gas flared, while smaller producers faced a charge of USD 0.50 per equivalent unit. 22 Second, the Regulations introduced a mechanism allowing the Federal Government to take gas that would otherwise be flared and offer it to third-party commercial developers through a competitive bidding process, the embryonic forerunner of the Nigerian Gas Flare Commercialisation Programme.23 Third, all flare gas was vested in the Federal Government free of charge and without payment of royalty.
Statistical evidence suggests that the 2018 Regulations had some deterrent effect: a study covering a 52-year dataset found that pre-2018 flare tariffs had no statistically significant effect on flaring volumes, while post-2018 tariffs led to a measurable reduction.24 However, for large operators producing millions of barrels per day, even the raised penalty remained substantially cheaper than the capital expenditure required to build gas capture and processing infrastructure. Implementation of the third-party access mechanism was slow. The 2018 Regulations were therefore a meaningful improvement but not a transformative one in provisions and operation.
3. The Petroleum Industry Act 2021: A Critical Analysis of the Anti-Flaring Provisions
3.1 Institutional Architecture
Before examining the specific anti-flaring provisions, it is necessary to appreciate the institutional transformation the PIA effected. The Act has led to the dissolution of the DPR and the establishment of two different regulatory authorities, one for the upstream and the other for the midstream/downstream petroleum operations. These are the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) and the Nigerian Midstream and Downstream Petroleum Regulatory Authority (NMDPRA).25 The purpose of separating the regulatory functions was to solve the problems of overlapping interests and inefficiencies inherent in the DPR. The regulation of gas flaring in upstream activities, including the issuance of permits and fines, confiscation of flare gas, etc., is mainly the responsibility of the NUPRC.
3.2 Section 104: The Statutory Prohibition and Penalty Framework
Section 104 of the PIA contains the core provisions on prohibition. It establishes that gas produced in the course of petroleum operations shall not be flared or vented.26 Section 104(1) makes flaring or venting a statutory offence, with penalties prescribed by regulation. These penalties are to be paid in the same manner as royalties. Crucially, section 104(3) provides that flaring penalties cannot be recovered as an operating cost or deducted for tax purposes.27 Revenues generated from these penalties are directed toward environmental remediation and community relief under section 104(4).28
The non-deductibility provision in section 104(3) was intended to maximise the financial sting of applicable penalties. If operators cannot offset flaring fees against their tax liabilities, the effective cost of flaring is higher than the nominal penalty rate. This was an improvement on the AGRA regime, under which payments were treated as royalty-equivalent and thus deductible. However, as subsequent sections of this article will demonstrate, the non-deductibility provision does not automatically resolve the problem of penalties that remain too low to alter commercial behaviour.
3.3 Section 105: The Commission's Right to Take Flare Gas
Section 105(2) of the PIA contains one of the most significant innovations of the Act. This gives the NUPRC the ability to extract, free of charge and without paying royalties, any gas at the flare points and use it for its intended purpose. 29 This provision makes the Commission an active player in the process of gas commercialisation instead of merely a passive regulator. The Commission may intervene and allocate associated gas to third parties willing to develop it commercially where operators are failing or refuse to do so.
The principle of section 105 is that it removes the commercial incentive to flare: if a producer cannot or will not sell the gas, the government will take over that responsibility. In practice, the ability to exercise this right depends on the institutional capacity, technical expertise and political will of the Commission to identify flare points, negotiate access agreements, conduct competitive bidding processes and enforce delivery obligations on producers and third-party developers. The NUPRC has significant capacity limitations, as outlined in section 5 of this article.
3.4 Section 107: Exemptions
According to section 107 of the PIA, there may be instances where the Commission can allow exemption from the prohibition of flaring.30 While it is not the intention of the Act to provide a comprehensive list of the exemptions, it must be noted that under section 104, flaring may be performed under certain circumstances where there exists an exemption granted by the Commission.31 The above exemption regime, on its face, is more limited compared to the previous ministerial certificate system established by the AGRA. The extent of the “acceptable safety practice” exemption coupled with the discretionary powers vested in the Commission can be construed as being sufficient to permit operational flaring masquerading as safety practices.
