Environmental law in the country has gradually evolved in recent years to the extent that it now has many implications on business. One of these is that there is now a legal requirement for certain business project to obtain an environmental impact license before proceeding with the project. The process to acquire this license is outlined below:
1. The first step is that the project proponent should submit a project report to the National Environment Management Authority (NEMA).
The proponent must submit at least 10 copies of the project report to NEMA and the project report should be prepared by an environmental impact assessment expert.
2. NEMA studies the project report submitted and if it is satisfied that the project is likely to have a significant effect on the environment, it directs that an Environmental Impact Assessment study be carried out.
3. The project proponent causes an Environmental Impact Assessment study to be carried out at his own expense. The study is done by environmental impact assessment experts licensed under the Act. The study has to be conducted following the guidelines in the Third Schedule to the Environmental (Impact Assessment and Audit) Regulations.
4. The Environmental Impact Assessment study report is then submitted to NEMA in the prescribed form giving the prescribed information accompanied by the prescribed fee.
5. On receiving the Environmental Impact Assessment study report, NEMA publishes details on the project in the Kenya Gazette for 2 consecutive weeks. It specifies in the Gazette notice that it will receive comments on the project within 60 days from the publication of the notice.
6. Optionally, the Director-General may request a lead agency in writing to submit written comments within 30 days from the date of the request.
7. NEMA may also set up a technical advisory committee to advise on the Environmental Impact Assessment study report.
8. If it deems it necessary, NEMA may request for further evaluation or submission of more information at the project proponent’s expense.
9. NEMA may then issue an Environmental Impact Assessment licence on certain terms and conditions once it is satisfied on the adequacy of the study.
The Director-General should usually respond to applications for the Environmental Impact Assessment licence within 3 months from the date of the application. If the project proponent does not receive communication from the Director-General in 3 months, he may carry out the undertaking.
The licence fees for an environmental impact assessment licence are 0.1% of the total project cost. The licence once issued is valid for two years. It may be transferred but only with respect to the project for which it was issued (Section 65 EMCA). Both the transferor and the transferee must notify the Director-General in writing within 30 days of the transfer and the transfer takes effect on the date of such notification.
Even after the licence is issued, NEMA may direct that the licence holder carry out a fresh environmental impact assessment study where:
- There has been a substantial change in the project
- There is an environmental threat that could not have been reasonably foreseen at the time of the study
- It is established that the information given was inaccurate
There is also the possibility of revocation, cancelling or suspension of the licence for a maximum of 24 months for contravention of the licence terms and conditions. The project can then not continue until a fresh licence is issued.