Topic 5 Air Pollution & Climate Change PDF

AIR, ATMOSPTHERE & CLIMATE CHANGE Air pollution emissions are released from both natural and anthropogenic sources. Human- driven activities aimed at providing necessary goods and services to society are responsible for the anthropogenic share of air pollution. Air pollution emissions occur at many...

AIR, ATMOSPTHERE & CLIMATE CHANGE Air pollution emissions are released from both natural and anthropogenic sources. Human- driven activities aimed at providing necessary goods and services to society are responsible for the anthropogenic share of air pollution. Air pollution emissions occur at many stages in the life cycles of products and services, that is, from raw material extraction, energy acquisition, production and manufacturing, use, reuse, recycling, through to ultimate disposal. The resulting emissions undergo several types of physical and chemical transformations and contribute to a wide range of health and environmental impacts, including deterioration of air quality, toxicological stress on human health and ecosystems, photo-oxidant formation (smog), stratospheric ozone (O3) depletion, climate change, degradation of air resources, and noise, among others. These shall be covered under four areas: - 1. Noise pollution 2. Air pollution 3. Ozone Layer 4. Climate Change NOISE POLLUTION CONTROL Introduction Noise has been defined as sounds that are disagreeable or unpleasant produced by acoustic waves of random intensities and frequencies. Noise from industries, traffic, homes and recreation can cause annoyance, disturb sleep and effects health. Thus, sound is considered to be a potential serious pollutant and threat to the environmental health. The Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulation, 2009 defines “noise” to mean any undesirable sound that is intrinsically objectionable or that may cause adverse effects on human health or the environment. These Regulations prohibit any person from making or causing to be made any loud, unreasonable, unnecessary or unusual noise which annoys, disturbs, injures or endangers the comfort, repose, health or safety of others and the environment. However, there are some exemptions to these prohibitions. Environmental Management and Coordination (Noise and Excessive Vibration Pollution) (Control) Regulations, 2009. 1 In PASTOR JAMES JESSIE GITAHI AND 202 OTHERS VS ATTORNEY GENERAL, the court recognized one of the components of a clean and healthy environment to be the prevention of noise and vibration pollution. NEMA inspectors attempt to control noise pollution across the country. In KILIMANI PROJECT FOUNDATION -VERSUS- B CLUB, KIZA LOUNGE, SPACE LOUNGE, EXPLORERS TERVERN & OTHERS EKLR. The residents of Kilimani were aggrieved by B Club, Kiza Restaurant and Lounge, Space Lounge and Grill and Explorers Tavern who were operating night club business in Kilimani. The residents claimed that the clubs play loud music daily and host rowdy drunken revellers thereby depriving them of sleep and security in breach of the residents constitutional rights. Kilimani residents further claimed that the night clubs and bars had become a nuisance to the residents as well as negative influence to Kilimani children. Some of other negative effects included noise, littering by patrons, obstruction of motor vehicles of the patrons, exposure to immoral and indecent behavior by the patrons inside their vehicles. This had affected property values in Kilimani negatively leading to loss of income by some residents. The court agreed with the residents of Kilimani and directed the authorities to revoke the operational licences of the clubs and issue closure notices for being in contravention of the EMCA (Noise and excessive vibration pollution) (Control) Regulation 2009, LN NO. 61 of 2009. 2 AIR POLLUTION CONTROL Air pollution is defined as the introduction of chemicals, particulate matter, or biological materials that cause harm or discomfort to humans or other living organisms, or cause damage to the natural environment or built environment, into the atmosphere. Air pollution is one of the greatest environmental risk to health. By reducing air pollution levels, diseases such as stroke, heart disease, lung cancer, and both chronic and acute respiratory diseases such as asthma can be reduced. Air pollution is very prevalent and it is estimated that 99% of the world population is living in places where the WHO air quality guidelines levels are not met. Ambient (outdoor air pollution) in both cities and rural areas was estimated to cause more than 4.2 million premature deaths worldwide. Almost all these deaths occur in low- and middle-income countries especially on South-East Asia and Western Pacific regions. Policies and investments supporting cleaner transport, energy-efficient homes, power generation, industry and better municipal waste management would reduce key sources of outdoor air pollution. Additionally, indoor smoke is a serious health risk for more than 2.5 billion people who cook and heat their homes with biomass, kerosene fuels and coal. In Kenya, the Kenya National Bureau of Statistics Economic Survey 2020 reported that respiratory system disease was the leading cause of death at 25% of all disease attributed to air pollution. Approximately 21.9 million people contracted respiratory diseases as a result of air pollution in Kenya. According to the World Health Organization, approximately 19,000 people die prematurely in Kenya annually because of air pollution. The main sources of air pollution are: 1. Indoor air pollution from combustion of solid fuel (firewood, cow dung and crop residues), tobacco smoking, outdoor air pollutants, emissions from construction materials and furnishings, and improper maintenance of ventilation and air conditioning systems. 2. Outdoor air pollution from vehicles, combustion of fossil fuels in stationary sources, such as power generating stations, industries, forest fires and deliberate biomass burning. Nature is an additional source such as organic compounds released from trees, wind- blown soil, dust storms and sea spray. The most harmful common pollutants are: - 1. Particulate matter (PM) PM affects more people than any other pollutant. The major components of PM are sulfate, nitrates, ammonia, sodium chloride, black carbon, mineral dust and water. It consists of a complex mixture of solid and liquid particles of organic and inorganic substances suspended in the air. Particles with a diameter of 10 microns or less can penetrate and lodge deep inside the lungs while those with a diameter of 2.5 microns or less (PM2.5) can penetrate the lung barrier and enter the blood system. Chronic exposure to particles contributes to the risk of developing cardiovascular and respiratory diseases, as well as of lung cancer. 3 2. Ozone (O3) Ozone at ground level (not the ozone layer in the upper atmosphere) – is one of the major constituents of photochemical smog. It is formed by the reaction with sunlight (photochemical reaction) of pollutants such as nitrogen oxides (NOx) from vehicle and industry emissions and volatile organic compounds (VOCs) emitted by vehicles, solvents and industry. As a result, the highest levels of ozone pollution occur during sunny weather. Excessive ozone in the air can have a marked effect on human health. It can cause breathing problems, trigger asthma, reduce lung function and cause lung diseases. 3. Nitrogen dioxide (NO2) NO2 is the main source of nitrate aerosols, which form an important fraction of PM2.5 and, in the presence of ultraviolet light, of ozone. The major sources of anthropogenic emissions of NO2 are combustion processes (heating, power generation, and engines in vehicles and ships). Epidemiological studies have shown that symptoms of bronchitis in asthmatic children increase in association with long-term exposure to NO2. Reduced lung function growth is also linked to NO2. 4. Sulfur dioxide (SO2) SO2 is a colourless gas with a sharp odour. It is produced from the burning of fossil fuels (coal and oil) and the smelting of mineral ores that contain sulfur. The main anthropogenic source of SO2 is the burning of sulfur-containing fossil fuels for domestic heating, power generation and motor vehicles. SO2 can affect the respiratory system and the functions of the lungs, and causes irritation of the eyes. Inflammation of the respiratory tract causes coughing, mucus secretion, aggravation of asthma and chronic bronchitis and makes people more prone to infections of the respiratory tract. Hospital admissions for cardiac disease and mortality increase on days with higher SO2 levels. When SO2 combines with water, it forms sulfuric acid; this is the main component of acid rain which is a cause of deforestation. 