3.5 Section 108: Natural Gas Flare Elimination and Monetisation Plans
Section 108 is a prospective requirement. Licensees and lessees that produce natural gas shall, not later than twelve months from the commencement date of the Act, file a Natural Gas Flare Elimination and Monetisation Plan (FEMP) with the NUPRC.32 The FEMP should provide the methodology for flaring elimination and monetisation as well as an implementation plan and timeline.
The FEMP requirement is important because it changes the paradigm from punitive action to planning ahead. An operator cannot pay a flaring fee forever; he or she must sign an agreement on paper that will get him or her out of flaring. This will provide a documentary record for the Commission to use to determine compliance and, in theory, to take more severe enforcement action against operators who continue to exceed their own FEMPs.
The problem with section 108 is that no one knows what happens if FEMPs are submitted and not implemented. The Act does not provide for automatic consequences of FEMP non-compliance other than the general penalty regime provided for in section
104. But if the NUPRC does not have the capacity to audit FEMP implementation by dozens of upstream operators, as section 5 indicates, the FEMP requirement could be a paper exercise.
4. The Subsidiary Regulatory Architecture: The 2023 Regulations and the NGFCP
4.1 Gas Flaring, Venting and Methane Emissions Regulations 2023
These regulations have been made under the legal powers granted to the NUPRC, and they implement the provisions of the Petroleum Industry Act, which prohibit gas flaring.33 There are several important things to consider about the 2023 Regulations.
First, the 2023 Regulations make it necessary to keep daily logs of all gas production, use, distribution, flaring, venting, loss through combustion inefficiency or fugitive losses.34 The granular data collection requirement is much tougher compared to that under the AGRA or the 2018 Regulations and is meant to facilitate satellite verification.
Secondly, the 2023 Regulations allow gas flaring up to an approved threshold by the Commission, and only after paying a flaring fee.35 The threshold system is arguably the most structurally relevant aspect of the 2023 Regulations concerning this article's argument. This is because the threshold system provides that, even under the new regulatory framework, there is an amount of gas flaring that is not only tolerated but officially authorized under the regulation. Gas flaring activities carried out at this threshold are lawful. The issue of whether the threshold system is well-calibrated enough such that flaring is eradicated or whether it simply permits a commercially beneficial level of flaring is key to determining whether the new regulatory framework has really transformed the situation.
Thirdly, the 2023 Regulations provide for a US Dollar 3.50 administrative penalty for every thousand standard cubic feet of gas flaring or venting unauthorized by the Commission.36 Furthermore, the NUPRC is mandated to publish an annual report of the submissions made by the regulated parties, along with comparative performance reports and any penalty payments.37 This transparency tool is positive, but its efficacy depends on the accuracy of the information that is being published and the actions taken by the Commission with regard to persistent violations.
4.2 The Nigerian Gas Flare Commercialisation Programme (NGFCP)
The Nigerian Gas Flare Commercialization Programme, which was designed by the Ministry of Petroleum Resources and is now managed by the NUPRC, represents the key mechanism for implementing section 105 of the PIA, which grants the government the right to seize flare gas.38 The operation of the NGFCP involves a competitive bidding exercise where the NUPRC acts as the custodian of the gas to be flared from designated flare points and grants Permits to Access Flare Gas (PAFG) to developers who bid to commercialise the gas.
There was a remarkable development in December 2025, where the NUPRC granted the PAFG to 28 firms through the NGFCP with estimated investments of about two billion dollars and 100,000 employment opportunities.39 This marked the official start of the operational phase of the NGFCP, an important milestone considering the lengthy planning and bidding process.
