[2022] KENET 775 (KLR)

Nyiro & 4 others v National Environmental Management Authority & another (Tribunal Appeal 19 of 2021) [2022] KENET 775 (KLR) (Environment and Land) (19 October 2022) (Judgment)

Neutral citation: [2022] KENET 775 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 19 of 2021

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

October 19, 2022

Between

Raphael Mwandoe Nyiro

1st Appellant

Athman Mzee Haji

2nd Appellant

Osborn Amuliodo Asena

3rd Appellant

Mwima Komoro Morris

4th Appellant

Brian Otieno Omondi

5th Appellant

and

The National Environmental Management Authority

1st Respondent

Ola Energy Kenya Limited

2nd Respondent

Judgment

1. The Appeal herein was initiated vide a Notice of Appeal dated July 27, 2021 and filed on even date. The Appellants are aggrieved with the decision of the 1st Respondent to issue the Environmental Impact Assessment Licence Number NEMA/EIA/PSL/11626 dated May 31, 2021 to the 2nd Respondent for the proposed expansion of the Ola Energy Marine Terminal.

2. The 2nd Respondent’s proposed project is to be situated on Plots Number Mombasa/ Block 53, 109, and 318 in the Shimanzi area of Mombasa County. The proposed project would entail the decommissioning of the 2nd Respondent’s existing LPG Plant located on the same site.

3. The Summary of Grounds of Appeal contained in the Appellants’ Notice of Appeal dated July 27, 2021 advances eight grounds, namely:a.The 1st Respondent failed to carry out public participation and the 2nd Respondent also failed to ensure that public participation was done before the issuance of the impugned licence;b.Failure by the 1st Respondent to assess safety, security, and environmental concerns before the issuance of the impugned licence;c.Failure by the 1st Respondent to consider that the project site is very close to the navigation channel which is the only entrance to the Kilindini Port;d.Failure by the Respondents to consider that the project operations will affect air quality on a micro-scale through exhaust emissions from the 2nd Respondent’s trucks as well as fugitive emissions from the project plant;e.Failure by the Respondents to simulate disaster scenarios which for Liquefied Petroleum Gas (LPG) including ‘Boiling Liquid Expanding Vapour Explosions’(BLEVE) which may arise in such projects and the containment measures required thereof; noting that the proposed project is either adjacent to or in close proximity to the residential estates of KPA Magorofani, Makende, and Kenya Railways residential estates, which are all within the BLEVE radius;f.Failure by the Respondents to act on several complaints by the Appellants regarding the failure to incorporate overall petroleum standards, the hazards of the road transport access and exit through the Kismayu road have not been appreciated, and no alternatives have been considered;g.Failure of the Respondents to consider that the project will cause air and noise pollution that will adversely affect the health of the residents living near the site through increased risks to respiratory illnesses such as asthma and bronchitis; andh.Failure by the Respondents to consider the proposed project’s impacts on marine biodiversity and the socio-economic activities of the fishermen along Makupa Creek through marine pollution.

4. Accordingly, the Appellants are seeking the cancellation of the Environmental Impact Assessment Licence Number NEMA/EIA/PSL/11626 dated May 31, 2021.

5. The 1st Respondent opposed the Appeal through the 1st Respondent’s Reply to Appeal dated September 9, 2021 and filed on even date. That Reply had been titled “2nd Respondent’s Reply to Appeal” but following the Tribunal’s direction that the order of Respondents in this Appeal conforms to the practice that the National Environmental Management Authority is always the 1st Respondent, the regulators Reply was retitled to being that of the 1st Respondent together with all references therein. In summary, the 1st Respondent contends that:a.Public participation was conducted, and all concerns raised by members of the public and other relevant stakeholders were taken into account;b.The Environment and Social Impact Assessment (ESIA) Study was subjected to scrutiny by a multi-agency team, which identified certain environmental or social risks;c.The 1st Respondent communicated the findings of the multi-agency team to the 2nd Respondent, with the 2nd Respondent acting on them and thereafter filing with the 1st Respondent an Environment and Social Management and Monitoring Plan (ESMP) as well as a decommissioning plan;d.Guided by the review of all submitted documents, the Multi Agency Technical team’s site visit and report, the 1st Respondent’s technical review and the multi-agency team’s technical review, and the applicable law; the 1st Respondent was satisfied that the project was within the law and set standard; ande.The impugned licence was properly issued and the Appeal should be dismissed in its entirety with costs to the 1st Respondent.

