News & Analysis

Book Review: Combating Climate Change for Sustainability by Dr. Kariuki Muigua

Published

2 months ago

October 22, 2023

Admin

By James Njuguna, LLM, MCIArb (Advocate), Lecturer of Law at University of Embu Faculty of Law.*

Climate change is considered one of the major global challenges that countries have to contend with in their efforts towards achievement of the sustainable development agenda. Climate change affects not only national and global economy but also has a direct effect on the livelihoods of communities. It is for this reason that there have been global calls on governments and all other stakeholders to put in place climate change mitigation measures and ensure that their economies become resilient. Indeed, climate change is one of the main environmental goals under the United Nation’s 2030 Agenda for Sustainable Development Goals as captured under Sustainable Development Goal 13 meant to help countries achieve resilience and build adaptive capacity. However, due to their development activities and approaches, both developed and developing countries have not managed to curb climate change. It is also acknowledged that due to their differing economies and unique challenges, developing countries have far much been affected by climate change compared to the developed countries.

In the book, Combating Climate Change for Sustainability, Dr. Kariuki Muigua, PhD offers a compilation of his latest twenty (20) recent peer-reviewed and critically-acclaimed articles and book chapters on combating climate change and the quest for sustainability. The book, informed by the need to combat climate change for sustainability, offers a sound discussion on the main causes and manifestations of climate change. It also discusses the main institutions and approaches designed for combating climate change for sustainability. It not only adds to the already existing debates in this area but also offers solutions for combating climate change for sustainability and also explores the global and regional approaches on the same. Academics, students, researchers and decision-makers, among others, will find the book a useful addition to their collection of literature on climate change and sustainability.

The book author, Dr. Kariuki Muigua, PhD, is a Member of the National Environment Tribunal (NET) and the Permanent Court of Arbitration at The Hague representing the Republic of Kenya. He is one of the foremost Environmental and Natural Resources Lawyers and Scholars in Africa. He is ranked in Band 1 among the Top 5 Arbitrators in Kenya by Chambers and Partners in 2023. Dr. Kariuki Muigua is Africa’s CIARB Trustee Emeritus (2019-2022) and won the African Arbitrator of the Year 2022 and African ADR Practitioner of the Year Award 2022 last year. He has authored more than dozen books in the areas of Environmental and Natural Resources Law, Dispute Resolution and Conflict Management. The Lawyer Africa named Dr. Kariuki Muigua the Top Arbitrator in Kenya in 2023.

The first Paper “Combating Climate Change in Kenya for Sustainable Development” adds to the existing literature in this area on how the country can successfully combat climate change in its bid to achieve sustainable development. The major argument is that for the country to combat climate change, there is a need for an integrated approach that meaningfully involves all the stakeholders. The Government alone cannot possibly achieve this task. Climate change mitigation is an important step towards achieving sustainability in the country, without which the realisation of both the country’s Vision 2030 and the United Nation’s 2030 Agenda for Sustainable Development will remain a mirage.

“Actualizing Africa’s Green Dream” critically discusses the concept of ‘green economy’ in Africa. It argues that green growth is vital in Africa in the wake of the threat of climate change among other concerns. It further asserts that green growth in Africa can aid in achieving Sustainable Development by striking a balance between human development, environmental conservation and economic development. The paper examines the progress made towards achieving green growth in Africa. It further explores the challenges facing realization of green economy in Africa. The paper also proposes solutions towards actualizing Africa’s green dream.

“Linking Alternative Dispute Resolution (ADR) and Environmental, Social and Governance (ESG) Tenets for Sustainable Development” focuses on the nexus between Alternative Dispute Resolution (ADR) mechanisms and Environmental, Social and Governance (ESG) tenets. It argues that linking ADR and ESG tenets can foster the realization of the Sustainable Development agenda. The paper gives an overview of the concepts of ADR, ESG and Sustainable Development. It then critically examines the relationship between ADR mechanisms and ESG tenets and highlights some of the fundamental concerns thereof. The paper further suggests measures through which ADR mechanisms can be linked with ESG tenets in order to achieve Sustainable Development.