There are a number of systemic issues facing the NGFCP. First, deeply entrenched community anger and resentment towards oil companies and the government bodies in the Niger Delta pose social licence concerns for the NGFCP operators who must work in communities with a history of being harmed by the environment. Second, the infrastructure that is in place for many of the flare sites has been built for flaring and not gas capture, thus there is a need for capital investment prior to commercialization.40
Moreover, the lack of mandatory third-party independent verification of the NUPRC’s self-reporting measurement and verification regime indicates that flare gas reporting by operators might be inaccurate.
5. The Enforcement Gap: Why Routine Flaring Remains Indirectly Legal
5.1 The Inadequate Penalty Problem
Inadequate financial penalties compared to the costs involved in putting up gas capture equipment have always been the most significant structural flaw in the flaring laws applicable in Nigeria from AGRA 1979 through to the PIA 2021. This is no simple conjecture but rather an economic reality. When the cost of compliance (capturing and processing associated gas) exceeds the cost of non-compliance (paying flaring fees), rational economic actors will choose non-compliance.41
For the largest operators in the Niger Delta, producing hundreds of thousands of barrels of oil per day, gas capture infrastructure can require capital expenditures running into hundreds of millions of dollars. Against this figure, flaring penalties, even at the USD 3.50 per Mscf rate under the 2023 Regulations, are manageable operating costs. This is confirmed by NUPRC data showing that oil companies paid approximately $646 million in gas-flaring penalties in 2025, the highest recorded in five years.42 The willingness to absorb that penalty bill rather than eliminate flaring demonstrates that, for many operators, flaring remains the commercially rational choice.
The non-deductibility provision in section 104(3) of the PIA, while progressive, does not in itself resolve this problem. Even after adjusting the $3.50 per Mscf fine upwards on a non-deductible basis, its effective rate will still be lower than the cost of gas captures every year. What is needed is a fine structure based not on the cost of flaring but on the opportunity cost of the gas flared, which should take into consideration international gas prices, estimates of volume of gas flared, and the environmental costs now paid by the Niger Delta communities.
5.2 The Exemption Architecture and Regulatory Discretion
The PIA's exemption framework, which is implemented via the threshold mechanism in the 2023 Regulations, provides for a lawful space for a certain quantum of routine flaring to continue. The Regulations for 2023 explicitly allow flaring within a Commission approved limit with the payment of a fee. This is the same as the old AGRA certificate regime but with higher fees, and a different institutional actor. An operator operating within the limits of their approved threshold is not breaking the law - they are paying for the privilege to flare within the limits.
The heart of this article's argument that routine flaring is indirectly legal is this. The PIA does not mandate zero flaring, but rather that flaring be within allowable limits or that flaring not occurring within allowable limits incur penalties. The 104 prohibition is simply not applicable to operators whose flaring volumes are below the Commission's approved limits. Their behavior is allowed by law.
This problem is exacerbated by the wide latitude in the Commission’s discretion to establish those thresholds, exemptions, and penalty provisions. The PIA reduces the ministerial discretion of the AGRA, albeit to a certain extent. In cases where the Commission faces political pressures, limited resources, or industry capture from the regulated industry, that discretion might be used to allow rather than to limit routine flaring.43
5.3 Infrastructural Deficits and the Flare-or-Produce Dilemma
Another structure-based justification for the continued flaring of gas is the infrastructure problem of the Niger Delta region, which has been succinctly captured by a former director of the Bayelsa State Ministry of Environment in the following terms:
"As far as oil production is concerned, if you don't flare then you will not produce."44 Without gas gathering infrastructure, processing plants, and pipelines linking flare points to domestic or export markets, operators face a genuine binary: flare the associated gas or shut in the oil production. Given that crude oil represents the primary revenue stream for both operators and the Nigerian state, accounting for approximately 95% of Nigeria's foreign exchange earnings,45 the political economy heavily favours continued production with associated flaring over production suspension pending infrastructure development.
