The statute seeks to provide for the establishment of an appropriate legal and institutional framework for the management of the environment and for matters connected therewith.
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路 Section 3 of the Act provides that every person is entitled to a clean and healthy environment and provides legal standing to any person to challenge an action or State organ where this right is being violated.
Among the functions of the National Environmental Management Authority (NEMA) established under section 9 of the Act is to coordinate various activities taken by different agencies to ensure plans, programmes and projects consider environmental considerations and make recommendations to relevant authorities with respect to land use planning.
Section 37 of the Act requires NEMA to formulate a National Environmental Action Plan (NEAP) every six years and conduct public participation before its adoption and then submitted to the Cabinet Secretary for approval. The Plan, among others, includes: recommendations on appropriate legal and fiscal incentives that may be used to encourage the business community to incorporate environmental requirements into their planning and operational processes; identify and appraise trends in the development of urban and rural settlements, their impacts on the environment, and strategies for the amelioration of their negative impacts; and propose guidelines for the integration of standards of environmental protection into development planning and management.
路 Notably, NEMA and the Ministry for Environment have since prepared Environment Action Plan Preparation Guidelines 2016-2022 to guide national and county governments in preparing their own plans.
Section 40 of the Act also requires various County Environment Committees to prepare a County Environmental Action Plan every five years. The purpose of these Plans is to co-ordinate and harmonise the environmental policies, plans, programmes and decisions of the national and county governments in order to minimize the duplication of procedures and functions; and promote consistency in the exercise of functions that may affect the environment, and secure the protection of the environment across the country. Support that may be accorded to county governments is in preparing their County Environmental Action Plans.
路 Section 57 of the Act provides that the Cabinet Secretary for Finance may provide fiscal incentives for the purpose of inducing or promoting the proper management of the environment and natural resources or the prevention or abatement of environmental degradation. These incentives may include: customs and excise waiver in respect of imported capital goods which prevent or substantially reduce environmental degradation caused by an undertaking; tax rebates to industries or other establishments that invest in plants, equipment and machinery for pollution control, recycling of wastes, water harvesting and conservation, prevention of floods and for using other energy resources as substitutes for hydrocarbons; tax disincentives to deter bad environmental behaviour that leads to depletion of environmental resources or that cause pollution.
路 Section 57A of the Act provides that all Plans, Policies and Programmes determined by NEMA to have significant effects on the environment or that are subject to preparation or adoption by an authority at the regional, national, county or local level are subject to a Strategic Environmental Assessment.
路 Section 58 of the Act provides that any person being a proponent of a project (specified in the Second Schedule to the Act) shall before commencing or even financing a project or causing the same to be done, submit a project report to NEMA in the prescribed form upon payment of prescribed fee for purposes of conduct of an Environmental Impact Assessment. Notably, it is important to note that projects of the kind set out in the Second Schedule is by no means exhaustive as stated in Registered Trustees of Jamie Masjid Ahl-Sunnait- Wal-Jamait Nairobi v Nairobi City County & 2 others [2015] eKLR where a court issued an injunction stopping works on construction of a public toilet by Nairobi City County in a land adjoining a mosque in Nairobi Central Business District on grounds that the proponent had not conducted an EIA yet the project would impose a major change in land use of a commercial nature. The real test to whether an EIA is necessary where the same is not listed in the Second Schedule to the Act, is to consider the: characteristics of the intended development; the location of the intended development and characteristics of potential impact; the size of the development as well as cumulation with other neighboring developments; the probability of any environmental impact; and the duration and reversibility of such impacts.
路 The project proponent must undertake the environmental impact assessment study and submit a report of the study to NEMA before issuance with an Environmental Impact Assessment (EIA) Licence. NEMA is however afforded powers to dispense with this requirement in particular cases.
路 Some of the projects relevant to affordable housing listed in the Second Schedule of the Act (introduced through April 2019 amendments to the Second Schedule vide Legal Notice 31 of 2019) for which an EIA applies are; under the medium risk projects category, they include urban development including establishment of multi-dwelling housing developments of not exceeding one hundred units; transportation including parking facilities and water works. In the high-risk project category are; urban development including establishment of new housing estate developments exceeding one hundred housing units.
Section 58(8) of the Act requires the Director-General of NEMA to respond to applications for EIA licence within 3 months with section 58(9) providing that any person who does not receive any response within the said period may begin the undertaking/project. This provision introduced through amendments to the Act in 2015 was meant to avoid instances of undue delay on projects due to lethargy on the part of NEMA.
路 There is a detailed Public Notice on Processing of Environmental Impact Assessment Reports issued by NEMA in March 2020.
路 Section 67 affords NEMA with powers to revoke, suspend or cancel an EIA licence it has issued with reasons being given to the licensee in writing, effectively putting a stop to the project.
路 Sections 68 and 69 of the Act allow NEMA to carry out environmental audits and monitoring of all activities that are likely to have significant environmental effects.
路 Section 71 of the Act provides that the Cabinet Secretary responsible for environment upon the recommendation of NEMA shall establish criteria and procedures for measurement of water quality and recommend to NEMA minimum water quality standards for all waters of Kenya and for different uses including drinking water and recommend measures for treatment of effluents before being discharged into the sewerage system. This can influence the requirements of construction of houses.
路 Section 129(4) of the Act provides that upon lodging of any appeal at the National Environment Tribunal, every activity or project that is being challenged must stop and await the determination of the dispute by the Tribunal. Accordingly, the lodging of a dispute at the Tribunal serves as an automatic stay or injunction on any development, without necessarily seeking any injunctive orders. This provision can serve to delay or frustrate developers keen on initiating projects and may in fact encourage frivolous appeals to be lodged merely for the purpose of scuttling a development. There ought to be a balance in this regard either in terms of insisting on paying damages to the developer for lost monies if the Tribunal finds the appeal to have been frivolous, or an expedition of determination of such appeals by the Tribunal.