6. On its part, the 2nd Respondent opposed the Appeal vide the 1st Respondent’s Reply to Appeal dated September 22, 2021 and filed on even date. That Reply had been titled “1st Respondent’s Reply to Appeal” but following the Tribunal’s direction that the order of Respondents in this Appeal conforms to the practice that the National Environmental Management Authority is always the 1st Respondent, the project proponent’s Reply was retitled as were all references therein. The 2nd Respondent urged this Tribunal to dismiss the Appeal in its entirety, uphold the 1st Respondent’s issuance of the impugned licence, and award the costs of the Appeal to the 2nd Respondent, on the following grounds:a.The Appeal does not demonstrate any grounds or any sufficient grounds to warrant the prayers sought in the Appeal;b.The impugned licence was properly issued in accordance with all applicable laws and regulations;c.An Environment and Social Impact Assessment (ESIA) Study was undertaken with regard to the project, and the ensuing ESIA Report dated December 15, 2020 fully considered all relevant environmental and social conditions;d.Public participation was conducted, and all concerns raised by members of the public and other relevant stakeholders were taken into account;e.The proposed project is of great public benefit and is in line with the Government’s goal of using clean, safe, and sustainable energy sources;f.The proposed project does not pose any negative environmental or social harm, contrary to the assertions of the Appellants; andg.The Appeal lacks merit, is misconceived and is an abuse of the judicial process.

7. The 2nd Respondent, being the project proponent, also filed the 2nd Respondent’s Replying Affidavit sworn by Thomas Odhiambo Abade dated September 9, 2021 and filed on even date. In the Replying Affidavit, the 1st Respondent’s Customer Service, Supply, and Logistics Manager gave detailed grounds in opposition of the Appeal. The key grounds advanced in the 2nd Respondent’s Replying Affidavit dated September 9, 2021 are that:a.The proposed project is not a new project but rather it is an expansion of an existing project on the site which has been operating without incident;b.The project site is zoned for Industrial Purposes and there are other existing petroleum infrastructure and LPG facilities within the area;c.An ESIA Study was carried out, and the same contained a detailed Quantitative and Qualitative Risk Assessment which confirmed that:i.The risks associated with the proposed project would be as low as reasonably practical and within acceptable ranges; andii.The impacts related to the project are site specific and are unlikely to result in permanently damaging the environment and social structures if the mitigation measures in the Study Report are adopted by the 2nd Respondent, which the 2nd Respondent fully intends to do;d.The 2nd Respondent’s engaged in an extensive stakeholder engagement process, the details of which are contained in the Report, and which met all applicable standards and thresholds;e.It is untrue that the proposed project is close to the navigation channel and in fact there are other facilities between the project site and the ocean front; andf.The Appellants’ contentions on threats to marine biodiversity and socio-economic activities allegedly arising from the project are baseless.

8. The Appeal was heard by way of vica voce evidence on various dates. The oral testimony of the respective witnesses sought to amplify and clarify each party’s particular position as expressed in their pleadings. From the oral testimony and the pleadings filed by the parties, two issues for determination emerge:a.Was their legally compliant public participation; andb.Does the proposed project pose an unacceptable risk to the environment and the residents in the adjacent areas.

PUBLIC PARTICIPATION 9. The Appellants pleaded, called evidence, and submitted at length on the alleged inadequacy of the public participation that was conducted prior to the issuance of the disputed EIA Licence.

10. Section 59 of EMCA provides that,(1)Upon receipt of an environmental impact assessment study report from any proponent under section 58(2), the Authority shall cause to be published in the Gazette, in at least two newspapers circulating in the area or proposed area of the project and over the radio a notice which shall state—(a)a summary description of the project;(b)the place where the project is to be carried out;(c)the place where the environmental impact assessment study, evaluation or review report may be inspected; and(d)a time limit of not exceeding sixty days for the submission of oral or written comments on the environmental impact assessment study, evaluation or review report.(2)The Authority may, on application by any person extend the period stipulated in sub-paragraph (d) so as to afford reasonable opportunity for such person to submit oral or written comments on the environmental impact assessment report.(3)The Authority shall ensure that its website contains a summary of the report referred to in subsection (1).

11. Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, hereinafter called the ‘EIA Regulations’ provides that,“(1)During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.(2)In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall—(a)publicize the project and its anticipated effects and benefits by—(i)posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project;(ii)publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and(iii)making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks;(b)hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments;(c)ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and(d)ensure, in consultation with the Authority that a suitably qualified co-ordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority.”

