LECTURE 5: ENVIRONMENTAL COORDINATION, CONSTRAINTS & ENFORCEMENT

 Summary of Environmental Legislation of developed

countries

Environmental Is meant to avoid, minimize and control the adverse impact on -

Impact the environment of designated projects through the application
Assessment of the environmental impact assessment process and the
laws environmental permit system.

- Designated projects, unless exempted, must follow the

statutory environmental impact assessment (EIA) process and
require environmental permits for their construction and
operation.

Air Pollution - control air pollution from industry, commercial operations and
laws/Control construction work.
- It prohibits the use of high sulphur and leaded fuels and the
open burning of construction waste, tyres and cables for metal
salvage.
- Abatement notices are usually issued to anyone causing air
pollution from a process or machinery and they will be asked to
reduce or stop their emissions, or face prosecution.
- Asbestos control provisions in the law require that building
works involving asbestos must be conducted only by registered
qualified personnel and under the supervision of a registered
consultant.

Waste - It is prohibited to dump waste in public places or on

Disposal Government land, or on private premises without the consent of
laws the owner or occupier.
1.Waste Disposal (Chemical Waste) (General) Regulation:
- Anyone who produces chemical waste or causes it to be
produced has to register as a chemical waste producer.

- The waste must be packaged, labelled and stored properly

before disposal.

- Only a licensed collector can transport the waste to a licensed

chemical waste disposal site for disposal.

- Chemical waste producers also need to keep records of their

chemical waste disposal for inspection by the appropriate staff.

2. Waste Disposal (Livestock Waste) Regulations:

- Livestock farmers must dispose of livestock waste without
causing pollution or nuisance to the environment.

- Liquid waste has to be disposed of either to a soakaway-pit or

treated to meet effluent standards.

3. Import and Export of Waste Control:

- A permit system to control the import and export of hazardous
and other waste in line with the requirements, is set out in this
law.

4. Waste Disposal (Clinical Waste) (General) Regulation:

- Clinical waste producers must properly manage their clinical
waste by consigning the clinical waste to licensed clinical waste
collectors for delivery to a licensed disposal facility for disposal.

-The waste must be packaged, labeled and stored properly

before disposal. –

- Only a licensed collector can transport the waste to a licensed

clinical waste disposal site for disposal.

- Clinical waste producer also need to keep records of their

clinical waste consignment and delivery records for inspection
 by the appropriate staff.
Water - All discharges, other than domestic sewage to a foul sewer or
Pollution unpolluted water to a storm drain, must be covered by an
laws/Control effluent discharge licence.
- The licence specifies the permitted physical, chemical and
microbial quality of the effluent and the general guidelines are
that the effluent does not damage sewers or pollute inland or
inshore marine waters.
- Legal controls also apply to sewerage connections.
- In areas where these new sewers become available, a notice
would be issued asking owners to connect their sewage to the
public sewer.
Noise Control - meant to control neighbourhood noise and noise from
laws construction, industrial and commercial activities.
- Neighbourhood noise in the context of providing quick relief to
the public is generally controlled by the police.

Construction Noise:
- Noisy construction work and the use of powered mechanical
equipment in populated areas is not allowed between 7pm and
7am or at any time on general holidays, unless prior approval
has been granted.
-Certain equipments are also subject to restrictions when its use
is allowed.
- Hand-held percussive breakers and air compressors must
comply with noise emissions standards .
- Percussive pile-driving is allowed on weekdays only with prior
approval, in the form of a Construction Noise Permit.

Industrial and Commercial Noise:

- Industrial and commercial noise must comply with statutory
limits.
- Operators who fail to do so will be issued with a Noise
Abatement Notice asking them to reduce their noise or face
prosecution.
Ozone Layer - This regulation controls the production, import and export of
Protection products containing ozone-depleting substances, and the
regulations recycling of ozone-depleting substances.
Dumping at - Anyone involved in marine dumping and related loading
Sea regulation operations, requires a permit.
- All dumping vessels have to be equipped with an automatic
self-monitoring system which records their position and loading
and dumping operations.

Hazardous - it regulates, through an activity-based permit system, the

Chemicals import, export, manufacture and use of non-pesticide hazardous
Control chemicals that have potentially harmful or adverse effects on
human health or the environment..
Product Eco- Producer Responsibility Scheme (PRS) is a key policy initiative in
responsibility the "Policy Framework for the Management of Municipal Solid
laws Waste (2005-2014)" for waste reduction, recovery and recycling.
- Enshrining the principle of "polluter pays" and the element of
"eco-responsibility", PRS requires manufacturers, importers,
wholesalers, retailers and consumers to share the responsibility
of reducing, recovering and recycling certain products so as to
minimize their environmental impact.