The Paper “Taking Urgent Action to Combat Climate Change” probes the global response towards climate change. It examines measures adopted towards combating climate change at the global, regional and national levels including legal, institutional and policy approaches. It also explores the idea of climate action and the role of other stakeholders in confronting climate change. The paper further discusses the efficacy of the measures adopted towards tackling climate change and suggests recommendations towards enhancing the global response to climate change.

“Strengthening Environmental Rule of Law for Sustainability,” critically discusses the concept of environmental rule of law. It defines environmental rule of law and examines its salient principles. The paper further examines progress made towards promoting environmental rule of law at the global, regional and national levels. It also explores some of the challenges facing the realization of environmental rule of law and suggests measures towards strengthening environmental rule of law for sustainability.

“Rule of Law Approach for Inclusive Participation in Environmental, Social, and Governance (ESG) Accountability Mechanisms for Climate Resilient Responses” argues a case for the rule of law approach for inclusive participation in Environmental, Social, and Governance (ESG) accountability mechanisms for climate resilient responses. It defines the rule of law. The paper further critically examines how the rule of law advances inclusive participation in ESG accountability mechanisms for climate resilient responses. The paper also explores the challenges facing the rule of law towards this end and offers solutions towards strengthening the rule of law approach in enhancing ESG accountability mechanisms for Sustainable Development.

In the paper “Exploring Alternative Sources of Energy in Kenya” Dr. Kariuki Muigua, PhD notes that the Kenyan Government has been preparing to set up nuclear reactors in the country as an alternative source of energy to add to the national grid as part of the plans to meet the country’s development blueprint, Vision 2030 and the Big Four Agenda. He adds that Nuclear energy, while a plausible source of energy, comes with its good share of challenges. The paper proceeds to critically evaluate the viability of different sources of energy including nuclear energy by drawing lessons from other countries where these sources have been explored and either succeeded or failed. The paper also offers recommendations on the possible sources of energy that are worth exploring in the Kenyan context.

“Actualizing Gender Equity for Environmental Sustainability” critically appraises the role of gender equity in fostering environmental sustainability. It examines the disparities between men and women in environmental governance and management and how these differences have hindered realization of environmental sustainability. The paper further evaluates the progress made towards promoting gender equity in environmental matters and challenges thereof. It also proposes reforms towards actualizing gender equity for environmental sustainability towards Sustainable Development.

“Combating Climate Change Through Sustainable Forests Management for Current and Future Generations” discusses how taking care of forests can positively contribute to climate change mitigation as part of achieving sustainable development for a better tomorrow. Arguably, continued deterioration of forest areas and the ever-growing threat of climate change is likely to affect human life, thus creating the need for combating both. The author argues that taking care of forests is not only important in climate change mitigation but also a key step towards conservation of the rich biodiversity to be found in forest areas and preserving source of livelihood for the people.

“Promoting Climate Litigation in Kenya for Sustainability” makes the observation that although this trend may not yet have gained momentum in Kenya, it is only a matter of time as more and more people become aware of their environmental rights and expect more from the government and other actors in their reaction to climate change-related effects on their life. This paper also makes the observation that while this trend may not yet have gained traction in Kenya, it will do so soon. As part of the process of ensuring that sustainable development is brought to fruition, the author contends that encouraging climate litigation in Kenya may be a significant component in addressing this worldwide challenge.

“Unlocking Climate Finance for Development” succinctly examines the idea of climate finance. It posits that climate finance is vital in fostering Climate Justice since it recognizes the inequalities between countries with developing countries which are most vulnerable to the effects of climate change requiring financial resources to aid their mitigation and adaptation programmes. The paper discusses global, regional and national levels towards unlocking climate finance. It further points out challenges hindering effective access to climate finance. Finally, the paper offers some suggestions towards unlocking climate finance towards enhancing development.

“Reflections on Managing Natural Resources and Equitable Benefit Sharing in Kenya” explores the concept of benefit sharing in natural resources exploitation in Kenya. The author argues that benefit sharing should be interpreted in its various forms, namely monetary and non-monetary since a narrower conception is likely to create confusion, potential conflict between investors and local communities as well as diminished hopes of improving the livelihoods of communities. The paper highlights the international best practices in the area of benefits sharing in natural resources exploitation and briefly looks at Nigeria and Ghana to draw lessons on the likely effects of mismanagement of natural resources. The author gives viable suggestions on some of the ways that Kenya can ensure that communities reap maximum benefits from exploitation of natural resources, including the recently discovered oil in the Northern part of the country.

