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

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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.

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

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

This sector involves the wholesale and retail selling of goods.

Households employing domestic workers, for activities like cooking, cleaning and subsistence farming, for their own use.

A subsidy is a direct or indirect payment to individuals or businesses, typically provided as a government cash payment or a specific tax reduction.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Using laws and the legal system more broadly to protect vulnerable entities

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

woman and genders outside of the gender binary

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

This sector involves activities to move goods and people, alongside the storage of products.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

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

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance