Topic 3 Principles of Sustainable Development PDF

PRINCIPLES OF ENVIRONMENTAL MANAGEMENT, PROTECTION AND CONSERVATION INTRODUCTION The overriding principles applicable in the management, protection and conservation of the environment can be gathered from the Constitution of Kenya, 2010, EMCA, various sectoral laws as well as from various internat...

PRINCIPLES OF ENVIRONMENTAL MANAGEMENT, PROTECTION AND CONSERVATION INTRODUCTION The overriding principles applicable in the management, protection and conservation of the environment can be gathered from the Constitution of Kenya, 2010, EMCA, various sectoral laws as well as from various international environmental instruments. At the international level, these principles include: - 1. The principles on transboundary environmental damage 2. The principles of sustainable development and sustainable use 3. The prevention principle 4. The precautionary principle 5. The polluter pays principle 6. The principle of reasonable use and equitable utilization 7. The principle of international cooperation in management of natural resources 8. The principle of common but differentiated responsibilities These principles are now applicable to Kenya by virtue of Article 2(5) and 2(6) of the Constitution of Kenya, 2010, which domesticate the general rules of international law as well as any treaty or convention ratified by Kenya. These principles originated initially from the United Nations conferences on the environment. In 1972, the UN held the first world conference on the environment in Stockholm, Sweden. The conference was titled the United Nations Conference on the Human Environment or the Stockholm Conference. Participants at the conference adopted a series of principles for sound management of the environment including the Stockholm Declaration and the Stockholm Action Plan for the Human Environment and several resolutions. The Stockholm Declaration contained 26 principles which placed environmental issues at the forefront of international concerns. It also marked the start of a dialogue between industrialized and developing countries on the link between economic growth, the pollution of the air, water, and oceans and the well-being of people around the world. The Stockholm Action Plan contained three main categories: - Global Environmental Assessment Programme (watch plan) Environmental management activities International measures to support assessment and management activities carried out at the national and international levels. 1 One of the major results of the Stockholm conference was the creation of the United Nations Environment Programme (UNEP). UNEP is headquartered in Nairobi, Kenya and has 193 member states as well as representatives from civil society, businesses other stakeholders. UNEP was formed in 1972 to be the global authority that sets the environmental agenda, promotes the coherent implementation of the environmental dimension of sustainable development within the UN system and serves as an authoritative advocate for the global environment. UNEP’s mission is to provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations. UNEP hosts the secretariats of many critical multilateral environmental agreements and research bodies. UNEP supports Member States to ensure that environmental sustainability is reflected in development and investment planning and provides countries with the necessary tools and technologies to protect and restore the environment. UNEP’s work is categorized into seven broad thematic areas: - Climate change Disasters and conflicts Ecosystem management Environmental governance Chemicals and waste Resource efficiency Environment under review. Subsequently, in 1983, the UN created the World Commission on the Environment and Development. This was to be an independent body linked to the UN system. It was also known as the Brundtland Commission. The Brundtland Commission was mandated to take up the critical relationship between environmental protection and economic development and to formulate realistic proposals for reconciling or balancing the two subjects. It was also mandated to propose new forms of international cooperation on these issues to influence policies in the direction of needed changes; and finally, to raise the levels of understanding and commitment to action of individuals, organizations, businesses, and governments. The conclusions of the Brundtland Report stressed the need for an integrated approach to development policies and projects that, if environmentally sound, should lead to sustainable economic development in both developed and developing countries. The Report emphasized the need to give higher priority to anticipating and preventing problems. In 1992, arising from the Brundtland Report, the UN convened a second global conference on the environment in Rio de Janeiro, Brazil. The conference was titled the UN Conference on Environment 2 and Development (UNCED). The very name of the conference reflected a change of approach from that of the Stockholm Conference on the Human Environment. UNCED met in Rio de Janeiro from June 3–14, 1992. The following happened at the Rio Conference: - 1. The Declaration on Environment and Development was made. It reaffirms the Stockholm Declaration of 1972 on which it seeks to build, but its approach and philosophy are different. The central concept is sustainable development and the Declaration provides that: - a) Principle 2 concerns the transboundary effects of activities b) Principle 10 affirms the rights of public information, participation, and remedies c) Principle 11 stresses the importance of enacting effective environmental legislation d) Principle 13 calls for the development of liability rules e) Principle 15 contains the precautionary principle f) Principle 16 is the “polluter pays” principle g) Principle 17 requires environmental impact assessment for certain proposed activities h) Principles 18 and 19 require notifying other states about emergencies and projects that may affect their environment. i) Principles 20 to 22 stress the importance of the participation of women, youth, and indigenous peoples 2. An action program called Agenda 21 was created. Agenda 21 is a program of action consisting of four main parts: a) Socio-economic dimensions (e.g., habitats, health, demography, consumption, and production patterns) b) Conservation and resource management (e.g., atmosphere, forest, water, waste, chemical products) c) Strengthening the role of non-governmental organizations and other social groups, such as trade unions, women, youth d) Measures of implementation (e.g., financing, institutions). The chapters concerning the atmosphere (Chapter 9), biological diversity (Chapter 15), the oceans (Chapter 17), and freshwater resources (Chapter 18), as well as discussion of specific problems such as biotechnology (Chapter 15), toxic chemicals (Chapter 19), and waste (Chapters 20–22) are of particular interest in the development of environmental law. Additionally, two chapters are dedicated to international institutional arrangements (Chapter 38) and international legal instruments and mechanisms (Chapter 39). 3 3. The UN Framework Convention on Climate Change which had been drafted and adopted before the Conference, were opened for signature at Rio 4. The Convention on Biological Diversity which had been drafted and adopted before the Conference, were opened for signature at Rio 5. The Conference adopted a declaration whose titled: “Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests.” In addition to the international principles, the national values and principles of governance outlined in Article 10 of the Constitution are relevant in the management and conservation of the environment. These include: - 1. Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people 2. Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised 3. Good governance, integrity, transparency and accountability 4. Sustainable development The principles of sustainable development are set out in Section 3(5) of EMCA. These are: - 1. The principle of public participation in the development of policies, plans and processes for the management of the environment 2. The cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law 3. The principle of international co-operation in the management of environmental resources shared by two or more states 4. The principle of intergenerational equity 5. The principle of intragenerational equity 6. The polluter-pays principle 7. The pre-cautionary principle 4 THE PRINCIPLES OF SUSTAINABLE DEVELOPMENT AND SUSTAINABLE USE Sustainable development seeks to limit environmental damage arising from anthropogenic activities and to lessen the depletion of non-renewable resources and pollution. The Brundtland Commission defined sustainable development as: - Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Under Section 2 of EMCA, sustainable development is defined as: - Development that meets the needs of the present generation without compromising the ability of future generations to meet their needs by maintaining the carrying capacity of the supporting ecosystems. Essentially, this means that sustainable development seeks to address intragenerational equity (equity amongst the present generations) and intergenerational equity (equity between present and future generations). Sustainable development is also linked to the right to development, human rights and good governance when it is described as sustainable human development. Sustainable human development focuses on material factors such as meeting basic needs and non-material factors such as rights and participation. It also seeks to achieve a number of goals including poverty reduction, promotion of human rights, promotion of equitable opportunities, environmental conservation and assessment of the impacts of development activities. Vision 2030 adopts sustainable human development as it seeks to address the economic, social and political pillars. It therefore fosters both material factors and non-material factors. Sustainable development is therefore inextricably linked to people’s livelihoods. Sustainable use refers to the need to reduce and eliminate unsustainable patterns of production and consumption. It is use that in any way or rate does not lead to long-term decline of biological diversity, thereby maintaining its potential to meet the needs of present and future generations. It requires that the present use of the environment and natural resources des not compromise the ability of future generations to use these resources or degrade the carrying capacity of supporting ecosystems. Sustainable use of natural resources is recognized in Article 69 of the Constitution where the state is obliged to ensure the sustainable exploitation, utilization, management and conservation of the environment and natural resources. 5 In the Case Concerning the Gabcikovo-Nagymoros Project, the court opined that sustainable development reaffirms to balance both need for development and environmental protection as well as to balance between the human right to development and the human right to protection of the environment and that neither can be neglected at the expense of the other. In Kenya, the sustainable development framework has placed more emphasis on environmental protection to meet man’s needs (anthropogenic approach) as opposed to the need to protect the environment for its intrinsic value (ecological approach). Such is the case in the mining industry where emphasis is placed on the need to regulate the mining industry for extraction purposes to fulfil human needs to regulate the mining industry for extraction purposes to fulfil human needs without giving attention to ecological issues. Article 10(2)(d), Article 42, Article 69 and Article 70 of the Constitution of Kenya have an ecological approach. Article 42 of the Constitution of Kenya focuses on human well-being rather than the holistic and intrinsic environmental protection and conservation. As a result, the right to a clean environment with its anthropocentric concerns creates barriers in the effective realisation of the right. The anthropocentric nature of the right has negative consequences on environmental conservation and protection as the environment in such a regime of environmental rights is conserved not for its own worth or subsistence, but only to the extent necessary to serve human needs or utility. For instance, it can be argued that the purpose of wildlife conservation from an anthropocentric point of view is neither the maintenance of a viable population of animal and plant species nor the protection of ecosystems and natural habitats but, instead, the promotion of tourism as an economic activity. This can lead to a scenario where wildlife conservation measures diminish, once the tourism goals have been achieved, even if at that point ecosystems and natural habitats have not been effectively protected. SAVE LAMU & 5 OTHERS V NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY (NEMA) & ANOTHER eKLR As part of a vision of the country’s economic blueprint for development and industrialization of the country the Government of Kenya, through the Kenya Vision 2030 initiative, formulated a power generation program intended to increase the generation of total effective capacity to about 5000 MW. The program included the setting up of a 1050 MW coal fired power plant in Lamu to be built, owned and operated by Amu Power. It was proposed to have the coal power plant on the sea shore of Kwasasi area, Hindi Division, in Lamu County. The NET applied the principle of sustainable development and sustainable use to revoke the Environmental Impact Assessment (EIA) Licence for the Amu coal Power plant. 6 THE PRINCIPLE OF TRANSBOUNDARY ENVIRONMENTAL DAMAGE Transboundary environmental damage usually arises where the impact of environmental damage and degradation affects not only the country of origin but also another country. This is especially so in the case of water pollution. This is one of the principles that informed the making of the Treaty for the Establishment of the East African Community which entered into force on 7th July 2000. The EAC aims at achieving its goals and objectives through, inter alia, promoting a sustainable growth and equitable development of the region, including rational utilisation of the region’s natural resources and protection of the environment. This places responsibilities on the member States to ensure realization of the goals and objectives of the Treaty. Regulation 44 of the Legal Notice Number 101 provides that where a project is likely to have a transboundary impact the proponent of the project must, in consultation with NEMA, ensure that appropriate measures are taken to mitigate any adverse impacts, considering any existing treaties and agreements between Kenya and the other country. This places a huge responsibility on the State to prevent transboundary environmental damage. TRAIL SMELTER DISPUTE The Trail Smelter dispute was a trans-boundary pollution case involving the governments of both Canada and the US. The smelter in Trail, British Columbia was historically operated by the Consolidated Mining and Smelting Company (COMINCO) and had processed lead and zinc since 1896. Smoke from the smelter caused damage to forests and crops in the surrounding area and across the Canada–US border in Washington State. The smoke from the smelter distressed residents, resulting in complaints to COMINCO and demands for compensation. The dispute between the smelter operators and affected landowners could not be resolved, resulting in the case being sent to an arbitration tribunal. Negotiation and resulting litigation and arbitration was settled in 1941. The consequences of the arbitration came in two parts; one being economic compensation for the local farmers of Stevens County, Washington and two effecting laws for transboundary air pollution issues. Transboundary issues meaning those that stretch between states and nations. The decision was based on evidence of visible injury to the farmers' livelihood, granting about USD. 430,000 to the farmers and also imposed Cominco's duty of regulating the smoke output. The arbitration successfully imposed state responsibility for transboundary air pollution. 