“Fostering Climate Justice for Sustainable Development” explores the concept of Climate Justice. It highlights and discusses some of the justice concerns arising from the effects of climate change. The paper further examines global, regional and national efforts towards fostering Climate Justice. It also considers the challenges affecting the attainment of Climate Justice and proposes measures towards fostering Climate Justice for Sustainable Development.

“Redefining the Role of Lawyers in Climate Justice” explores the role of lawyers in promoting Climate Justice. The paper conceptualizes Climate Justice and posits that it is a fundamental element of the Sustainable Development agenda. It analyzes the enabling legal framework for Climate Justice at the global, regional and national levels. The paper then delves into practical ways through which the legal profession can contribute towards promoting the ideal of Climate Justice as a precursor of Sustainable Development. The overall argument in the paper is that achieving Climate Justice is crucial in attainment of the ideal of Sustainable Development.

“The Role of Climate Change in Environmental Conflicts” notes that the impacts of Climate Change have been felt across many dimensions of society, including the environment, economy, politics, and even society’s social fabric. It has also brought about disputes and conflicts that have been related with Climate Change, both directly and indirectly, since it is considered as a conflict multiplier. These disputes and conflicts have been brought about by Climate Change. This paper analyses the disagreements that arise from the consequences of Climate Change and how such disagreements may be resolved via the implementation of efficient climate change mitigation strategies. The author contends that it is essential to address the climate change-related incentives that may lead to an increase in conflict in order to successfully mitigate the effects of Climate Change via strategies such as adaptation and the construction of resilience.

“Greenwashing: A hindrance to Achieving Sustainability?” discusses the concept of greenwashing as a strategy used by the corporate world and other players to create the impression that they are compliant with Environmental, Social and Governance (ESG) while hiding the true level of compliance, through marketing. The author argues that it is necessary to ensure that all corporations and businesses, whose operations have the potential to impact the environment, are included and held accountable for any detrimental consequences on both human beings and the environment, through stricter enforcement of corporate governance and environmental legislation aimed at curbing violation of ESG rules and greenwashing in particular. These efforts are aimed at attaining sustainability in Kenya and Africa as a whole.

“Realizing Environmental Justice through Litigation” critically appraises the role of litigation in realizing Environmental Justice in Kenya. It examines relevant case law on Environmental Justice and the jurisprudence that has emanated from courts on the same. The paper highlights and discusses the principles of Environmental Justice that have been upheld by courts through litigation. The paper further explores the prospects and challenges of litigation as a tool of realizing Environmental Justice and proposes the way forward.

“Accelerating Energy Transition in Kenya” notes that energy is a fundamental human right that is vital in the realization of the Sustainable Development agenda. However, the energy sector is facing several challenges including increasing energy demands due to population growth and the threat of climate change. As a result of these challenges, there is need for the world to transition to sustainable energy systems. The paper critically examines the progress made towards energy transition in Kenya. It argues that Kenya must expedite its journey towards energy transition in order to meet the growing energy demands and tackle environmental challenges including climate change. The paper discusses the challenges hindering the energy transition in Kenya and suggests recommendations towards accelerating energy transition in Kenya in order to achieve Sustainable Development.

“Embracing Sustainable Mining in Africa” critically explores the idea of sustainable mining in Africa. It argues a case for embracing sustainable mining in order to achieve Sustainable Development in Africa given the abundance of mineral resources in the continent. The paper discusses the concept of sustainable mining and the progress made towards its realization in Africa. The paper further examines some of the challenges hindering sustainability in the mining sector in Africa. It then suggests recommendations towards embracing sustainable mining in Africa.

“The Place of Human Rights in Environmental and Natural Resources Conflicts Management in Kenya” notes that the Constitution provides for and envisages the enjoyment of the right to clean and healthy environment and other environmental rights therein, realization of sustainable development and outlines national values and principles of governance which are geared towards protection of the human rights of all persons, environmental protection and the creation of a peaceful society. This paper argues that it is possible, in the application of some of the environmental conflict management mechanisms, to achieve undesired results that violate or fail to protect the rights of the target groups in a given conflict. The author offers insight on how the conflicts may be addressed in a way that upholds the various rights of groups in a conflict. The paper argues for adoption of a rights-based approach to environmental protection and conflict management.

