Amu Power Company Limited v Save Lamu & 6 others (Environment and Land Appeal 6 of 2019)

Amu Power Company Limited had been selected by the Government to build a 1050 MW coal-fired power plant in Lamu, the first of its kind in Kenya. After Amu Power obtained an EIA licence from NEMA in 2016 (EIA Licence No. NEMA/EIA/PSL/3798), the Respondents, including Save Lamu and others, challenged the licence via the NET tribunal (NET/196/2016), raising, among others, the failure by the EIA report to address the question of climate impact. The Respondents argued that the project would significantly increase Kenya’s carbon footprint, thereby undermining Kenya’s commitment to a low-carbon development under its national and international obligations. In view of the foregoing, the Respondents argued that the EIA licence violated various constitutional rights (e.g., right to clean and healthy environment, public participation) and statutory requirements under the Environmental Management and Coordination Act, 1999 (EMCA) and its EIA Regulations. The Environment and Land Court (on appeal) upheld the earlier finding by the National Environment Tribunal (NET) in the Save Lamu Case (NET/196/2016) that the project’s Environmental & Social Impact Assessment (ESIA) failed to address the climate-change implications of the proposed coal plant adequately. In the appeal, the Environment and Land Court recognised that Kenya’s commitment to a “low-carbon climate resilient pathway,” under both domestic law (Climate Change Act) and international obligations, ought to inform approval of such large-scale fossil-fuel projects — especially given the expected greenhouse gas (GHG) emissions from coal combustion.