7 CULTURAL AND SOCIAL PRINCIPLES TRADITIONALLY APPLIED IN KENYA The traditional ecological knowledge of communities in Kenya on the management of natural resources is also applicable. This is in accordance with Article 159(2)(c) and Article 67(2)(f) of the Constitution, such traditional and cultural principles include traditional dispute resolution mechanisms. Article 159(2)(c) provides that in exercising judicial authority, the courts and tribunals shall be guided by alternative forms of dispute resolution including traditional dispute resolution mechanisms as long as these do not contravene the Bill of Rights, are not repugnant to justice and morality and are not inconsistent with the Constitution or any written law. On the other hand, Article 67(2)(f) enjoins the National Land Commission to encourage the application of traditional dispute resolution mechanisms in land conflicts. IN CENTRE FOR MINORITY RIGHTS DEVELOPMENT (KENYA) AND MINORITY RIGHTS GROUP INTERNATIONAL ON BEHALF OF ENDOROIS WELFARE COUNCIL V. KENYA, 276/2003. In the 1970s, the Kenyan government evicted hundreds of Endorois families from their land around the Lake Bogoria area in the Rift Valley to create a game reserve for tourism. The Endorois, an indigenous people, had been promised compensation and benefits, but these were never fully implemented, and the community's access to the land was restricted to the discretion of the Game Reserve Authority. This prevented the community from practicing their pastoralist way of life, using ceremonial and religious sites, and accessing traditional medicines. The African Commission on Human Rights found that the Kenyan government had violated the Endorois' rights to religious practice, to property, to culture, to the free disposition of natural resources, and to development, under the African Charter (Articles 8, 14, 17, 21 and 22, respectively). The Commission stated that lack of consultation with the community; the subsequent restrictions on access to the land; and the inadequate involvement in the process of developing the region for use as a tourist game reserve, had violated the community's right to development under the U.N. Declaration on the Right to Development. Also, the Commission found that the Kenyan Government's Trust Land System violated the Endorois' right to property. The system allowed gradual encroachment onto Endorois land, and even though the system allowed for compensation, it nevertheless violated property rights by effectively causing forced evictions. For these violations, the Commission recommended that the government recognize rights of ownership, restitute to the Endorois' their ancestral lands, compensate their losses, and ensure the Endorois benefit from the royalties and employment opportunities within the game reserve. 8 PRINCIPLE OF INTERNATIONAL CO-OPERATION The principle of ‘good-neighbourliness’ set out in Article 74 of the UN Charter in relation to social, economic and commercial matters has been translated into the development and application of rules promoting international environmental co-operation. The principle of international cooperation is reflected in many treaties and other international acts, and is supported also by state practice, particularly in relation to hazardous activities and emergencies. The obligation to co-operate is affirmed in virtually all international environmental agreements of bilateral and regional application, and global instruments. These include: These include: Principle 24 of the Stockholm Declaration reflects a general political commitment to international co-operation in matters concerning the protection of the environment Principle 27 of the Rio Declaration states rather more succinctly that: - ‘States and people shall co-operate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development’. The Preamble to the 1992 Industrial Accident Convention, which underlined (in support of the Convention’s specific commitments) ‘The principles of international law and custom, in particular the principles of good- neighbourliness, reciprocity, non-discrimination and good faith’, 1982 UNCLOS, Arts. 123 and 197 1985 Vienna Convention, Art. 2(2) 1992 Biodiversity Convention, Art. 5. The general obligation to co-operate has also been translated into more specific commitments through techniques designed to ensure information sharing and participation in decision-making. These specific commitments include: - Rules on environmental impact assessment Rules ensuring that neighbouring states receive necessary information (requiring information exchange, consultation and notification) The provision of emergency information Transboundary enforcement of environmental standards. 9 State practice supporting good neighbourliness and international co-operation is reflected in decisions and awards of international courts and tribunals such as the Gabcikovo-Nagymaros Arbitration (Hungary versus Slovakia). In 1977, Hungary and Czechoslovakia signed a Treaty for the construction of dams and other projects along the Danube River that bordered both nations. Czechoslovakia began constructing dams on the part of the river running through its territory but Hungary stopped working on the project. Hungary terminated the Treaty based on its claim that the construction of dams had been agreed to only on the ground of a joint operation and sharing of benefits but Czechoslovakia had unlawfully assumed sole control of the river. It was held that watercourse states should participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Hungary had been deprived of its rights to an equitable and reasonable share of the River Danube by Czechoslovakia and also failed to respect the proportionality that is required by international law. The court directed the two countries to establish cooperation in the administration of the River Danube. GERD Dispute (Egypt & Sudan versus Ethiopia) The dispute over the GERD started in 2011 when Ethiopia commenced construction of the GERD dam across the Blue Nile near its border with Sudan. The dam is meant to produce 6000 MW of hydroelectric power. Ethiopia is the source of 85% of the water of the Nile which provides up to 90% of the fresh water needs for Egypt. Egypt has always relied on its extensive diplomatic connections and the colonial-era 1929 and 1959 agreements to successfully prevent the construction of any major infrastructure projects on the tributaries of the Nile. There is a 1959 agreement between Egypt and Sudan which allocates all the water of the Nile to the two countries only. The agreement also grants Egypt veto power over all Nile River projects. Ethiopia argues that the GERD will have no major impact on water flow of the Nile. Instead it will provide affordable electric power to the region as well as a mechanism for the management of the Nile, including the mitigation of droughts and water salinity. This escalated the situation between Egypt and Sudan (the downstream states) on the one hand, and Ethiopia and the upstream riparian states on the other over access to the Nile’s waters. Despite intense disagreements, Ethiopia continues to move forward with the construction and filing of the dam. Egypt has been demanding for cooperation from Ethiopia including the signing of a legally binding agreement over the equitable allocation of the Nile’s waters. Egypt has also escalated its call to the international community to get involved and already, the United States has threatened to withhold development aid to Ethiopia if the conflict is not resolved and an agreement reached. 