Key dates 2011–2016

Overview in narrative form, followed by detailed account of specific dates for various steps of project…

OVERVIEW IN NARRATIVE FORM:

• Kenyan government releases a Least Cost Power Development Plan 2011–2030 adding “clean coal technology” into the plans for future energy sources and projecting significantly higher energy demand for the country than in all LCPDP reports dated 1963–2011.
• Kenyan government releases an updated Least Cost Power Development Plan 2013–2033 that predicts even higher energy demand: a projected 14.5% growth in demand.
• Ministry of Energy and Petroleum (MoEP) put out an Expression of Interest for the development of a 900–1000MW coal power generation plant in Lamu County on 28 September 2013.
• This EOI closed on the 25th of October 2013.
• MoEP received a total of 26 submissions. After evaluation of these submissions between the 28th of September and the 16th of December 2013, 10 were prequalified for submission of Technical and Financial Proposals
• On 15th of April 2014, the deadline, the MoEP received 5 submissions from interested firms.
• On 1 September 2014, the MoEP awarded the Project to Gulf Energy Consortium, consisting of Gulf Energy, Centum Limited, Sichuan Electric Power Design and Consulting Company, Sichuan №3 Power Construction Company — both wholly-owned subsidiaries of PowerChina — and China Huadian Corporation Power Operation Company). Centum Energy has a 51% stake in the coal plant, according to its 2016 annual report.
• In or before January 2015, APCL through a contracted Environmental Impact Assessment (EIA) specialist company, Kurrent Technologies Limited (Kurrent), to conduct an EIA Study for it given that the project fell under Schedule 2 of the Environmental Management and Coordination Act, 1999 and thus was required. The Lead Expert for the EIA Study was Mr. Sanjay Gandhi, the Chief Operating Officer of Kurrent and a registered National Environmental Management Authority (NEMA) Expert, Registration №0119.
• On 24 January 2015 Save Lamu and its members were invited by APCL and Kurrent to a workshop intended to discuss the Project and the EIA Study. This workshop was held in Lamu Town at Mwana Arafa Hall. During this consultation, no mention of a conveyor belt, a limestone mining concession, or a dedicated berth with coal handling systems at the Lamu Port for receiving imported coal was made. Instead, Save Lamu et al were informed of a dedicated jetty in Kwasasi that would serve this purpose.
• On 8 July 2015, the County Assembly of Lamu (CAL) passed a motion approving a concept paper submitted by APCL for the Project with the conditions that a full EIA Study must be completed, a Memorandum of Understanding on Corporate Social Responsibility be entered into between Governor of Lamu County and APCL, the National Land Commission (NLC) must initiate the allocation process with the CAL’s involvement, approval of the Resettlement Action Plan (RAP), and for APCL to share any plans or information with the CAL from time to time. The CAL’s motion also revealed that APCL not only received approval from the CAL for the Project, but were also issued a 2,000-acre limestone concession in Witu.
• On the 22nd of October 2015, Save Lamu et al received an email from Cliff Barkatch — the County Office for NEMA in Lamu — with a document titled Environment Project Study for the Proposed 1050MW Coal Power Plant, Lamu County, Kenya (EPR) prepared by Kurrent for APCL.
• They were given 21 days to present our comments from the date of receipt of that letter.
• On the 12th of November 2015, 21 days after Save Lamu et al received the EPR, they submitted their comments to NEMA, which were acknowledged by NEMA. No further communication on these comments was ever received from NEMA.
• On the 13th of March 2016, Save Lamu and partners sent a letter to Francis Njogu, APCL’s Chief Executive Officer, in which they raised our concerns about the Project’s environmental, health and livelihood impacts on the communities of Lamu. Their request to APCL requested that the Project does not move on until a comprehensive feasibility study of alternatives is conducted, meaningful consultation with affected communities is carried out, the conducting of an EIA Study that takes various concerns into account, and obtainment of full and broad support from vulnerable and indigenous communities. APCL never responded to the letter.
• In early 2016 Save Lamu learned that NEMA had decided to require a full EIA Study to be conducted by APCL and issued them with Terms of Reference for the same.
• Amu Power company EIA Study Report submitted to NEMA on 14 July 2016 by Amu Power.
• Invitation of comments from the public was made on 29 July 2016, giving 30 days for comments — due by 29 August 2016
• A public hearing was held on the 26th of August 2016, contrary to the law which requires that it is held after comments are submitted (29th August) and in a place accessible by most affected people — it was held in an area inaccessible to most residents of Lamu, due to distance and costs.
• NEMA (National Environment Management Authority) granted the EIA license on 7 September 2016 — a mere eight (8) days after the comments were submitted by members of the public.
• On 11 October 2016, recently departed head of AfDB Donald Kaberuka was appointed to the board of Centum. On 16 November, he was made the chair of the Centum board. Media reported, “Centum bets big on AfDB former boss to raise funds for its big-ticket projects.”
• Natural Justice / Save Lamu submitted their notice of appeal on 5 November 2016, citing a litany of concerns.
• In November 2016, ERC gave notice it would delay the licensing of the plant until the concerns could be heard.
• In January 2017, in a surprise move that left the media speculating on why, ERC boss Joseph Ng’ang’a prematurely left his position, eight months before his term was due to expire. “The engineer has served at ERC for more than seven years and has been in the energy industry for more than three decades… The ERC director for renewable energy, Robert Pavel Oimeke, assumes the director-general position in an acting capacity.”
• In February of 2017, the Energy Regulatory Commission summarily dismissed the objection filed by the community coalition and the economic and environmental concerns on which it was based.
• In March, Robert Pavel Oimeke took over as acting director-general and started vocally promoting the coal plant, including in a video interview.
• 11–12 May NET hearing in Lamu. Day 1 site visit to Kwasasi and hear some witnesses on site, day 2 hearing of more witnesses in court in Lamu Town.
• 22–25 May LAPSSET port case High Court hearings in Malindi. (Followed by additional…)
• 29–30 May further hearing at NET (South C, Nairobi) and into June…