The Bayelsa State Oil and Environmental Commission's 2023 report criticised international oil companies for failing to make adequate investments in associated gas gathering infrastructure, observing that companies mostly continue to flare associated gas despite adverse environmental impacts.46 This is not a legal problem, strictly speaking; companies may be paying their flaring fees and remaining within approved thresholds, but it is the product of a legal framework that has never made the economics of gas capture decisively more attractive than the economics of continued flaring.
5.4 Coordination Failures Between Regulatory Bodies
The PIA created a more rationalised institutional structure than existed previously, but coordination between the NUPRC, the NMDPRA, the National Environmental Standards and Regulations Enforcement Agency (NESREA), and the Environmental Impact Assessment system remains weak.47 Environmental statutes such as the Environmental Impact Assessment Act 199248 theoretically apply to petroleum operations, including gas flaring, but in practice the jurisdiction is contested and coordination between petroleum regulators and environmental regulators is inconsistent. The result is that operators may satisfy petroleum regulatory requirements while remaining in breach of environmental standards, or vice versa, without any single authority having both the mandate and the capacity to enforce holistic compliance.
5.5 Measurement, Reporting, and Verification Deficits
Enforcement of any flaring prohibition depends on accurate data about volumes flared. The 2023 Regulations impose granular reporting obligations, and the NUPRC's Guide 0024-2022 requires regular leak detection and repair inspections.49 However, the measurement, reporting, and verification system is primarily a self-reporting one. Official gas flaring statistics from NNPC and NUPRC sometimes diverge significantly from satellite-derived estimates. The Natural Resource Governance Institute has observed that current guidelines do not mandate independent third-party validation of reported methane emissions, creating a transparency deficit that undermines the Commission's ability to enforce against unreported or under-reported flaring.50
6. The Constitutional and Human Rights Dimensions of Gas Flaring
6.1 The Constitutional Framework
The Nigerian Constitution 199951 contains two bodies of provisions relevant to gas flaring. The first is the set of justiciable fundamental rights in Chapter IV: the right to life under section 33(1), the right to the dignity of the human person under section 34(1), and the right to a private and family life under section 37.52 The second is the non-justiciable Fundamental Objectives and Directive Principles of State Policy in Chapter II, including section 20, which imposes a duty on the State to protect and improve the environment and safeguard the water, air, land, forest, and wildlife of Nigeria.53 The non-justiciability of section 20 means that it cannot be directly enforced in court. However, it provides an interpretive lens through which the justiciable rights of Chapter IV may be read expansively to encompass environmental dimensions.
6.2 The Landmark Case: Gbemre v Shell Petroleum Development Company of Nigeria Ltd
The most significant judicial engagement with the constitutional dimensions of gas flaring came in the 2005 landmark case of Gbemre v Shell Petroleum Development Company of Nigeria Ltd and Others,54 decided by the Federal High Court, Benin Judicial Division. The applicant, Jonah Gbemre, a native of the Iwherekan area in Delta State, initiated an action for enforcement of his fundamental rights against Shell Petroleum Development Company of Nigeria Limited (SPDC), the Nigerian National Petroleum Corporation (NNPC), and the Attorney-General of the Federation concerning the ongoing flaring of gas in his community.
Gbemre claimed that gas flaring by Shell breached his fundamental rights to life and human dignity enshrined in sections 33(1) and 34(1) of the 1999 Constitution, buttressed by Articles 4, 16, and 24 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act.55 He continued by stating that the failure by Shell to undertake the environmental impact assessment prior to engaging in gas flaring was contrary to section 2(2) of the Environmental Impact Assessment Act 1992, hence violating his fundamental rights. He also sought a declaration that the ministerial exemption provisions of the AGRA 1979 and the 1984 Flaring Regulations were inconsistent with the Constitution and therefore void.
