Principles of Environmental law


Date Posted: 2/25/2012 10:02:51 PM

Posted By: andileb  Membership Level: Silver  Total Points: 326

Environmental law in the current setting is mainly concerned with ensuring the sustainable utilization of natural resources according to various fundamental principles developed over the years through both the existing municipal laws and also those in the international setting. However Kenya for so many years did not have an exclusively laid out legal framework and regulations and its laws were regulated by the common law and statutes that dealt with specific sectors such as agriculture and industry. The rise of environmental activism and awareness was significant in enabling the creation of significant laws in environmental management.
Prior to the establishment of the laws an individual did not have a legal standing to file a suit in court. This was established by the ruling of Dugdale, J in the case of Wangari Mathai v. The Kenya Times Media Trust where he stated that “the defendant was in breach of any rights, public or private in relation to the plaintiff but had not caused damaged to her”. It was to the effects of such rulings that civil societies piled pressure on the government to establish good laws to govern the environmental management system.
English common law was the principle law used but it was considered to be “reactive” as opposed to “managerial” because it was concerned with remedying an interference with a landowner’s rights on land. One could only file a suit, and the rights alleged would have been on the individual. The only remedy would have been an award for damage or injunctions but there was no way a public person would file a suit. The environmental media in Kenya is governed by more than 77 sectoral laws.
The most important statute in Kenya is the Environmental Management and Co-ordination Act . Article 3 (5) states that in exercising the jurisdiction conferred upon it under the subsection (3), the High Court shall be guided by the following principles of sustainable development (a) The Principle of public participation in the development of policies, plan and process for the management of the environment; (b) the cultural and social principles traditionally applied by any community in Kenya for management of environment or natural resources in so far as the same are relevant and are not repugnant to justice and morality or inconsistent with any written law; (c) the principle of international co-operation in the management of environmental resources shared by two or more states; (d) principles of intergenerational and intragenerational equity; (e) the polluter pays principle; and (f) the pre-cautionary principle.
The principles were integrated in the case of Peter K. Waweru v. R where Nyamu , J stated that “ the court ought not to take into account certain principles when determining environmental matters and that the principles do constitute international customary law and the court ought to take cognisance of them in all relevant situations.”
The Constitution of Kenya under article 42 states that all, “Every person has the right to a clean environments including the right to have the environment protected for the benefit of future generations through legislative and other measures.” It also empowers persons that the obligations as regards the environment are fulfilled. The constitution hence guarantees all persons the right to have a clean a healthy environment.
Environmental Management Act No. 8 of 1999
This statute was passed in 1999 but came into force in 2000. Before the creation of the statute different spectral laws governed different aspects of the environment and was considered to be quite ineffective. This Act integrates all the principles as was stated by Nyamu, J, in the case of Rv. Peter K. Waweru and are to govern the decisions of the court in environmental law. It is usually stated that where the EMCA contradicts with the provision of other sectoral laws, the EMCA provision would be considered to be paramount.
It has been stated that EMCA provides for the creation of National Environmental Management Authority (NEMA) which is the principle body meant to implement policies on the environment. National Environment Council (NEC) is the highest policy making organ and it has the mandate to enforce international treaties through its oversight role in NEMA.
The principle of sustainability
The principle of sustainability is usually associated with inter-generational and intra-generational equity. Article 69 (1) (h) provides that the state shall utilise the environment and natural resources for the benefit of the people of Kenya. This principle seeks to provide that persons should use the environment in a good way to ensure that interests of the future generation are taken care off. The Rio Declaration at paragraph3 and in the opinion of Judge Weereantry in Gabcikovo v. Nagymaros it was clearly stated that the environment should be used diligently especially when using natural resources. Equity basically is to ensure that these resources are shared and used in a fair manner and that benefits are shared. Essentially, the principle of intergenerational equity supports fairness, and ensures that the future generations are well taken care off. This principle ideally requires that environmental protection should be integrated into the protection of the environment. The Rio Declaration states that for development to exist there needs to be sufficient efforts to ensure that the environment is protected. EMCA at Article 3 (5) provides for the principles of intergenerational and intra-generational equity.
Principles of Prevention
This principle lays basis on the fact that harm should not be done to the environment and that courts or the legal fraternity should not rely on compensation alone because the damage has already been done. Preventing damage to the environment is far much better than waiting for the damage to occur. At the international level, this principle has been particularly prominent in the context of pollution. This principle has been integrated into EMCA and it should be undertaken by all government organs and agencies. It was established in the case of Just v. Marinette County where an injunction was granted based on the issue that it was to protect the environment from harm and not for the public interest. This case clearly laid the principle that the interest of conserving the environment is paramount to that of public interest. In the case of Park View Arcade Ltd v. Charles M. Kangethe a minister was compelled to protect the environment rather than considering the benefits of utilising the particular resource.
The Precautionary Principle
This principle has been articulated by the resolutions and declarations of international organisations such as the United Nations Organisations and the United Nations Environment Programme (UNEP).Science is essential in providing evidence on the degradation of the environment thus various environmental problems such as global warming and climate change can be monitored. This principle seeks to integrate scientific knowledge and opinion into the legal framework. Scientific knowledge can also be used under the principle of Article 69 (1) (f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment; prevention because it gives environmentalist a list of possible ways harm can be prevented.
Environmental Impact Assessment (EIA) can be viewed in the perspective of the precautionary principle because its aim is to assess the impact of development activities on the environment and the adverse effects it may have. The case of K. Boat Services LTD v. Sosco Fishing Industries Ltd and Another an Environmental Impact Assessment was required to provide the granting of an injunction to restrain the respondent from carrying out reclamation. However the court ruled that the assessment prov


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