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Framework for Climate Litigation in Fostering Climate Justice

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Climate Justice has been promoted greatly by climate change litigation (Photo: Courtesy Holding Redlich)

By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (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)*

Climate Justice has been promoted a great deal by climate change litigation. Climate change litigation entails filing of lawsuits pertaining the causes and consequences of climate change. Through climate change litigation, courts and tribunals are able to adjudicate upon pertinent issues in climate change such mitigation and adaptation measures as well as climate change-related loss and damage. It has been used as a tool to enforce the principles of Climate Justice across the world such as public participation, access to information, access to justice and access to remedies. Climate change litigation has consequently become a tool to enforce or enhance climate commitments by countries across the globe. It can be used to foster Climate Justice by promoting its principles and holding countries accountable in respect of laws and policies on climate change.

The practice of taking legal action over climate change has been on the rise in national courts all around the world, with the majority of cases being claimed as breaches of human rights. Adequate and efficient legal and institutional legal frameworks are necessary if climate litigation is to not only grow but also have effective and meaningful results towards promoting realisation of climate justice in Kenya and Africa as a continent. Indeed, it has been asserted that courts through litigation can play a fundamental role in safeguarding environmental rights in Kenya and fostering Environmental Justice.

The Constitution of Kenya also recognizes the role of litigation in enforcement of environmental rights. It allows a person alleging the denial, infringement or violation or of the right to a clean and healthy environment to apply to a court for redress in addition to any other legal remedies that are available. The Environmental Management and Co-ordination Act (EMCA) further upholds the role of litigation in fostering Environmental Justice. The Act stipulates that if a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress.

The Act empowers the Environment and Land Court to make certain orders towards realizing Environmental Justice including an order to prevent, stop or discontinue any act or omission deleterious to the environment; an order to compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage and an order of compensation. While exercising its jurisdiction to foster Environmental Justice, the Act also mandates the Environment and Land Court to be guided by the principles of Sustainable Development including the principle of public participation in the development of policies, plans and processes for the management of the environment; the principles of intergenerational and intragenerational equity; the polluter-pays principle; and the pre-cautionary principle.

EMCA further establishes the National Environment Tribunal which is a key body in promoting Environmental Justice in Kenya. The Tribunal is vested with jurisdiction to hear and determine appeals concerning certain matters including the grant or refusal of grant of a licence or permit under EMCA; imposition of any condition, limitation or restriction on a licence; revocation, suspension or variation of a licence and appeals from the decisions of the Director-General, the Authority or Committees of the Authority or its agents. EMCA empowers the National Environment Tribunal to make certain orders towards realizing Environmental Justice including confirming, setting aside or varying the order or decision in question and orders to enhance the principles of Sustainable Development.

In addition, the Environment and Land Court Act establishes the Environment and Land Court to hear and determine disputes relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources among other matters. While exercising its jurisdiction, the Act mandates the Environment and Land Court to be guided by several tenets that are key in realizing Environmental Justice including the principles of Sustainable Development such as the principle of public participation; the polluter pays principle and the pre-cautionary principle. Litigation and efficient legal and institutional frameworks are thus key in realizing climate justice in Kenya. Through litigation, the jurisdiction of courts and tribunals such as the Environment and Land Court and the National Environment Tribunal can be used to enhance climate justice in Kenya.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Dr. Kariuki Muigua, OGW, PhDSenior 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 National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. 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 a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and 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

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News & Analysis

Way Forward in Achieving Net Zero Carbon Emissions

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

In order to achieve net zero emissions, it is necessary to accelerate the energy transition by embracing clean and green sources of energy such as renewable energy. The energy sector has been identified as a major contributor to climate change. For example, the extraction and burning of fossil fuels which are the major source of global energy supply has serious environmental consequences including climate change. It has been pointed out that when fossil fuels are burned, the stored carbon and other greenhouse gases are released into the atmosphere.

An excess buildup of greenhouse gases in the atmosphere as a result of burning of fossil fuels has resulted in dramatic changes to Earth’s climate— a trend that will worsen as more fossil fuels are burned. It has been observed that fossil fuels including coal, oil and natural gas are by far the largest contributor to global climate change, accounting for over 75 per cent of global greenhouse gas emissions and nearly 90 per cent of all carbon dioxide emissions.