The Federal High Court, in a ruling of considerable constitutional significance, held that the rights to life and dignity "inevitably include the right to a clean, poison-free, pollution-free and healthy environment."56 The Court declared Shell's continuing gas flaring to be a gross violation of the applicants' fundamental rights and ordered the respondents to take immediate steps to stop gas flaring in the Iwherekan community. Crucially, the Court also declared the ministerial exemption provisions of the AGRA and the 1984 Regulations unconstitutional and void to the extent of their inconsistency with sections 33(1) and 34(1) of the Constitution. The Attorney-General was ordered to initiate the amendment of the AGRA to bring it into conformity with Nigeria's constitutional and human rights obligations.
Gbemre’s significance for the constitutional approach to gas flaring cannot be over-emphasized. The case marked the first time in Nigeria when the court pronounced gas flaring unconstitutional, confirmed that the right to life has environmental aspects, and ruled that gas flaring remained unconstitutional regardless of whether flaring fees had been paid. However, the effects of the decision have been extremely constrained due to non-enforcement of the judgment. In particular, the judge was reassigned, and the records were lost.57 The difference between the court’s orders and what happens on the ground reveals painfully well the constraints of judicial enforcement without the will of institutions.
6.3 The African Charter on Human and Peoples' Rights
Nigeria has domesticated the African Charter through the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act, which has the force of federal statute. Articles 4 (right to life), 16 (right to the best attainable state of physical and mental health), and 24 (right to a generally satisfactory environment favourable to development) are all directly engaged by gas flaring.58 The Social and Economic Rights Action Center’s (SERACs) decision by the African Commission on Human and Peoples' Rights,59 while addressing oil-related rights violations more broadly, reinforced the position that the Charter imposes positive obligations on Nigerian authorities to protect communities from environmental harm caused by private actors.
From a Charter perspective, the PIA's exemption framework, which allows Commission-authorised flaring to continue on payment of a fee, sits uncomfortably with Nigeria's Article 24 obligations. A legal regime that formally permits ongoing environmental harm to communities, even on a fee-paying basis, does not obviously comply with the Charter's requirement of a "generally satisfactory environment." Whether such a Charter challenge would be successful is another matter altogether, but the potential for such a challenge is nonetheless a noteworthy latent risk facing the regulatory regime.
7. Comparative Analysis: Lessons from Norway
Norway presents the best comparison to Nigeria, not due to the economic similarities between the two countries since they do not have any, but due to the success Norway has realized in managing gas flaring. Norway is able to maintain a zero routine level of gas flaring in spite of the fact that it produces crude oil at levels 25% higher than Nigeria. Norway flares 3% of its total natural gas production.60 Norway’s success is anchored on three fundamental elements. First, its Petroleum Act provides an almost absolute ban on flaring without any commercially feasible exemption system similar to the Nigerian certification system.61 Secondly, the flaring penalties in Norway are set to be high enough to make flaring unprofitable, which is not the case in Nigeria, where rational non-compliance has been a problem. Third, Norway has a reporting system in place that is transparent, independently verified, and is reported in real-time by the Norwegian Environment Agency accessible to regulators and the public.
While the Nigerian legal structure has some common elements with the Norwegian model, the mandatory FEMP requirement of the PIA is a common element with the development plan obligations of Norway, but with key differences in penalties and enforcement capacity. The problem in Nigeria is not the lack of knowledge of international best practice but of the country’s political economy. Routine flaring would entail significant capital cost for the operators, while the government has a structural interest in continuing the practice as it relies on oil revenues and operators have a structural interest in continuing the practice as they wish to maximise their profits. This political and economic constraint can only be broken if penalties are truly prohibitive, not manageable, and regulators are truly independent, not captured.
8. Reform Recommendations
8.1 Recalibrate Flaring Penalties to Reflect True Opportunity Costs
The most immediate need for change, therefore, is the need to recalibrate the rate of penalty. Instead of adopting the fixed penalty rate charged per unit of flared gas, the NUPRC needs to adopt a variable formula for charging penalties which will be pegged on international price of gas, taking into consideration the volume of flared gas per flare point and also the externalities involved due to environmental effects.62 Such a penalty regime will be the first to make flaring economically unsound for most producers.
