EIA is defined as a methodology for gathering information about the potential environmental impacts of a proposed development and making that information available for use in decision making.  EIA does not itself determine whether or not a proposed development may proceed.  It places information before decision makers which decision makers must take into account alongside other information in order to come to a conclusion whether to permit the project to proceed.  And therefore the fact that the information suggests that the proposed developments will have negative impacts on the environment does not mean that that development will not be permitted.  But because the information is available at the time of decision making it enables decision makers to take that into account in deciding on the application for permission.

The first legal instrument to provide for environmental impact assessment was the Environmental Protection Act of the USA which was enacted by Congress in 1969 and came into effect on the 1st of January 1970.  That statute imposed a requirement on US Federal Agencies which proposed to carry out development to conduct an assessment of the potential environmental impacts of their proposed actions.  So the focus at the time was on the proposed actions of Federal Agencies and so Federal Agencies are Government Bodies and the idea was for govt bodies to carry out an assessment of their proposed action.  Subsequent development in the USA extended these requirements to US State Agencies was made by way of enactments at State Level.  The extension of this requirement to private bodies was carried out by way of Judicial interpretation of the statute.  The Mono Lake Decision this case extended the requirement to carry out an assessment of environment impact. 

The facts of this case were that a private developer wished to construct a Housing Estate.  The development of the Housing Estate required Planning permission from Mono Lake County which was the local authority of that region. Those opposed to the development took court action against Mono Lake county arguing that State Legislation required State Agencies to carry out an assessment of the potential environmental impact of the Agency’s proposed action.  They argued that the word actions included the action of granting Planning permission which meant that where Mono Lake County proposed to take the action of granting Plann9ing permission for a Housing Development it was required to carry out a Environmental Impact Assessment before granting Planning Permission.  The implication was that he EIA would then extend to a development to be carried out by a private body.  That action succeeded in court with the result that Mono Lake County did carry out a EIA of the development and in the end did not grant Planning Permission for the proposed development.

Following that precedent was established that prior to granting planning permission, a decision making authority must carry out an assessment of the development whether or not that development is to be carried out by a public authority or private body.  For this reason EIA has come to be understood as involving 3 critical stages:-

1.            The information gathering stage – the responsibility for information gathering has been placed on the developer.  Many people have argued that placing the responsibility for information gathering on the developer means that the developer is likely to influence the kind of information provided as a way of influencing the outcome of the decision making process.   Those who have pointed out the risk have argued that the information should be gathered by the decision making authority which would mean that when one makes an application and then the decision authority goes out to gather the information about the proposal that way the information gathered will not be biased.  The problem here would be the delay that would arise of the decision making authority was given the task of gathering information.

2.            The Assessment Itself:   Assessment refers to using the information gathered to make a decision about whether or not the project should proceed or whether it should be given planning permission.  Assessment is typically the responsibility of the decision making authority.  Assessment of Environmental Impact is a process that takes into account environmental considerations alongside other considerations such as economic social and political factors.  For instance, it may be that the information gathered suggests that there will be negative environmental impact but the project will also lead to prospects for jobs and on the basis of both kinds of information, a decision is made.  This is particularly annoying to so called environmentalists who tend to take the view that if you can marshal a lot of grim data about the destruction which painted the picture of Armageddon around the corner.  Decision are multi dimensional.

3.            Implementation of the outcome of the EIA:  Ordinarily the information gathered will suggest that there will be adverse environmental impact.  The decision however quite often will be that nevertheless planning permission should be granted.  The way in which the potential adverse environmental impact are often dealt with is through the imposition of a condition in the planning permission that measures must be put in place to mitigate against adverse environmental impacts.   The developer is required to put forward and implement a mitigation plan as a condition of Planning permission.  The Mitigation Plan is then supposed to be monitored and enforced.  No one is happy in the short term but in the long term they get satisfied with the results.

EIA has two important features which ordinarily take on the appearance of constraints.

(a)          The fact that EIA is project specific;
(b)          The fact that EIA is a methodology that focuses only on proposed developments it does not extend to existing or ongoing activities.

With regard to the first feature, decision making occurs at various stages in the process of a development.  Typically a development is based on a policy, a strategy and a project.  At each stage decision making is involved.  A policy is an objective set to be achieved) policy may or may not be written but in order to constitute policy it must be objective, it must be articulated by an authorised person.  For instance there could be govt policy articulated by the Minister.  If it is in writing then it is easier to conceptualise but the fact that it is in writing does not make it any more policy than if it wasn’t in writing.  An example is that the govt will provide free primary school education, this is policy.  Arising out of policy is a strategy, a strategy is an articulation as to how the policy is to be achieved.  The strategy might say that in order to achieve the policy of free education the government will build a hundred primary schools in every district.  Quite often a strategy is articulated through a plan.  A plan is a time bound strategy which basically means that if you say free primary school education will be achieved through building 100 primary schools in every district in five years, you have given it a time range.  Emanating out of the plan and the strategy, one ends up with the project which is the concrete expression in a specific location of the plan.  So if the plan is to build classrooms, then the primary schools are built, that is the project.  Decisions are made at each stage of Policy, Strategy, Plan and Project.

