Why courts have stopped Sh200 billion Lamu coal power project

The proposed Sh200 billion coal project in Lamu is in limbo after the court cancelled it, saying that it would interfere with the area classified as a UNESCO heritage site.

The Environment and Lands Court in Malindi said there no proper Environmental and Social Impact Assessment (ESIA) and Environmental Impact Assessment (EIA) reports for the project.

The project at the Kwasasi area of Lamu County, near Manda Bay, was to be the main source of energy for the Lamu Port-South Sudan-Ethiopia-Transport corridor (LAPSSET) projects.

On June 26, 2019, the National Environment Tribunal (NET) annulled the EIA licence of the project issued by the National Environmental Management Authority (Nema) to AMU Power.

Amu Power planned to construct Kenya's first-ever 1,050 MW coal-burning power plant at Kwasasi, an ecologically sensitive UNESCO World Heritage site.

And Justice Mwangi Njoroge of the ELC in Malindi has upheld the tribunal’s decision that the project location analysis was solely dependent on the government’s arbitrary choice.

The judge said that with all the errors and missteps regarding the EIA study and process, the study failed to comply with the terms of reference approved by Nema.

“The very fact that no Strategic Environmental Assessment (SEA) had been conducted by the government in respect of the LAPPSET mega project in accordance with the holding in Mohamed Ali Baadi (supra) disqualifies as improper any ESIA study that may be prepared for any of the LAPPSET component projects,” said Justice Njoroge.

Further, the judge said that he upheld the Lands Tribunal’s finding that public participation regarding the entire ESIA study was inadequate.

He said that the mitigation measures analysis was solely based on whether they had been interrogated through participation.

Save Lamu, Somo Somo, Raya Ahmed, Mohammed Mbwana, Jamal Ahmed Ali, and Abubakar Mohamed Twalib said the project will cause thermal discharge into the sea, which may have major impact on a majority of Lamu residents who are dependent on fishing.

The petitioners said the project would violate their cultural rights and traditional way of life set out in Articles 44 and 43 of the Constitution.

The petitioners said that failure to provide effective mitigation measures could result in further negative impacts on the environment, communities, and livelihoods, breaching the state’s duty to protect them under Articles 42, 69, and 70 of the Constitution.

The petitioners said that the ash yard, ash pit, and conveyor belt were some of the components of the project lacking in sufficient mitigation measures.

Justice Njoroge said that while cancelling the project, the Tribunal determined that the proposed mitigation measures on the ash yard and the ash pit were inadequate.

“As for the mitigation measures on the coal conveyor system and the 2000-acre limestone concession quarry, the Tribunal found that information supplied in the ESIA was incomplete, insufficient, and inconclusive to form the basis for NEMA’s decision to issue a licence,” said Justice Njoroge.

The judge said that the tribunal held back from pronouncing itself expressly on the adequacy of the mitigation measures regarding thermal effluent because AMU Power committed itself to the World Bank Group’s General EHS Guidelines and EHS Guidelines for Thermal Power Plants, considered as an adequately high standard.

However, the tribunal upheld the mitigation measures analysis on the atmospheric emissions, air quality, coal handling and storage, and the ecological impact.

The judge noted that the climate change mitigation measures failed to comply with the provisions of the Climate Change Act, 2016, and the report is incomplete and inadequate.

Justice Njoroge said that it is for AMU Power to ensure that during the next ESIA study preparation exercise, sufficient public participation and all appropriate mitigation measures are included in the whole process.

According to the reports, the judge noted that the costs of building the Standard Gauge Railway (SGR) from the Mui Basin, where coal can be mined, to Lamu were prohibitive, and the other option is to have the coal delivered to Kenya through a port.

The court report indicates the Port of Mombasa was said to be densely built up and congested, and consequently, large coal tankers would cause a detrimental coal dust impact within the port.

Consequently, the only option for a port site for receiving imported coal in bulk was Lamu, a port endowed with a natural deep harbour and which had already been selected as the genesis of the LAPPSET mega project.

“We do not see how a meaningful EIA study could be undertaken in the instant case when the basis of the choice and location and other components of the LAPPSET project had already been called into question by a superior court,” said Justice Njoroge in reference to the tribunal.