By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*
One of the landmark cases recently handled by the National Environment Tribunal (NET)comprising chairperson Mohammed Balala, Vice Chairperson Christine Kipsang and members Bahati Mwamuye, Waithaka Ngaruiya and Dr. Kariuki Muigua, PhD was the appeal by lobby groups led by the Greenbelt Movement seeking to stop the construction of the Nairobi expressway by cancelling its EIA License issued by Nema to the contractor China Road and Bridge Corporation an EIA licence. NET dismissed the appeal against Environmental Impact Assessment(EIA) License issued to the contractor for the construction of Nairobi Express Highway where the appellants sought to set aside the EIA license issued by NEMA in respect of Nairobi Express Highway. The appellants had also sought an order that NEMA require Strategic Environmental Assessment (SEA) to be conducted and Resettlement Action Plan to be developed. They also sought that after new SEA and Resettlement Action Plan is carried out, a new EIA be carried out and restoration order be issued to require the Contractor to restore the damages to the environment so far.
The grounds cited by the Appellant for the appeal included that NEMA approved the Terms of Reference (TORs) without conducting scoping exercise contrary to EIA Regulations. Further, it was alleged that NEMA issued an EIA license for the project before subjecting the project to Strategic Environmental Assessment (SEA) contrary to Section 57A of EMCA and Regulation 42 of the EIA Regulations. The Appellants also argued that NEMA issued the EIA Licence despite the fact that the Environmental and Social Impact Assessment (ESIA) process had failed to meet the threshold set out for public participation under Regulation 17(2) of the Regulations and the threshold of information and analysis required under the EIA Regulations and could not possibly form the basis for the grant of an EIA Licence.
In response, Respondents opposed Appeal on grounds, among others, that NEMA (the 1st Respondent) took into account the public consultations as well as the stakeholders’ views during the EIA process, but it was not legally bound by those views but was instead obligated to undertake its own technical and factual assessment based on various principles such as adequacy of mitigation measures, and adequacy of risk assessment and management among others. Further, the 1st Respondent wrote to the Contractor seeking clarification on a number of issues such as the extent to which Uhuru Park would be acquired and the resettlement action plan for all project affected persons; which queries were responded to vide a letter dated 30th March 2020 clarifying that no land was going to be acquired from Uhuru Park, stated that a comprehensive resettlement action plan for all project affected persons and properties was ongoing, and it provided a detailed utility relocation plan for the affected among other clarifications.
As for SEA, the 1st Respondent stated that the same only applies to plans, programs and policies and not to specific projects as is the case in this Appeal. In a nutshell, the 1st Respondent prayed for the dismissal of the Appeal in its totality. The project’s detailed terms of reference do comprehensively identify the potential impacts on the physical and biological environment, the existing infrastructure, land based livelihoods including land ownership, socio-economic considerations among other considerations of what would be impacted by the expressway project. On SEA, the 2nd Respondent (the Contractor) stated that it is not a mandatory requirement prior to the granting of an EIA licence.
On public participation, the 2nd Respondent stated that it took all reasonable steps to ensure that public participation was effective by placing posters in strategic places, publishing advertisements in newspapers with nationwide circulation, broadcasting the advertisement on KBC radio and held at least 8 meetings on various dates in separate locations within Nairobi. It was also argued that the project is founded on the social justice principle of sustainable development not only for the current generation and future generations and is a solution to the serious traffic congestion on the AS road which has caused serious delays for both public and private road users and the resultant pollution, and the reduction in the productive time of the said users.
In its decision, the Tribunal noted that it derives its powers from section 129 of EMCA. The powers of the Tribunal are well set out under section 129 (3) of the Act which provides that “Upon any appeal, the Tribunal may confirm, set aside or vary the order or decision in quest ion; exercise any of the powers which could have been exercised by the authority in the proceedings in connection with which the appeal is brought; or make such other order, including orders to enhance the principles of sustainable development and an order f or costs, as it ma y deem just.“ The Tribunal added that it had considered the Appeal, the evidence presented by the parties and perused the voluminous bundles of documents presented by the parties.
In its finding, the Tribunal found that the project proponent largely complied with the stringent requirements of EMCA and the EIA Regulations for the licensing of the project but did not carry out a climate change analysis. The Tribunal reached the following conclusion:
“117. The Tribunal is faced with the monument al task to make a decision on whether to cancel the EIA Licence in its entirety due to the stated deficiencies or step into the shoes of the 1st Respondent and make orders for compliance on the aspects that we find being incomplete. The effects of cancellation of the licence would be to cause a repeat of the process that has been carried out including public participation and the ensuing processes. We are minded to consider that colossal public funds are incurred during such processes and the repeat of that process does not serve to offer any solution on the environmental impacts involved in the project especially on aspect s of the EIA process that have not been impeached.
- Considering the nature of the project and noting that the project proponent has largely complied with the requirements for the grant of the EIA Licence, the Tribunal declines to cancel the licence but we shall issue order s under sections129 (3) (c) of EMCA to ensure compliance with the requirement for climate change analysis for the disputed project.
- For the foregoing reasons the Tribunal makes the following orders:
(a) The Appellant’s appeal is hereby dismissed;
(b) The Tribunal invokes its powers under section 129(3) (c) of EMCA to make orders for the preservation of the environment and for sustainable development and hereby orders the 2nd Respondent to carry out and complete a climate change analysis for the project within eighteen (18) months from the date of this judgment;
(c) The 1st Respondent shall ensure compliance with order (b) above and the Climate Change Act, Act 11 of 2016; and
(d) Each party shall bear their own costs”
In essence, by ordering China Road and Bridge Corporation to carry out and complete a climate change analysis for the project within 18 months from the date of their judgement, the National Environmental Tribunal (NET) has in effect put climate change analysis to the forefront. Climate change is defined in section 2 of the Climate Change Act to mean, “a change in the climate system which is caused by significant changes in the concentration of greenhouse gases as a consequence of human activities and which is in addition to natural climate change that has been observed during a considerable period.” Section 20 of the Climate Change Act provides that, “The Authority shall integrate climate risk and vulnerability assessment into all forms of assessment and for that purpose liaise with relevant lead agencies for their technical advice.”
The Tribunal held that the road being a project to ease congestion caused by motor vehicles using the AB corridor as well as the vehicles within the larger downtown Nairobi does require an analysis of the impact of the project on the climate as motor vehicles are known transmitters of greenhouse gases. It added that although the ESIA report states that the Expressway shall pass through two distinct climatic zones being the Central Highlands/Rift Valley which includes the Nairobi County’s JKIA-James Gichuru Section; and Eastern Kenya which includes the Machakos County’s Mlolongo-JKIA Section, the report fails to do any analysis of the impacts created by the emissions of greenhouse gases on the sections affected by the Expressway. The Tribunal thus concluded: “We find that climate change analysis was necessary prior to the issuance of the EIA Licence.”
*This article is an extract from published article “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. 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 Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2022.
References
Muigua, K., “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2020/03/National-Environment-Tribunal-Sustainable-Development-and-Access-to-Justice-in-Kenya-1.pdf (accessed 24 June 2022).
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