NET ordered Amu Power to undertake a new Environmental and Social Impact Assessment (ESIA) for the project.
In the interim, no construction is permitted to begin on Lamu coal plant, located 300 km away from Mombasa, Kenya’s second largest city.
Amu, was tasked with building and operating a 981.5 Megawatt coal-fired thermal electricity-generating plant in the Manda Bay area of Lamu County.
The coal power plant is currently the largest private sector led infrastructure project in East and Central Africa.
The project is part of the government’s blueprint for producing 5,000 MW of power in 40 months commencing September 2015.
It is expected to contribute to the provision of reliable and affordable electricity to the national grid and to bring down the cost of power for both domestic and industrial use
However, Wednesday’s ruling means that a valid ESIA licence is required for the project to proceed and for contracts to go in effect.
Among the ESIA’s significant inefficiencies, the tribunal faulted Amu Power for their failure to conduct effective public participation.
Reading the judgment, NET Chairman Mohamed Balala noted that the tribunal could not excuse non-compliance: “Public participation is the oxygen that gives life to an ESIA report.”
While the ruling will delay project development, it does not stop the proposed Lamu coal plant.
Amu Power can conduct a fresh ESIA and apply for a new licence, or can choose to appeal the decision, seeking to overturn today’s ruling and have the project’s ESIA licence restored.
Amu Power has thirty days to file a notice of appeal.
NET observed that NEMA erred in issuing Amu Power with the license.
They cited procedural irregularities in determining that the Lamu coal plan’s environmental and social impact assessment (ESIA) did not meet the test of an ESIA study as required in the Constitution of Kenya.
NET found that there was no substantial basis for the issuance of the ESIA licence for Lamu coal plant and ruled that “the second respondent [Amu Power] is hereby ordered to cease the construction of the coal plant in Lamu until a fresh Environmental Impact Assessment and public participation is undertaken and the outcome of the report be published publicly.”
Significant points included public participation insufficient to the extent of being "contemptuous of the people of Lamu" and the project’s lack of a Strategic Environmental Assessment (SEA) and due consideration of alternatives.
NET also cited insufficient and unclear plans for toxic coal ash handling and storage, as well as the omission in considering the Climate Change Act.
Save Lamu Vice Chair Mohammed Mbwana could not hold back tears. After appearing before the NET as a witness and advocating against the coal plant, he remarked that this was the best news in a very long time:
“We can’t express how much happiness this judgment brings us. We thank the members of the tribunal for listening to our plea and revoking the license granted by NEMA. We’re now old, but we inherited a clean and healthy environment from our fathers, and it’s our duty to give our children a clean and healthy environment as well,” Mbwana told the African Press Agency by phone on Thursday.
“Now I believe an average Kenyan can go to court and get justice. In the past people suffered in silence. I am really happy with the judgment,” said Lamu resident Mohamed Athman.
Activists and environmentalists who have been opposing the construction of the coal power plant, said that the judgment signals a new era in environmental protection in Kenya.
The tribunal stated that it will intervene where a license is issued in violation of the law.
“I’m ecstatic. I’m excited. I’m beyond overjoyed. This is great,” said deCOALonize board member, Samia Omar Bwana.
The ruling means that contractors and investors must now go back to the drawing board before the law catches up with them.
“Today’s ruling is a major one for the environment and for the people of Lamu and Kenya. It has stamped the authority of tribunals in courts to ensure compliance with the rule of law,” remarked Ochiel Dudley, lawyer with Katiba Institute, which litigated the case.
“What this means is you can’t ignore the concerns of a community when considering a development project. Indeed, this case from the start wasn’t about anti-development. It was about giving communities a chance to participate meaningfully in developments concerning them, said Mark Odaga, lawyer with legal partner Natural Justice.