5. Carbon Monoxide Carbon monoxide reduces the capacity of blood to carry oxygen. Symptoms associated with exposure to carbon monoxide include dizziness, nausea, headache, loss of consciousness and death. Persons with coronary artery disease and fetuses are particularly susceptible. Some practical ways of reducing air pollution include: - 1. Use of clean technologies in industries to reduce industrial smokestack emissions; improved management of urban and agricultural waste, including capture of methane gas emitted from waste sites as an alternative to incineration (for use as biogas) 2. Access to affordable clean household energy solutions for cooking, heating and lighting; 3. Transport sector improvements such as shifting to clean power generation; prioritizing rapid urban transit, walking and cycling networks in cities as well as rail interurban freight 4  and passenger travel; shifting to cleaner heavy-duty diesel vehicles and low-emissions vehicles and fuels, including fuels with reduced sulfur content 4. Improving urban planning by improving the energy efficiency of buildings and making cities greener and more compact, and thus energy efficient 5. Eco-friendly power generation such as use of low-emissions fuels and renewable combustion-free power sources (like solar, wind or hydropower); co-generation of heat and power; and distributed energy generation (e.g. mini-grids and rooftop solar power generation) 6. Better waste management including waste reduction, waste separation, recycling and reuse or waste reprocessing; as well as improved methods of biological waste management such as anaerobic waste digestion to produce biogas as alternatives to the open incineration of solid waste. Where incineration is unavoidable, then combustion technologies with strict emission controls are critical. The Legal Framework EMCA Section 78 of EMCA empowers the Cabinet Secretary following recommendations from NEMA to: - 1. Establish criteria and procedures for the for the measurement of air quality 2. Set air quality standards which include: - a) Ambient air quality standards b) Occupational air quality standards, emission standards for various sources c) Criteria and guidelines for air pollution control for both mobile and stationary sources 3. Determine measures necessary to reduce existing sources of air pollution by requiring the redesign of plants or the installation of new technology or both, to meet the requirements of standards established under this section 4. Issue guidelines to minimize emissions of greenhouse gases and identify suitable technologies to minimize air pollution 5. Take measures for monitoring and controlling of air pollution. Section 79 of EMCA empowers the Cabinet Secretary to declare any area to be a controlled area for purposes of emission control and to prescribe air emission standards for such a controlled area. Section 80 requires that the owner or operator of a trade, industrial undertaking or an establishment which is emitting a substance or energy that is likely to cause air pollution to apply to NEMA for an emission licence. Section 81 requires that before issuing a licence in respect of emissions, NEMA shall: - a) Consider the possible effects of the emissions on the quality of ambient air 5  b) Consider existing licences affecting the same air resource c) Consider the requirements for the residents, human settlements and other industrial and commercial activities d) Solicit the comments of relevant Local Authorities and concerned organisations e) Where necessary, require the applicant to provide more information relating to the undertaking in question, its location, materials, technology design or other appropriate matters f) Where necessary, require the applicant to conduct an environmental impact study. Section 81(3), in the event that NEMA rejects an application for the grant of an emission licence, it shall notify the applicant within twenty one days. Section 82 prohibits owners or operators of vehicles, trains, ship, and aircraft from operating their vehicle in manner that causes pollution. It also prohibits the importation of any machinery, equipment, device or similar thing that will cause air pollution. Section 84 empowers NEMA to cancel an emission licence if the holder of the licence contravenes the law, fails to comply with any condition specified in the licence or if NEMA considers it in the interest of the environment or in the public interest so to do. ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (AIR QUALITY) REGULATIONS, 2013 make further provision for the regulation of air quality. Under Regulation 5, no person shall- a) Act in a way that directly or indirectly causes, or is likely to cause immediate or subsequent air pollution b) Emit any liquid, solid or gaseous substance or deposit any such substance in levels exceeding those set out in the Regulations. Regulation6 provides that no person shall cause or allow emissions of the priority air pollutants prescribed in the Regulations to cause the prescribed ambient air quality limits to be exceeded. Regulation 7 provides that no person shall cause the ambient air quality levels specified in the Regulations to be exceeded. Regulation 8 provides that no person shall cause or allow particulate emissions into the atmosphere from any facility listed under the Regulations in excess of the prescribed limits. Regulation 9 prohibits owners of premises from causing or allowing the generation of any odour which unreasonably interferes, or is likely to interfere with the lawful use or enjoyment of property by others. 6 OTHER LAWS ON AIR 1. Environmental Policy , 2013 2. Kenya Standards Act, Cap 496 3. Kenya Standard (KS 1515) 4. Occupational Health and Safety Act, 2007 5. Public Health Act, Cap 242 6. National Transport and Safety Act, 2012 7. Energy Act, 2006 7 OZONE LAYER Section 56 empowers the Cabinet Secretary in consultation with NEMA to undertake or commission national studies and consider to developments in scientific knowledge relating to substances, activities and practices that deplete the ozone layer to the detriment of public health and the environment. The Cabinet Secretary in consultation with NEMA is empowered to issue guidelines and institute programmes concerning the: - a) Elimination of substances that deplete the stratospheric ozone layer b) Controlling of activities and practices likely to lead to the degradation of the ozone layer and the stratosphere c) Reduction and minimisation of risks to human health created by the degradation of the ozone layer and the stratosphere d) Formulate strategies, prepare and evaluate programmes for phasing out ozone depleting substances. 8 CLIMATE CHANGE INTRODUCTION Kenya has a complex and variable climate ranging from warm and humid in the coastal regions to arid in the east and very arid in the north. The central and western highlands, bisected by the Rift Valley, have a temperate climate with medium to high rainfall and are the productive zones with high to medium agricultural potential (about 18% of Kenya’s land area). Low and unevenly distributed rainfall over much of the country means about 82% of Kenya receives less than 700 mm of rain per year. Twenty-three of Kenya’s 47 Counties are considered as arid or semi-arid lands (ASALs). 1 Kenya is frequently affected by weather-related disasters, particularly droughts, which have a profound impact on Kenya’s economy and people’s well- being. 2 Kenya’s climate is already changing. Surface temperatures across Africa have increased by 0.5- 2°C over the past 100 years, and from 1950 onward climate change has changed the magnitude and frequency of extreme weather events. The frequency of cold days, cold nights and frost has decreased; while the frequency of hot days, hot nights and heat waves has increased. Temperature increase has been observed across all seasons, but particularly from March to May. Rainfall patterns have also changed. The long rainy season has become shorter and drier, and the short rainy season has become longer and wetter, while overall annual rainfall remains low. The long rains have been declining continuously in recent decades, and droughts have become longer and more intense and tend to continue across rainy seasons. The frequency of rainfall events causing floods has increased in East Africa from an average of less than three events per year in the 1980s to over seven events per year in the 1990s and 10 events per year from 2000 to 2006, with a particular increase in floods. Droughts and heavy rainfall have become more frequent in the last 30 years. The current trend of rising annual temperatures is expected to continue in Kenya in all seasons. The precipitation projections are more uncertain and suggest that by the end of the 1 National Climate Change Action Plan: 2018-2022 2 National Climate Change Action Plan: 2018-2022 9 21st century East Africa will have a wetter climate with more intense wet seasons and less severe droughts. The proportion of rainfall that occurs in heavy events is expected to increase. Heat, drought and floods are impacting Kenyans, and human health is increasingly at risk. Kenya’s economy is very dependent on climate-sensitive sectors such as agriculture, water, energy, tourism, wildlife, and health. The increasing intensity and magnitude of weather related disasters in Kenya aggravates conflicts, mostly over natural resources, and contributes to security threats. Kenya has little historical or current responsibility for global climate change; the country’s GHG emissions represent less than 1% of total global emissions. Adaptation is the priority for Kenya, but climate action also needs to reduce greenhouse gas emissions that are projected to increase because of population and economic growth. Actions in the six mitigation sectors set out in the UNFCCC – agriculture, energy, forestry, industry, transport, and waste – are expected to lead to lower emissions than in the projected baseline and help to meet Kenya’s mitigation NDC to abate GHG emissions by 30% by 2030 relative to the business as usual scenario. The forestry sector has large potential to reduce greenhouse gas emissions in Kenya because forests act as “sinks” through carbon sequestration. IMPACT OF CLIMATE CHANGE Social Impacts of Climate Change Floods have led to the greatest loss of human lives in Kenya. Between 1990 and 2015, a total of 43 flood disasters were recorded in Kenya, which is equivalent to an average of 1.65 flood disasters per year. On average, each flood disaster affected 68,000 people. The floods in early 2018 claimed over 183 lives, displaced more than 225,000 people including over 145,000 children, and closed over 700 schools. The floods led to cholera outbreaks in at least five Counties, and people experienced an upsurge of mosquito-borne diseases such as malaria and dengue fever. An estimated 267,000 Kenyans will be at risk of coastal flooding by 2030 because of the rise in the sea level; a rise of the sea level by 30 centimetres is capable of submerging Mombasa and 17% of coastal areas. The coast area has the largest seaport in East Africa and supports tourism and fishing industries. 