8.2 Close the Threshold Exemption Loophole
Threshold provisions incorporated into the 2023 Regulations by means of a mechanism sanctioned by the Commission, that permit a certain amount of flaring in return for payment of a fee, are analogous to the system that exists under AGRA through the Ministerial certificate provisions. These provisions must be gradually eliminated, such that the approved threshold is progressively lowered to zero each year, while any exemption is limited to emergency or safety flares alone. The general exception for "acceptable safety practice" under section 104 of the PIA requires clarification in a set of regulations.
8.3 Strengthen NUPRC Enforcement Capacity
Laws will always be dependent on the institutions that enforce them. There will be a need for continuous investment in terms of skills and systems in the NUPRC. Mandatory independent third-party verification of flaring volumes, supplemented by satellite-based monitoring to cross-check self-reported data, should be introduced by regulation.63 The publication of FEMP compliance audits, naming individual operators and their flaring performance against plan targets, would create reputational pressure that complements financial penalties.
8.4 Enact a Standalone Gas Flaring (Prohibition and Punishment) Act
While the PIA 2021 contains important anti-flaring provisions, gas flaring regulation remains embedded within an omnibus statute whose primary focus is the broader commercialisation and governance of the petroleum sector. The House of Representatives' proposed Gas Flaring (Prohibition and Punishment) Bill, most recently introduced as HB.1819 in 2024, which, at the writing of this article, has passed the second stage reading, would create a standalone legislative instrument dedicated entirely to eliminating routine flaring by proposing a fine of $5 per 1,000 scf of gas flared, alongside potential operational suspensions for repeat offenders.64 This bill should be expedited through the committee process and enacted with provisions for criminal sanctions, including custodial sentences for corporate officers, that go beyond the civil penalty framework currently in place.
8.5 Operationalise the NGFCP with Binding Delivery Timelines
The December 2025 issuance of PAFGs to 28 companies represents a genuine step forward. But then, the permits have to be backed up by mandatory deadlines and milestones, where the holders of the PAFGs make commitments for gas collection amounts within a period of time. The Commission can make public the quarterly progress against the milestones, and cancel the permit in case of non-performance and assign the flared gas to other developers through competitive processes.
8.6 Empower Host Communities with Enforcement Rights
The lack of standing among those communities whose lives are impacted by gas flaring is another structural weakness of the existing law. This is because the Host Communities Development Trust of the PIA law only allows funds to be generated from such laws without giving any power of enforcement to such communities.65 Applicable laws should be reviewed to allow recognised community organisations to file cases at the NUPRC or the Federal High Court in relation to flaring of gas above prescribed limits or in contravention of FEMPs which have been approved. This way, community knowledge about flaring can be harnessed in conjunction with, and not as a replacement of, enforcement mechanisms.
9. Conclusion
The Petroleum Industry Act 2021 is indeed a significant improvement over the legal framework it replaced, in some important ways. The explicit statutory prohibition in section 104, the mandatory monetisation plans under section 108, the Commission's right to seize flare gas under section 105 and the non-deductibility of flaring penalties are all improvements on the AGRA regime. With the Gas Flaring, Venting and Methane Emissions Regulations 2023 and the operationalization of the NGFCP in December 2025, the institutional machinery is, at least, starting to move in the right direction.
But the main point of this article is that gas flaring is still indirectly legal in Nigeria today. The 2023 Regulations include a fee-based threshold mechanism, providing a legal framework for Commission-approved flaring. Financial penalties are still not big enough to change the business equation of big operators. Limited resources, measurement constraints and the structural pressures of regulating an industry on which Nigeria's fiscal health depends constrain the enforcement capacity of the NUPRC. The FEMP requirement is likely to be a paper exercise because there is no capacity to audit and verify if it is implemented. The constitutional commitment of Gbemre v Shell, that gas flaring is a violation of the right to life, has yet to be matched by the institutional reality of enforcement.