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News & Analysis

The Scope and Indicators of Sustainability Audit

Published

1 month ago

October 28, 2023

Admin

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 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

In 2015, the member states of the United Nations unanimously agreed to adopt the 2030 Agenda for Sustainable Development. This agenda includes 169 objectives and 17 goals related to sustainable development. The United Nations General Assembly announced in resolution 70/1 that the Sustainable Development Goals and Targets would be monitored and evaluated using a set of global indicators that would concentrate on quantifiable results. Therefore, the reporting done by companies is a significant data source for the framework used to track progress towards the Sustainable Development Goals. Reporting, which serves as a primary source of information on company performance, has the potential to enrich and enhance the monitoring mechanisms for the Sustainable Development Goals. It does this by providing stakeholders, such as governments and providers of capital, with the means to evaluate the economic, environmental, and social impact that companies have on sustainable development.

Risk assessment based on sustainability from the perspectives of all stakeholders, including financial, social, environmental, and technical ones, and risk management are the main areas of attention for sustainability accounting and auditing. The technocratic paradigm, which places an emphasis on hard data and its potential to give comprehensive control over persons, institutions, and systems, predominates in contemporary sustainability auditing. The use of indicators may enhance the quality of decisions and trigger more effective actions by simplifying, clarifying, and making aggregate information more available to decision-makers. This can lead to improvements in both choice quality and action effectiveness. In this particular setting, the SI have been used as instruments with the purpose of assisting in gaining an understanding of the idea of sustainability. This awareness has been achieved via the utilisation of a methodological approach that is tied to the new paradigms of Sustainable Development.

Indicators of Sustainability (SI) are metrics that aim to quantify the degree of sustainability and gather information for improved decision-making about policies, programmes, initiatives, and activities linked to sustainability. The SI looks to be a vital instrument for assessing development objectives as a sustainable proposition now that its significance has been shown with regard to public policy. Indicators of sustainability are an important tool for businesses to have. Concerns over the environment have been more prevalent throughout the years. These companies have a lot to offer, particularly in the area of minimising the negative externalities they cause. This must be accomplished via their plans and tactics, but it is very necessary that there be a technique that is adequate for judging how effective these measures have been. These are the techniques that may be used to evaluate how well a company’s strategy has been implemented. These actions are tied to certain goals and are outlined in a strategy for the corporate sustainability of the organisation. For instance, cutting down on waste or one’s carbon impact throughout the manufacturing process. Implementation of these standards is used to determine whether or not progress is being achieved in the desired direction.

The use of these indicators is done mostly for the purpose of determining whether or not the organisation is successful in achieving its goals. In the event that there is a deviation, appropriate remedial actions may be taken. Therefore, sustainability indicators are used to assess not only the profitability of the organisation but also how well it carries out its aims. The process of developing indicators is always a two-way affair. Indicators are not only sought by policy goals, but they also serve to concretize and shape those goals in many ways. As a result, the process of producing indicators cannot be limited to a strictly technical or scientific scope; rather, it need to be characterized by open communication and a focus on policy.

Indicators that are acceptable for this function need to be straightforward and unambiguous about their purpose: a) the number of indicators should be kept to a minimum, and the process of calculating them should be made public; b) the indicators should be directionally clear, which means that they should point out items and trends that are obviously relevant in terms of their importance for sustainability, and they should be sensitive, which means that they should be able to signal either progress or the absence of progress. While there may be challenges in development of these indicators, stakeholders from different sectors can work together to develop a set of indicators that are both relevant to the country and easy to follow up on. Thus, such challenges should not be used as a hindrance to not promoting development of the SI for promoting sustainability audit in the country.

It has been pointed out, and properly so, that sustainability consists of environmental, economic, and social aspects (occasionally institutions are mentioned as the fourth dimension), each of which contains a lot of components that make it up. Therefore, indications of sustainability may be as varied as the components of the system, and they can also differ with respect to worldviews, objectives, and scales of time and space. There are a lot of indicators, but most of them only reflect some elements of human–environmental systems. Some of them are more integrative than others, but none of them are sufficient to measure all of the characteristics of sustainability by itself. In addition, It is becoming more widely acknowledged that the most significant value of the terms “sustainability” and “sustainable development” rests in their focus on uniting the various aspects, the most prevalent classifications of which are environmental, economic, and social. In light of this, efforts to promote sustainability need to centre on the holistic, integrated totality of human and environmental systems.