10 POLLUTER PAYS PRINCIPLE The polluter can be defined as one who directly or indirectly damages the environment or who creates conditions leading to such damage. The “polluter pays” principle was originally intended to restrain national public authorities from subsidizing the pollution control costs of private firms. Instead, enterprises should internalise the environmental externalities by bearing the costs of controlling their pollution to the extent required by law. The “Polluter Pays Principle” means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “sustainable Development” and as such the Polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. Principle 16 of Rio provides that: - National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. Historically, pollution control costs have been borne by the community at large, rather than by those who pollute. Community assumption of the costs can be demonstrated using the example of an industry that discharges pollutants into a river. There are at least three possible ways for the community to assume the economic costs of the pollution: - The river can remain polluted and rendered unsuitable for certain downstream activities, causing the downstream community to suffer an economic loss The downstream community can build an adequate water treatment plant at its own cost The polluter may receive public subsidies for controlling the pollution In each case, the affected community bears the cost of the pollution and of the measures designed to eliminate it or to mitigate its effects. The polluter pays principle avoids this result by obliging the polluter to bear the costs of pollution control, to “internalize” them. In most cases the enterprise will in fact incorporate the costs in the price of the products to some degree and pass them on to the consumer. 11 The polluter pays principle is therefore a method for internalising externalities. Those who benefit from air made cleaner have a positive externality if they do not pay for the cleanup. Where air is fouled by a producer who bears no cost, it is a negative externality; those who buy the product also are free riders if the fouling is not reflected in the price of the goods. Internalisation requires that all the environmental costs be borne by the producer/consumer instead of the community as a whole. Prices will reflect the full cost if regulatory standards or taxes on the production or product correspond to the true cost of environmental protection and damage. The principle can be applied most easily in a geographic region subject to uniform environmental law, such as a state or a regional economic integration organization. Generally, polluters should pay for the cost of pollution control measures, such as the construction and operation of anti-pollution installations, investment in anti-pollution equipment and new processes, so that a necessary environmental quality objective is achieved. Other means of ensuring the polluter pays principle are through taxes and charges. Application of the principle may be difficult in practice where identifying the polluter proves impracticable because the pollution arises from several simultaneous causes or from several consecutive causes, or where the polluter has become financially insolvent. In such instances, there may be no alternative to community assumption of the costs of remediation. An example of this is the case of KM (Minor suing through Mother and Best-friend SKS) and 9 Others (suing on their own behalf and on behalf of all the residents of Owino-Uhuru Village in Mikindani, Changamwe Area Mombasa) -Versus- the Attorney General & 7 Others. The Petitioners sued the AG, the CS for the Environment, the CS for Health, NEMA, The Mombasa County Government, the Export Processing Zones Authority, Metal Refinery (Epz) Limited, and Penguin Paper and Book Company. The Petitioners were residents of Owino-Uhuru Village in Mombasa County. Penguin Paper leased land near the vialage to Metal Refinery which set up a lead acid batteries recycling factory. The factory produced toxic waste which seeped into the village causing, as a direct consequence of lead poisoning, more than 20 deaths and various illnesses. The court found the Respondents liable and apportioned liability as follows: -  2nd Respondent – 10%  3rd Respondent – 10%  4th Respondent – 40%  6th Respondent – 10%  7th Respondent – 25%  8th Respondent – 5% 12 The court awarded as follows: For personal injury and loss of life Kshs 1.3 billion Respondents within 4 months from date of judgment to clean-up the soil, water and remove any wastes deposited within the settlement and in default pay Kshs.700 million Order of mandamus against the Respondents directing them to develop and implement regulations adopted from best practices with regard to lead and lead alloys manufacturing plants. Costs of the suit PRECAUTIONARY PRINCIPLE The concept of precaution is the notion that environmental regulators often have to act on the frontiers of knowledge and in the absence of full scientific certainty. Precaution has variously been associated with the ideas that: -  Scientific uncertainty should not be used as a reason not to take action with respect to a particular environmental concern  Action should affirmatively be taken with respect to a particular environmental concern  Those engaging in a potentially damaging activity should have the burden of establishing the absence of environmental harm  The state may restrict imports based on a standard involving less than full scientific certainty of environmental harm Properly viewed, the concept of precaution operates as part of a science-based approach to regulation, not a substitute for such an approach, and, in practice, the concept is multi-faceted. A sampling of some of the ways different facets of precaution are expressed in different instruments follows: The likelihood of environmental harm (e.g., the Rio Declaration Principle 15 uses “where there are threats;” the 1996 Protocol to the London Dumping Convention2 Article 3 uses “reason to believe [dumping] is likely to cause harm”) The extent of environmental harm (e.g., Biosafety Protocol Articles 10 and 11 use “potential adverse effects;” U.N. Framework Convention on Climate Change Article 3 uses “threats of serious or irreversible damage”); Level of scientific certainty or uncertainty needed for precautionary action (e.g., Rio Principle 15 references a lack of “full” scientific certainty; Article 5.7 of Sanitary and Phytosanitary Agreement (SPS) references “insufficient” relevant scientific evidence); 13  Whether cost-effectiveness of measures is relevant (e.g., the U.N. Framework Convention on Climate Change Article 3 contemplates cost-effective measures; the Straddling Fish Stocks Agreement Article 6 does not); Whether precaution applies to individual Parties or to one of the treaty’s institutions (such as the Conference of the Parties or a scientific/technical body) in its decision-making; Whether precaution is being applied in an environmental context to encourage action (e.g., Convention on Biological Diversity preamble) or a trade context to authorize, but not encourage action (e.g., SPS Article 5.7). The 1992 Rio Declaration, Principle 15, formulates it thus: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. Because of its many permutations and facets, precaution is at once both useful as a flexible tool or “approach,” and