12. In their evidence to the Tribunal, the Appellants’ witnesses stated that while there was public participation, it appeared to them to be an exercise in box-ticking where their views would not be substantively considered. On its part, the 1st Respondent affirmed the testimony of the 2nd Respondent’s witness, Mr Anthony Wachira, which underscored the 2nd Respondent’s ESIA Study Report. Mr Anthony Wachira testified that the 2nd Respondent adhered to the standards contained in Regulations 18(1)(h), 20 and 21 of the Audit Regulations, and engaged in public participation that was satisfactory and which took into consideration the views received from the public stakeholders.

13. The Respondents averred that:a.The 2nd Respondent undertook a stakeholder indentification and mapping that correctly captured the persons and stakeholders to be engaged;b.The 2nd Responent engaged with village elders of the settlements in close proximity to the proposed project with a view of rallying participation by the residents;c.The 2nd Respondent consulted with officers of the National Government Administration, including the Assistant Chief and the County Commissioner with the view of marshalling public consultation;d.Three public barazas were held in addition to focussed engagement with smaller groups of potentially addected persons; ande.The 2nd Respondent published a public notice in the Kenya Gazette and in a leading newspaper with nationwide circulation calling for the public to submit oral and written comments on the ESIA Study Report.

14. Principle 10 of the Rio Declaration on Environment and Development, 1992 provides that:“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

15. In Constitutional Petition No 305 of 2012, Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others, the Court set out the minimum basis for adequate public participation as follows:-“97. From our analysis of the case law, international law and comparative law, we find that public participation in the area of environmental governance as implicated in this case, at a minimum, entails the following elements or principles:a.First, it is incumbent upon the government agency or public official involved to fashion a programme of public participation that accords with the nature of the subject matter. It is the government agency or Public Official who is to craft the modalities of public participation but in so doing the government agency or Public Official must take into account both the quantity and quality of the governed to participate in their own governance. Yet the government agency enjoys some considerable measure of discretion in fashioning those modalities.b.Second, public participation calls for innovation and malleability depending on the nature of the subject matter, culture, logistical constraints, and so forth. In other words, no single regime or programme of public participation can be prescribed and the Courts will not use any litmus test to determine if public participation has been achieved or not. The only test the Courts use is one of effectiveness. A variety of mechanisms may be used to achieve public participation.Sachs J. of the South African Constitutional Court stated this principle quite concisely thus: “The forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that at the end of the day, a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. What amounts to a reasonable opportunity will depend on the circumstances of each case. (Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC))”c.Third, whatever programme of public participation is fashioned, it must include access to and dissemination of relevant information.See Republic v The Attorney General & Another ex parte Hon Francis Chachu Ganya (JR Misc App No 374 of 2012). In relevant portion, the Court stated: “Participation of the people necessarily requires that the information be availed to the members of the public whenever public policy decisions are intended and the public be afforded a forum in which they can adequately ventilate them.”In the instant case, environmental information sharing depends on availability of information. Hence, public participation is on-going obligation on the state through the processes of Environmental Impact Assessment – as we will point out below.d.Fourth, public participation does not dictate that everyone must give their views on an issue of environmental governance. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs. A public participation programme, especially in environmental governance matters must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.e.Fifth, the right of public participation does not guarantee that each individual’s views will be taken as controlling; the right is one to represent one’s views – not a duty of the agency to accept the view given as dispositive. However, there is a duty for the government agency or Public Official involved to take into consideration, in good faith, all the views received as part of public participation programme. The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box.f.Sixthly, the right of public participation is not meant to usurp the technical or democratic role of the office holders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.”

16. After considering the testimony of the various witnesses and analyzing the documents submitted by the parties, the Tribunal is satisfied that the public participation conducted by the 2nd Respondent met the required legal standards with respect to both the general public as well as lead agencies.

RISK TO THE ENVIRONMENT AND THE RESIDENTS LIVING IN THE ADJACENT AREAS 17. The ESIA Study Report contained a Project Area Baseline that seven villages within the immediate vicnity of the project site. At page (vi) of the Report, Shimanzi KPA Village and Shimanzi Railways Village are identified as being adjacent to the proposed project. The Project Report places significant emphasis on the fact that the project is a mere expansion of an already existing LPG plant located on the same premises.

