19. The Climate Change (Amendment) Act, 2023

The Act amends the Climate Change Act to include the regulation of carbon projects and trading in the country. It came into force in September 2023.

Quick Link: http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%20387A

· Section 3(2) of the Act provides that the Act shall be applied in all sectors of the economy by national and county governments to: mainstream climate change responses into development planning, decision making and implementation; build resilience and enhance adaptive capacity to the impacts of climate change; promote low carbon technologies, improve efficiency and reduce emissions intensity by facilitating approaches and uptake of technologies that support low carbon, and climate resilient development; and mainstream and reinforce climate change disaster risk reduction into strategies and actions of public and private entities; among others.

· Section 13 of the Act requires the Cabinet Secretary responsible for climate change to formulate a National Climate Change Action Plan, which Action Plan shall prescribe measures and mechanisms: to identify strategic areas of national infrastructure requiring climate proofing; to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses; for mitigation and adaptation to climate change; to review and recommend duties of public and private bodies on climate change among others.

· Section 13(4) stipulates that the Action Plan shall address all sectors of the economy. In this regard, the Ministry of Environment published the National Climate Change Action Plan 2018-2022 which identified various priority areas that largely reflected the Big Four Agenda of the administration then, including affordable housing. One of the priorities in terms of climate actions under the Plan comprises the Health, Sanitation and Human Settlements wherein the Plan calls for climate-resilient solid waste management, and promotion of climate resilient buildings and settlements, including in urban centres, ASALs, and coastal areas.[1] Under the Disaster Risk Management priority area, the Plan urges for the reduction of risks that result from climate-related disasters such as droughts and floods to both communities and infrastructure.

· Other policy and regulatory objectives sought to be achieved in the Action Plan by June 2023 that relate to housing include: Development of five county-based waste management plans and regulations that are consistent with the National Waste Solid Management Strategy and other relevant policies; development of a national resettlement policy framework that sets out safeguard mechanisms against involuntary resettlement and forced evictions from homes when land is acquired for development projects; adoption/implementation of alternative approaches to land acquisition, other than compulsory acquisition, where possible; development of a policy for green building and, green building codes and regulations that account for climate information; development of a national framework for wastewater management; and enforcement of laws on urban planning and stormwater management in urban areas, such as desilting of drainage and, riparian protection. Also, Planning and building control regulations to encourage compact development, mixed-use, and reduced provision of parking near MRT stations should be updated and implemented.

· Section 16 of the Act imposes climate change duties on private entities by providing that the National Climate Change Council in consultation with the Cabinet Secretary and other relevant departments may impose such duties. Under this statutory provision, a state agency can impose duties to conform to climate change imperatives even on actors in the construction sector including property developers.

· Section 23 of the Act provides a right of a person to move to the Environment and Land Court to stop, prevent or discontinue a project, or even seek compensation against another person or entity who threatens or has indeed acted in a manner that adversely affects actions towards mitigation and adaptation to climate change. Section 23(3) further adds that in such a legal action, a person need not demonstrate that a person has incurred a loss or injury in order to be successful in the claim. This provision is important as it means that stakeholders in the construction sector would have to be minded to ensure that their actions do not negatively affect climate change mitigation and adaptation actions, lest they expose themselves to legal action with attendant consequences.

· Further, in regard to the amendments concerning the regulation of carbon projects and trading the Act allows for the participation of both government and private promoters in carbon trading. This can either be through participation in a voluntary carbon market, through bilateral/multilateral trading agreements or trading with a private entity.

· The Act provides for the following important considerations for carbon projects: the requirement to conduct an environmental impact assessment for carbon credit projects, the requirement to enter into community development agreements for land-based projects and registration with the National Carbon Registry established under the Act.

· The annual social contribution from land-based projects will be 40% of the aggregate earnings while the contribution from other projects which are not land-based will be 25% of the aggregate earnings.

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