The environmental regulations in Kenya are rules enforced to protect the environment, including air, water, and land.
These are rules that can impact businesses, landowners, and communities.
Let’s say a farmer finds himself under new rules limiting how much water he can use, making it challenging to grow crops. It is possible if you know the law and how to challenge the specific regulations.
Frustrated, individuals or corporations may sometimes seek to oppose an environmental regulation in Kenya due to it appearing arbitrary, financially burdensome, or improperly promulgated.
Here is how to challenge an environmental regulation in Kenya. Consult a property lawyer in Kenya or an environmental law expert before acting.
This guide goes through the basics, from grappling with the rules to pursuing legal measures, to help you assess what to do in such a situation.
What is Environmental Regulations in Kenya
Environmental regulations in Kenya regulate how people and businesses use natural resources.
They work to avoid pollution, safeguard wildlife, and provide clean water and air. The leading agency in Kenya that enforces these rules is the National Environment Management Authority (NEMA).
Other bodies, such as the Water Resources Authority, also have a part to play. In Kenya, environmental regulation can include:
- Limits on factory exhaust emissions
- Trash disposal rules
- Land use regulations limit where buildings can be developed near forests or rivers.
There are laws such as the Environmental Management and Coordination Act (EMCA), the principal act of environmental regulations in Kenya, from which these regulations are derived.
Some rules are applicable across the board; others, such as army ecological regulation, are group-specific (i.e., to military bases).
Environmental regulations on businesses in Kenya include the Environmental Impact Assessment (EIA) requirement before taking up projects.
For example, in Kenya, one might wish to challenge an environmental regulation if it is too expensive or unfair or was not appropriately enacted.
Legal Grounds for Challenging Environmental Regulations in Kenya
First, you must have a valid legal basis for contesting environmental regulations in Kenya. Courts will only entertain challenges over set issues. The following are the key reasons you may leverage:
Procedural Defects
Like NEMA, the agency failed to follow proper procedures to set the regulations. For instance, they may have been unable to provide public comments or publish the rule correctly as needed under the Environmental Regulation Act.
Excess of Authority
The agency acted outside of its legal authority. If the law does not grant every jurisdiction the right to regulate, for example, NEMA cannot regulate in areas under the control of county governments.
Unfair or Unreasonable Rules
The regulation is not fact- or science-based, or is otherwise “arbitrary.” A blanket ban on farming close to a river might be unreasonable if no evidence exists that such activity damages the ecological environment.
Constitutional Violations
The regulation violates rights in Kenya’s Constitution, including property rights. If such a rule denies you your land use without reasonable compensation, a good Kenyan lawyer may argue that it is unconstitutional.
Economic Harm
If the costs of environmental regulation are too significant and unwarranted, you can argue the rule is unreasonable. That is more difficult to prove, but might lend credence to the other reasons.
Knowing which grounds apply to you can help you and your lawyer make your case. One past case where NEMA was challenged involved a company that challenged a rule on waste disposal because, according to them, the agency did not have proper public consultations. The court did so and halted the rule.
Preparing to Challenge a Regulation in Kenya
You must first gear up to challenge environmental regulations in Kenya. Here are the steps to follow:
Research the Regulation
To obtain a copy of the regulation from NEMA’s website or the Kenya Law Reports. You need to know here about its requirements, penalties, and who it will affect. Find out the definition of environmental legislation and how it applies to you.
Document Impact
Write an account of how the regulation is harming you. This might involve financial records that reflect the costs of environmental regulation, letters from NEMA, or photographs of affected land. If the rule has no scientific basis, research or expert opinion should be used to back it up.
Engage a Qualified Lawyer in Kenya
Find and engage a property lawyer in Kenya or an expert on environmental law. They can assess the strength of your case and explain the environmental regulation and compliance process. Stipulate legal fees and their timeline.
Alternative Non-Legal Options
Speak to NEMA before the court. You could file a complaint, request a briefing, or petition to overturn the rule. You can also pressure the agency by joining a business group or community organization.
As in court cases, move quickly because some challenges can only be made before deadlines.
For instance, you have 60 days to initiate a case after the regulation is published. A Kenyan lawyer can assist you in meeting these deadlines.
Legal Pathways to Challenge Environmental Regulations in Kenya
They each have different requirements and steps. Here are the main options:
Administrative Challenges
Acknowledge a NEMA petition to amend or repeal the regulation. Explain how the rule is unfair or illegal.
Request an exemption if you find the regulation too hard to comply with.
A small business, for instance, may seek an extension to comply with environmental laws and compliance standards. NEMA might hold a hearing or reply in writing.
Court Cases
Move to the Environment and Land Court to sue Kenya’s Environmental regulations in Kenya and policies dispute resolution body. Your lawyer will file a petition explaining why the regulation is invalid.
The court will check whether NEMA adhered to the Environmental Regulation Act or the rule goes against the Constitution.
You must show that the regulation directly impacts you, like losing money or land use.
Request a Court Order
Request that the court suspend the regulation until your case is resolved. This is called an injunction.