difficult to capture in the context of a generally applicable legal “principle” or standard. IN ELC CONSTITUTIONAL PETITION NO. 43 OF 2019 - ISAIAH LUYARA ODANDO & ANOTHER V NATIONAL MANAGEMENT ENVIRONMENTAL AUTHORITY & 2 OTHERS; COUNTY GOVERNMENT OF NAIROBI & 5 OTHERS (INTERESTED PARTIES) EKLR, the Petitioners sought for a declaration that the Respondents had violated their rights and fundamental freedoms enshrined in the Constitution of Kenya as well as permanent conservatory orders to compel the Respondents to adopt the precautionary principle in environmental management with respect to preventing the upstream and downstream pollution of Nairobi and Athi Rivers. Additionally, they sought for permanent conservatory orders to compel the Respondents to implement permanent restoration of the Nairobi and Athi River waters. Further, the Petitioners sought conservatory orders to compel the Respondents to shut down polluters and force industries to treat their waste before disposing it into the rivers and for the Respondents to remove more than 4,000 structures encroaching on riparian land and build embankments and barriers to allow the river to flow free from contamination. The Petitioners also seek compensation for all the members of the public who fall within the bracket of this class action. The court granted the order compelling the Respondents to adopt the precautionary principle in waste management including decommissioning the Dandora dumpsite, relocating it and rehabilitating the site as well as to clean up Nairobi and Athi Rivers from the source in Nairobi to the Coast until the 14 whole river is clean and free of pollution. The Respondents were also required to eliminate air pollution. PREVENTION PRINCIPLE Prevention aims at averting the damage to the environment before it occurs. Experience and scientific expertise demonstrate that prevention should be the Golden Rule for the environment, for both ecological and economic reasons. In some instances, it can be impossible to remedy environmental injury once it has occurred. For instance, the extinction of a species of fauna or flora, erosion, and the dumping of persistent pollutants into the sea create intractable, even irreversible situations. Even when harm is remediable, the cost of rehabilitation is often very high. In many instances it is impossible to prevent all risk of harm. In such instances, it may be judged that measures should be taken to make the risk “as small as practically possible” in order to allow necessary activities to proceed while protecting the environment and the rights of others. There is an international obligation not to cause damage to the environment irrespective of whether or not there is transboundary impact or international responsibility. The principle requires that activities that might cause risk or damage to the environment be reduced, limited or controlled. It requires anticipatory investigation, planning and action before undertaking activities which can cause harm to the environment. The standard of care for prevention is due diligence. Article 69(1) of the Constitution of Kenya is required to eliminate processes and activities that are likely to endanger the environment. Article 69(2) requires every person to cooperate with the state and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. Article 70 empowers the court to make orders or give directions that would be appropriate to prevent or stop any act or omission that is harmful to the environment. EMCA Section 9 grants NEMA the function of publishing and disseminating manuals, codes or guidelines realign to prevention or abatement of environmental degradation. Section 38 of EMCA outlines the functions of the National Environment Action Plan as including identifying and recommending policy and legislative approaches to preventing, controlling or mitigating adverse impacts on the environment. The issue of prevention is complex, owing to the number and diversity of the legal instruments in which it occurs. It can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, and licensing or 15 authorizations that set out the conditions for operation and the remedial consequences for violation of the conditions. Emission limits and other product or process standards, the use of best available techniques (BAT), and other similar techniques can all be seen as applications of prevention. Prevention is also linked to the notion of deterrence and the idea that disincentives such as penalties and civil liability will cause actors to take greater care in their behaviour to avoid the increased costs, thus preventing pollution from occurring. In addition to prevention as a generalized goal of domestic environmental laws, the notion of “pollution prevention” includes the concept that pollution may be reduced, or prevented, at its source, by changing raw materials or production techniques or technologies. Often “pollution prevention” and “source reduction” are conceived as a goal of voluntary efforts that complement “command and control” or “end-of-pipe” environmental regulations that limit the amount of pollution that may be emitted. Pollution prevention sometimes produces economic benefits for industry in terms of increasing efficiency, reducing waste, and reducing liability. Governments may engage in strategies or programs to educate the regulated community and encourage it to implement pollution prevention techniques, in addition to their efforts to promote and enforce compliance with mandatory regulations. Case law discussing the concept of prevention includes: AMINA SAID ABDALLA & 2 OTHERS -VS- COUNTY GOVERNMENT OF KILIFI & 2 OTHERS EKLR The court applied the principle of prevention to issue an injuction prohibiting the Respondents from dumping or burning solid waste on the plaintiffs’ land which had the effect of polluting the environment by producing obnoxious and toxic smoke, thereby rendering the plaintiffs land and surrounding areas unsafe for human habitation. TRUSTEESHIP PRINCIPLE The concept of public trust in environmental law relates to the ownership, protection and the use of essential natural and cultural resources. It holds that certain natural resources are held by the sovereign in trust and on behalf of all the citizens because of their unique characteristics and central importance. This follows the realization that certain assets are inherently public and not subject to ownership by either the state or private actors. It relates to the ownership, protection and use of essential and natural and cultural resources, serving as a check against allocation with regard to public natural resources. It has been used to guarantee access to bodies of water, protect recreational lakes 16 and beaches, wildlife reserves and even the air. A well-structured and implementation framework for the public trust doctrine ensures that governmental action can be checked to ensure it benefits the citizenry with regard to key environmental resources. The concept of public trust expresses the idea that the present generation holds the natural resources of the earth in trust for future generations. When applicable as a legal principle, public trust contemplates that certain things, such as natural resources and the exercise of public power, are held by governments in trust for the citizenry and must be used for the public benefit. The principle of public trust doctrine has been recognized to include the notion of public guardianship. Public trust has been applied to challenge harmful activities in public areas including pollution. IN CORTEC MINING KENYA LIMITED V CABINET SECRETARY MINISTRY OF MINING & 9 OTHERS EKLR Cortec Mining claimed that it had completed all the necessary steps and obtained all the necessary licenses and approvals and set up necessary infrastructure to enable it to commence