10 Droughts in Kenya affect about 4.8 million people on average. Droughts have destroyed livelihoods, triggered local conflicts over scarce resources like pasture (such as the ongoing conflicts in Laikipia pitting pastoralists on one hand against ranchers and crop farmers on the other hand) as well as the eroded the ability of communities to cope. The 2014-18 drought was declared a national emergency in February 2017 and at that point in time affected 23 of 47 Counties in the ASALs. At least 3.4 million Kenyans were severely food insecure and an estimated 500,000 people did not have access to water. An estimated 482,882 children mainly from 23 ASAL Counties required treatment for acute malnutrition, and school attendance figures dropped in Counties impacted by drought. Drought can cause changes in the migratory patterns of animals and increase conflicts between people and large mammals such as elephants. Kenya’s ASALs are particularly vulnerable to the impacts of climate change because the highest incidence of poverty is found in these areas and women and men experience greater competition over resources, rising populations and in-migration from the densely-populated highlands, and lower access to infrastructure such as potable water, electricity and telecommunication facilities. The ASAL economy is highly dependent on climate sensitive activities, supporting more than 70% of the national livestock population and 90% of the wildlife that is the mainstay of the tourism sector. Cross-border and cross-county conflict can be exacerbated by climate change. As temperatures rise and rainfall patterns change, some areas become less conducive for livestock, particularly cattle, leading to a reduction in herd numbers. Those counties with favourable conditions, such as Laikipia, could enter into resource use conflicts as pastoralists from other counties move their animals to water and better pasture conditions. Cross border conflicts could increase with other countries, such as Ethiopia and Tanzania, as pastoralists compete for food, water and grazing lands. There is evidence of migration linked to climate change in Kenya, mainly because vulnerable groups are reliant on resource-based livelihoods. Reduced agricultural productivity is a main force behind rural-urban migration and settling in risk-prone areas and informal settlements. Resource scarcity, which often intermingles with historical land conflicts, can lead to displacement. Floods, droughts, and landslides also contribute to movement of people. 11 Vulnerable groups include remote and pastoralist communities, hunters and gatherers, and fisher communities that are affected by climate change because of environmental degradation and growing competition for land and water. Persons with disabilities, children and the elderly are vulnerable because of potential impacts on health and their more limited mobility. Many artisanal fisher communities suffer from severe poverty and are impacted by more severe storms and heavy rainfall causing rough seas, especially in the May-June-July period when they are unable to fish or risk their lives attempting to earn income. Concern has also been expressed regarding the vulnerability of the poor who live in urban slums. Women are vulnerable to climate change. Their role as primary caregivers and providers of food and fuel makes them more vulnerable when flooding and drought occur. Drought compromises hygiene for girls and women as the little water available is used for drinking and cooking, and has a negative effect on women’s time management in the household. When nearby wells and waters sources run dry, women have to travel long distances to search for water. Longer dry seasons mean that women work harder to feed and care for their families. In both urban and rural areas, women have multiple demands in the home, workplace and community that leave less time for political involvement and active participation in decision making processes. Women in traditional communities may be subject to cultural beliefs that deny equal opportunities and rights. Women are more likely to experience poverty, less likely to own land and have less socioeconomic power than men. This makes it difficult to recover from climate disasters that affect infrastructure, jobs and housing. Environmental Impacts of Climate Change Droughts are typically large-scale disasters in Kenya. The International Disaster Database reported that a total of ten droughts occurred in Kenya between 1990 and 2015, or one every 2.5 years. An assessment of the 2017 long rain season in ASAL Counties conducted by the Kenya Food Security Steering Group found that spatial and temporal distribution of rain was poor across the country. The rains began late across most of the country, resulting in a shortened rainy season, and most areas received 50-90% of normal rainfall. Rising sea temperatures in the Western Indian Ocean influence the coastal conditions associated with Kenya. The IPCC reports that sea temperatures have increased by 0.60°C over 1950-2009, triggering mass coral bleaching and mortality on coral reef systems over the past 12 two decades. This is likely to change the abundance and composition of fish species, with a negative impact on coastal fisheries. Rising sea levels are a concern for Kenya’s coastline consisting of mangroves, coral reefs, sea grass and rocky, sandy and muddy shores. The IPCC reports that over the period 1901- 2010, global mean sea level rose by 0.19 metres, a result of thermal expansion of the ocean due to warming plus the addition of water from the loss of mass by melting glaciers and ice sheets. The annual rise over the past 20 years has been 3.2 millimetres per year, roughly twice the average speed of the earlier 80 years. Globally, sea levels are projected to rise from 26 to 82 cm by the 2080s. The rate of sea level rise along Africa’s Indian Ocean coast is projected to be greater than the global average. This will lead to greater levels of and more frequent coastal flooding, changing patterns of shoreline erosion, increased salinity of coastal aquifers, and modification of coastal ecosystems such as beaches, coral reefs and mangroves. Ocean acidification refers to a reduction in the pH of the ocean over an extended period of time caused mainly by the uptake of carbon dioxide from the atmosphere. The IPCC reports that the ocean has absorbed about 30% of the emitted anthropogenic carbon dioxide, causing seawater to become more acidic. Ocean acidification is expected to impact many ocean species, leading to declines with negative impacts on fisher communities that rely on these species for food and livelihoods. Marine species that are dependent on calcium carbonate to build their shells and skeletons, such as corals, are highly vulnerable. Little is actually known about ocean acidification in the Western Indian Ocean because long-term observations and relevant experiments have not been carried out.32 Research is underway to determine the economic and social impacts of ocean acidification on coastal communities and fisheries in Kenya. The glaciers of Mount Kenya are declining and are expected to disappear in the next 30 years, largely because of climate change. The Lewis Glacier shrunk by 23% in the six years from 2004 to 2010, and the Gregory Glacier disappeared. The ice volume of Lewis Glacier decreased from about 7.7 km3 in 1978 to about 0.3 km3 in 2004 with an average thickness loss of almost one metre of ice per year. The glaciers are melting because of a lack of precipitation (diminished snowfall on the mountain peaks) to sustain the glaciers. Mount Kenya is one of the country’s water towers and the source of numerous rivers and streams. 