In the Niger Delta, communities such as Iwherekan, Ogboinbiri and many more have been subjected to the effects of gas flares for the past 60 years, which have been legally promised to be turned off. The question the PIA's legacy will eventually answer is whether Nigeria has now developed a legal and regulatory framework that will bridge the gap between the law and practice. At this time, on the evidence, the architecture is there, but the gap remains. Closing it will require not merely better laws. Nigeria has, arguably, adequate laws, but lacks the political and institutional will to enforce them and push the boundaries of the commercial accommodations and regulatory discretions that have always allowed routine flaring to persist within the letter of the law.
Footnotes
1. Attah Akejelu, Associate, Cross-Departmental, S.P.A. Ajibade & Co., Abuja, Nigeria.
2. See, Petroleum Industry Act 2021 (PIA 2021).
3. See, Gbemre v Shell Petroleum Development Company of Nigeria Ltd and Others, Suit No FHC/B/CS/53/05, Federal High Court, Benin Judicial Division (2005).
4. Ubani EC and Onyejekwe IM, 'Environmental Impact Analyses of Gas Flaring in the Niger Delta Region of Nigeria' available at
(https://www.researchgate.net/publication/283191566_Environmental_impact_analyses_of_gas_ flaring_in_the_Niger_delta_region_of_Nigeria) accessed on 14 May, 2026.
5. See, World Bank, Global Gas Flaring Tracker Report 2023 (World Bank 2023).
6. Augustine Okafor and others, 'Gas Flaring, Permits and Compliance: What the NUPRC's Latest Approvals Mean for Energy Companies' (Lexology, 13 February 2026) available at
(https://www.lexology.com/library/detail.aspx?g=b6e053f5-62b3-4618-9f46-f8b3575482e8) accessed 14 May 2026.
7. NOSDRA, Annual Environmental Report 2023 (Abuja 2024).
8. See, Associated Gas Re-injection Act 1979 Cap A25, L.F.N 2004.
9. See, Flare Gas (Prevention of Waste and Pollution) Regulations 2018.
10. The PIA received presidential assent on 16 August 2021.
11. See, Gas Flaring, Venting and Methane Emissions (Prevention of Waste and Pollution) Regulations
2023.
12. See, Petroleum Act 1969, Cap P10, L.F.N 2004.
13. See, Oil Pipelines Act 1956, Cap O7, L.F.N 2004.
14. AGRA 1979, s 1.
15. Ibid s 3(1).
16. Ibid s 3(2).
17. Mrabure KO and Ohimor BO, 'Unabated Gas Flaring Menace in Nigeria: The Need for Proper Gas Utilization and Strict Enforcement of Applicable Laws' available at
(https://www.researchgate.net/publication/342899703_Unabated_gas_flaring_menace_in_NigeriaThe_need_for_proper_gas_utilization_and_strict_enforcement_of_applicable_laws) accessed on 14 May 2026.
18. See, Associated Gas Re-injection (Continued Flaring of Gas) Regulations 1984 (Regulation 43 of 1984).
19. See, Associated Gas Re-injection (Amendment) Act 2004.
20. National Gas Policy 2017 (Federal Ministry of Petroleum Resources).
21. Foundation for Investigative Journalism, 'Nigeria Missed All Gas-Flare Targets Since 1984' (FIJ, 8 May 2026) available at (https://fij.ng/article/nigeria-missed-all-gas-flare-targets-since-1984) accessed 14 May 2026.
22. See, the Flare Gas (Prevention of Waste and Pollution) Regulations 2018, reg 7.
23. Ibid.
24. Springer Nature Link, 'Environmental Economic Impacts and Policy Pathways of Gas Flaring in Nigeria from 2002 to 2024' available at (https://link.springer.com/article/10.1007/s44274-025-00332-5) accessed on 14 May 2026.
