Kenya

Save Lamu et al. v. National Environmental Management Authority and Amu Power Co. Ltd.

Jurisdiction: Kenya


Principle law(s): Climate Change Act, 2016


Side A: Save Lamu et al. (Individual ngo)


Side B: National Environmental Management Authority (Government)


Side B: Amu Power Co. Ltd (Corporation)


Core objectives:

Whether the National Environmental Management Authority violated public participation requirements in issuing a license to construct a coal-fired power plant and whether a coal company's environmental impact assessment adequately considered climate change and other factors


Summary
Kenya's National Environmental Tribunal ("the Tribunal") set aside the issuance of a license by the National Environmental Management Authority (NEMA) to Amu Power Company for the construction of the Lamu Coal-fired Power Plant ("Lamu Plant"). The Lamu Plant would be the first coal-fired power plant in Kenya. The Tribunal found that the National Environmental Management Authority violated the Environmental Impact Assessment & Audit Regulations ("EIA Regulations") by granting an Environmental Impact Assessment License without proper and meaningful public participation in the process. Additionally, the Tribunal found that the Amu Power Company's Environmental & Social Impact Assessment was incomplete and scientifically insufficient in violation of the regulations. Applying the precautionary principle, the Tribunal found one of the insufficiencies of the assessment was the inadequate consideration of climate change and the Climate Change Act of 2016. 

The Tribunal ordered the Amu Power Company, if it should choose to pursue the project, to conduct a new EIA study in compliance with the EIA Regulations. The Tribunal further instructed the Amu Power Company that the new EIA study must include "all approved and legible detailed architectural and engineering plans for the plant and its ancillary facilities (such as the coal storage and handling facility and the ash pit with its location in relation to the sea shore), consideration of the Climate Change Act 2016, the Energy Act 2019 and the Natural Resources (Classes of Transactions subject to Ratification) Act 2016 in so far as the project will utilise sea water for the plant and/ or if applicable." The Amu Power Company has 30 days to appeal the decision.
Case documents

Related laws and policies
  • This law implements Kenya legislation
    Climate Change Act, 2016

    Passed in 2016 Legislative

    This Act provides a framework for promoting climate resilient low carbon economic development. It aims to (Art 3-2):


    1. 'mainstream climate change responses into development planning, decision making and implementation;

    2. build resilience and enhance adaptive capacity to the impacts of climate change;

    3. formulate programmes and plans to enhance the resilience and adaptive capacity of human and ecological systems to the impacts of climate change;

    4. mainstream and reinforce climate change disaster risk reduction in strategies and actions of public and private entities;

    5. mainstream intergenerational and gender equity in all aspects of climate change responses;

    6. provide incentives and obligations for private sector contributions to achieving low carbon climate resilient development;

    7. promote low carbon technologies to improve efficiency and reduce emissions intensity by facilitating approaches and uptake of technologies that support low carbon, and climate resilient development;

    8. facilitate capacity development for public participation in climate change responses through awareness creation, consultation, representation and access to information;

    9. mobilize and transparently manage public and other financial resources for climate change response;

    10. provide mechanisms for, and facilitate climate change research and development, training and capacity building;

    11. mainstream the principle of sustainable development into the planning for and decision making on climate change response; and

    12. integrate climate change into the exercise of power and functions of all levels of governance, and to enhance cooperative climate change governance between national government and county governments'.


    The Act establishes a National Climate Change Council, chaired by the President, with Deputy President as vice-chair, that provides an overarching national climate change coordination mechanism. It also establishes the Climate Change Directorate - Secretariat to the Council and the lead agency of the government on national climate change plans and actions.
    The prerogatives of the National Climate Change Council include (Art 6):

    1. ensure the mainstreaming of the climate change function by the national and county governments;

    2. approve and oversee implementation of the National Climate Change Action Plan

    3. advise the national and county governments on legislative, policy and other measures necessary for climate change response and attaining low carbon climate change resilient development;

    4. approve a national gender and intergenerational responsive public education awareness strategy and implementation programme;

    5. provide policy direction on research and training on climate change including on the collation and dissemination of information relating to climate change to the national and county governments, the public and other stakeholders;

    6. provide guidance on review, amendment and harmonization of sectoral laws and policies in order to achieve the objectives of the Act;

    7. administer the Climate Change Fund;

    8. set the targets for the regulation of greenhouse gas emissions'.


    The Act allows the Council to impose climate change obligations on private entities (Art 16), and stipulates investigation, monitoring and enforcement powers.

    The Act also mandates the Cabinet Secretary to formulate a National Climate Change Action Plan, to be then updated every five years, with implementation review conducted every two years.

    The Act allows Citizens to apply to the Environment and Land Court "alleging that a person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change" and the court may order a discontinuance or prevention of these actions, and may "provide compensation to a victim of a violation relating to climate change duties." It is stipulated that no proof of loss or injury by the applicant is necessary (Art 23).

    The Act also empowers the National Climate Change Council to assign duties relating to climate change and implementation of the Climate Change Action Plan to both public and private entities (Part IV). It also establishes the Climate Change Fund as the financing mechanism for priority climate change actions and interventions approved by the council. The Fund revenue should come from (Art 25):

    1. 'monies appropriated from the Consolidated Fund by an Act of Parliament;

    2. monies received byt eh Fund in the form of donations, endowments, grants and gifts; and

    3. monies under and Act payable to the Fund'.


    http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ClimateChangeActNo11of2016.pdf

    http://cdkn.org/2016/06/feature-kenya-spearheading-low-emissions-development-africa/?loclang=en_gb

from the Grantham Research Institute
from the Grantham Research Institute
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