13 Desertification in the ASALs can be attributed to climate change impacts, in addition to human activities. It is intensifying and spreading, reducing the productivity of the land and negatively affecting communities. Climate change is also a major factor contributing to land degradation, which encompasses changes in the chemical, physical and biological properties of the soil. However, human activities pose the greatest threat through unsustainable land management practices such as destruction of natural vegetation, over-cultivation, over grazing and deforestation. Restoration of degraded land aims to achieve land degradation neutrality that maintains or enhances the land resource base – or the stocks of natural capital associated with the land resources and the ecosystem services that flow from them. Restoration of degraded land has important climate benefits, including the sequestration of carbon dioxide and improved climate resilience by recovering lost ecosystems. Kenya launched an ambitious land restoration programme in 2016 that targets restoration of 5.1 million hectares of degraded and deforested landscapes by 2030. Climate change is contributing to a loss of Kenya’s biodiversity. The Inter-Governmental Science-Policy Platform on Biodiversity and Ecosystem Services reported that climate change is likely to result in significant losses of many African plant species, some animal species, and a decline in the productivity of fisheries in inland waters of Africa during the 21st century. Dozens of animals died in 2017 as a result of lack of water and pasture in national parks and reserves, a direct impact of the ongoing drought. Kenya Wildlife Services (KWS) reported that in some years, more animals die from drought than poaching in Kenya. Climate change has the potential to alter migratory routes and timings of species that use seasonal wetlands (such as migratory birds) and track seasonal changes in vegetation (such as herbivores). Climate change significantly affects marine ecosystems and will lead to large-scale shifts in the patterns of marine productivity, biodiversity, community composition and ecosystem structure. Deforestation and forest degradation in Kenya is largely a result of human activities, although climate change is likely to affect the growth, composition and regeneration capacity of forests resulting in reduced biodiversity and capacity to deliver important forest goods and services. Rising temperatures and long periods of drought will lead to more frequent and intense forest fires, rising temperatures will extend the ecosystem range of pests and pathogens with consequences on tree growth, survival, yield and quality of wood and non-wood products, 14 and rising sea levels could submerge mangrove forests in low-lying coastal areas. Kenya lost about 12,000 ha of forest annually from 1990 to 2005 through deforestation, and the 12% forest cover at Independence in 1963 had been reduced to about 6.9% in 2017 due to population pressure for settlements, infrastructure, demand for wood products and conversion to agriculture. Deforestation is a major cause of climate change because clearing forests releases huge amounts of greenhouse gases. The Great Rift Valley lakes of Kenya have recently experienced significant increases in their water levels, negatively impacting the local communities. These increases have been attributed to climate change. The most affected are Lake Baringo, Lake Bogoria and Lake Nakuru. Lake Baringo is recognized for its biodiversity as well as its importance to the communities in its basin as a source of water for domestic and agricultural use, watering livestock, income generation through tourism, biodiversity conservation and fishing. The hotels, infrastructure, homes, agricultural fields, grazing areas, dispensaries, health centres and schools around the lake have affected by the rising water levels. About 5000 people have been displaced by the flood inundation. Lake Bogoria is located within a National Reserve, where important tourism infrastructure including geothermal springs have been submerged under water or rendered inaccessible. Additionally, the lake is highly alkaline and there is concern that the alkaline lake will overflow and merge with the freshwater Lake Baringo located about 20 km to the North, thereby causing severe cross-contamination. Lake Nakuru, a Ramsar site of wetlands of international importance, is also famous for its spectacular bird populations including the Lesser and Greater Flamingo. The birds rely on the algae in the lake. The increase in the water levels have changed the water quality of the normally alkaline-saline lake, leading to loss of the algae abundance. In consequence, a vast number of Flamingos have left. Flood inundation around the lake has also affected the national park and road infrastructure including the main administration block thereby limiting access to tourists. About 60 % of the park is now inaccessible. Other climate-related hazards in Kenya include landslides and forest fires. Landslides are largely associated with heavy rainfall in regions with steep slopes, such as Murang’a County, the western Counties, and the north Rift Valley. 15 Economic Impacts of Climate Change The economic cost of floods and droughts is estimated to create a long-term fiscal liability equivalent to 2%-2.8% of GDP each year. Specifically, the estimated costs of floods are about 5.5% of GDP every seven years, while droughts account for 8% of GDP every five years. The economic impacts of floods are severe; in 2018, rain and flooding wiped out resources worth billions of shillings. Roads and infrastructure were destroyed, seasonal crops across an estimated 8,500 ha of land were destroyed and over 20,000 livestock drowned. The Government allocated over KES 75 billion to combat floods and fix roads destroyed by the rains. The El Niño induced floods in 1997/1998 caused losses and damages of between US$ 800 million and US$ 1.2 billion. Droughts have had the greatest economic impact – on average, a 0.6 percentage point decline in GDP growth is observed in Kenya in years of poor rains. The agriculture sector grew by 1.6% in 2017, compared to 4.7% in 2016, because drought suppressed production of crops and adversely affected livestock production.50 The drought depressed generation of hydroelectricity leading to an increase in generation of electricity from thermal sources that are more costly and produce greenhouse gas emissions. From 2007 to 2017, losses in livestock populations due to drought-related causes amounted to nearly US$ 1.08 billion. The 2008- 2011 drought was estimated to have cost the Kenyan economy KES 968.6 billion: KES 64.4 billion for the destruction of physical assets and KES 904.1 billion for losses in the flows of the economy. Along with other internal and external shocks, the severe droughts between 2008 and 2011 contributed to the reduction in Kenya's GDP growth rate from an average of 6.5% in 2006/2007 to an average of 3.8% between 2008 and 2012. The impacts of drought are felt at the household level and are particularly devastating for pastoralists in the ASALs where livestock production – and specifically, semi-nomadic pastoralism – is the key income source. The share of livestock income in total household economic income ranges from 25% to 80% in Mandera, Marsabit, Turkana, and Wajir (with the share larger for poorer families). Drought can weigh heavily on pastoralists because animals often perish; over 70% of livestock mortality in the ASALs is caused by drought. As a result, droughts cause significant disruptions in income streams and loss of assets. Kenya risks 16 losing about 1.7 million cattle, or 52% of the total cattle population in ASALs in the next ten years because of drought and the effects of climate change. Livestock farmers risk losing between KES 34 to KES 68 billion in the ten-year period, with the largest impacts in Garissa, Wajir, Tana River, and Turkana. Sea level rise is impacting coastal towns and communities. In 2020, the National Museums of Kenya completed construction of a KES 497 million sea wall to protect Fort Jesus in Mombasa from erosion caused by rising sea levels and storm surges. Coastal flooding from sea-level rise is projected to affect 10,000–86,000 people a year as well as lead to coastal erosion and wetland loss at an annual cost of US$ 7–58 million by 2030, rising to US$ 31–313 million by 2050. LEGAL FRAMWEWORK FOR CLIMATE CHANGE The international response to climate change is founded upon the United Nations Framework Convention on Climate Change. The Paris Agreement under the UNFCCC aims to strengthen the global response to the threat of climate change by keeping global temperature rise this century well below 2°C above pre-industrial levels. Kenya’s NDC sets out the country’s actions to contribute to achieving the global goal set out in the Paris Agreement, and includes mitigation and adaptation contributions. The Paris Agreement entered into force for Kenya on 27th January 2017, and as set out in Article 2(6) of the Constitution of Kenya (2010), the Paris Agreement now forms part of the law of Kenya. At the domestic level, a robust regulatory framework comprising laws, policies, plans and institutions is being progressively established at the National and County levels to address climate change. The foundation of the institutional and legal framework for climate change action is the Constitution of Kenya (2010). Constitution of Kenya 2010 Article 10 sets out national values and principles of governance, such as sustainable development, devolution of government, and public participation, that are mandatory when making or implementing any law or public policy decisions, including climate change. 17 Article 42 provides for the right to a clean and healthy environment for every Kenyan, which includes the right to have the environment protected for the benefit of present and future generations. Climate Change Act, 2016 The Climate Change Act, 2016 is the main legislation guiding Kenya’s climate change response through mainstreaming climate change into sector functions. The Climate Change Act, 2016 which came into effect on 27th May 2016. This is an Act of Parliament to provide for a regulatory framework for enhanced response to climate change; to provide for mechanism and measures to achieve low carbon climate development, and for connected purposes. Climate Change is defined as a change in the climate system which is caused by significant changes in the concentration of greenhouse gases as a consequence of human activities and which is in addition to natural climate change that has been observed during a considerable period. 