Https://climatelitigation.miraheze.org/wiki/SLvNEMA

CASE BRIEF
===IN THE NATIONAL ENVIRONMENTAL TRIBUNAL AT NAIROBI TRIBUNAL APPEAL NO. NET 196 OF 2016 PARTIES=== Save Lamu- 1st Appellant Somo M. Somo- 2nd Appellant Raya Famau Ahmed- 3rd Appellant Mohammed Mbwana- 4th Appellant Jamal Ahmed Ali- 5th Appellant Abubakar Mohammed Twalib- 6th Appellant National Environmental Management Authority (Nema)- 1st Respondent Amu Power Company Limited- 2nd Respondent

Background
As part of a vision of the country’s economic blueprint for development and industrialization of the country the Government of Kenya, through the Kenya Vision 2030 initiative, formulated a power generation program intended to increase the generation of total effective capacity to about 5000 MW. This program included the setting up of the intended 1050 MW coal fired power plant in Lamu to be built, owned and operated by the 2nd Respondent, who were the successful bidders following an expression of interest by the Government. It was proposed to have the coal power plant on the sea shore of Kwasasi area, Hindi Division, in Lamu County. The 2nd Respondent engaged Kurrent Technologies Limited, to undertake an Environmental & Social Impact Assessment (ESIA) Study for its coal power plant in Lamu, and, upon completion, presented the same to the 1st Respondent Authority for licensing purposes. The 1st Respondent, NEMA, proceeded to issue an Environmental Impact Assessment License No. NEMA/ESIA /PSL/3798 to the 2nd Respondent on 7th September, 2016. The 1st Appellant, a community-based organization representing the interests and welfare of Lamu and whose membership comprised of individuals and several community groups within Lamu together with the 2nd to 6th Appellant s were aggrieved by the issuance of the said EIA License dated 7th September 2016. They filed the present appeal on 7th November, 2016 challenging the issuance of the EIA License as well as the process in obtaining the same.

Issues Arising
a. Whether the grant of the ESIA License by the 1st Respondent is in violation of the Environmental (Impact Assessment & Audit) Regulations and the Constitution of Kenya. b. Whether the process leading to the preparation of the ESIA Study Report by the 2nd Respondent involved proper and effective public participation. c. Whether the Respondents conducted a proper analysis of alternatives of the project. d. Whether the Respondents conducted a proper analysis of the economic viability of the project. e. Whether the ESIA Study Report prepared by the 2nd Respondent contains adequate mitigation measures. f. Whether the 1st Respondent in evaluating the mitigation measures and issuing the ESIA license discharged its mandate in accordance to the law.

Relevant Law & Principles
The tribunal discussed the jurisdiction of the tribunal in environment matters. The jurisdiction of the Tribunal under Section 129(1) of the Environmental Management and Coordination Act 2009 (“EMCA”) is not unlimited. The Tribunal is an appellate court from the decision of the 1st Respondent in matters relating to EIA licenses. The tribunal held that the purpose of this observation on the Tribunal’s jurisdiction and scope of mandate is to ensure that the Tribunal does not stray outside the scope and mandate when dealing with the present dispute to matters outside the licensing regime or in issues where there are “multiplicity of parties and polycentricity of issues”. The jurisdiction of the Tribunal is narrow. It is to examine “the completeness and scientific sufficiency of the ESIA Report that resulted in the license issued by NEMA”. A. Whether the grant of the ESIA License by the 1st Respondent is in violation of the Environmental (Impact Assessment & Audit) Regulations and the Constitution of Kenya. and B. Whether the process leading to the preparation of the ESIA Study Report by the 2nd Respondent involved proper and effective Public Participation. The tribunal held that it is trite law that a key element in the system of environmental impact assessment is that of public participation by individuals and communities in the process. The legal requirements imposed on the 1st and 2nd Respondents when undertaking an EIA study have to be strictly complied with considering the nature of the Lamu coal power plant project and its unique position as the first coal power plant proposed to be developed and operated in Kenya. Access to information for the persons affected is important for meaningful participation by citizens and it seeks to take into account the community’s and different stakeholders concerns. The tribunal held that there was a failure of effective public participation and the procedure for the issuance of the ESIA License by the 1st Respondent was in violation of the elaborate procedure set out in the Environmental (Impact Assessment & Audit) Regulations and the Constitution of Kenya and the failure in the consultation process therefore fatal to the study.

C. Whether the Respondents conducted a proper analysis of alternatives of the project.The tribunal held that both the desired project, that is, a coal plant and the desired site of Kwasasi had already been pre-determined and this was outside the 2nd Respondent’s control. As regards the site placement on the location itself, the 2nd Respondent did not submit a proper detailed architectural or engineering plan of the coal plant approved by the Lamu county government for the preferred pre-selected location and instead referred the Tribunal to a sketch plan of the site and oral explanations. The lack of specific and current information on where various components of the project would be placed did not give an opportunity for the Tribunal or other members of the public at the study stage, to consider the likely effect of each project component on the environment. The local alternative was not challenged. The tribunal also held that project and technological alternatives were analyzed by the ESIA study. The tribunal also held that the case of energy alternatives was best left for the Energy regulators determination rather than the Tribunal. D. Whether the Respondents conducted a proper analysis of the economic viability of the project The tribunal held that the 2nd Respondent in its report justified the need for the construction of the 1050 MW Coal Fired Power Plant on the Government's vision 2030 predictions on the intensive economic activities that were intended to be achieved. The economic viability of the project (as opposed to the economic impact of the project) is not within the jurisdiction of the Tribunal to consider but that of the policy makers and the Energy Regulatory Commission and therefore did not delve into this issue. E. Whether the ESIA Study Report prepared by the 2nd Respondent contains adequate mitigation measures and F. Whether the 1st Respondent in evaluating the mitigation measures and issuing the ESIA license discharged its mandate in accordance to the law. The tribunal held that despite the report prepared by the 2nd Respondent containing mitigation measures as required under EMCA and the Environmental (Impact Assessment & Audit) Regulations, the adequacy of those measures are yet to be subjected to proper public participation and until then may remain mere academic presentations. On whether the 1st Respondent Authority having considered these mitigation measures properly evaluated the same and thus discharged its mandate the tribunal held that it will not interfere with the exercise of discretion by an administrative body even if the Tribunal were to act differently were it in the shoes of that body. The discretion involved is that of the 1st Respondent, not of the Tribunal. The circumstances under which the Tribunal would interfere with such decisions are limited: if the decision is unreasonable or violates the law.

=Judgement
= The tribunal allowed the appeal and set aside the decision of the 1st Respondent to issue the Environmental Impact Assessment License and ordered the 2nd Respondent, should it still wish to pursue the construction and operation of the project, to undertake a fresh EIA study as well as adhere to each step of the requirements of the EIA Regulations on EIA Studies. The fresh EIA study, if undertaken should include all approved and legible detailed architectural and engineering plans for the plant and its ancillary facilities.

==Takeaways
== Following the above, it’s absolutely clear that due process must be followed before the granting of an Environmental Impact Assessment License despite the importance of the proposed project by any party. This ensures the Constitution and fundamental laws are duly followed.