Environmental Impact Assessments, Licences, Audits, Air pollution, Sustainable Development Goals, Public Participation, Biodiversity, Constitutional, Evidence, Inspections

On the basis of an Environmental Impact Assessment (EIA), the National Environmental Management Authority (NEMA) of Kenya issued an EIA Licence to Amu Power Company to proceed with a coal-fired power plant project in the County of Lamu.  The organization Save Lamu, alongside several other community groups, challenged the issuance of the Licence on the grounds, inter alia, that the EIA failed to fully account for environmental harms, that the mitigation measures were inadequate, and that the EIA process did not involve adequate public participation.  The tribunal set aside the EIA Licence, ordering Amu Power, should it still wish to pursue the project, to undertake a fresh EIA adhering to each step of existing EIA regulations, and directing NEMA to comply with these regulations to engage lead agencies and the public in the licensing process and to provide and publish reasons for its ultimate decision.

Key environmental legal questions
  • Did the grant of the Licence violate Kenya’s Environmental Impact Assessment regulations and Constitution: Article 69(f) of the Constitution of Kenya requires the State to establish systems of EIA, audit, and monitoring.  These systems are set out in the Environmental Management and Coordination Act 2009 (EMCA).  Through defects in the EIA itself, as well as in the process of its production, due to inadequate public participation, the grant of the Licence violated Kenya’s EIA regulations.
  • Did the licensing process involve proper and effective public participation: EIA regulations stipulate that public consultation should have happened after NEMA’s approval of the project scoping report.   Wide public participation was undertaken during the scoping phase, however meetings were introductory in nature, not structured to share information on the project’s possible effects and impacts, and they took place before the EIA study had commenced.  In the EIA study phase itself, there was a lack of access to information, which the tribunal emphasized is prerequisite to a meaningful exercise of public consultation and participation.  Furthermore, steps taken by NEMA after the publication of the EIA study, including notices, timelines for the receipt of comments, and the time and venue of meetings, did not meet the threshold set by the regulations for public participation.  Finally, NEMA failed to demonstrate that it had considered the views presented by the public and lead experts.  For these reasons the tribunal found that public participation in the relevant phases was inadequate or non-existent, in violation of the law.
  • Did the EIA process ensure adequate mitigation measures: The EIA endeavored to capture many of the reasonably foreseeable impacts of the project and proposed mitigation measures.  However, the comprehensiveness of the EIA did not excuse a failure to carry out effective public participation during the EIA process and after the publication of the EIA report.  In addition, the EIA was incomplete and scientifically insufficient, failing to fully account for, inter alia, waste storage and management, and the impact of climate change, taking into account the precautionary principle.