Sustainability indicators must be more than environmental indicators; they must be about time and/or thresholds. Development indicators should be more than growth indicators; they should be about efficiency, sufficiency, equity, and quality of life. Development indicators should be more than growth indicators; they should be about efficiency, sufficiency, equity, and quality of life. When it comes to our attempts to make sustainable development a reality, indicators and indices are very necessary for developing a scientific knowledge and formulating effective policies. These measurements will need to continue to increase in complexity and sophistication as time goes on in order for them to keep up with the demands placed on them by the ever-worsening state of environmental and socioeconomic issues. The process of discovering suitable and efficient indicators of sustainability is one that involves evolution as well as learning new things.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) by Dr. Kariuki Muigua, PhD, Senior Advocate 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 2019-2022. 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 and the Top Arbitrator in Kenya in 2023.

References

APLANET. Sustainability indicators: definition, types of KPIs and their use in the sustainability plan. APLANET. https://aplanet.org/resources/sustainabilityindicators/ (accessed 2023-06-28).

Batalhao, A., de Fatima Martins, M., van Bellen, H.M., Ferreira Caldana, A.C. and Teixeira, D., ‘Sustainability Indicators: Relevance, Public Policy Support and Challenges’ (2019) 9 Journal of Management and Sustainability 173.

Fagerström, A.; Hartwig, G. Accounting and Auditing of Sustainability: A Modelnter Title; 2016.

Reid, J.; Rout, M. Developing Sustainability Indicators–The Need for Radical Transparency. Ecological Indicators 2020, 110.

United Nations Conference on Trade and Development. Guidance on Core Indicators for Sustainability and SDG Impact Reporting; 2022, p. 1.

Valentin A and Spangenberg JH, ‘A Guide to Community Sustainability Indicators’ (2000) 20 Environmental Impact Assessment Review 381.

Wu J and Wu T, “Sustainability indicators and indices: an overview.” Handbook of sustainability management (2012): 65-86.

Waas, T.; Hugé, J.; Block, T.; Wright, T.; Benitez-Capistros, F.; Verbruggen, A. Sustainability Assessment and Indicators: Tools in a Decision-Making Strategy for Sustainable Development. Sustainability 2014, 6 (9), 5512–5534. https://doi.org/10.3390/su6095512.

News & Analysis

The Basics of Environmental Auditing and Monitoring in Kenya

Published

1 month ago

October 28, 2023

Admin

The Constitution of Kenya requires the State to establish systems of environmental impact assessment, environmental audit and monitoring of the environment. In particular, Article 69 obligates the State to set up the systems for, among other, “environmental audit and monitoring of the environment.” At the same time, the State is bound to ensure “to compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment.” There is no doubt that such action which any public officer may be compelled do in include environmental audit and monitoring especially where omission to undertake is clearly harmful to the environment.

EMCA defines “environmental audit” to mean the systematic, documented, periodic and objective evaluation of how well environmental organisation, management and equipment are performing in conserving or preserving the environment. An initial environmental audit and a control audit are conducted by a qualified and authorized environmental auditor or environmental inspector who is an expert or a firm of experts registered by NEMA. In the case of an ongoing project, NEMA requires the proponent to undertake an initial environmental audit study to provide baseline information upon which subsequent environmental audits shall be based. The proponent shall be issued with an acknowledgement letter and an improvement order where necessary.

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 that are likely to have significant effect on the environment and in consultation with lead agencies, monitor all environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts.

Indeed, National Environment Management Authority (NEMA) is obligated under EMCA to identify projects and programmes or types of projects and programme, plans and policies for which environmental audit or environmental monitoring must be conducted under this Act. NEMA or its designated agents is responsible for carrying out environmental audit of all activities that are likely to have significant effect on the environment. An environmental inspector appointed under the Act may enter any land or premises for the purposes of determining how far the activities carried out on that land or premises conform with the statements made in the environmental impact assessment study report issued in respect of that land or those premises under section 58(2) of EMCA.

