By Dr. Kariuki Muigua, PhD, Africa’s Leading Dispute Resolution and ESG Expert, Africa Arbitrator of the Year 2022/3, Africa ADR Practitioner of the Year 2022/3, Member of the Permanent Court of Arbitration nominated by the Republic of Kenya, Member of the National Environment Tribunal, University of Nairobi Senior Lecturer and Managing Partner at Kariuki Muigua & Co. Advocates.*
Environmental compliance entails adherence to environmental laws, standards, regulations and other requirements. The need for environmental compliance is important among corporations due to the potential of environmental liability as a result of non-compliance. Corporations thus have to adhere to the various environmental laws, regulations and standards set out under EMCA and other environmental sectoral laws. Environmental Management and Co-ordination Act (EMCA), 1999 sets out various environmental management tools such as Environmental Impact Assessment (EIA), Environmental Audits, Strategic Environmental Assessment (SEA) and Strategic Environmental and Social Assessment (SESA).
Environmental Impact Assessment
Environmental Impact Assessment (EIA) refers to a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impacts on the environment. It has been described as an important tool in environmental conservation and management since it makes it possible to identify environmental problems and provide solutions to prevent or mitigate these problems to the acceptable levels and contribute to achieving sustainable development. Since most development activities and projects in Kenya are undertaken by companies, EIA becomes an important aspect of the corporate governance discourse. It has been argued that EIA can be a powerful tool for keeping the corporates including Multinational Corporations (MNCs) operating in the country in check.
The need for EIA is so important that the Environmental (Impact Assessment and Audit) Regulations, 2003 makes it mandatory to conduct an EIA study and have it approved before undertaking a project likely to have environmental effects. The Regulations require a proponent to prepare a Project Report that covers inter alia; the nature of the project, activities to be undertaken during construction of the project and the potential environmental impacts of the project and the mitigation measures to be taken during and after implementation of the project. In addition, the regulations require a proponent to submit to NEMA an Environmental Impact Assessment Study Report that deals with among other things the environmental effects of the project and an Environmental Management Plan (EMP) proposing the measures for eliminating, minimizing or mitigating adverse impacts on the environment.
It important for corporations to comply with EIA requirements under EMCA in order to minimize the environmental impacts of their projects and promote sustainable development. Failure to comply with EIA requirements under EMCA has seen instances where projects have been halted. In Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2015] eKLR, the Applicant was issued with a mining license without complying with the EIA requirements under EMCA. In cancelling the license, the Environment and Land Court decided that:
‘To the extent that the Commissioner for mines was not furnished with a NEMA Licence as required under the EMCA Act and the Regulations made thereunder my view is he could not issue a valid Mining Licence and the Licence he issued to the Applicant on 7th March 2013 was null and void and of no legal effect.’
Strategic Environmental Assessment (SEA)
Strategic Environmental Assessment (SEA) is defined as a formal and systematic process to analyse and address the environmental effects of policies, plans, programmes and other strategic initiatives before their final adoption. EMCA requires all entities, including corporations, to undertake preparations for SEAs at their own expense and submit them to NEMA for approval. It has been observed that the object of SEA is to enhance environmental protection and promote sustainable development through contributing to the integration of environmental considerations into the preparation and adoption of specified policies, plans and programmes.
Environmental Audits and Monitoring
The requirement for environmental audits and monitoring has been enshrined under the Constitution of Kenya as part of the obligations in respect of the environment. Under EMCA, environmental audit is defined as the systematic, documented, periodic and objective evaluation of how well environmental organization, management and equipment are performing in conserving or preserving the environment (emphasis added). Environmental audits and monitoring act as follow up tools to determine the extent to which activities being undertaken conform to the environmental impact assessment study report issues in respect of the particular project. The aim of this process is to guard against deviation from the study report which could have detrimental effects on the environment. NEMA is mandated under EMCA to undertake environmental audits of all activities in consultation with other lead agencies.
Public Participation
The principle of Public participation has become essential under the current Constitutional dispensation in Kenya. It is enshrined under the Constitution as one of the national values and principles that binds all persons (including corporations) in the implementation of policy decisions. The principle is fundamental in environmental governance and all policies, plans and processes related to the environment are to be subjected to public participation. In Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR, the court recognized the importance of this principle and observed that:
‘One of the environmental governance principles emphasized by the legal framework is the principle of public participation in the development of policies, plans and processes for the management of the environment and natural resources.’
