Sosian Energy Limited (Sosian) applied for and was granted a licence by the Ministry of Energy for exploration and development of geothermal resources (the Project). Menengai West Stakeholders Forum (the Complainant) took issue with the said decision and the decision by the National Environment Management Authority (NEMA) to grant Sosian an environmental impact assessment licence (EIA Licence) to pursue the Project and challenged NEMA’s issuance of the EIA Licence at the National Environment Tribunal (the Tribunal). The Tribunal ruled in favour of NEMA thus culminating in an appeal before the Environment and Land Court (the ELC).
The ELC framed the following issues for determination:
whether there was adequate public participation;
the validity of an ESIA Study Report substantially undertaken by a Lead EIA expert without a valid licence;
whether the Tribunal erred failure to address the absence of a Strategic Environmental Assessment (SEA) for Project;
whether the Tribunal erred in requiring a climate impact assessment without making this a condition for project activity; and
whether NEMA should have required an SEA as a condition for issuing an EIA Licence and finally whether the Tribunal’s Judgment denied the Appellants’ right to remedy.
The ELC determined that the Tribunal erred in finding that there was adequate public participation yet there were glaring gaps in the procedures and processes to enable it to meet the public participation threshold.
On the second issue, the ELC found that the lead EIA expert had a valid license. On the third issue, the ELC held that the SEA was not a requirement in the Project therefore the Tribunal did not err in not making it a requirement for the EIA study. The ELC held that the SEA, being a tool for public actors in environmental governance, was not a requirement for compliance by NEMA before issuance of the impugned EIA Licence.
Importantly, the ELC determined that climate impact assessments should be done prior to approval to allow proposed mitigation measures to be developed, clearly defined, and made available to the affected persons and agencies to review and give their comments. In making this determination, the ELC also stated:
“NEMA should not be used as an institution for rubber stamping illegalities and taking into consideration of the "triple planetary crisis" which refers to the interconnected and escalating environmental challenges of climate change, biodiversity loss, and pollution. The effects of climate change are with us and mitigation and adaptation measures have to be put in place to ensure a sustainable future for all.”
In sum, the ELC set aside NEMA’s decision granting Sosian the EIA Licence and cancelled the EIA Licnce. The ELC also ordered Sosian to carry out a comprehensive Environmental and Social Impact Assessment Study in compliance with all relevant laws and regulations taking into account the views of the Appellants and the affected persons.
In view of this decision, it is crucial for investors to ensure that they conduct climate impact assessments before commencing projects.
For further information, please contact Walid Khan or your relationship partner at Africa Law Partners.