Environmental Compliance

Environmental compliance is the practice of ensuring that a business or project complies with the environmental laws and regulations of Kenya — obtaining the necessary approvals, conducting the required assessments, implementing the required management systems, and managing the environmental risks of the operation. In Kenya, environmental compliance is governed by the Environmental Management and Co-ordination Act (EMCA), 1999 (as amended in 2015), and the regulations issued thereunder by the National Environment Management Authority (NEMA). Environmental compliance is not optional: non-compliance can result in significant fines, imprisonment, the closure of operations, and the requirement to remediate environmental damage — costs that can far exceed the cost of compliance.

This area covers the full range of obligations under EMCA and the regulations. Advocates begin with an environmental compliance audit — a comprehensive review of the client's operations, the applicable environmental laws and regulations, and the client's current compliance status. Advocates identify the permits and licences required, the assessments that must be conducted, the management systems that must be in place, and the areas of non-compliance that must be remediated.

Advocates assist with environmental impact assessments (EIAs) — which are mandatory under EMCA for projects that are likely to have a significant impact on the environment. Advocates work with NEMA-registered environmental impact assessment experts to conduct the assessment, to prepare the environmental impact assessment study report, and to submit the report to NEMA for approval. Advocates manage the public participation process that is required for most EIAs, and they handle the response to comments and objections from affected parties.

Advocates also handle environmental audits — which are mandatory for existing facilities that are operating under an environmental licence. Advocates work with environmental auditors to conduct the audit, to prepare the audit report, and to submit the report to NEMA. Advocates advise on the implementation of the audit's recommendations, and they manage the follow-up with NEMA to ensure that the compliance issues are resolved.

Advocates assist with the acquisition of environmental licences and permits — including the Environmental Impact Assessment Licence, the Environmental Management and Co-ordination (Waste Management) Regulations licences for hazardous and non-hazardous waste, the Water Quality Regulations permits for effluent discharge, and the Noise Regulations permits for operations that generate significant noise. Advocates prepare the licence applications, manage the interaction with NEMA, and handle the response to queries and objections.

Advocates advise on the management of environmental incidents — including spills, emissions exceedances, and other events that may constitute environmental offences under EMCA. Advocates assist with the notification of NEMA, the investigation of the incident, the implementation of remediation measures, and the management of any enforcement proceedings that may follow.

Advocates handle environmental litigation — including the defence of clients against enforcement proceedings by NEMA, the challenge of environmental conditions and orders, and the defence of clients against environmental claims brought by communities and civil society organisations. Advocates also act for communities and organisations in environmental enforcement cases — using the constitutional right to a clean and healthy environment and the provisions of EMCA to challenge projects and operations that cause environmental harm.

Advocates also advise on the environmental aspects of corporate transactions — including environmental due diligence in mergers and acquisitions, the allocation of environmental liabilities in share purchase and asset purchase agreements, and the management of legacy environmental liabilities.