3 Greenhouse Gas includes but is not limited to Carbon Dioxide; Methane; Nitrous Oxide; Hydrofluorocarbons; Perfluorocarbons; Sulphur hexafluoride; and Indirect greenhouse gases 4 EMCA Section 56A requires the Cabinet Secretary shall, in consultation with relevant lead agencies to issue guidelines and prescribe measures on climate change. Environmental Management and Coordination (Air Quality) Regulations The Regulations set emissions standards and prohibit owners or occupiers of facilities from causing emission of air pollutants in excess of the prescribed limits. They are also required to install air pollution control technologies to mitigate GHGs and monitor emissions. Thus, entities that emit beyond the prescribed limit or fail to install monitoring and mitigation technologies (or report) could be found to be in violation of the right to a clean and healthy environment. 3 Section 2, Climate Change Act, 2016 4 Section 2, Climate Change Act, 2016 18 Other delegated legislation, sector plans and policies that address aspects of climate change include: - 1. The National Climate Change Response Strategy (2010) 2. The National Climate Change Response Strategy (2018-2022) 3. National Adaptation Plan (NAP 2015- 2030) 4. Kenya Climate Smart Agriculture Strategy (2017-2026) 5. Climate Risk Management Framework (2017) 6. National Climate Change Policy (2018) 7. National Climate Finance Policy (2018) 8. The National Climate Change Action Plan (2013-2017) 9. Kenya’s Nationally Determined Contribution (NDC) (2016) 10. Kenya’s Nationally Determined Contribution (NDC) (2020) 11. National Climate Change Framework Policy (2018) 12. National Climate Finance Policy (2018) 13. Kenya Vision 2030 (2008) and its Medium Term Plans 14. Big Four Agenda (2018- 2022) 15. County level climate change fund regulations such as those enacted in Garissa, Makueni and Wajir Counties 16. The Environment, Social and Governance Disclosure Guidelines Manual developed by the Nairobi Securities Exchange INTERNATIONAL FRAWMEWORK FOR CLIMATE CHANGE United Nations Framework Convention on Climate Change (UNFCCC) The UNFCCC that entered into force in 1994. Kenya signed the UNFCCC on 12th June 1992 and ratified the Convention on 30th August 1994. Kenya is a key player in the global climate change governance system and participates in the meetings of the Conference of the Parties (COP) to the UNFCCC, articulating the national interest and the country’s position during international negotiations. The objective of the UNFCCC is set out in Article 2, which states: 19  The ultimate objective of this Convention is to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate systems. Such a level should be achieved within a time- frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. The Kyoto Protocol The Kyoto Protocol, a greenhouse gas emissions reduction treaty linked to the UNFCCC, was adopted by the COP in 1997 and entered into force in 2005. The Kyoto Protocol is an international agreement that commits developed countries and countries in transition to market economics to reduce their overall GHG emissions. The Kyoto Protocol created the Clean Development Mechanism (CDM) under which developing country projects that reduced emissions and contributed to sustainable development earned credits that could be sold to countries or companies with a commitment to reduce emissions. More that 1.5 billion tonnes of carbon dioxide were avoided through the CDM, and US$ 9.5-13.5 billion in direct benefits went to host counties from the sale of credits as of 2012. The first commitment period started in 2008 and ended in 2012. Parties to the Kyoto Protocol adopted an amendment in 2012, which has yet to enter into force. Kenya ratified the Kyoto Protocol on 25th February 2005. Paris Agreement (COP 21) Internationally, Kenya is a party to the Paris Agreement. The Paris Agreement is a legally binding international treaty on climate change. It was adopted by 196 Parties at COP 21 in Paris, on 12 December 2015 and entered into force on 4 November 2016. Its goal is to limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels. To achieve this long-term temperature goal, countries aim to reach global peaking of greenhouse gas emissions as soon as possible to achieve a climate neutral world by mid- century. The Paris Agreement entered into force internationally on 4th November 2016, thirty days after 5th October 2016, the date on which the threshold for entry into force was achieved. As of May 2018, 178 Parties had ratified the Convention, surpassing the threshold for entry of at 20 least 55 Parties to the Convention accounting in total for at least an estimated 55% of the total global GHG emissions. The Paris Agreement was ratified by Kenya on 26th December 2016 under section 9(1) of the Treaty Making and Ratification Act, and entered into force for Kenya on 27th January 2017. Kenya’s NDC sets out the country’s actions to contribute to achieving the global goal set out in the Paris Agreement. As set out in Article 2(6), and read with Article 94(5) of the Constitution of Kenya (2010), the Paris Agreement now forms part of the law of Kenya. The Paris Agreement aims to strengthen the global response to the threat of climate change by keeping global temperature rise this century to well below 2°C above pre-industrial levels. Additionally, the Agreement aims to strengthen the ability of countries to deal with the impacts of climate change. To reach these ambitious goals, appropriate financial flows, a new technology framework, and an enhanced capacity building framework will be put in place to support developing countries. The Paris Agreement is considered a landmark in the multilateral climate change process because, for the first time, a binding agreement brings all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects. Implementation of the Paris Agreement requires economic and social transformation, based on the best available science. The Paris Agreement works on a 5- year cycle of increasingly ambitious climate action carried out by countries. Countries were required to submit their plans for climate action known as nationally determined contributions (NDCs) by 2020. In their NDCs, countries communicate actions they will take to reduce their Greenhouse Gas emissions in order to reach the goals of the Paris Agreement. Countries also communicate in the NDCs actions they will take to build resilience to adapt to the impacts of rising temperatures. To better frame the efforts towards the long-term goal, the Paris Agreement invites countries to formulate and submit by 2020 long-term low greenhouse gas emission development strategies (LT-LEDS). LT-LEDS provide the long-term horizon to the NDCs. Unlike NDCs, they are not mandatory. Nevertheless, they place the NDCs into the context of countries’ long- 21 term planning and development priorities, providing a vision and direction for future development. The Paris Agreement provides a framework for financial, technical and capacity building support to those countries who need it. It reaffirms that developed countries should take the lead in providing financial assistance to countries that are less endowed and more vulnerable, while for the first time also encouraging voluntary contributions by other Parties. Climate finance is needed for mitigation, because large-scale investments are required to significantly reduce emissions. Climate finance is equally important for adaptation, as significant financial resources are needed to adapt to the adverse effects and reduce the impacts of a changing climate. The Paris Agreement speaks of the vision of fully realizing technology development and transfer for both improving resilience to climate change and reducing GHG emissions. It establishes a technology framework to provide overarching guidance to the well-functioning Technology Mechanism. The mechanism is accelerating technology development and transfer through its policy and implementation arms. Not all developing countries have sufficient capacities to deal with many of the challenges brought by climate change. As a result, the Paris Agreement places great emphasis on climate- related capacity-building for developing countries and requests all developed countries to enhance support for capacity-building actions in developing countries. With the Paris Agreement, countries established an enhanced transparency framework (ETF). Under ETF, starting in 2024, countries will report transparently on actions taken and progress in climate change mitigation, adaptation measures and support provided or received. It also provides for international procedures for the review of the submitted reports. The information gathered through the ETF will feed into the Global stocktake which will assess the collective progress towards the long-term climate goals. This will lead to recommendations for countries to set more ambitious plans in the next round. Although climate change action needs to be massively increased to achieve the goals of the Paris Agreement, the years since its entry into force have already sparked low-carbon solutions and new markets. More and more countries, regions, cities and companies are establishing carbon neutrality targets. Zero-carbon solutions are becoming competitive 22 across economic sectors representing 25% of emissions. This trend is most noticeable in the power and transport sectors and has created many new business opportunities for early movers. By 2030, zero-carbon solutions could be competitive in sectors representing over 70% of global emissions. The Green Climate Fund (GCF) is an operating entity of the Financial Mechanism of the UNFCCC that serves the Paris Agreement and supports projects, programmes and other activities in developing countries. The Fund aims for a 50:50 balance between mitigation and adaptation investments, and engages directly with the private sector through its Private Sector Facility. As of May 2018, 43 governments had made pledges to the GCF totalling US$ 10.3 