Answer ... (a) What environmental regulations or requirements must renewables generators in your jurisdiction observe on an ongoing basis (from pre-development to decommissioning)?
The Environmental Management and Coordination Act, 1999 (EMCA) governs the environmental licensing of renewable generators in Kenya. Permits issued by the environment regulator, NEMA, include:
- EIA licences;
- noise and/or vibration permits;
- import/export licences for controlled substances and prior informed consent documents; and
- annual licences to own/operate a waste treatment or disposal site (if any) at the project site.
To operate a power station, the law also requires the owner to ensure that the cooling systems used are suitable alternatives with zero ozone-depleting potential (see the Environmental Management and Coordination (Controlled Substances) Regulations 2006).
The EMCA has subsidiary legislation which investors should be aware of, including:
- Environmental (Impact Assessment and Audit) Regulations, 2003;
- Environmental Management and Co-ordination (Water Quality) Regulations, 2006;
- Environmental Management and Co-ordination (Air Quality) Regulations, 2014
, which are proposed to be amended through draft regulations of 2022; and
- Environmental Management and Co-ordination (Waste Management)
- Regulations, 2006.
(b) What are the potential consequences of breach of these requirements – both for the renewables generator and for its directors, managers and employees?
The EMCA has a whole Section XII on environmental offences. Upon conviction of an offence by NEMA, a renewables generator will be liable to:
- fines ranging from KES 50,000 to KES 2 million;
- imprisonment for up to two years; or
- both a fine and imprisonment.
Further, Section 14 of the EMCA is clear that when an offence is committed by a body corporate, the body corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with the act will be guilty of the offence. Where an offence is committed under the EMCA by a partnership, every partner or officer of the partnership who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with the act will be guilty of an offence. Further, a person may be personally liable for the offence, whether committed by him or her on his or her own account or as an agent or servant of another person. An employer or principal will be liable for an offence committed by its employee or agent under the EMCA unless the employer or principal proves that the offence was committed against its express or standing directions.
(c) Which national and regional regulatory bodies are responsible for the enforcement of environmental obligations, and what is their general approach in regulating the renewables industry?
NEMA exercises general supervision and coordination over all matters relating to the environment and is the principal instrument of government in the implementation of all policies relating to the environment in Kenya. It is active in enforcing its licence conditions as well as investigating public complaints of pollution.
The EMCA also establishes the National Environment Council, which formulates policy and directions for the purposes of the act.
The provincial and district environment committees promote the decentralisation of environmental management and enable the participation of local communities.
Finally, the Public Complaints Committee is the administrative mechanism for addressing environmental harm.