MORE DETAIL ON EVENTS IN 2016 LEADING TO THE FILING OF APPEAL TO THE GRANTING OF THE ESIA LICENSE BY NEMA

• On the 17th of July 2016 a notice indicating that the EIA Study Report (Report) was now publicly available for comments by members of the public was published in the Daily Nation.
• On the 29th of July 2016 another notice with a summary of the Report was published in the Government Gazette by NEMA’s Director General, Geoffrey Wahungu, inviting members of the public to submit comments within 30 days of the notice, meaning that comments would be due by the 29th of August 2016.
• On 19 August 2016 a notice indicating that a public hearing meeting for the Project would be held on Friday the 26th of August 2016 at the project site in Kwasasi, a location 21km from Lamu Town, appeared in the Daily Nation.
• On 26 August 2016, relying on what Save Lamu and partners believed was a strong legal basis, they objected to attending the public hearing given that it was taking place before the date in which all the comments on the Report were due — the 29th of August 2016.
• On the 29th of August 2016, Save Lamu together with its partners Natural Justice submitted our comments which requested NEMA not to issue APCL with an EIA Licence
• On the 5th of September, Save Lamu managed to access a copy of the Record of Proceedings During Public Hearing Meeting for the Environmental Impact Assessment Study Report on the Proposed Coal Power Plant Held on 26th August, 2016 at Kwasasi Area, Hindi/Magogoni, Lamu County, which is a reflection of the flawed public hearing process that took place on the 26th of August 2016.
• NEMA (National Environment Management Authority) granted the EIA license on 7 September 2016 — a mere eight (8) days after the comments were submitted by members of the public.
• On the 16th of September 2016 Save Lamu were informed that NEMA had made the decision.
• On the 20th of September 2016, aggrieved by the decision to issue APCL an EIA Licence with conditions we deemed weak, Save Lamu through its partners requested NEMA for the reasons and supporting documentation for the decision to approve the Project and issue it with an EIA Licence.
• On the 5th of October 2016 via email, a letter dated 28th September 2016 was sent in reply to the letter from the 20th of the same month stating that a Record of Decision was made based on certain factors and justified NEMA’s actions in issuing the EIA License.
• On the 2nd of November 2016 Save Lamu delivered a letter to NEMA requesting for the documents guiding the reasons and questioning the lack of a Technical Advisory Committee to assist NEMA in making its decision.
• On the basis of the above particulars, Save Lamu decided to lodge an appeal with the National Environmental Tribunal on the decision by NEMA to issue APCL with an EIA Licence for the Project.