EIA comes into play at the project stage of decision making and for that reason EIA is often constrained by decisions which have been taken at prior decision making stages.  The result is that by the time an environmental impact assessment is being undertaken, chances of the outcome of the assessment leading to the denial of plan permission are often limited.  It is for that reason that the typical outcome of EIA is a mitigation plan to mitigate against adverse Environmental Impact Assessment.  More recently the methodology of strategic environmental assessment has been developed.  Strategic environmental assessment is a methodology designed to assess the potential impact on the environment of alternative strategies to achieving a given policy objective.  And therefore strategic environmental assessment is carried out at the Plan level.  This methodology is quite recent and only a few countries have adopted it, mist country adopt strategic assessment at project level.

Ordinarily the objective of project specific environmental impact assessment is that mitigatory measures need to be built into the implementation of that project.  However typically there will be many projects already ongoing which cause a negative impact on the environment which either were not subject to EIA or which were not anticipated at the time of the EIA.

Ongoing projects are dealt with through the methodology of environmental audit not Impact Assessment.  An Environmental Audit is an assessment of the Impacts on the environment of ongoing activities.  It leads to recommendations  on how the activities should be conducted in order to minimise the negative environmental impact.  Typically environmental audits are carried out at periodic intervals.  Environmental Audits are similar to financial audits and can be carried out by either internal auditors or by external auditors.  When carried out by internal auditors, environmental audits are a management tool which enable the managers of the project to take action to redress negative environmental impact of the project.  When carried out by external auditors, environmental audits are a regulatory tool to enable regulators enforce compliance.

Part 6 of the Environmental Management and Coordination Act deals with environmental Assessment

Section 8 – not withstanding any approval, licence, permit granted under any law in Kenya, before financing, commencing, proceeding with, carrying out executing or conducting a specified project, the project proponent must apply for and obtain an environmental impact assessment licence.  The Application is made to the National Environmental Management Authority which is established by Section 7 of the Act.  This National Management Authority is an idea generated through the initiative of an idea in UNEP.

The project proponent must obtain a Environmental Assessment Impact Licence regardless of any other licence or permit that one may have obtained.  Two problems arise one, for the project proponent this is yet another handle that they must overcome.  Second problem is operation in nature i.e. one does not know which of the licences to obtain first.  A project proponent is anyone carrying out, financing or executing or causing to be carried out, financed or executed.

The procedure is as follows:
That the project proponent must first prepare a project brief describing what the project is about.  On the basis of the project brief the authority will take a decision on whether that project should undergo the full environmental impact assessment study.  The decision on whether a full study is required will be based on 3 factors
1.            Scale of the project; - the bigger the scale of the project the more likely that it will undergo a full study and the smaller the project the lesser likely that it will need a full study;

2.            Nature of the Project – projects  of a category which are listed in the 2nd Schedule to the Act require an environmental Impact Assessment, these include urban development, dams, rivers and waters resources projects, transport projects, mining, forestry, manufacturing industries, waste disposal and nature conservation;

3.            The location of the project: projects in environmentally sensitive locations will require full study and those not located in environmentally sensitive locations will not require full studies. 

EIA experts are consultants appearing on a register which is maintained by the authority.  The law requires that one chooses their experts from that register.   Those experts carryout the study based on terms of reference which are developed by the developer and approved by the authority and those terms of reference will define the scope of the study.  For example if one imagines the potential impact arising from a development, that would be all over, if one wanted to built a hospital, one must take into consideration that there might be germs of TB emanating from hospital and one might want to do a study of TB.  Therefore one must do scoping to decide what the study will focus on.  The developer must define the scope.

After the study is done the expert submits a report which is submitted to the authority and the authority is required to
(a)          publicise the existence of the report and ask members of the public to comment on the report;

(b)          The authority may set up a technical advisory committee to advise it on the report.  The technical advisory committee comprises of persons who are experts on the issues dealt with by the report, the technical committee set up by the authority is to be paid for by the developer but on the basis of comments from the public and recommendation from the technical advisory committee, the authority will decide whether a public hearing is required at the proposed site of the project.  After the public hearing if it is held a decision will be held on whether to grant an impact assessment licence.  If granted the licence may have a mitigation plan to be implemented by the developer.

The Act provides that if during the implementation phase of the project, the conditions of the licence are not complied with, the licence may be revoked or suspended for a period of 24 months.  The Act empowers the authority to charge fees for the licence and the authority has imposed a fee of 0.1% of the Project cost.

With regard to existing projects, Part 7 of the Act provides for Environmental Audits to be carried out by an environmental inspector appointed by the authority.  Existing or ongoing projects are defined in the Environmental Impact Assessment and Audit Regulations of 2003 Rule 31 defines an ongoing project as a project commenced prior to the date of the regulations and the date of the regulations is the 13th June 2003 and any project commenced after 13th June 2003 is a new project for which an EIA must be undertaken. 

Basically where a project is defined as ongoing, then NEMA imposed a requirement that the operators of those projects must submit an environmental audit report by 31st December 2004.  These regulations deal with the second issues which is that as we had indicated, the Act focuses on project specific environment impact assessment.  Rule 42 of the Regulations provides for strategic environmental assessment stating that lead agencies shall subject all proposals for public policy, plans and programs to a strategic environmental assessment to determine which ones are the most environmentally friendly.  That assessment is to result in a choice of policy and strategy options based on environmental impact.  In Muma’s view because the statute does not provide for Strategic Environmental Assessment, then it is ultra vires for the regulations to require it.


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