Kenya: Tribunal cancels AMU Power's coal plant license over public participation & climate change impact

The National Environment Tribunal  has cancelled AMU Power's proposed coal plant's environmental impact assessment licence issues by the National Environment Management Authority for omitting engineering plans and details of the plant from public participation, in addition to finding that it was not consistent with the Climate Change Act.

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8 July 2019

National Environmental Tribunal's judgment

Author: National Environmental Tribunal (Kenya)

"SaveLamu & ors v. NEMA & Amu Power Company Limited"

Accordingly, for the reasons stated above, we allow the appeal and set aside the decision of the 1st Respondent to issue the Environmental Impact Assessment Licence No. NEMA/ESIA /PSL/3798 dated 7th September 2016 to the 2nd Respondent. In furtherance of our powers under section 129(3) (b) and (c) we order the 2nd Respondent, should it still wish to pursue the construction and operation of the project, to undertake a fresh EIA study following the terms of reference already formulated in January 2016, and in compliance with the Director - general's directive of 26th October 2015, as well as adhere to each step of the requirements of the EIA Regulations on EIA Studies. The fresh EIA study, if undertaken, is to, inter alia, include all approved and legible detailed architectural and engineering plans for the plant and its ancillary facilities (such as the coal storage and handling facility and the ash pit with its location in relation to the sea shore), consideration of the Climate Change Act 2016, the Energy Act 2019 and the Natural Resources (Classes of Transactions subject to Ratification) Act 2016 in so far as the project will utilise sea water for the plant and/ or if applicable.

Subject to these steps being undertaken, a fresh EIA study report is to be prepared and presented to the 1st Respondent. The 1st Respondent is directed to comply with the provisions of regulations 17 and 21, engage with the lead agencies and the public, in the manner and strict timelines provided for under the said law. The 1st Respondent is to share its memorandum of reasons for reaching its decision whether for or against the project with the relevant parties and publish its decision on the grant or refusal to issue an EIA Licence accompanied with a summary of its reasons within 7 days of its decision. Such publication should be in a newspaper with nationwide circulation. These extraordinary measures are necessary to ensure sufficient access to information by the public on a project that will be the first of its kind in Kenya and the East African region.

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2 July 2019

Kenyan tribunal cancels license of Chinese-backed power plant on environmental grounds

Author: Abdi Latif Dahir, Quartz (US, UK)

“China’s plan to help build Kenya’s first coal plant has been stopped—for now”, 27 June 2019

Kenyan judges at the National Environmental Tribunal… said officials had failed to conduct a thorough assessment of the plant’s impact on Lamu, a historic and idyllic archipelago in the country’s northeast. The tribunal canceled the license issued by the National Environmental Management Authority and ordered developer Amu Power undertake a new evaluation. The environmental court also faulted the Chinese-backed power plant for failing to adequately consult the public about the initiative, and cited insufficient and unclear plans for handling and storing toxic coal ash…

… Even though president Uhuru Kenyatta announced plans to move the country to 100% green energy by 2020, some 975 acres of land had been set aside for the project, which was expected to generate 1,050 megawatts of power upon completion. The $2 billion plant is majority financed and built by Chinese firms alongside a Kenyan consortium. The project has drawn protests since its inception, with environmentalists saying coal has no place in a country that already develops most of its energy from hydroelectric and geothermal power. Campaigners have also argued that the plant will devastate the island of Lamu, a major tourist attraction, a UNESCO heritage site, and the oldest and best-preserved example of a Swahili settlement in East Africa.

The project was another example of Beijing’s efforts to push its companies to develop coal-fired plants overseas. Even as China’s investment in renewable energy projects at home has soared, Chinese corporations have been building hundreds of coal plants abroad, some in countries that today burn little or no coal. This push has included African countries, where the promise of subsidized development was a draw for governments to welcome Chinese investment.

While the latest verdict delays the coal plant’s development, it doesn’t put an end to it. Amu Power can still apply for a new license or appeal the decision within the next month…

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