Lamu coal investors appeal ruling that revoked licence

Monday September 9 2019

Environmental activists outside the Supreme Court in Kenya's capital Nairobi on June 26, 2019 after the National Environmental Tribunal blocked the construction of a coal plant in Lamu.

Environmental activists outside the Supreme Court in Kenya's capital Nairobi on June 26, 2019 after the National Environmental Tribunal blocked the construction of a coal plant in Lamu. PHOTO | FILE | NATION MEDIA GROUP 

NJIRAINI MUCHIRA
By NJIRAINI MUCHIRA
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Investors in Kenya’s controversial coal power plant in Lamu on the Coast have appealed against a ruling that revoked the project’s licence.

In its appeal filed in the Environment and Land Court in Malindi, Amu Power — a consortium of Kenyan and Chinese firms — contends that the National Environment Tribunal (NET) erred in cancelling the environmental social impact assessment (ESIA) licence solely based on purported flaws in the consultation process.

The company also argues that the tribunal erred in holding that it did not conduct a proper analysis of the alternative sites for the project and that the ESIA study did not contain adequate mitigation measures.

“The appellant points out the following grounds as the basis for seeking to overturn the tribunal’s finding that the process leading to the preparation of the ESIA study did not involve proper public participation,” said the memorandum of appeal.

The decision by Amu Power to appeal the revocation of the $2 billion plant opens another battlefront with environmentalists, conservationists and non-governmental organisations opposed to the project on the basis that it will have adverse impacts on the Lamu ecosystem, which is recognised as a UNESCO World Heritage Site.

Opposition to the plant emanates from the fact that coal, which is the number one source of air pollution worldwide, has adverse effects on people’s health, pollutes water resources and contributes to the climate change crisis.

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Amu Power, a consortium of Centum, Gulf Energy and Chinese firms, is determined to build the plant having signed a 25-year power purchase agreement with Kenya Power and despite the fact that Kenya is currently grappling with excess power capacity, making the cost of electricity to remain high.

In its ruling, NET was categorical that Amu Power had failed to undertake a conclusive ESIA on the 1,050MW plant.

The tribunal also castigated the National Environmental Management Authority for issuing the licence despite the fact that the ESIA was never subjected to proper and effective public participation in accordance with the law.

However, Amu Power wants the High Court to set aside the tribunal’s orders arguing that it undertook extensive public participation forums yet NET opted to place undue emphasis on procedure rather than focus on the substance and spirit.

“The alleged flaws in the consultation process, if at all, were not serious enough to deprive the consultation process efficacy,” said the company in court filings.

The company also contends that lobby group Save Lamu, which has been at the forefront of opposing the plant, lacks the jurisdiction to represent Lamu residents because it had not provided evidence regarding its registration status as a community-based organisation.

Besides arguing that it carried out the ESIA in full compliance of the terms of reference, Amu Power also contends it undertook analysis of alternative sites and sufficient mitigation measures.

“The tribunal was wrong to reject the mitigation and adaptation measures as provided in the ESIA study against climate change merely on the basis of what it termed a lack of clarity on the consequence of certain aspects of the project,” noted the company.

Despite its determination to implement the project, analysts reckon that building the plant will not translate into cheap electricity but will be a “costly error” going by a research by the Institute for Energy Economics and Financial Analysis.

“Building the proposed Lamu coal plant would be a costly error for the country, locking it into a 25-year PPA that would force electricity consumers to pay more than $9 billion, even if Lamu doesn’t generate any power, as long as it is available for dispatch,” said IEFA.