Environmental Impact Assessment (EIA) is one of the major tools for integrating environmental considerations into the development planning and decision-making process. The legal bases for EIA in Kenya are the Environmental Management and Coordination Act, 1999, and the Environmental Impact Assessment and Audit) Regulations, 2003. This paper outlines the requirements of EIA as provided in law and the input of public participation in this process.
Legal Requirements for EIA
Section 58 of EMCA requires the proponent of a project listed in the Second Schedule to undertake an EIA and, when undertaking a project, to submit an EIA report to NEMA for approval prior. These projects include, but are not limited to, the following:
The EIA process normally takes the following course:
1. Screening: The Proponent shall be required to forward a Project Report to NEMA to determine whether a full EIA is necessary.
2. Scoping: Should a full EIA be necessary, the proponent shall undertake scoping to identify the main environmental concerns for this intervention and the scope of the EIA study.
3. Study on EIA: The proponent carries out the EIA study, which involves Baseline data collection, Impact Assessment, and Development of the Environmental Management Plan.
4. EIA Report: The proponent submits the EIA report to NEMA for review and approval
5. Decision: NEMA decides to approve or reject the project with or without conditions based on the EIA report
Public Participation in EIA
Public participation is one of the cornerstones of EIA in Kenya. Indeed, Section 59 of the EMCA and Regulation 17 of the EIA Regulations require that a proponent seek the views of persons likely to be affected by the project.
The EIA Regulations outline the minimum requirements for public participation:
The proponent should incorporate the public's views in his final EIA report, which should be presented to NEMA. NEMA may also seek additional public participation as it may require during the review of the EIA report.
Case Law on Public Participation in EIA
Kenyan courts have strongly underscored the requirement for public participation in EIA. In the case Meza Galana & 3 others v Attorney General & 3 others, it was held that a failure to consult the community whose lands are affected by an EIA for a proposed titanium mining project violated an affected community's constitutional right to participate in decision-making.
In Mohamed Ali Baadi and others v Attorney General & 11 others, which was decided in 2013, the court held that the EIA conducted for the wind power project was not valid because of a lack of public participation. The court's decision brought home the point that public participation has to be meaningful in that appropriate information is provided to the affected community and sufficient opportunity is provided for them to express their views.
Conclusion
EIA is essential for sustainable development in Kenya. Environmental considerations are legally required to be included at the project planning and decision-making stage about EMCA and the EIA Regulations. Public participation is a building block of the EIA process; it allows communities facing potential effects to voice their stand regarding projects affecting their environment and livelihood. Courts have protected the constitutional right to public participation and set standards for meaningful engagement.
Effective EIA with effective public participation will help maintain a balance between economic
development, environmental protection, and social equity in Kenya.
Building the capacity of the authority, project proponents, and communities to conduct and
participate in EIA is one step toward that end.