billion. The Global Environment Facility manages contributions from donors through trust funds to help developing countries meet the objectives of international environment conventions, including the UNFCCC. The trust funds include the Adaptation Fund, Special Climate Change Fund, and Capacity Building Initiative for Transparency (CBIT). The Glasgow Climate Pact (COP 26 Agreement) A new global agreement was reached at the COP26 summit. It aims to reduce the worst impacts of climate change. The agreement, although not legally binding, will set the global agenda on climate change for the next decade. It was agreed countries will meet next year to pledge further cuts to emissions of carbon dioxide (CO2) - a greenhouse gas which causes climate change. This is in a bid to keep temperature rises within 1.5C which scientists say is required to prevent a ‘climate catastrophe’. Current pledges, if met, will only limit global warming to about 2.4C. For the first time at a COP conference, there was an explicit plan to reduce use of coal which is responsible for 40% of annual CO2 emissions. However, countries only agreed a weaker commitment to ‘phase down’ rather than ‘phase out’ coal after a late intervention by China and India. The agreement pledged to significantly increase money to help poor countries cope with the effects of climate change and make the switch to clean energy. There's also the prospect of a trillion dollar a year fund from 2025, after a previous pledge for richer countries to provide $100bn (£72bn) a year by 2020 was missed. 23 World leaders agreed to phase-out subsidies that artificially lower the price of coal, oil, or natural gas. However, no firm dates have been set. The world's biggest CO2 emitters, the US and China, pledged to cooperate more over the next decade in areas including methane emissions and the switch to clean energy. China has previously been reluctant to tackle domestic coal emissions and so this was seen as recognising the need for urgent action. Leaders from more than 100 countries - with about 85% of the world's forests - promised to stop deforestation by 2030. This is seen as vital, as trees absorb vast amounts of CO2. Similar initiatives haven't stopped deforestation, but this one's better funded. However, it's unclear how the pledge will be policed. A scheme to cut 30% of methane emissions by 2030 was agreed by more than 100 countries. Methane is currently responsible for a third of human-generated warming. Financial organisations controlling $130tn agreed to back ‘clean’ technology, such as renewable energy, and direct finance away from fossil fuel-burning industries. The initiative is an attempt to involve private companies in meeting net zero targets. Most commitments made at COP will have to be self-policed. Only a few countries are making their pledges legally binding. Rio Conventions Kenya is signatory to the United Nations Convention on Biological Diversity, 1992 (CBD) and the United Nations Convention to Combat Desertification, 1994 (UNCCD). Kenya became Party to the CBD on 24th October 1994 and ratified the UNCCD on 25th June 1997. These two conventions plus the UNFCCC are known as the Rio Conventions and are intrinsically linked because they address interdependent issues such as sustainable land management and land degradation neutrality. Montreal Protocol on Substances that Deplete the Ozone Layer Kenya is a signatory to this global agreement with universal ratification to protect the stratospheric ozone layer by phasing out the production and consumption of ozone-depleting substances. The Protocol was agreed on 16th September 1987 and entered into force on 1st 24 January 1989. Kenya ratified it on 9th November 1988. Kenya’s ratification of the Kigali Amendment to phase down the production and usage of hydrofluorocarbons is in progress in January 2022. At the end of 2014 over 98% of controlled ozone-depleting substances had been eliminated. A very significant co-benefit is emission reductions of 135,000 Mt COe from 1989 to 2013. Stockholm Convention on Persistent Organic Pollutants The Stockholm Convention on Persistent Organic Pollutants is an international environment treaty that was signed in 2001 and entered into force in May 2004. The Convention aims to eliminate or restrict the production and use of persistent organic pollutants. Kenya ratified the Stockholm Convention on 24th September 2004. Climate change has potential impacts on the releases, transport, distribution, and toxicity of persistent organic pollutants, which could lead to higher health risks for human populations and the environment. The Minamata Convention on Mercury The Minamata Convention on Mercury aims to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury compounds. The Convention was adopted and opened for signature in October 2013. Countries had ratified the agreement by June 2018. Kenya signed the Convention on 10th October 2013 but is still in the process of preparing its instrument of ratification in January 2022. Both the UNFCCC and Minamata Convention place a significant onus on emissions from coal combustion and promote efficient use of coal. The United Nations Convention on the Law of the Sea of 10th December 1982 (UNCLOS) UNCLOS aims to establish a comprehensive set of rules governing the oceans. Kenya ratified UNCLOS on 2nd March 1989. The interface between climate change and this international law include changes to the existing boundaries of maritime zones because of sea level rise, and requirements to regulate emissions from aircraft and marine vessels. There is discussion around the dispute settlement mechanism established in UNCLOS eventually attracting claims relating to climate change. The International Civil Aviation Organization (ICAO) Assembly Resolutions A37-19 (2010) and A38-18 (2013) 25 The ICAO Resolutions set global aspirational goals to ensure carbon neutral growth from 2020 and a 2% annual increase in fuel efficiency up to 2050. In 2015, Kenya set a target to achieve an annual average fuel efficiency improvement of 2% equivalent to 2.86 MtCO2e until 2030 and an aspirational fuel efficiency improvement rate of 2% per annum from 2031 to 2050. Kenya ratified the Convention on International Civil Aviation on 1st May 1964. Protocol to the International Convention for the Prevention of Pollution from Ships, 1997 (MARPOL Annex VI) Kenya has been a member of the International Maritime Organization (IMO) since 1973. The IMO adopted an initial strategy in 2018 to reduce total annual GHG emissions from ships by at least 50% by 2050 compared to 2008. MARPOL Annex VI, regulates air emissions from ships. Compliance with these IMO regulations has mitigated GHG emissions from international shipping. Jomo Kenyatta University of Agriculture and Technology hosts the regional Maritime Technology Cooperation Centre for the Africa region that aims to help mitigate the harmful effects of climate change. The Kenya Ports Authority adopted a Green Port Strategy. The Climate and Clean Air Coalition to Reduce Short-lived Climate Pollutants This coalition was founded in February 2012 as a voluntary partnership of 60 governments, intergovernmental organisations, businesses, scientific institutions, and civil society organizations committed to improving air quality and protecting the climate through actions to reduce short-lived climate pollutants. These pollutants include emissions of black carbon (soot), methane, tropospheric ozone and some hydrofluorocarbons. Kenya became a partner of the coalition in 2012. The Sendai Framework for Disaster Risk Reduction 2015-2030 The Framework is a voluntary agreement that recognises that the State has the primary role to reduce disaster risk, but that responsibility should be shared with other stakeholders including local governments, the private sector and other stakeholders. It aims for the following outcome: “The substantial reduction of disaster risk and losses in lives, livelihoods and health and in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries. Kenya adopted the Sendai Framework in 2015. 26 2030 Agenda for Sustainable Development Kenya is committed to the 2030 Agenda for Sustainable Development that was adopted by world leaders, including the President of the Republic of Kenya, in September 2015 at the United Nations (UN) Sustainable Development Summit. On 1st January 2016, the 17 Sustainable Development Goals (SDGs) officially came into force. These goals relevant to climate change are: - Goal 13: Take urgent action to combat climate change and its impacts Goal 15: Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss While the SDGs are not legally binding, governments are expected to take ownership and establish national frameworks for the achievements of the goals. The 2030 Agenda includes SDG 13 and SDG 15 then mainstreams consideration of climate change impacts and climate actions across all the SDGs. The 2030 Agenda introduces the overriding objective of “leaving no one behind” that has strong implications for the definition and selection of climate actions. This objective prioritises the poorest and most marginalised people so that they progress at a higher rate than those better off. To ensure that no one will be left behind, world leaders committed to end extreme poverty and curb inequalities by 2030, and underscored that no goal of the 2030 Agenda will be met until it is met for everyone. African Union Agenda 2063 The African Union’s Agenda 2063 commits to climate change action that prioritises adaptation and calls on member countries to implement the Programme on Climate Action in Africa, including a climate resilient agricultural development