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Kenya: Analysts say new law could make companies liable for climate change damage

Kenya has passed a climate change law that seeks to ensure the country pursues development with low-carbon emissions.  The law permits citizens to sue public and private entities that frustrate efforts to mitigate and reduce the impacts of climate change. Analysts argue that this opens a window to hold companies liable for any action that exacerbates climate change.

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10 October 2016

Analyst says companies now liable for climate change damages

Author: Edna Odhiambo, Thomas Reuters Foundation

"In Kenya, companies now liable for climate change damages"

Climate change lawsuits are gaining momentum as citizens are increasingly turning to domestic courts to hold governments and corporations accountable for reducing greenhouse gas emissions. With the passing of its 2016 Climate Change Act, Kenya is among the few countries globally to directly regulate on climate change, signaling strong political will to pursue low-emission development. The act allows citizens to sue private and public entities that frustrate efforts to reduce the impacts of climate change...

An interesting feature of this law is the lenient standard required to prove liability. It is enough to prove that a corporation is not doing enough to address climate change without having to also demonstrate that a person has suffered loss or injury. Traditionally, in public interest environmental cases, though the law waives the requirement of demonstrating direct harm, there is still a requirement that an applicant establish that a section of society will suffer harm. Perhaps the indulgence granted to climate suits demonstrates the severity and urgency that we should all exercise when tackling a global crisis that threatens the survival of humanity.

The consequences of liability may be exceedingly costly for corporations as Kenya’s Environment and Land Court has the power to order compensation for climate victims where it deems appropriate. Once a company becomes included within a climate change regime, the likely substantial compliance requirements will entail significant, related ongoing costs of operation and management that could affect returns and competitiveness.

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10 October 2016

Lawyer says new law could lead to climate change compensation by companies

Author: Andrew Gage, Environmental Law Alert (Canada)

"Does Kenya’s Climate Change Act lead the way for climate lawsuits?"

Kenya’s Climate Change Act, 2016 is a comprehensive climate change law, setting up a National Climate Change Council to coordinate the country’s climate change efforts...Kenya’s new Act is reportedly the first climate change law enacted in an African country, which may mean that its Act becomes something of a model for other countries on the continent...

Exactly how the new law will be applied remains to be seen, of course. Will it be used against companies that spread misinformation about climate science (such as Exxon) or manipulate tests to avoid government regulation (such as Volkswagen), or could it support broader climate damages lawsuits against fossil fuel companies for continuing to exploit their vast oil and gas reserves despite the consequences for our atmosphere? Either way, this should be a concern for industrial GHG polluters.

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