According to the International Energy Agency (IEA), as the major source of global emissions, the energy sector holds the key to responding to climate change. Achieving net zero therefore demands transitioning from fossil fuels to clean sources of energy such as renewable energy. IEA points out that achieving net zero emissions by 2050 will require nothing short of the complete transformation of the global energy system towards renewable sources of energy.

These sources of energy which include wind and solar are vital in achieving net zero since they emit little to no greenhouse gases. Further, these sources of energy are readily available and in most cases cheaper than coal, oil or gas. For example, it has been pointed out that Africa has an abundance of renewable energy (including wind, solar, hydro, bioenergy, ocean tidal waves, geothermal and other renewables) which can be vital in confronting climate change if well harnessed.

According to the African Union, the availability of abundant renewable energy resources on the continent such as hydropower, solar, wind, geothermal and bio-energy can transform Africa’s energy sector to modern and sustainable energy through both grid and off-grid systems and contribute to the fight against climate change. It is therefore necessary for Africa and the rest of the world to embrace renewable sources of energy in order to achieve net zero emissions. Further, it is important to embrace nature based solutions towards climate change.

Nature-based Solutions have been defined as actions to protect, sustainably manage and restore natural or modified ecosystems, which address societal challenges such as climate change, food and water security and natural disasters effectively and adaptively, while simultaneously providing human well-being and biodiversity benefits. They adopt the use of ecosystems and their services towards addressing societal challenges such as climate change. It has been asserted that nature based solutions have significant yet underutilized potential to address global threats including climate change, loss of biodiversity, food and water security, human health and natural disasters.

It has further been argued that nature based solutions are key to many countries’ and companies’ plans to achieve net-zero in the coming decades. For example, nature based solutions play a crucial role in achieving net-zero emissions by sequestering carbon and mitigating the effects of climate change. One key nature based solution that is vital in achieving net zero is regrowing natural forests, which can help to sequester and store carbon dioxide in their biomass. It has been observed that this approach involves restoring degraded or deforested areas with native species, increasing biodiversity, improving soil health, and enhancing the community’s resilience to climate change.

Further, embracing other nature based solutions such as the sustainable management of ecosystems, improving soil health, and using agroforestry practices, can help to sequester carbon, protect biodiversity, and improve the resilience of communities in the face of climate change. It has been pointed out that projects that embrace nature based solutions help to generate carbon credits that provide an income stream for local communities, incentivise environmental protection, provide an opportunity for investors, and help organisations and governments reach net zero. It is thus essential to embrace nature based solutions in order to achieve net zero emissions.

Achieving net zero emissions also requires implementing and fostering effective utilization of carbon markets. It has been observed that by purchasing permits or credits generated from emissions-reduction projects, emitting companies can unlock funding for the net-zero transition through carbon markets.

According to OECD, international carbon markets could potentially help countries enhance the ambition of their climate commitments and achieve their net-zero targets with greater economic efficiency, complementing domestic emission reduction efforts while providing other sustainable development co-benefits. In particular, international carbon markets could be useful for countries that are not able to achieve net-zero emissions through domestic mitigation actions alone.

Carbon markets are increasingly being seen as an essential part of efforts to reach net zero emissions by around 2050. It is therefore necessary to effectively utilize carbon markets in order to achieve net zero emissions. It is also imperative for all countries to promote low carbon development strategies across all sectors.

The concept of low carbon development which is also expressed using the term Low-Emission Development Strategies (LEDS) also known as low-carbon development strategies, or low-carbon growth plans refers to forward-looking national economic development plans or strategies that encompass low-emission and/or climateresilient economic growth. Low carbon development has also been defined as forwardlooking, climate-friendly growth strategies that can highlight a country’s priority actions for climate mitigation and adaptation, and a country’s role in the global effort against climate change.

The idea of low-carbon development aims to achieve the goals of reducing greenhouse gas emissions, exploiting low-carbon energy, and ensuring economic growth. Low carbon development strategies can help achieve net zero by reducing greenhouse gas emissions. It has been pointed out that reducing emissions at the source is the most effective way to achieve net zero.

