Dredging going in Lamu to make it possible for ships to call at the Lamu Port. PHOTO | MUSA KURIAN
By MUSA KURIAN
The Environment Court has ordered the National Environmental Management Authority (NEMA) to review the Lamu port Environmental Impact Assessment (EIA) and placed conditions on the EIA licence.
The court found the EIA for the entire Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) Corridor Project to be procedurally weak and ruled that the environmental Impact Assessment License to be returned back to NEMA to be reconsidered.
Two petitioners convinced the judges that the project proponents failed to adhere to the EIA conditions issued.
Judges Pauline Nyamweya, Joel Ngugi, B.T Jaden, and Joseph Mativo opined that the EIA Licence re-consideration process must be done within one year and a report filed in Court to confirm compliance.
The four judges ruled that the environmental governance principles contained in Kenya’s Constitution including Articles 10, 69 and 70 made it mandatory for the project proponents to carry out Strategic Environmental Assessment (SEA) before embarking on any of the individual components of the LAPSSET Project.
Works ongoing during the construction of the first three berths. PHOTO | MUSA KURIAN
“The EIA Licence re-consideration process must be done within one year from the date hereof and a report filed in this Court to confirm compliance,” ruled the judges in a landmark case that will derail the construction of the largest ports in East and Central Africa region.
The law court decision explains that the EIA licence has been reverted to NEMA for further action, and the said EIA Licence shall in the meantime remain valid and operational pending any further orders of this Court in accordance with this disposition.
The government was directed to draw up a Management Plan to preserve Lamu Island as a UNESCO World Heritage Site as requested by various declarations by UNESCO within one year of today.
And, the Attorney General asked to file a report in court on the progress made in drawing up this Management Plan to preserve Lamu Island as UNESCO World Heritage Site within six (6) months.
In their findings, the judges said that, the constitutional provisions, among other things, require a proactive approach to integrate environmental considerations into the higher levels of decision making for projects with the potential to have significant inter-linkages between economic and social considerations.
CCCC Chief Engieer Wu Qinghua, at Lamu Port during a past interview. PHOTO | MUSA KURIAN
In addition, a finding was made that the process of Strategic Environmental Assessment (SEA) was a required legal step prior to embarking on the Environmental and Social Impact Assessment (ESIA) process or implementation of any of the individual components of the LAPSSET Project.
This is by virtue of Regulation 42 of the Environmental (Impact Assessment and Audit) Regulations, 2003 as well as the magnitude of the LAPSSET Project, and the significant environmental and cumulative impacts of the Project which implicated Policies, Plans and Programmes.
The project proponents violated some of the conditions, for example, the EIA Licence required them to compensate the local fishermen and, “in consultation with the Fisheries Department provide improved fishing gear and modern fishing landing sites with adequate infrastructure such as power, access roads and cold rooms.
Experts working on the LAPSSET project were supposed to develop a detailed Environmental Monitoring and Management Plan (EMMP) for the first three berths of the proposed Lamu Port.
In a nutshell, the plan had to contain the baseline environmental data and specific monitoring indicators, which can be used to compare the data being collected in a structured way at determined frequency levels.
However, the judges did not find any problem with the compensation made to Kenya Forest Services for the mangroves rather than the local community directly.
“The Project Proponent was at liberty to select an institutional arrangement that it felt would be effective for the purpose of the replanting of the mangrove forests as long as the means chosen was rationally related to the purpose,” said the court.
In the landmark decision that is affecting infrastructural development in the region, the judges pointed out that there are issues National Environmental Management Authority is duty bound to have considered before issuing licenses.
For instance, the issue of intergenerational equity; the probability and the costs of calamitous events including oil spills and epidemics associated with the expected high rates of urbanisation; and the welfare losses – both monetary and non-monetary to be borne by the local population – including loss of opportunity costs associated with the new developmental path.
It emerged that the drivers of the Project failed to consider, assess, estimate and report on the external costs of the first three berths of the Lamu Project as well as the entire LAPSSET Project. This amounted to a procedural inadequacy in the preparation and consideration of the ESIA and SEA reports.
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