programme. Agenda 2063 commits to building climate resilient economies and communities, and notes that participation in global efforts for climate change mitigation will support and broaden the policy space for sustainable development. East African Community (EAC) Climate Change Policy and Strategy (2010) The EAC Secretariat developed a Climate Change Policy and Strategy (2010) to guide partner states and other stakeholders on the preparation and implementation of collective measures 27 to address climate change in the region. The Policy prescribes statements and actions to guide adaptation and mitigation to reduce the vulnerability of the region, enhance adaptive capacity, and build socioeconomic resilience of vulnerable populations and ecosystems. The EAC is developing a climate change bill and forest policy and strategy; and exploring the establishment of an alliance on carbon markets and climate finance. Lake Victoria Basin Commission Climate Change Adaptation Strategy and Action Plan (2018- 2023) The Lake Victoria Basin Commission developed Strategy and Action Plan presents a roadmap for addressing and adapting to climate change impacts. African Forest Landscape Restoration Initiative (AFR100) AFR100 aims to bring 100 million hectares of land in Africa into restoration by 2030. The commitments announced under AFR100 also support the Bonn Challenge adopted in 2011, whose overall objective is to restore 150 million hectares by 2020; the New York Declaration on Forests that stretches the goal to 350 million hectares by 2030; and the African Resilient Landscapes Initiative to promote integrated landscape management to promote adaptation to and mitigation of climate change. In 2016, Kenya committed to restore 5.1 million hectares of land. INSTITUTIONAL FRAMEWORK FOR CLIMATE CHANGE 1. National Climate Change Council Section 5 of the Climate Change Act, 2016, establishes an unincorporated body known as the National Climate Change Council. The Council shall be chaired by the President, deputised by the Deputy President. The Cabinet Secretary for the Environment shall be the secretary to the Council. Section 7 of the Climate Change Act, 2016, empowers the President to appoint up to nine Members of the Council with the approval of Parliament. The members include the Cabinet Secretaries for the Environment, Energy, National Treasury and Economic Planning; the chairperson of the Council of Governors; a representative of the private sector nominated by the body representing the largest number of institutions in the private sector; a 28 representative of the Civil Society nominated by the most representative registered national umbrella association of civil societies working on climate change; a representative of the marginalised community within the meaning of Article 260 of the Constitution who has knowledge and experience in matters relating to indigenous knowledge; and a representative of the academia nominated by the Commission for University Education. 5 Section 6 of the Climate Change Act, 2016, empowers the Council to provide an overarching national climate change coordination mechanism and Council including to: - a) Ensure the mainstreaming of the climate change function by the national and county governments b) Approve and oversee implementation of the National Climate Change Action Plan c) Advise the national and county governments on legislative, policy and other measures necessary for climate change response and attaining low carbon climate change resilient development d) Approve a national gender and intergenerational responsive public education awareness strategy and implementation programme e) Provide policy direction on research and training on climate change including on the collation and dissemination of information relating to climate change to the national and county governments, the public and other stakeholders f) Provide guidance on review, amendment and harmonization of sectoral laws and policies in order to achieve the objectives of this Act g) Administer the Climate Change Fund established under this Act h) Set the targets for the regulation of greenhouse gas emissions. 2. Cabinet Secretary for the Environment Section 8 of the Climate Change Act, 2016, defines the powers and duties of the Cabinet Secretary for the Environment with respect to control and guidance over climate change governance and implementation of the Climate Change Act. The Cabinet Secretary shall: - 5 The appointment of members under Section 7 was the subject of litigation in Ex Parte Green belt Movement & 2 Others, Misc. Application No. 11 of 2017. The Ex Parte Applicants sought to challenge appointment to the National Climate Change Council on inter alia the ground that the Kenya Climate Change Working Group was not the most representative registered national umbrella association of Civil Societies working in climate change as required by Section 7(2) (g) of the climate change Act No. 11 of 2016. 29 a) Formulate and periodically review the climate change policy, strategy and the National Climate Change Action Plan and submit to the Council for approval b) Coordinate negotiations on climate change related issues in consultation with the Cabinet Secretary responsible for foreign affairs c) Formulate a national gender and intergenerational responsive public education and awareness strategy on climate change and implementation programme d) Provide through the Directorate, technical assistance on climate change actions and responses to county governments, based on mutual agreement and needs cited by the county governments e) Report biannually to Parliament on the status of implementation of international and national obligations to respond to climate change, and progress towards attainment of low carbon climate resilient development. 3. Climate Change Directorate Section 9 of the Climate Change Act, 2016, establishes the Climate Change Directorate, as a Directorate in the state Department responsible for climate change. The Directorate shall be the lead agency of the government on national climate change plans and actions to deliver operational coordination and shall report to the Cabinet Secretary. The Directorate shall be headed by a Director of Climate Change appointed by the Public Service Commission. 4. National Environment Management Authority (NEMA) Section 17(1) constitutes NEMA as the monitoring agency on climate change with power to: - a) Monitor, investigate and report on whether public and private entities comply with the assigned climate change duties b) Ascertain if private entities conform to instructions under the Climate Change Act, 2016 c) Regulate, enforce and monitor compliance on levels of greenhouse gas emissions set by the Council 30 5. Climate Change Fund Section 25 of the Climate Change Act, 2016, establishes the Climate Change Fund to be a financing mechanism for priority climate change actions and interventions. The Fund shall be vested in the National Treasury. The Fund shall be applied to: - a) Provide grants for climate change research and innovation, in the following fields: industrial research, technological research, policy formulation, scientific research, and academic research b) Provide grants and loans to business, industry, civil society, academia and other stakeholders for development of innovative actions that benefit climate change responses in Kenya c) Finance, through grants and loans the implantation of climate change adaptation and mitigation actions d) Provide technical assistance to county governments. CLIMATE CHANGE RESPONSE MEASURES AND ACTIONS Section 13 of the Climate Change Act, 2016, requires the Cabinet Secretary following public consultation to formulate a National Climate Change Action Plan and present it to the Council for approval. The National Climate Change Action Plan shall prescribe measures and mechanisms: - a) To guide the country toward the achievement of low carbon climate resilient sustainable development b) To set out actions for mainstreaming climate change responses into sector functions c) For adaptation to climate change d) For mitigation against climate change e) To specifically identify all actions required as enablers to climate change response f) To mainstream climate change disaster risk reduction actions in development programmes g) To set out a structure for public awareness and engagement in climate change response and disaster reduction h) To identify strategic areas of national infrastructure requiring climate proofing 31 i) To review and determine mechanisms for climate change knowledge management and access to information j) To enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses k) To strengthen approaches to climate change research and development training and technology transfer l) To review and recommend duties of public and private bodies on climate change m) To coordinate the preparation of climate change action plans, strategies and policies. n) To review levels and trends of greenhouse gas emissions; and o) To identify outputs, overall budget estimates and timeframes to realize expected results. In formulating the National Climate Change Action Plan, the Cabinet Secretary shall be informed by: - a) Scientific knowledge about climate change b) Technology and technological innovations relevant to climate change c) Economic circumstances, in particular the likely impact of the action plan on the following: the economy; the competitiveness of particular sectors of the economy; small and medium-size enterprises; employment opportunities; and the socio-economic well-being of any segment or part of the population d) Fiscal circumstances, in particular, the likely