It is therefore necessary for countries to embrace low carbon development strategies such as embracing renewable sources of energy including solar, wind and hydropower, adopting climate smart agricultural techniques, fostering sustainable cities, transport and infrastructure and adoption of sustainable waste management techniques in order to achieve net zero.

Further, in order to achieve net zero, it is crucial to invest in carbon removal technologies. It has been suggested that the deployment of greenhouse gas removal technologies can help to achieve net zero across an economy. For example, technologies like Direct Air Capture and Storage (DACS) can help achieve net zero by scrubbing carbon directly from the atmosphere. However, it has also been noted that the technologies in question, which include DACS and Bioenergy with Carbon Capture and Storage (BECCS), are not yet proven at scale, can be expensive and energy-intensive, and have their own unwanted negative impacts. It is therefore necessary to embrace technology with caution and give priority to abating domestic emissions as the primary way to bring emissions to net zero.

Finally, it has correctly been pointed out that in addition to governments, other entities including organisations, cities, and regions have a role to play in achieving net zero. It has been argued that businesses and organizations are vital in achieving net zero since the private sector development is the anchor that facilitates the knowledge, skills and infrastructure needed for sustainable practices within developing economies.

It has been correctly observed that many companies rely heavily on fossil fuels for their energy needs, and the transition to clean energy may require significant changes to their supply chains and business models. However, there are also significant opportunities for businesses that embrace the transition to net zero such as new markets, reduced regulatory risks and more reliable energy. It is therefore necessary for organizations to play their role towards achieving net zero.

Further, it has been pointed out that cities have a crucial role to play in achieving net zero since more than half of the global population live in cities, consuming 78% of the world’s primary energy and generating more than 70% of global carbon emissions. It is therefore necessary to catalyze urban decarbonization and resilience by improving energy efficiency, enhancing clean electrification and promoting resource circularity solutions. The foregoing among other measures are vital in achieving net zero emissions.

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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.

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United Nations., ‘Low Carbon Development.’ Available at https://sustainabledevelopment.un.org/index.php?menu=1448#:~:text=The%20concept%20of%20low% 20carbon,low%2Dcarbon%20growth%20plans (Accessed on 27/02/2024).

United Nations., ‘Renewable Energy – Powering a Safer Future’ Available at https://www.un.org/en/climatechange/raising-ambition/renewable-energy (Accessed on 27/02/2024).

United Nations., ‘Secretary-General Calls on States to Tackle Climate Change ‘Time Bomb’ through New Solidarity Pact, Acceleration Agenda, at Launch of Intergovernmental Panel Report’ Available at https://press.un.org/en/2023/sgsm21730.doc.htm (Accessed on 26/02/2024).

United Nations., ‘United Nations Framework Convention on Climate Change: Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on its third session, held in Glasgow from 31 October to 13 November 2021’ FCCC/PA/CMA/2021/10/Add.1, Available at https://unfccc.int/sites/default/files/resource/cma2021_10_add1_adv.pdf (Accessed on 27/02/2024).

United States Environmental Protection Agency ‘Sources of Greenhouse Gas Emissions’ Available at https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (Accessed on 26/02/2024).

Yildiz. I., ‘Fossil Fuels.’ Comprehensive Energy Systems., (2018), Volume 1., pp 521-567.

Yuan. H, Zhou. P, & Zhou. D., ‘What is Low-Carbon Development? A Conceptual Analysis.’ Energy Procedia, 5 (2011) 1706–1712.

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Progress Towards Achieving Net Zero Emissions

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Achieving net zero carbon emissions has become a central paradigm in global climate policy, and increasingly drives both analysis and action. It has been identified as the only way to stop a rise in global temperatures and presents many opportunities for development, economic diversification, and growth. Achieving net zero creates economic opportunities by developing new industries and jobs in various sectors such as energy, transport, and agriculture.

Achieving net zero emissions has numerous benefits for both nature and humanity. There have been commitments and some progress made towards achieving net zero emissions. However, achieving net zero is hindered by challenges such as costs, inadequate political will, and unsustainable business practices.