The owner of the premises or the operator of a project for which an environmental impact assessment study report has been made is bound to keep accurate records and make annual reports to the Authority describing how far the project conforms in operation with the statements made in the environmental impact assessment study report. At the same time, the owner of premises or the operator of a project is enjoined to take all reasonable measures to mitigate any undesirable effects not contemplated in the environmental impact assessment study report submitted and to prepare and submit an environmental audit report on those measures to the Authority annually or as the Authority may, in writing, require.

With respect to environmental monitoring, NEMA is empowered to, in consultation with the relevant lead agencies, monitor: all environmental phenomena with a view to making an assessment of any possible changes in the environment and their possible impacts; or the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment. In addition, environmental inspectors are entitled to enter upon any land or premises for the purposes of monitoring the effects upon the environment of any activities carried on that land or premises. The Environment (Assessment and Audit) Regulations, 2003 provide the necessary guidelines on the procedure.

NEMA is still facing challenges in discharging its mandate as it is currently and there is a need to work closely with the county governments in order to be in touch with what is happening across the country. Many of these challenges came to the public limelight on 10th May, 2018, when Kenyans woke up to the shocking news of the collapse of Milmet Dam – also known as Solai Dam – in Nakuru County. Adjacent farms and villages had been washed away in the onrush of the water’s break. Hundreds of people were caught up in the consequent muddy sludge, claiming 47 lives in the downstream flood chaos. The subsequent cases brought against NEMA officials by the Director of Public Prosecutions to hold them liable for the disaster highlighted the challenges that NEMA is facing in discharging its mandate across the country. This, therefore, calls for concerted efforts from all lead agencies under the direction of NEMA to ensure that environmental standards are upheld and enforced across the various sectors.

It has rightly been pointed out that virtually all companies face the possibility of environmental liability costs and as such, it is imperative for the management to make at a least a general estimate of their company’s potential future environmental liability be it from legally mandated cleanup of hazardous waste sites or from lawsuits involving consumers, employees, or communities. Such information could be useful in the following to encourage defensive and prudent operations and waste reduction; improve manufacturing, waste disposal and shipping practices; negotiate and settle disputes with insurance carriers; influence regulators and public policy makers; determine suitable levels of financial resources; reassess corporate strategy and management practices (think green); articulate a comprehensive risk management program; improve public relations and public citizenship; and assess hidden risks in takeovers and acquisitions. Companies and organisations are to engage in proactive environmental risk management as part of their strategic plans in order to avoid costly environmental liability mistakes.

Strengthening environmental compliance and enforcement requires renewed efforts by individuals and institutions everywhere. Government officials, particularly inspectors, investigators, and prosecutors, must exercise public authority in trust for all of their citizens according to the standards of good governance and with a view to protecting and improving public well-being and conserving the environment. The judiciary has a fundamental contribution to make in upholding the rule of law and ensuring that national and international laws are interpreted and applied fairly, efficiently, and effectively. The public as a way of enhancing identification of activities that violate environmental laws as well as increasing the rate of enforcement and compliance with court decisions, by bodies and individuals.

References

Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice 101 of 2003, Laws of Kenya (Government Printer, Nairobi, 2003).

Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer,
Nairobi.

News & Analysis

The Definition of Climate Justice

Published

1 month ago

October 26, 2023

Admin

It has been pointed out that climate change has had uneven and unequal burdens across the globe with nations and communities that contribute the least to climate change suffering the most from its consequences. In 2022, Pakistan which contributes less than 1 % of global greenhouse gases which lead to climate change suffered extreme flooding which resulted in the deaths of over 1,700 people, destroyed around 2 million homes, and swept away almost half the country’s cropland. There is a general consensus in the scientific community that the flooding was made worse by climate change since global warming makes air and sea temperatures rise resulting in more evaporation taking place thus increasing the intensity of rainfall. The melting of glaciers in the country’s northern region, again due to the increase in global temperatures, compounded the problem by releasing even more water and debris into the floods.

Further, it has been observed that the Horn of Africa, a region with very little contribution to the climate change problem, is facing a severe drought following the worst performing rains in 73 years and five successive failed rainy seasons. It has also been pointed out that the frequency and severity of the drought is likely to increase affecting more than 36 million people due to food insecurity, with women and girls disproportionately affected by the direct and indirect impacts of the drought. Further, small island nations in the Caribbean and Pacific islands such as Vanuatu and the Solomon Islands have suffered from severe impacts of climate change cyclone that killed residents, displaced thousands and damaged infrastructure. Despite their little contribution to climate change, sea level rise, increasing temperatures and frequency and intensity of tropical cyclones, and storm surges are some of the climate change impacts facing island nations, some of which are in low-lying areas of just 5 meters above sea level at the highest point making them more vulnerable to these impacts.