The principle of Public Participation has also been captured under EMCA. The Act requires the Environment and Land Court in exercising jurisdiction conferred upon it by the Act to be guided by principles of sustainable development including participation of the people in in the development of policies, plans and processes for the management of the environment. Further, under the Environmental (Impact Assessment and Audit) Regulations, 2003, a project proponent is required to seek the views of persons who may be affected by the project while conducting an environmental impact assessment study. Public participation is an important tool of environmental governance in Kenya since it guarantees social acceptance of projects. Neglect of public participation by corporations has led to EIA licenses being revoked for lack of public participation in conducting the EIA study.
Sustainable Development
Sustainable development has been enshrined as one of the national values and principles under the Constitution. The principle has also been captured under EMCA and incudes public participation, inter and intra generational equity, polluter pays principle precautionary principle inter alia. The importance of sustainable development has been further enhanced through the adoption of Sustainable Development Goals (SDGs) by the United Nations member states in 2015 as a universal call of action towards targets such as ending poverty and protecting the planet. The SDGs set various targets such as sustainable management of water and sanitation for all, attainment of affordable and clean energy, promotion of inclusive and sustainable industrialization and taking action to combat climate change. Corporations can assist towards promoting sustainable development through compliance with the targets set out under the SDGs.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., “Providing Legal Advice on Corporate Environmental Compliance in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/05/ Corporate-Environmental-Compliance-in-Kenya-May-2021.pdf. Dr. Kariuki Muigua is Senior Advocate of the High Court of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.
References
Al Ouran, N.M., ‘Analysis of Environmental Health linkages in the EIA process in Jordan,’ International Journal of Current Microbiology and Applied Sciences, Vol. 4, No. 7, 2015, pp. 862-871.
Climate Change Act, No. 11 of 2016, Government Printer, Nairobi.
Companies Act, No. 17 of 2015, Government Printer, Nairobi.
Constitution of Kenya 2010, Government Printer, Nairobi.
Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2015] eKLR.
Declaration of the United Nations Conference on the Human Environment Stockholm, 16 June 1972, available at https://legal.un.org/avl/ha/dunche/dunche.html (Accessed on 25/11/2021).
Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer, Nairobi
Environmental (Impact Assessment and Audit) Regulations, 2003 Legal Notice No. 101 (June 13, 2003),
Environment Management and Co-ordination (Air Quality) Regulations, available at http://www.nema.go.ke/index.php?option=com_content&view=article&id=31&Itemid=171 (Accessed on 25/11/2021).
Environment Management and Co-ordination Water Quality Regulations, 2006 Legal Notice No. 120 (September 4, 2006).
Environmental Management: The ISO 14000 family of International Standards, available at https://www.iso.org/files/live/sites/isoorg/ files/archive/pdf/en/theiso14000family_2009.pdf (Accessed on 25/11/2021).
Environmental protection Agency, ‘Strategic Environmental Assessment,’ Available at http://www.epa.ie/monitoring assessment/assessment/sea/#.Vi5tmGuJ2CA (Accessed on 21/11/2021).
Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR.
Muigua K, ‘Strengthening the Environmental Liability Regime in Kenya for Sustainable Development,’ Available at: http://kmco.co.ke/wp-content/uploads/2019/09/Strengthening-the-Environmental-Liability-Regime-in-Kenya-for-Sustainable-Development-Kariuki-Muigua-26th-April-2019.pdf(Accessed on 25/11/2021).
Muigua. K, ‘Legal Aspects of Strategic Environmental Assessment (SEA) and Environmental Management, available at http://kmco.co.ke/wp-content/uploads/2018/08/Legal-Aspects-of-SEA-andEnvironmental-Management-3RD-December-2016.pdf (Accessed on 25/11/2021).
Muigua, K, ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya’ available at http://kmco.co.ke/wp-content/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLICPARTICIPATION-IN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 25/11/2021).
Save Lamu & 5 Others v NEMA & another, Tribunal Appeal No. NET 196 of 2016.
Sustainable Development Goals, available at https://www.undp.org/content/dam/undp/library/ corporate/brochure/SDGs_Booklet_Web_En.pdf (Accessed on 25/11/2021).