Climate change is real – and a serious environmental issue. This is an important take-away from a recent decision by the Environment and Land Court in Nakuru.
A company called Sosian Energy Limited applied for a licence in 2017 to undertake geothermal exploration drilling in Makongeni/Menengai.
Any such big project requires an Environmental and Social Impact Assessment (ESIA) Licence issued by the National Environmental Management Authority (Nema) – but only after an environmental impact study report.
That study has to be carried out by the applicants for a licence – by properly registered expert consultants. It is then submitted to Nema, which will scrutinise it and also make it available for public scrutiny.
Sosian got their licence in 2021. The local community (Menengai West Stakeholders Forum and 10 community members) challenged the licence before the National Environment Tribunal (NET), but the NET upheld the EIA licence in December 2023.
So the community took their appeal to the Nakuru Environment and Land Court. That court has equal status with the High Court under the Constitution.
Last month, Justice Millicent Odeny allowed the appeal.Her decision cancelled the 2021 EIA licence and directed Sosian Energy to conduct a fresh, and comprehensive ESIA study, this time complying with all relevant laws.
WHAT HAD GONE WRONG?
The main failures had been not conducting effective public participation and not including a climate impact assessment in the EIA report. These are requirements under the law including the Environmental (Impact Assessment and Audit) Regulations (EIA Regulations).
Those regulations require the EIA report to contain “climate change vulnerability assessment, relevant adaptation and mitigation actions”.
These had not been included in the EIA report. On its part, the tribunal had required Sosian Energy to submit a climate impact assessment study report within 24 months from the date of the tribunal’s judgment but did not make this a condition for commencement of any project activity.
In reaffirming the importance of adhering to legal requirements, the Court overturned this decision and held that climate impact assessment should be done prior to approval of a project to allow proposed mitigation measures to be developed, clearly defined, and made available to the affected persons and agencies to review and give their comments.
“At what stage are the affected people and agencies supposed to interrogate the climate impact assessment if it is done at the tail end of the project?”
TRIPLE PLANETARY CRISIS
Notably, the Court also held that it is critical to take into consideration the “triple planetary crisis” - a term and framework adopted by the United Nations system to describe the interconnected and escalating environmental challenges of climate change, biodiversity loss, and pollution.
In conclusion, the Court boldly stated that “the effects of climate change are with us and mitigation and adaptation measures have to be put in place to ensure a sustainablefuture for all.”
THE CONSTITUTIONAL CONNECTION
The decision promotes rule of law - one of the national values and principles of governance under Constitution Article 10 - by insisting the legal requirements on contents of an EIA report must be followed.
This is significant since Kenya has very progressive environmental laws, but the main challenge is all too often in the implementation.
Public participation is, of course, a constitutional value. Not only does it apply generally under Article 10, and specifically to law making under Articles 118 (Parliament) and 196 (county assemblies), but it is particularly emphasised in connection with environmental protection (Article 69 ).
Sustainable development is one of the national values and principles of governance under Article 10. The court’s decision is important in promoting sustainable development practices, especially with respect to climate change considerations in key infrastructure projects, including the energy sector.
Climate change threatens the ability of individuals to enjoy the right to a clean and healthy environment by affecting weather patterns (giving rise to events such as severe floods, droughts, storms and wildfires), temperatures, food systems, human health, income levels, and human settlements.
Climate change and its effects are now universally agreed to be serious threats to humanity. In a resolution of the UN General Assembly on July 26, 2022, the UN recognised the right to a clean, healthy, and sustainable environment as a human right.
The resolution also recognised that “environmental degradation, climate change, biodiversity loss, desertification and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights.”
Article 42 of the Constitution guarantees every person the right to a clean and healthy environment (which includes the right to have the environment protected for the benefit of present and future generations).
This requires the state to ensure sustainable exploitation, utilisation, management, and conservation of the environment and natural resources, among other key duties (under Article 69 ).
The court’s decision is a huge step in the right direction towards guaranteeing core practices that promote the right to a clean and healthy environment.
The court decision is also a critical recognition of the realities of climate change, and the resulting significance of mitigation and adaptation measures.
It is a substantial development in the increasing climate cases and will certainly further guide courts and the public on the judicial approach to climate issues. It also further develops the climate change jurisprudence in Kenya and acts as evidence of mainstreaming of climate change considerations in Kenya’s justice system.
The court decision follows the 2019 landmark decision of the NET in the celebrated Save Lamu case, which is currently under appeal at the Environment and Land Court in Malindi.
This is the case initiated in 2016 by Save Lamu and five other community members against Nema and Amu Power Company Limited (developer of the proposed coal-fired power plant).
In this case, the tribunal cancelled an EIA licence for the proposed Lamu coal power plant and held that the ESIA study report was incomplete and scientifically insufficient and therefore fell short of the requirements of the EIA regulations.
The tribunal also held that the ESIA study report did not adequately consider provisions of the climate change legislation.
As recognised by the Nakuru court, effective climate change mitigation and adaptation measures must be put in place to ensure a sustainable future for all.
BALANCING ENVIRONMENTAL FACTORS
There is an irony in this case, of course: Kenya’s use of geothermal power is the major factor in keeping its global climate footprint low, and it becomes more important as climate change makes hydropower increasingly unreliable.
This court decision is therefore significant in communicating that the statutory environmental protection requirements apply to all projects, including renewable energy projects.
Just because an energy project is a renewable energy project does not mean state agencies should close their eyes to illegalities surrounding it. It is, of course, important that a balance is achieved.
The national and global, importance of developing climate-friendly methods of power generation such as geothermal energy cannot be allowed to ride roughshod over the environmental rights of communities. Nor must over-sensitive NIMBY (“not in my backyard”) concerns be allowed to stop vital development projects.
A nuanced approach is required. It is the function of an EIA system to achieve that balance. If there are huge concerns that are not addressed, then the project will not be allowed to proceed.
However, an EIA licence will very often permit a project, provided that certain precautions are taken during the construction and development, and during the operation of the project to minimise negative effects, including on the climate (which even a fundamentally climate-friendly project might cause).
The core decision in this case is directed towards ensuring that the system
works as it should.
The writer is a
Climate Justice legal
fellow at Katiba
Instituten
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