- It provides a legal basis for introducing producer responsibility

schemes, with the environmental levy on plastic shopping bags
as the first scheme.

Motor Vehicle - The law prohibits drivers from causing or permitting their
Idling (Fixed vehicle engines to operate for more than 3 minutes in aggregate
Penalty) in any 60-minute period while the vehicles are stationary ("idling
prohibition").
- Drivers who contravene the idling prohibition may be issued
with a penalty notice requiring them to pay a fixed penalty of
$320.
- Traffic Wardens and Environmental Protection Inspectors are
empowered to enforce the law.
Lecture 5

ENVIRONMENTAL LAWS COORDINATION

- For a long time, Kenya did not have a comprehensive legislative

framework for environmental regulation.
- But due to enactment of EMCA OF 1999 and revised EMCA (the
Environmental Management and Coordination Act)of 2003, there are
bodies set for formulation and implementation of environmental laws.
For example NEMA

ENVIRONMENTAL LAWS CONSTRAINTS

- Both laws and institutional mechanisms for addressing the problem of

environmental degradation have been in existence in Kenya since the
colonial times.
- Yet in this long history also lies the major weakness of this framework for
the protection of the environment. Because the laws were conceived and
introduced during the colonial era
- And thus, for a long time, Kenya did not have a comprehensive legislative
framework for environmental regulation.
- The law governing environmental matters was confined to the common law
and a number of statutes regulating sectors such as water, health, forestry,
agriculture and industry.
- Absent from this framework is any provision for coordination between
various organizations and individuals involved in the various aspects of
environmental protection.
o The need for coordination cannot be overstated, as only with
coordination can there evolve a uniform application of the law,
leading to uniform standards in the management of the
environment.
- Another major constraint within the legal framework relates to the
vexing question of standing.
o Locus standi, or standing to sue has been used by courts in Kenya to
defeat a number of initiatives aimed at securing the public interest.
o The Civil Procedure Rules, which govern the process of civil courts,
provide that one or more persons may sue on behalf of a number of
people who have the same interest in one suit.
 o A person who files such a suit, known as a representative suit, is
enjoined to give notice of the filing of the suit whether directly or by
advertisement in the press to all persons interested in the matter.
o Any person on whose behalf a suit is so filed may apply to be joined
as a party.
o HOWEVER
 While this provision appears to provide an opening for the
pursuit of public interest litigation, this matter is not so
straight forward, especially with respect to public interest
environmental litigation.
 The law suggests that such a representative action is
envisaged of environmental litigation is such that it is hard to
be so specific about the class of persons on whose behalf an
action would be brought.
 This has hampered the use of this rule to facilitate public
interest environmental litigation.
- In the past, there has been unconducive political environment in Kenya.
o As in much of Sub-Saharan Africa, it has not been conducive to the
organization of civil society around such issues as environmental
rights.
o In the single-party era, which was characterized by autocratic
governance and emasculation of civil society, advocates for
environmental rights became targets of intimidation and harassment
by government.
o This has greatly hampered the evolution of serious environmental
advocacy groups that would effectively mobilize public opinion and
resources in the protection of the environment.
- The policy framework is a function of the political process, and in the past
this has not been conducive to such citizen initiatives as public interest
litigation.
- There has been a failure legal profession and judiciary interested in
environmental litigation in Kenya.
- The limited scope of common law remedies available for environmental
degradation and the personal nature of those remedies were a major legal
constraint to the widespread use of public interest litigation to enforce
environmental rights.
 - There were lack of capacity within the legal profession and the judicial
system for the use of public interest litigation

- Nevertheless, increasing environmental activism and governmental

appreciation of the significance of a sound legislative framework for
environmental regulation culminated in the enactment of the
Environmental Management and Coordination Act (EMCA) of 1999.
- On the whole, EMCA does not repeal the aforesaid sectoral legislation and
instead seeks to coordinate the activities of the various agencies tasked to
regulate the various sectors.
- In addition, the common law remains a useful instrument for
environmental regulation.
- The common law deals with the environment in a “reactive” as opposed to
a “managerial” manner, since it is predominantly concerned with
remedying any interference with a environment’s rights.
- The situation is however changing rapidly as there is increased awareness
both in and outside government of the need for environmental stewardship
as an input in the development process.
- Nevertheless there is a critical need for capacity-building initiatives to
ensure that these opportunities will be translated into benefits for
environmental and natural resource governance.