the mining of Nobium and Rare Earths Elements in Mrima Hill Forest. Mrima Hill Forest was a protected area and gazetted as a forest. The process of gazettement was not followed. The Cabinet Secretary then cancelled the licence on the basis that it had been issued illegally. In doing so, the cabinet secretary purported to act in public trust. The court upheld the actions of the Cabinet Secretary for being exercised properly and in public trust. THE PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITIES (CBDR) This is a principle of international environmental law which provides that all states are responsible for addressing global environmental destruction but not equally responsible. The principle seeks to balances, on the one hand, the need for all states to take responsibility for global environmental problems and, on the other hand, the need to recognize the wide differences in levels of economic development between states. These differences in turn are linked to the states’ contributions to, as well as their abilities to address, these problems. CBDR was formalized in international law at the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro. However, in more recent UNFCCC agreements – starting with Durban in 2011 – Parties have changed their position to allow for countries to individually determine their “contribution” to addressing GHG emissions. This new climate agreement is to be “applicable to all,” and approaches differentiation through the implementation of a bottom–up scheme to determine a global effort. 17 CBDR is an expression of general principles of equity in international law. It recognizes the historical correlation between higher levels of development and a greater contribution to the degradation of global environmental resources, such as water and air, and enables the sharing of responsibility accordingly. It establishes that developed countries, which had been able to develop for longer times unimpeded by environmental restrictions, now need to take a greater share of responsibility. The various occurrences of the CBDR in international legal texts include the Rio Declaration, where it is enunciated as “Principle 7,” and the United Nations Framework Convention on Climate Change, together with its 1997 Kyoto Protocol. It was retroactively incorporated into the Vienna Convention and Montreal Protocol on substances that destroy the ozone layer. Practically, it entails the deferral of developing countries’ compliance with the objectives of these environmental conventions. Common but Differentiated Responsibilities and Respective Capabilities (CBDR–RC) is a principle within the United Nations Framework Convention on Climate Change (UNFCCC) that acknowledges the different capabilities and differing responsibilities of individual countries in addressing climate change. The principle of CBDR–RC is enshrined in the 1992 UNFCCC treaty, which was ratified by all participating countries. The text of the convention reads: “… the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.” CBDR-RC has served as a guiding principle as well as a source of contention in the UN climate negotiations. Reflecting CBDR-RC, the Convention divided countries into “Annex I” and “non-Annex I,” the former generally referring to developed countries and the latter to developing countries. Under the Convention Annex I countries have a greater mitigation role than non Annex-I countries. Since 1992 countries like China have gained new capabilities while maintaining relatively low per capita emissions, and tensions about the defined lines of the Annex I and non-Annex I countries have arisen. CBDR-RC and the annex classifications were codified in the 1997 Kyoto Protocol, and Annex I country emissions reductions were legally bound. A primary driver for the failure of the U.S. to ratify the Kyoto Protocol was the domestic concern that middle-income developing countries were not required to take action to address their greenhouse gas (GHG) emissions despite their growing capability. 18 In the years following the 1992 treaty, the trajectory of emissions in populous developing countries also drew attention. Fossil fuel–based development by heavily populated developing countries would prevent stabilization of GHG concentrations – the agreed upon “ultimate objective” of the UNFCCC – because much of the global emissions budget has already been exhausted by emissions from developed countries. Controversy ensued over the question of responsibility for the costs entailed in switching to a sustainable development path, particularly for large but poor countries with very low per-capita emissions and very little access to finance. IN THE URGENDA V. GOVERNMENT OF THE NETHERLANDS (MINISTRY OF INFRASTRUCTURE AND THE ENVIRONMENT) (URGENDA), the Hague District Court established that, in order to meet its standard duty of care towards the plaintiffs (the Urgenda Foundation representing current and future generations of Dutch citizens threatened by the risks of climate change), the Dutch government was ordered to ‘limit the joint volume of Dutch annual greenhouse gas [GHG] emissions, or have them limited, so that this volume will have reduced by at least 25%–40% at the end of 2020 compared to the level of year 1990’. Urgenda’s target and timeline are based on the 2007 projections by the Intergovernmental Panel on Climate Change (IPCC) of required mitigation action by the group of Annex I developed countries that ratified the 1992 United Nations Framework Convention on Climate Change (UNFCCC). State parties to the UNFCCC have agreed to negotiate the allocation of responsibilities and costs for global climate action according to the principle of common but differentiated responsibilities (CBDRs) and capabilities. Developed countries agreed to ‘take the lead’ in climate mitigation in order to limit temperature increase to 2 degrees Celsius (⁰C) above pre- industrial levels (and well below 2⁰C, with efforts to keep it under a 1.5⁰C increase since the December 2015 Paris Agreement) by taking urgent and more stringent action than that required of developing countries. PRINCIPLE OF INTEGENERATIONAL EQUITY Intergenerational equity is the concept or idea of fairness or justice in relationships between children, youth, adults and seniors, particularly in terms of treatment and interactions. Intergenerational equity is a legal principle and means that future generations may have a legitimate expectation of equitable access to planetary resources. Accordingly: We should recognize and protect the future generations’ right to enjoy at least the same capacity of economic and ecological resources that present generations enjoy. Because: - 19  Those living have received a heritage from their forebears in which they have beneficial rights of use that are limited by the interests and needs of future generations. This limitation requires each generation to maintain the corpus of trust and pass it on in no worse condition than it was received. The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations (Rio Principle 3). Intergenerational equity has been defined in the form of three key principles of conservation, namely, of options, quality, and access. These three principles, designed to protect natural resource diversity, the quality of the environment, and the ability of future generations to equitably access the benefits therefrom, are translated into the obligations to prevent and mitigate climate change, together with the obligation to provide adaptation assistance. All three of these climate obligations can be found within the international climate change regime, which has established a warming threshold commensurate with the prevention of dangerous interference with the climate system, and ascribes mitigation and adaptation assistance obligations to