It is thus evident that the climate change has adverse impacts especially on nations and communities that contribute the least to its threat. The concept of Climate Justice acknowledges this concern. It recognizes that some countries mainly the large industrialized economies of Europe and North America have benefitted much more from the industries and technologies that cause climate change than have developing nations in places such as Africa, Asia, the Caribbean Islands and the Pacific Islands which due to an unfortunate mixture of economic and geographic vulnerability, continue to shoulder the brunt of the burdens of climate change despite their relative innocence in causing it. It seeks to promote justice in climate related concerns.

Climate justice links human rights and development to achieve a human-centred approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. It entails understating climate change as an issue that relates to equity, fairness, ethics and human rights and not just an environmental phenomenon. Climate Justice is a framework that focuses on the intersection between climate change and social inequalities. This is achieved by linking the effects of climate change to the notions of justice particularly environmental and social justice by examining the concepts of equality and human rights within the lens of climate change. It focuses on how climate change impacts people differently, unevenly and disproportionately and seeks to address the resultant injustices in fair and equitable ways.

Climate Justice encapsulates various facets of justice including distributive justice, procedural justice and justice as recognition. Distributive justice concerns itself with the disproportionate impact that climate change has on the people, communities and countries that are least responsible for climate change and its impacts. Climate Justice seeks to ensure the just distribution of the burdens and benefits of climate change among nations. It further insists on redressing the imbalances caused by the effects of climate change by imposing what is sometimes referred to as a climate debt on those nations primarily responsible for causing climate change.

Procedural justice on the other hand is aimed at addressing distributive climate injustices by creating processes that are participatory, fair, inclusive and accessible. Procedural justice requires that citizens be informed about and involved in decision-making on climate change matters. Justice as recognition on its part seeks to give a voice to people who have been traditionally marginalized in climate change matters as a result of structural inequality.

Climate Justice is thus a multidimensional idea that requires the various facets of justice to be recognized and upheld simultaneously. The idea of Climate justice is therefore significant for the entire world since it stands seeks to achieve an agenda that links the struggle for a prosperous, safe future for all with a fight against inequalities and exclusion. It envisages linking human rights with development and climate action, having a people centred approach to climate action, understanding that not everyone has contributed to climate change in the same way and combatting injustices resulting from climate change social, gender, economic, intergenerational and environmental injustices. It seeks to achieve equal access to natural resources, fair and effective solutions in response to climate change and the assigning of responsibility for those who contribute most to the global threat of climate change.

Climate Justice is thus guided by several principles including the protection and empowering of vulnerable individuals and communities, promoting public participation in decision making, fostering global collaboration in the response to climate change, achieving intergeneration equity in order to protect future generations from the effects of climate change and assigning of responsibility to nations that contribute most to global greenhouse gas emissions. Climate Justice is thus vital in ensuring effective climate change mitigation and adaptation towards Sustainable Development.

References

Bafana. B., ‘Climate Change is No ‘Future Scenario’ for Pacific Island Nations; Climate Change is ‘Real’ Available at https://reliefweb.int/ report/world/climate-change-nofuture-scenario-pacific-island-nations-climate-change-real (Accessed on 28/07/2023).

Foundation for European Progressive Studies., ‘United for Climate Justice.’ Available at https://fepseurope.eu/wpcontent/uploads/ downloads/publications/short%20united%20for%20climate%2 0justice%20-%204.pdf (Accessed on 28/07/2023).

Giles. M., ‘The Principles of Climate Justice at CoP27.’ Available at https://earth.org/principles-ofclimatejustice/#:~:text=That%20 response%20should%20be%20based,the%20consequences %20of%20climate%20change. (Accessed on 28/07/2023).

Mary Robinson Foundation Climate Justice., ‘Principles of Climate Justice.’ Available at https://www.mrfcj.org/principles-of-climate-justice/ (Accessed on 28/07/2023).

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