Achieving net zero calls for acceleration of the energy transition by embracing clean and green sources of energy such as renewable energy; embracing nature based solutions towards climate change; implementing and fostering effective utilization of carbon markets; promoting low carbon development strategies across all sectors including agriculture, energy, infrastructure, transport, and waste management; and investing in carbon removal technologies. Needless to add, achieving net zero is the way to go in our fight against climate change.

There has been some progress towards embracing the idea of net zero and implementing measures towards net zero transition. It has been observed that governments are increasingly accepting that net zero targets need to be included in their Nationally Determined Contributions (NDCs), and a growing number are legislating for net zero. For example, China which is one of the biggest emitters of greenhouse gases has committed to achieving ‘climate neutrality’ by 2060 – a crucial pledge for enabling the world as a whole to limit temperature rise to 1.5 or 2°C.

In addition, the European Union set out its bloc-wide net zero target for 2050 in its European Green Deal. Under the Deal, the European Union seeks to be the first climate-neutral continent in the world. Further, the United States of America (USA) has also committed to net zero emissions by 2050 at the latest. It has been pointed out that many countries with net zero targets are beginning to incorporate them directly into their NDCs, particularly now that the Glasgow Climate Pact “notes the importance of aligning nationally determined contributions with long-term low greenhouse gas emission development strategies.

It has been pointed out that there are several opportunities that can be unlocked in order to achieve net zero emissions. These include accelerating the energy transition and embracing renewable sources of energy; investing in nature-based solutions; and embracing the use of sustainable materials and reducing waste. However, despite the importance and opportunities available for achieving net zero, several challenges are hindering the transition towards net zero emissions. It has been argued that the primary challenge of achieving a zero-carbon future is the cost involved.

Achieving net zero requires transformation in key sectors including energy, agriculture, and transport which entails significant costs that may overburden or be out of reach for developing countries. In addition, it has been argued that from a political perspective, achieving net-zero carbon emissions requires strong policies and regulations that incentivize the transition to clean energy sources.

As a result, governments must set clear targets and provide financial support to drive investment in clean energy technologies. However, it has been correctly pointed out that political will is often constrained by competing interests such as economic growth, staid policy influence and social welfare.

It has been argued that carbon markets can play a vital role in achieving net zero. For example, by purchasing permits or credits generated from emissions reduction projects, emitting companies can unlock funding for the net-zero transition.

It is therefore necessary to actualize carbon markets in Kenya as envisaged under the Climate Change (Amendment) Act in order to accelerate the journey towards net zero emissions. The need to achieve net zero is therefore well captured at the global, regional, and national levels.

Further, organisations face several barriers in achieving net zero emissions such as creating realistic carbon targets, making carbon reduction a reality, supporting and streamlining supply chains, and choosing the right offsetting method. OECD, further points out that there is a growing gap between the various net-zero commitments put forward and concrete actions being implemented in the near-term. It is therefore necessary to implement net zero commitments and address the underlying challenges in order to effectively confront the problem of climate change.

 

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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

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African Union., ‘Is Energy Transition the Answer to Africa’s Climate Change and Socio-Economic Development? What will it Take for Africa to Reach Net-Zero Emissions?’ Available at https://au.int/en/pressreleases/20211109/energy-transition-answer-africas-climate-change-and-socioeconomic (Accessed on 27/02/2024).

Carbon Brief., ‘Can ‘Nature-Based Solutions’ Help Address Climate Change?’ Available at https://www.carbonbrief.org/qa-can-nature-based-solutions-help-address-climate-change/ (Accessed on 27/02/2024).

Climate Change (Amendment) Act, 2023, Government Printer, Nairobi.

Climate Change Act., No. 11 of 2016, Government Printer, Nairobi.

Climate Change., ‘Meaning, Definition, Causes, Examples and Consequences.’ Available at https://youmatter.world/en/definition/climate-change-meaning-definition-causes-and-consequences/ (Accessed on 26/02/2024)

DGB Group., ‘Net Zero: Benefits, Challenges, Strategies, and the Power of Nature-Based Solutions’ Available at https://www.green.earth/blog/net-zero-benefits-challenges-strategies-and-the-power-ofnature-based-solutions (Accessed on 26/01/2024).

East African Community., ‘East African Community Climate Change Policy.’ Available at https://www.eac.int/environment/climate-change/eac-climate-change-policy-framework (Accessed on 27/02/2024).