To obtain an injunction, demonstrate that you will suffer irreparable injury, as in having to close your business, and that there is a likelihood you will win.
Work with Lawmakers
Advise your MP to revise the Environmental Regulation Act. It is a slower process, but it can change environmental regulation over time.
Have to file in the correct court and meet deadlines. For instance, most environmental regulation cases in Kenya have been heard by the Environment and Land Court in Nairobi. A property lawyer in Kenya can help you navigate this process.
What is Command and Control Environmental Regulation?
It is an authoritarian form of government where the government establishes specific limits, telling all persons and all businesses exactly what they must do.
For instance, NEMA could say that factories should not emit more than a certain amount of smoke.
They’re highly prescriptive and usually come with penalties for noncompliance. This approach is used in much of Kenya’s environmental regulations on business, such as requiring waste treatment systems.
If you find a command and control rule too inflexible or vague, you can contest it by demonstrating that it is unreasonable or not proof-based.
Who Bears the Overall Responsibility for Environmental Regulation Compliance?
In Kenya, environmental regulations apply to the person or business directly affected, known as the primary duty holder.
For instance, a factory owner needs to ensure that the emission limits are within parameters for their business.
NEMA and other regulatory bodies are supposed to point out crimes and punish them effectively. If a regulation is vague or impossible to comply with, you can make the case that NEMA shirked its responsibility.
Many businesses employ staff, such as compliance officers, who focus on these rules in their environmental regulation jobs. If you know the liable party, you can decide who to take to court.
Building a Strong Legal Case
If you were to prevail in a challenge to environmental regulations in Kenya, you would want to have made a strong case. Here’s how you can improve your odds:
Use Experts
Bring in scientists or engineers to demonstrate that the regulation lacks a factual basis. A water expert, for instance, can demonstrate that there is no need for a river use restriction.
Seek Support
Partner with other businesses or communities affected by the regulation. Groups like the Kenya Association of Manufacturers may submit supporting documents to the court.
Documentation
Document all evidence, including NEMA notices, e-mail, and financial losses arising from environmental regulation and compliance. These demonstrate how the rule works to your detriment.
NEMA’s Defense
NEMA may argue that the regulation is legal because it complied with the Environmental Regulation Act. Your lawyer will need to be ready to challenge this.
File Supporting Briefs
Request interest groups, environmental or business groups, for instance, to submit statements supporting your case.
A strong and well-supported case is more likely to succeed. One such group of farmers challenged a wetland protection rule that prevented farming without any apparent benefit. The court agreed and put the rule on hold.
Potential Outcomes and Risks to Challenging Environmental Regulations in Kenya
Challenging environmental regulations in Kenya might have different outcomes. Here are possible outcomes:
- The court either annuls the regulation or remands it to NEMA for modification.
- You receive a waiver or extended deadline for compliance with environmental regulations and policies.
- The court has upheld the regulation, and you must comply with it.
There are also risks:
- Legal fees can be high, especially with lengthy court cases.
- It can take months or years to complete.
- If you lose, NEMA may impose stricter enforcement of the rule.
Minimize risks by sharing costs with others who are also affected. Some groups, such as environmental law organizations, will provide free legal assistance for a strong case.
Alternatives to Legal Challenges
You do not have to go to court whenever you want to challenge environmental regulations in Kenya. Here are other options:
Engage NEMA
Ask for a meeting to describe your concerns. You may have a deal, such as additional time to achieve specific environmental regulation and compliance goals.
Participate in Public Consultations
Write comments to NEMA when we propose new rules. This may help stop awful regulations long before.
Partner with Legislators
Lobby your Member of Parliament to amend unfair laws or introduce new environmental regulations.
Comply if the Rules Are Right
Follow the regulations while working for changes to avert penalties. For instance, a construction firm once escaped a court battle by cutting a deal with NEMA on a cheaper waste disposal scheme. These alternatives can also save time and money.
The Benefits of Environmental Regulations in Kenya
Some of these environmental regulations in Kenya are pretty strict, but there are benefits.
They keep us safe by delivering clean air and water. They protect wildlife and forests in perpetuity.
This creates the best circumstances for businesses; by adhering to environmental laws and policies, they can enhance their image in the eyes of consumers and attract customers who want to protect the earth.
Knowing these benefits can assist in determining whether or not a challenge is worth it or if it’s better to work within the rules.
Conclusion
Calling into question environmental regulations in Kenya, though, is a bold gamble that should be preceded by planning, evidence, and legal representation. First, break down the regulation and why it should matter to you.
Ensure you have legal grounds, for example, a procedural mistake or an unjust rule, evidence gathering, and hiring a property lawyer in Kenya.
You can challenge the rule via NEMA, the Environment and Land Court, or lawmakers. This is not the only way, however; getting experts and support from others to make the case for you is a better idea.
Consider risks, such as high costs, and try non-legal options like talking to NEMA. The advantages of environmental regulations in Kenya, such as pure water, are significant, but unequal policies can be combated.
If you believe a regulation is incorrect, act swiftly and seek professional guidance.