18. In their testimony, the Appellants expressed concerns over the explosive risk of the proposed project and the inability of response and rescue teams to access the adjacent residential areas in the event of a fire calamity. The Appellants also expressed concerns that the Respondents failed to properly consider the risks of air and noise pollution arising from the expanded operations.

19. The 2nd Respondent’s witness testified at length that these concerns were not well founded. He maintained that the ESIA adequately considered those concerns. Chiefly, the witness pointed out that there is an already existing plant on the site and that it has been operating safely for many years; and that there are other similar plants in the vicinity since the same is zoned for industrial use.

20. The ESIA Study Report does not adequately frame and address the environmental and human health and safety risks of an expanded plant or any inherent risks arising even from the existing facility. The Quantitative Risk Assessment at Section 9. 5 of the Report and running from pages 165 to 178 of the Report begins by idenitifying the proposed project as being one that is a “major hazard installation.” At Paragraph 9. 5.1 the Report states:“Environmental effects (biophysical impacts) are not relevant to the proposed project and no environmental risk assessment was carried out as part of the Major Hazard Installation Risk Assessment.”

21. The risk judgment advanced by the ESIA Study Report cannot be reconciled with the nature of the location of the project site as well as the risks identified by the Report. Heavy reliance is given to the classification of gas leaks and fire and explosive risks as being infrequent severe hazardous events, and thus the Report glosses over the concerns about those risks. It is also apparent that the fact that there is an already existing plant, albeit at a smaller scale than the poposed project, greatly influenced the direction taken by the Report with respect to identifying and ranking risks and thereafter proposing suitable mitigation measures for those risks, if possible.

22. This is well illustrated by the approach taken by the Report with regard the ‘do-nothing’alternative. At page (ix) the Report states that:“The ‘do-nothing’alternative is the option of not establishing the proposed LPG Marine Terminal project at the indentified site at Shimanzi in Mombasa. This alternative would result in no environmental and social impacts in the project area.The ‘do-nothing’ alternative will not assist the Kenyan Government in reaching its targets for the use of LPG as a source of Energy. Subsequently, the do-nothing alternative is not a preferred alternative and has not been assessed in this ESIA.”

23. In addition to not considering the ‘do-nothing’ alternative, the ESIA Study Report does not adequately consider the option of an alternative location for the proposed project in terms of environmental and social risks. The Report takes it as a given that the proposed project must be located at the existing site rather than objectively arriving at that conclusion after a considered environmental and social status analysis.

24. An ESIA Study Report that does not objectively apply itself to risk identification, ranking, and mitigation is not one that the 1st Respondent should have cleared. The overall contention of the Report across its various sections is that the impacts related to the project are site specific and are unlikely to result in permanently damaging the environment and social structures was not advanced in a compelling way by the Report.

25. Our holistic appraisal of the Report leads us to conclude that in terms of environmental and social risks the Report worked backwards from a preconceived position that the proposed project was safe and low risk and must be implemented at that particular location rather than arriving at that position organically and objectively.

26. The gaps and overall slant of the Report should have led to the 1st Respondent calling for a fresh objective Report to be compiled and submitted to it by the project proponent. Section 63 of EMCA provides that:“The Authority may require any proponent of a project to carry out at his own expense further evaluation or environmental impact assessment study, review or submit additional information for the purposes of ensuring that the environmental impact assessment study, review or evaluation report is as accurate and exhaustive as possible.”

27. Considering the foregoing, we find that the 1st Respondent erred in granting the EIA Licence to the 2nd Respondent without subjecting the proposed project to a fresh and objective ESIA Study Report. It therefore follows that the Appeal herein must succeed. The potential for harm to the environment by the project and population surrounding the project site were not adequately addressed.

WHO SHOULD BEAR THE COSTS OF THE APPEAL 28. In order to do justice to all Parties, the Tribunal’s findings on who should bear the Costs of the Appeal take into account the circumstances of this matter.

ORDERS 29. The Notice of Appeal dated July 27, 2021 and filed on even date is allowed in the following terms:i.The Environmental Impact Assessment Licence Number NEMA/EIA/PSL/11626 dated May 31, 2021 is hereby cancelled and/or revoked.ii.Each party to bear own costs.

DATED AND DELIVERED AT NAIROBI, THIS 19TH DAY OF OCTOBER 2022. Mohammed Balala ………………………………………ChairpersonChristine Kipsang………………………Vice ChairpersonBahati Mwamuye…………………………………………………………MemberWaithaka Ngaruiya…………………………………………………MemberKariuki Muigua…………………………………………………………Member