Energy for Growth Hub., ‘Who Decides Africa’s Net Zero Pathways?’ Available at https://energyforgrowth.org/wp-content/uploads/2022/10/Who-Decides-Africas-Net-ZeroPathways_-2.pdf (Accessed on 26/02/2024).

Environmental and Energy Study Institute., ‘Fossil Fuels.’ Available at https://www.eesi.org/topics/fossil-fuels/description (Accessed on 27/02/2024).

European Commission., ‘The European Green Deal’ Available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en (Accessed on 27/02/2024).

Intergovernmental Panel on Climate Change., ‘Glossary’ Available at https://www.ipcc.ch/site/assets/ uploads/sites/2/2022/06/SR15_AnnexI.pdf (Accessed on 26/02/2024).

International Energy Agency., ‘Net Zero by 2050’ Available at https://www.iea.org/reports/net-zeroby-2050 (Accessed on 27/02/2024).

International Organization for Standardization., ‘Embracing Net Zero: A Crucial Step Towards a Sustainable Future’ Available at https://www.iso.org/climate-change/embracing-net-zero#:~:text=Emission%20red uctions%3A%20Reducing%20emissions%20at,innovating%20processes%20to%20reduce%20waste. (Accessed on 27/02/2024).

International Union for Conservation of Nature, ‘Nature-Based Solutions’ available at https://www.iucn.org/our-work/nature-based-solutions (Accessed on 27/02/2024).

Kyriacou. G., & Burke. J., ‘Why is Net Zero so Important in the Fight Against Climate Change?’ Available at https://www.lse.ac.uk/granthaminstitute/explainers/why-is-net-zero-so-important-in-the-fightagainst-climate-change/ (Accessed on 27/02/2024).

Levin. K et al., ‘What Does “Net-Zero Emissions” Mean? 8 Common Questions, Answered’ Available at https://www.wri.org/insights/net-zero-ghg-emissions-questions-answered (Accessed on 26/02/2024).

Muigua. K., ‘Achieving Sustainable Development, Peace and Environmental Security.’ Glenwood Publishers Limited, 2021.

Muigua. K., ‘Actualizing Africa’s Green Dream.’ Available at http://kmco.co.ke/wpcontent/uploads/ 2023/07/Actualizing-Africas-Green-Dream.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Enhancing Low Carbon Development for Sustainability’ Available at https://kmco.co.ke/wp-content/uploads/2023/09/Enhancing-Low-Carbon-Development-forSustainability-.pdf (Accessed on 27/02/2024).

Muigua. K., ‘Transitioning from Fossil Fuels to Clean Energy’ Available at https://kmco.co.ke/wpcontent/uploads/2023/12/Transitioning-from-Fossil-Fuels-to-Clean-Energy.pdf (Accessed on 27/02/2024).

Murray. S., ‘Can Carbon Markets Accelerate Progress Towards Net Zero?’ Available at https://www.ft.com/content/5349cb46-4c33-4a2e-840a-b8fc94de7254 (Accessed on 27/02/2024).

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Nordloh. D., ‘The Challenges to Achieving Net Zero Carbon Emissions’ Op Cit 122 Ibid 123 World Economic Forum., ‘Net Zero Carbon Cities’ Available at https://www.weforum.org/nzcc/ (Accessed on 27/02/2024).

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Organisation for Economic Co-operation and Development., ‘Understanding Countries’ Net-Zero Emissions Targets’ Available at https://www.oecd-ilibrary.org/docserver/8d25a20cen.pdf?expires =1708951187 &id=id&accname=guest&checksum=440237330830E3DE611AA54BC67A4665 (Accessed on 26/02/2024).

PwC Kenya., ‘Private Sector Development – Catalyst of a Sustainable Africa?’ Available at https://www.pwc.com/ke/en/blog/private-sectordevelopment.html#:~:text=As%20the%20world%20 looks%20to,sustainable%20practices%20within%20de veloping%20economies. (Accessed on 27/02/ 2024).

Renne. D., ‘Progress, Opportunities and Challenges of Achieving Net-Zero Emissions and 100% Renewables’ Solar Compass, Volume 1, 2022.

