Environmental Projects to Be Assessed by NEMA - International Law Office

Pursuant to the Environment Management and Coordination Act 1999, any person planning to embark on a project in Kenya is required to submit a project report to the National Environment Management Authority (NEMA) in a prescribed form. The second schedule of the act contains a list of projects that must undergo an environmental impact assessment (EIA). These projects, including those relating to any major changes in land use, are widely defined and are capable of both objective and subjective interpretation. Consequently, it is important for any person proposing to implement any project in Kenya to confirm that the proposed undertaking requires an EIA study before the project commences. The activities specified in the second schedule in respect of which an EIA study may be required include the following:

• Urban development - establishment or expansion of industrial estates or recreational areas and shopping centres or complexes;
  
  
• Transportation - projects relating to major roads, oil and gas pipelines, rail and water transport;
  
  
• Mining - quarrying and open-cast extraction of precious metals, exploration for the production of petroleum in any form and extraction of alluvial gold with the use of mercury;
  
  
• Agriculture - large-scale agriculture and the use of fertilizers; and
  
  
• Processing and manufacturing - mineral processing, reduction of ores and minerals, oil refineries and petrochemical works and bulk-grain processing plants.

It is only upon perusal of the project report by NEMA and subsequent communication between NEMA and the proponent of the project that the proponent will know whether its project or undertaking requires an EIA study.

An EIA study is to be conducted by an authorized individual expert or firm of experts (NEMA maintains a public register which contains a list of experts authorized to carry out EIA studies and issue EIA reports), in accordance with guidelines and procedures outlined in the Environment Management and Coordination Act wholly at the proponent's cost and expense.

Upon receipt of the EIA report, NEMA is required to publish in the Gazette a notice which should include:

• a broad description of the proposed project;
  
  
• the place where the project will be carried out;
  
  
• the place where the EIA report can be reviewed; and
  
  
• a time limit not exceeding 60 days for the submission of oral or written comments on the report (such submissions are to be taken from all stakeholders affected by the proposed project).

Thereafter NEMA may, upon being satisfied that all the requirements as stipulated under the EMCA have been complied with, issue an EIA licence on certain terms and conditions that facilitate sustainable development and sound environmental management. Should the nature of the project change significantly, NEMA can compel a proponent to undertake a further study at its own cost and expense, and may also require fresh submission of information after the issuance of the EIA licence. The EIA licence is transferable to another party, but only in respect of a project for which the licence was initially issued, provided that the transferor and transferee make a joint notification to the director general of NEMA.

NEMA is required under the Environment Management and Coordination Act to carry out an environmental audit and environmental monitoring of all activities that are likely to have a significant effect on the environment. To this end, an inspector appointed by NEMA is empowered to enter onto any land or premises for the purpose of determining the extent to which the activities carried out thereon conform to the statements made in the EIA report. NEMA is empowered to set, control and enforce standards in respect of:

• water quality;

• air quality;
  
  
• waste;
  
  
• pesticides and toxic substances;
  
  
• noise;
  
  
• ionizing radiation; and
  
  
• noxious smells.

The act also provides that NEMA may issue and serve on any person an environmental restoration order, and the same authority is bestowed on the courts. The terms, conditions and obligations imposed on a person under such an order include:

• restoration of land;
  
  
• replacement of soil;
  
  
• replanting of trees and other flora; and
  
  
• restoration of geological, archaeological and historical features of the land or sea, as may be specified in the order.

For further information on this topic please contact Atiq Anjarwalla at Anjarwalla & Khanna by telephone (+254 41 231 2848) or by fax (+254 41 231 2013) or by email (asa@africalegalnetwork.com).