developed nations. For non-renewable resources such as mineral resources, an equilibrium in which the resource does not decrease in quantity and quality would imply zero use. This would deprive current and future generations of the resource. Given the expected depletion, within a relatively short period of time, of a number of mineral resources at current extraction rates, the needs and rights of future generations compel the current generation to deal with mineral resources in general as economically (or sustainably) as possible, especially if the mineral resources are geologically scarce. The Principle of Intergenerational Equity is included in many international conventions, including the Rio Declaration on Environment and Development (1992) and the United Nations Framework Convention on Climate Change (1992). Intergenerational equity embodies care for future generations. It means that the current generation is merely “borrowing” the earth from future generations. Intergenerational equity provides for the preservation of natural resources and the environment for the benefit of future generations. It has roots in the 1972 Stockholm Declaration and forms a core tenet of sustainable development frameworks. The UNFCCC embeds intragenerational equity within the international climate change regime as a founding principle. Article 3 frames the concept in terms of the need to “protect the climate system for the benefit of present and future generations of humankind”, which is reinforced by the inclusion of sustainable development as a further core principle within the UNFCCC framework. 20 To what extent the interests of future generations should be provided for is itself a highly contested question and presents significant challenges, both ethically and legally. Some of the strongest critiques have argued that protecting future generations from climate impacts through stringent mitigation efforts is at the cost of improving the welfare of the present generation, particularly those living in poverty for whom resources are urgently required. A further common criticism of attempts to implement intergenerational equity and rights is the ability to identify the people to whom a duty is owed or by whom a right is held, known as the “non-identity problem”. RODGERS MUEMA NZIOKA V. TIOMIN KENYA LTD CIVIL CASE NO. 97 OF 2001 The plaintiffs in this case sought an injunction to restrain a mining company from carrying out titanium mining in Kwale District. They acted on behalf of other plaintiffs who were mere ordinary rural farming inhabitants of the area of Kwale now designated for mining. They stated that when titanium was discovered there the mining company promised a reasonable compensation to land owners on giving their land and that the inhabitants would be relocated to some other place. The plaintiffs were not opposed to the mining but they were concerned that the excavation of titanium was likely to trigger multifarious environmental and health problems and they wanted their environment and health to be secure. They also wanted the Mining Company to give them reasonable compensation and to settle them in a new place. The court the intergenerational equity principle among other principles to grant the injunction. The Kaya Forests The Kaya forests are ten separate forested sites spread out along around 200km of the coast province of Kenya, ranging in size from 30 to around 300 ha, in which are the remains of fortified villages, Kayas, of the Mijikenda people. The Kayas are of great importance to the Mijikenda community because of the spiritual attachment to them. These forests are of high biodiversity value and hold many rare plant species and have been listed as a world heritage site by the United Nations Cultural Agency (UNESCO). The Kaya forests are an example of a natural resource that is facing major threats and may not be available for the enjoyment of future generations as it does not have a substitute. As a result of poverty, rapid development, an increasing disregard for traditional values and a rising demand for land, fuel wood, iron ore, and construction and carving wood materials the local people and foreign multinationals have put severe pressure on many of the Kaya forests. Over the last 50 years, many of the Kayas have been drastically reduced in size, and land that was communal property has been registered under individual title and sold to nationals or foreign 21 speculators. The protection and conservation of the Kayas is thus important to make them economically viable for the benefit of the present and future generations. Kenya’s Wildlife Kenya’s wildlife is richest and diversified with several of its protected areas and wetlands being internationally recognized and protected as World Heritage Sites, RAMSAR sites and Man and Biosphere Reserves. Kenya’s wildlife also constitutes a unique natural heritage that is of great importance both nationally and globally. However, due to the loss of biodiversity, land use changes and rural and urban development, Kenya’s wildlife is increasingly under threat. Other threats to wildlife include the destruction of habitats, insecure tenures to land and illegal allocation, illegal and unsustainable off-take of wildlife and bush meat trade, pollution and climate change. There is a need to provide a framework for conserving, in perpetuity, Kenya’s rich diversity of species, habitats and ecosystems for the wellbeing of its people and the global community. PRINCIPLE OF INTRAGENERATIONAL EQUITY Intragenerational equity is concerned with equity between people of the same generation and aims to assure justice among human beings that are alive today, as reflected in Rio Principle 6, mandating particular priority for the special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable. The special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries. (Rio Principle 6). Intra-generational equity deals with the equality among the same generations as far as the utilization of resources are concern. It includes fair utilization of global resources among the human beings of the present generation. It provides rights and duties to every person of a single generation to use and take care of the renewable and non-renewable resources moderately among the members of the generation. In a developing country like Kenya the rule of intra-generational equity is applicable to certain extent, as in this kind of developing countries more resources are required for development of the country and to ensure economic stability. Industrialization is the key for the development of these countries which requires more and more renewable and non-renewable resources. The resources which are not 22 preserved for the future generation and are available for the current generation must be equally distributed among all the members of the present generation. According to Section 2 of EMCA intragenerational equity means that all people within the present generation have the right to benefit equally from the exploitation of the environment, and that they have an equal entitlement to a clean and healthy environment. This means that equity can be applied across communities and generations within one generation. In PETER K WAWERU VERSUS REPUBLIC (2006) eKLR the court applied the principle of intragenerational equity and issued an order of mandamus to compel the Ministry of Water – i.e. the Nairobi Water Services Board and the Olkejuado County Council to construct Sewerage Treatment Works in Kiserian. THE PUBLIC PARTICIPATION PRINCIPLE Public participation can be defined as various forms of direct public involvement where people, individually or through organized groups, can exchange information, express opinions and articulate interests, and have the potential to influence decisions or the outcome of specific