The Intergovernmental Panel on Climate Change., ‘Special Report: Global Warming of 1.5 ºC’ Available at https://www.ipcc.ch/sr15/ (Accessed on 27/02/2024).

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United Nations., ‘Causes and Effects of Climate Change.’ Available at https://www.un.org/en/climatechange/science/causes-effects-climate-change (Accessed on 27/02/2024).

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United Nations., ‘Low Carbon Development.’ Available at https://sustainabledevelopment.un.org/index.php?menu=1448#:~:text=The%20concept%20of%20low% 20carbon,low%2Dcarbon%20growth%20plans (Accessed on 27/02/2024).

United Nations., ‘Renewable Energy – Powering a Safer Future’ Available at https://www.un.org/en/climatechange/raising-ambition/renewable-energy (Accessed on 27/02/2024).

United Nations., ‘Secretary-General Calls on States to Tackle Climate Change ‘Time Bomb’ through New Solidarity Pact, Acceleration Agenda, at Launch of Intergovernmental Panel Report’ Available at https://press.un.org/en/2023/sgsm21730.doc.htm (Accessed on 26/02/2024).

United Nations., ‘United Nations Framework Convention on Climate Change: Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on its third session, held in Glasgow from 31 October to 13 November 2021’ FCCC/PA/CMA/2021/10/Add.1, Available at https://unfccc.int/sites/default/files/resource/cma2021_10_add1_adv.pdf (Accessed on 27/02/2024).

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Yildiz. I., ‘Fossil Fuels.’ Comprehensive Energy Systems., (2018), Volume 1., pp 521-567.

Yuan. H, Zhou. P, & Zhou. D., ‘What is Low-Carbon Development? A Conceptual Analysis.’ Energy Procedia, 5 (2011) 1706–1712.

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The Global, Regional and National Framework for Achieving Net Zero

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

The need to reduce emissions from greenhouse gases is set out under the United Nations Framework Convention for Climate Change (UNFCCC). The Convention seeks to achieve the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (Emphasis added). It further urges countries to undertake several measures in order to reduce greenhouse gas emissions such as implementing national and regional measures aimed at mitigating climate change by addressing anthropogenic emissions; and promoting and cooperating in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases.

Further, the Kyoto Protocol commits industrialized countries and economies in transition to limit and reduce greenhouse gases emissions in accordance with agreed individual targets. It requires these countries to implement measures and policies geared towards achieving their emission limitation and reduction commitments towards combating climate change. These measures include enhancement of energy efficiency; promotion of sustainable forms of agriculture in light of climate change considerations; fostering research on, and promotion, development and increased use of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies and cooperation between states to enhance the individual and combined effectiveness of their policies and measures adopted towards confronting climate change.

The idea of achieving net zero is enshrined under the Paris Agreement. The objective of the Agreement is to strengthen the global response to the threat of climate change, in the context of Sustainable Development and efforts to eradicate poverty through holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels; increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

The Paris Agreement provides that in order to achieve the long-term temperature goal set out in Article 2, Parties shall aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of the 21st century, on the basis of equity, and in the context of Sustainable Development and efforts to eradicate poverty. It has been argued that in order to achieve the target set out under the Paris Climate agreement to limit global warming to no more than 1.5°C, greenhouse gas emissions need to be cut in half by the year 2030, and to reach net-zero, by the year 2050. IPCC further points out that the world needs to reach net zero by around 2050 if it is to meet the Paris Agreement target of limiting global warming to 1.5°C.

Achieving net zero is envisaged under the Glasgow Climate Pact which was adopted at COP 26. Under the Pact, Parties recognize that limiting global warming to 1.5 °C requires rapid, deep and sustained reductions in global greenhouse gas emissions, including reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around midcentury as well as deep reductions in other greenhouse gases. The Pact also requires Parties to implement and communicate long term low greenhouse gas emission development strategies referred to in Article 4, paragraph 19, of the Paris Agreement towards just transitions to net zero emissions by or around midcentury, taking into account different national circumstances. Actualizing the aspirations of the Glasgow Climate Pact is vital in achieving net zero emissions.