DETAILED TIMELINE OF EVENTS 2013–2016

EOI Phase

• September 27th 2013 — Advertisement on the Expression of interest development of the Lamu coal plant. A total of twenty six (26) submissions were received by 25th October, 2013, of which ten (10) firms were pre-qualified for submission of Technical and Financial Proposals
• February25th, 2014 — Gulf Energy, a member of one of the successful bidding consortiums, requested for change of membership of the consortium (now known as “Amu Power”)

RFP Phase

• January27th, 2014 — Request for Proposals
• February27th, 2014 — Pre-Bid Conference held in Nairobi
• February28th, 2014 — Visit to the proposed site for the coal plant
• April15th, 2014 — The reconstituted consortium (Amu Power) was found suitable to submit the RFP for the Tender
• April15th, 2014 — The RFP was closed with a total of five (5) submissions received
• June2nd, 2014 — Notification of award to the successful firm

NEMA Application

Before 2015, there were still no consultations on the project with the local communities and leaders contrary to the law.

• January- June, 2015 — First community consultations by Amu Power
• September 2015 — Completion of project report (EPR) by Amu Power to NEMA
• October 22nd 2015 — EPR made public for comment to specific stakeholders
• November 12th 2015 — Deadline for comment on EPR

Environmental Impact Assessment

• September 2015 — Commencement of Environmental impact assessment by Amu Power. While consultations are required after the EIA process commences, no public consultations were undertaken during this stage contrary to the law as also indicated clearly in the EIA.
• 14th July 2016 — Study Report was submitted to NEMA by Amu Power
• 29th July 2016 — Gazette notice inviting public comments
• 26th August 2016 — Public hearing on the project at Kwasasi, an area inaccessible to most residents of Lamu, due to distance and costs. Contrary to the law, which requires that it is held after comments, are submitted (29th August).
• 29thAugust 2016 — Deadline for public comments
• 9th September 2016 — NEMA issues license for the project
• 7th November 2016 — Save Lamu files petition at National Environmental Tribunal (NET)

Energy Regulatory Commission (ERC) Licensing for electricity generation

• 28th September 2016 — ERC receives application from Amu Power to generate electricity
• 27th October 2016 — final day for public comments on Amu Power’s ERC application
• 27th October 2016 — Save Lamu sends objections to license Amu Power
• 7th November 2016 — ERC sends letter to Amu Power stating that a Public Hearing will take place on 24th November to hear objections from Save Lamu, Natural Justice and the Lamu County Government
• 21st November 2016 — ERC sends letter changing the date of the Public Hearing and asking for assistance in locating appropriate place for the event.
• 22nd November 2016 — Save Lamu acknowledges the letter and offers three venues in Lamu Town appropriate for the Public Hearing
• 5th December 2016 — ERC informs Save Lamu at 11 am that the Public Hearing will be held in Hindi, Lamu County.
• 5th December 2016 — ERC informs Save Lamu at 4 pm that the Public Hearing will be held in Kwasasi, Lamu County
• 5th December 2016 — Save Lamu rejects the venue for its inaccessibility, the change of venue at such a late time and the fact that Kwasasi is not safe for its members.