25. PIA 2021, ss 4–9.
26. PIA 2021, s 104(1).
27. Ibid.
28. Ibid s 104(4).
29. Ibid s 105(2).
30. Ibid s 107.
31. Ibid s 104(1); See also the analysis in Mide Alabi, 'Gas Flaring in Nigeria: Why Compliance Still Lags' (Premium Times, 19 February 2026) available at
(https://www.premiumtimesng.com/opinion/857932) accessed 14 May 2026
32. Ibid s 108.
33. See, the Gas Flaring, Venting and Methane Emissions (Prevention of Waste and Pollution) Regulations 2023, issued by NUPRC pursuant to PIA 2021.
34. 2023 Regulations (n19) Part V; see also World Bank, 'Nigeria' (Global Gas Flaring Regulations, 2024) available at (https://flaringventingregulations.worldbank.org/nigeria) accessed 14 May 2026.
35. 2023 Regulations (n19) s 12.
36. Ibid s 21.
37. Ibid s 20.
38. . See Nigerian Gas Flare Commercialisation Programme (NGFCP) available at
(https://ngfcp.nuprc.gov.ng) accessed 14 May 2026.
39. NUPRC, 'NUPRC Issues Permit to 28 Firms for Flare Gas Utilisation, Projects $2bn Investments, 100,000 Jobs' (NUPRC Press Release, 15 December 2025) available at
(https://www.nuprc.gov.ng) accessed 14 May 2026.
40. Natural Resource Governance Institute, 'Strengthening Methane Emissions Reduction in Nigeria's Oil and Gas Sector' (NRGI, September 2024) available at
(https://resourcegovernance.org/publications/strengthening-methane-emissions-reduction-nigerias-oil-and-gas-sector) accessed 14 May 2026.
41. Babalola AA and Olawuyi DS, 'Overcoming Regulatory Failure in the Design and Implementation of Gas Flaring Policies' available at (https://www.mdpi.com/2071-1050/14/11/6800) accessed on 14 May 2026.
42. Foundation for Investigative Journalism (n16).
43. Alabi (n14).
44. Quoted in Xylom, 'Despite Steps Taken, Gas Flaring Still Threatens Livelihoods in Niger Delta' (The Xylom, 12 June 2024) available at (https://www.thexylom.com/post/we-are-suffering-despite-steps-taken-gas-flaring-still-threatens-livelihoods-in-niger-delta) accessed 14 May 2026.
45. Foundation for Investigative Journalism (n16).
46. Bayelsa State Oil and Environmental Commission, Report on Oil and Environmental Issues in Bayelsa State (2023).
47. Alabi (n14).
48. See, the Environmental Impact Assessment Act 1992 Cap E12, L.F.N 2004.
49. NUPRC Guide 0024-2022 (Gas Flaring and Fugitive Emissions Guidelines).
50. NRGI (n23).
51. Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999) as amended.
52. CFRN 1999, ss 33(1), 34(1), 37.
53. Ibid s 20.
54. See, Gbemre v Shell Petroleum Development Company of Nigeria Ltd and Others, Suit No FHC/B/CS/53/05, Federal High Court, Benin Judicial Division (2005).
55. See, African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria 2004.
56. Gbemre (n3).
57. James R May and Tiwajopelo Dayo, 'Dignity and Environmental Justice in Nigeria: The Case of Gbemre v Shell' (2020) SSRN available at
(https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3555431) accessed 14 May 2026.
58. See, African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act (n36) arts 4, 16, 24.
59. See, Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, Communication No 155/96, African Commission on Human and Peoples' Rights (2001).
60. Esavwede JP and Oyibodoro UG, 'Gas Flaring in Nigeria's Niger Delta: Legal Challenges and Lessons from Norway's Regulatory Framework' (2025) 5 Journal of Environmental Law and Practice 1.
61. See, Norwegian Petroleum Act 1996, s 4-4.
62. Babalola and Olawuyi (n29).
63. NRGI (n23).
64. Gas Flaring (Prohibition and Punishment) Bill HB.1819 (National Assembly, Nigeria, 2024).
65. PIA 2021, Ch 3 (Host Communities Development).
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