At a regional level, the East African Community (EAC) Climate Change Policy recognizes the adverse impacts of climate change as a major challenge to socio-economic development globally. The Policy’s overall climate change mitigation objective is to promote Sustainable Development in the region while contributing to the global efforts of reducing emissions of greenhouse gases through the Clean Development Mechanisms, Nationally Appropriate Mitigation Actions, Reducing Emissions from Deforestation and Forest Degradation or through any other future agreements.

The Policy notes that although the EAC region has negligible contribution to global greenhouse gases emissions, it is still important for the region to contribute to the reduction of greenhouse gases through the preparation of Nationally Appropriate Mitigation Actions (NAMAs) for sectors with potentially high emission factors and take other relevant measures. These include sectors such as energy, transport, agriculture, waste management and industry. Implementing this Policy can accelerate the race towards net zero emissions within the EAC.

At a national level, the Climate Change Act of Kenya seeks to enhance the national response to climate change and achieve low carbon climate development for Sustainable Development. The Act sets out several ways of achieving this goal which include reducing emissions intensity by facilitating approaches and uptake of technologies that support low carbon, and climate resilient development. The Climate Change Act has since been amended by the Climate Change (Amendment) Act59 of 2023 in order to enhance climate change mitigation and adaption measures in Kenya through the concept of carbon markets.

*This is an extract from the Article: Achieving Net Zero Emissions- A Reflection, Available at: http://kmco.co.ke/wp-content/uploads/2024/02/ Achieving-Net-Zero-Emissions-A-Reflection.pdf (29th February 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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

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African Union., ‘Is Energy Transition the Answer to Africa’s Climate Change and Socio-Economic Development? What will it Take for Africa to Reach Net-Zero Emissions?’ Available at https://au.int/en/pressreleases/20211109/energy-transition-answer-africas-climate-change-and-socioeconomic (Accessed on 27/02/2024).

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Climate Change (Amendment) Act, 2023, Government Printer, Nairobi.

Climate Change Act., No. 11 of 2016, Government Printer, Nairobi.

Climate Change., ‘Meaning, Definition, Causes, Examples and Consequences.’ Available at https://youmatter.world/en/definition/climate-change-meaning-definition-causes-and-consequences/ (Accessed on 26/02/2024)

DGB Group., ‘Net Zero: Benefits, Challenges, Strategies, and the Power of Nature-Based Solutions’ Available at https://www.green.earth/blog/net-zero-benefits-challenges-strategies-and-the-power-ofnature-based-solutions (Accessed on 26/01/2024).

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Environmental and Energy Study Institute., ‘Fossil Fuels.’ Available at https://www.eesi.org/topics/fossil-fuels/description (Accessed on 27/02/2024).

European Commission., ‘The European Green Deal’ Available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en (Accessed on 27/02/2024).

Intergovernmental Panel on Climate Change., ‘Glossary’ Available at https://www.ipcc.ch/site/assets/ uploads/sites/2/2022/06/SR15_AnnexI.pdf (Accessed on 26/02/2024).

International Energy Agency., ‘Net Zero by 2050’ Available at https://www.iea.org/reports/net-zeroby-2050 (Accessed on 27/02/2024).

International Organization for Standardization., ‘Embracing Net Zero: A Crucial Step Towards a Sustainable Future’ Available at https://www.iso.org/climate-change/embracing-net-zero#:~:text=Emission%20red uctions%3A%20Reducing%20emissions%20at,innovating%20processes%20to%20reduce%20waste. (Accessed on 27/02/2024).

International Union for Conservation of Nature, ‘Nature-Based Solutions’ available at https://www.iucn.org/our-work/nature-based-solutions (Accessed on 27/02/2024).

Kyriacou. G., & Burke. J., ‘Why is Net Zero so Important in the Fight Against Climate Change?’ Available at https://www.lse.ac.uk/granthaminstitute/explainers/why-is-net-zero-so-important-in-the-fightagainst-climate-change/ (Accessed on 27/02/2024).

Levin. K et al., ‘What Does “Net-Zero Emissions” Mean? 8 Common Questions, Answered’ Available at https://www.wri.org/insights/net-zero-ghg-emissions-questions-answered (Accessed on 26/02/2024).

Muigua. K., ‘Achieving Sustainable Development, Peace and Environmental Security.’ Glenwood Publishers Limited, 2021.

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