impact of the action plans, strategies and policies on the marginalised and disadvantaged communities e) Social circumstances in particular, the likely impact of the action plans, strategies and policies on biodiversity and ecosystem services f) International law and policy relating to climate change g) Indigenous knowledge related to climate change adaptation and mitigation. The Directorate shall undertake a biennial review of the implementation of the National Climate Change Action Plan and report to the Council while the Cabinet Secretary shall, in every five-year period, review and update the National Climate Change Action Plan. 32 DUTIES RELATING TO CLIMATE CHANGE Section 15 of the Climate Change Act, 2016, empowers the Council in consultation with relevant Cabinet Secretaries and county government to impose duties relating to climate change on any public entity at all levels of government. The imposition of climate change duties shall be preceded by public awareness and consultations. State department and national government public entities shall have the following duties: a) Integrate the climate change action plan into sectoral strategies, action plans and other implementation projections for the assigned legislative and policy functions b) Report on sectoral greenhouse gas emissions for the national inventory c) Designate a unit with adequate staff and financial resources and appoint a senior officer as head of the unit to coordinate the mainstreaming of the climate change action plan and other climate change statutory functions and mandates into sectoral strategies for implementation d) Regularly monitor and review the performance of the integrated climate change functions through sectoral mandates e) Put in place and implement mechanisms for sustainability in performance of sectoral mandates f) Report annually to the Council on the status and progress of performance and implementation of all assigned climate change duties and functions. Section 16 of the Climate Change Act, 2016, empowers the Council in consultation with the Cabinet Secretary and relevant State Departments to impose climate change obligations on private entities, including entities constituted under the Public Benefits Organizations Act, 2013. Section 17 of the Climate Change Act, 2016, requires NEMA shall report to the Council annually on the performance of functions under the Climate Change Act, 2016, and such report shall form part of the report by the Council to the National Assembly. Section 17 of the Climate Change Act, 2016, makes it an offence for a person who fails or refuses to give access to NEMA to any land; or hinders the execution by NEMA of its duties; fails or refuses to give information that the person may lawfully be required to give to NEMA; 33 or gives false or misleading information to NEMA. A person convicted of an offence is liable, on conviction, to a fine of up to one million shillings or to imprisonment for up to five years, or to both. Section 18 of the Climate Change Act, 2016, requires the Council, on the recommendation of the Cabinet Secretary each year to identify priority strategies and actions of disaster risk reduction related to strategic areas and: - a) Advise the President to require incorporation of this priority strategies and actions into functions and budgets of each State Department, state corporation and other national government entities b) Advise a county government on priority strategies and actions that should be integrated into functions and budgets of departments and entities of the county governments c) Develop a specific public safety component for disaster risk reduction for incorporation by all levels of government to prevent climate change induced disasters, and manage emergency responses. Section 19 of the Climate Change Act, 2016, requires county governments to integrate and mainstream climate change climate change actions, interventions and duties set out in the Climate Change Act, and the National Climate Change Action Plan into various sectors. A county government shall, in development, updating and approval of the County Integrated Development Plan, and the County Sectoral Plans mainstream the implementation of the National Climate Change Action Plan, taking into account national and county priorities. The Governor of a county shall designate a County Executive Committee Member to coordinate climate change affairs. A county government shall at the end of every financial year, through the designated County Executive Committee Member, submit a report on progress of implementation of climate change actions to the County Assembly for review and debate, and a copy of this report shall be forwarded to the Directorate for information purposes. Section 20 of the Climate Change Act, 2016, enjoins NEMA to integrate climate risk and climate change vulnerability assessment into all forms of assessment, and for that purpose liaise with relevant lead agencies for their technical advice. 34 Section 21 of the Climate Change Act, 2016, enjoins the Kenya Institute of Curriculum Development on advice of the Council to integrate climate change into various disciplines and subjects of the national education curricula at all levels. Section 24 enjoins public entities at both levels of government to undertake public awareness and conduct public consultations when developing strategies, laws and policies relating to climate change. Additionally, any person may request for information from the Council and the Directorate. Section 26 of the Climate Change Act, 2016, empowers the Cabinet Secretary in consultation with Cabinet Secretary responsible for finance, grant incentives necessary for the advancement of the elimination and mitigation against climate change and the effects of climate change to persons who: - a) Encourage and put in place measures for the elimination of climate change including reduction of greenhouse emissions and use of renewable energy b) Put in place measures to mitigate against the adverse effects of climate change c) Are involved in the conduct of accredited training in programmes that are aimed at eliminating climate change. CLIMATE CHANGE LITIGATION Climate change litigation refers to cases before judicial and quasi-judicial bodies seeking to advance climate change mitigation and adaptation by either enforcing existing laws or seeking more ambitious regulatory targets. This includes cases where climate change forms a central issue or main argument as well as cases where climate change issues are peripheral. In Kenya, such litigation can be based on public law (human rights or judicial review), statutory provisions (such as the Climate Change Act or EMCA) or even tort law. Climate change may not always arise as a stand-alone or central issue in a case. Climate change could be canvassed within a range of other issues, such as environmental licensing, disaster risk management or even human rights claims aimed at environmental protection, as opposed to being the core issue. An example of a case where climate change was canvassed within the context of other broader issues is the case of Save Lamu & 5 others -versus- 35 National Environmental Management Authority (NEMA) & Amu Power Company Limited [2019. In the case an EIA license had been issued for the development of a 1050 MW coal power plant near Lamu. The Tribunal set aside the issuance of an Environmental Impact Assessment Licence by NEMA owing to the Respondents failure to undertake a proper and meaningful public participation exercise as well as to consider and comply with the climate change and mitigation measures as required by the Climate Change Act, 2016. The Tribunal opined that climate change issues are pertinent in projects such as the subject coal plant project therefore necessitating due consideration and compliance with all the applicable laws. The Respondents’ omission to consider the provisions of the Climate Change Act, 2016 (which came into effect during the EIA) was found to be significant enough to render the EIA report incomplete and inadequate and thus to warrant an order setting aside the EIA licence issued subsequently. Two key features relevant to climate change litigation stand out in the Kenyan context. Firstly, locus standi has been liberalised so that any person can approach a court to enforce environmental and climate-related rights without the need to show loss or injury. Secondly, the Constitution, EMCA and CCA have created liability routes that allow litigants to avoid the restrictive causation requirements by requiring no proof of injury and application of the precautionary principle. This creates the potential for climate lawsuits and could make Kenya a potential hot spot for enforcing rights relating to climate change The main legislative anchor for climate change litigation is Section 23 of the Climate Change Act, 2016. The Section provides that a person may, pursuant to Article 70 of the Enforcement of Constitution, apply to the Environment and Land Court alleging that a person has acted in a manner that has or is likely to adversely affect efforts towards mitigation and adaptation to the effects of climate change. Where an application is made, the Court may make an order or give directions that it considers appropriate to: - a) Prevent, stop or discontinue an act or omission that is harmful to the environment b) Compel a public officer to take measures to prevent or discontinue an act or omission that is harmful to the environment c) Provide compensation to a victim of a violation relating to climate change duties. An applicant does not have to demonstrate that a person has incurred loss or suffered injury. 36