environmental issues. Public participation can also be defined as the process by which public concerns, needs and values are incorporated into governmental and corporate decision-making with the overall goal of better decisions that are supported by the public. The ‘public’ in public participation refers to individuals acting both in their roles as citizens, as formal representatives of collective interest or affected parties that may experience benefit or harm or that otherwise choose to become informed or involved in the process. It also includes corporations, civil society, the media etc Public participation is characterized as a process which is inclusive with respect to interests, voluntary with respect to participation, may be a complement to legal requirements, is fair and transparent to all participants, is based on participants acting in good faith, and does not guarantee - or predetermine - what the outcome will be. The intensity of public involvement varies from simple information exchange to more elaborate forms of collaborative decision-making or implementation. The importance of public participation is the recognition that better decision-making flows from involving the public. 23 Decisions about environmental protection often formally integrate the views of the public. Generally, government decisions to set environmental standards for specific types of pollution, to permit significant environmentally damaging activities, or to preserve significant resources are made only after the impending decision has been formally and publicly announced and the public has been given the opportunity to influence the decision through written comments or hearings. In many countries citizens may challenge in court or before administrative bodies government decisions affecting the environment. These citizen lawsuits have become an important component of environmental decision making at both the national and the international level. Public participation in environmental decision making has been facilitated by laws that mandate extensive public access to government information on the environment. Similar measures at the international level include the Rio Declaration and the 1998 Åarhus Convention, which committed the 40 European signatory states to increase the environmental information available to the public and to enhance the public’s ability to participate in government decisions that affect the environment. During the 1990s the Internet became a primary vehicle for disseminating environmental information to the public. In recent years public participation has become to be seen as a vital part of addressing environmental problems and bringing about sustainable development. In this context, vacating the limits of solely relying on technocratic bureaucratic monopoly of decision-making, allows governments to adopt policies and enact laws that are relevant to communities and take into account their needs. The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the public's contribution will influence the decision. Borrowing from the advancement of Public participation as part of a "people first" paradigm shift, this study challenges the concept that "big is better" and the logic of centralized hierarchies, advancing alternative concepts of "more heads are better than one" and arguing that public participation can sustain productive and durable change. The right to public participation is to a considerable extent enshrined by laws of the land and the notion of public participation in environmental decision making (EDM) and is gaining currency in post-modern democratic practice. Principle 10 of the Rio Declaration on Environment and Development, 1992 which states as follows:- 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 24  awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. IN CONSTITUTIONAL PETITION NO. 305 OF 2012: MUA 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:- 1. The government agency or public official involved has to create a programme of public participation that accords with the nature of the subject matter but in so doing the agency or official must consider both the quantity and quality of the governed to participate in their own governance. 2. Public participation calls for innovation and flexibility depending on the nature of the subject matter, culture, logistical constraints, and so forth. The only test is one of effectiveness. A variety of mechanisms may be used to achieve public participation. 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. 3. Public participation must include access to and dissemination of relevant information. Information should 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. 4. Public participation does not mean that everyone must give their views on an issue. Public participation programme 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. In determining inclusivity the agency or official should consider the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say and their views must be more deliberately sought and taken into account. 5. 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. There is a duty for the agency or official involved to take into consideration, in good faith, all the views received as part of public participation programme. 6. The right of public participation is not meant to replace 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. 25 PRINCIPLE OF PRIOR INFORMED CONSENT Prior Informed Consent and Advanced Informed Agreement procedures provide for the regulation of international exchange of resources or products that could have adverse effects on human health and the environment. Such exchange may not proceed without the informed agreement or consent of, or contrary to the decision of, the competent authority in the recipient country. States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. (Rio Principle 19). Rotterdam Convention on Prior Informed Consent (PIC) Procedure for certain hazardous Chemicals and Pesticides in international trade came into force in 2004 ‘to promote shared responsibility and cooperative efforts among parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm; and to contribute to the environmentally sound use of those hazardous chemicals, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export, and by disseminating these decisions to parties.’ It creates ‘legally binding obligations for the implementation of the PIC procedure.’ TRAFIGURA INCIDENT This case involved illegal dumping of hazardous waste in Abidjan, Côte d’Ivoire by a Panama registered tanker named Probo Koala. In August 2006, highly toxic cargo was discharged at the Port of Abidjan and after arrangements had been made with a local company, the waste was disposed of in 17 open municipal waste sites in Abidjan close to residential areas. This was done at night using a number of trucks. Residents immediately complained about the smell of rotten eggs from the vaporising hydrogen sulphide. Immediate health problems occurred, such as nosebleeds, nausea, vomiting, headaches, skin and eye irritations and respiratory symptoms. Later severe symptoms were reported, including miscarriages and up to 12 deaths. It is estimated that 100,000 people sought medical attention in makeshift clinics that the government authorities hastily set-up. In the subsequent, personal injuries claim in London there were 31,000 registered claimants. Cases occurred up to three months later but it remains unclear as to the long-term environmental damage and contamination of water supplies. the ship had been denied entry into several other countries before settling for Ivory Coast which was going through political turmoil. The never admitted liability but agreed to pay USD. 198 million to the Ivorian government and later USD. 42 million to the victims. 26