ENVIRONMENTAL LAWS ENFORCEMENT

- Enforcement refers to the set of actions that the government can take to
promote compliance with environmental law.
- Currently, rates of noncompliance with environmental laws remain
disturbingly high; experts believe that as many as twenty to forty percent
of firms regulated by approved by environmental statutes regularly
violate the law.
- Tens of millions of citizens live in areas out of compliance with the health
based standards of the Clean Air Act, and close to half of the water bodies
in the country fail to meet water quality standards set by the Clean Water
Act
 - In communities burdened by multiple sources of pollution, noncompliance
has particularly serious health consequences for affected residents.
- The job of enforcement agencies is to make both penalties and the
probability of detection high enough that it becomes irrational–
unprofitable-- for regulated firms to violate the law.
- The law has emphasized the importance of regular inspections and
monitoring activity to detect noncompliance, and has responded to
violations with swift and appropriate sanctions.
- Environmental agencies actually carry out the majority of enforcement
activity in this country.
- The statutes allow citizens to sue companies for violations when the
government fails to do so and various, often strict, procedural conditions
are met.

-Apart from regulation by the government and the local authorities, public
regulation is also exercised by local management institutions, although to a small
extent.
- While regulation by government and local authorities is more formal, regulation
by traditional local institutions in Kenya is still informal

A number of elements are critical to effective environmental

enforcement:
 As agencies expand compliance assistance and incentive programs, they
must maintain a strong, credible threat of enforcement.
o Strong enforcement motivates many regulated parties to strengthen
their internal regulatory systems and promotes voluntary
compliance
o This is achieved by ensuring firms that voluntarily comply, gain a
competitive advantage than those firms do not comply with
applicable laws and regulations.
 To encourage regulated entities to develop voluntary compliance
programs, firms that conduct audits or carry out other self-policing efforts
should be rewarded with benefits like less frequent inspections or lower
fines.
o But these self-policing systems should supplement, not replace,
traditional enforcement activities.
 o Audit privilege and immunity laws are unnecessary and undesirable.
They are unnecessary because there are many existing incentives for
firms to conduct audits even without such laws, including lower
insurance premiums, reduced waste, reduced liability, and others.
o Such measures are undesirable because they complicate and
increase the costs of enforcement, and shield important
environmental information from the public.
 Information disclosure has proven to be a potent force in motivating firms
to improve environmental performance.
o The state agencies should publicly spotlight the compliance and
performance status of regulated entities to generate important
public pressure for compliance and improved performance.
 Governing body should implement a “differential oversight” scheme that
rewards regions/firms that have effective and successful enforcement
programs with reduced oversight and greater flexibility, and publicly report
its evaluation of state enforcement programs in order to motivate states
environmental performance with the power of an external spotlight.

- Citizen enforcement plays a valuable role in promoting environmental

compliance, aiding agency enforcement efforts and providing an important
deterrent to noncompliance when government agencies fail to act either
because of lack of resources or political will.
o Environmental laws and civil rights statutes should be amended to
ensure citizens access to the courts to enforce environmental
violations

NB

- Effective enforcement is key to ensuring that the ambitious goals of our

environmental statutes are realized

THE POLICE POWER

- There are a number of law enforcement organisations in Kenya. With the
main organisation being the Kenya Police Service. Kenya employs up to
40,000 police and paramilitary personnel.
 - This is the power of the state to regulate proper implementation of
environmental laws land use in the public interest, such as to secure proper
resource utilization and management.
- It is also an attribute of the sovereignty of working with the Police to
enhance the Authority’s enforcement efforts, thus creation of a NEMA
Police Unit.

Enforcement challenges
Investigation challenges.
 Inadequate personnel and equipments
 Complex nature of environmental crimes -The process is tedious and rigid
• Inadequate time frame for investigation by the officers
• Undue pressure and coercion during investigations

Prosecution challenges.
• Low penalties in our courts
• Time taken to determine the case
• Insufficient evidence due to time limit
• Lack of Environmental awareness and consciousness by the judicial officers.

Eminent Domain
- Legal scholars consider eminent domain an inherent or preexisting power
of the state—an attribute of sovereignty that does not require an express
grant of authority.
- In Kenya, eminent domain authority can be exercised, “in the interest of
defense, public safety, public order, public morality, public health, town
and country planning or the development or utilization of property so as to
promote the public benefit”
- This is the power of the state or its assigns to acquire private property for
public purposes, subject to the prompt payment of compensation.
- Whenever the state exercises this power, it forces involuntary transfers of
property from private owners to itself or its assigns.
- Again, the state is not obligated to pay compensation whenever it exercises
this power, the rationale being that it is simply requiring the land owner to
stop causing harm to the public.
- Whenever the power of compulsory acquisition is invoked, no
compensation is due when the public – by exercising the police power –
simply requires one of its members to stop making a nuisance of himself or
herself.
- In Kenya, this power is embodied in the constitution, which requires that
private property can only be acquired compulsorily for public use.
- In the same manner the eminent domain may be used by the government
whenever the environmental laws are violated especially if it happens in
large scale.
- The government may force a firm or a company to close down.