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Abstract<\/span><\/strong><\/span>\u00a0<\/p>\n Climate change has caused a massive toll in various countries, especially in developing countries like Kenya, due to which it is imperative to explore avenues and methods to mitigate climate change to the best extent possible. Thus, in this Blog Post, firstly<\/em>, the author shall briefly introduce and explore the rubrics of climate change and climate refugees. Secondly<\/em>, the author shall discuss how renewable energy is used to combat and mitigate climate change in Kenya. Thirdly<\/em>, the author shall scrutinize the legal and regulatory framework for renewable energy in Kenya. Fourthly<\/em> and lastly, the author shall recommend domestic efforts \u2014 in the form of usage of renewable resources \u2014 coupled with collaborative international efforts to best tackle and mitigate climate change.<\/span><\/p>\n <\/strong><\/p>\n 1. Introduction to Climate Change<\/strong><\/span>\u00a0<\/span><\/p>\n Climate change is a<\/span>universal phenomenon<\/a> that causes long-term shifts in temperatures and weather patterns. It is caused by rising emissions, burning coal, oil, and gas, producing greenhouse gases like Carbon dioxide (CO2<\/sub>). The release of these gases results in global warming, which increases global temperatures. Consequences of climate change include heatwaves, droughts, and natural occurrences like floods. Climate change has<\/span>also caused<\/a> rising sea levels, which has led to people\u2019s displacement in several different places, causing them to become \u201cclimate refugees<\/em>.\u201d\u00a0<\/span><\/span><\/p>\n Premised on climate change, many countries are working towards mitigating the adverse effects of climate change in various robust ways, such as adopting and using renewable energy.<\/span>According to the International Renewable Energy Agency<\/a>, renewables could supply four-fifths of the world\u2019s electricity by 2050. This will massively lead to cutting carbon emissions and mitigating climate change.<\/span><\/span><\/p>\n <\/strong><\/p>\n 2. Use of Renewable Energy in Kenya to Mitigate Climate Change<\/strong><\/span>\u00a0<\/span><\/p>\n In recent years, there has been increasing debate in academic circles in the environment and energy sector on the issue of climate change, i.e., how the energy sector can adapt to the impacts of climate change. The adaptation to climate change has been addressed in various ways, including the<\/span>Paris Agreement,<\/span><\/a> an international agreement on climate change adopted in 2015 in Paris<\/span>to limit the emission below 2 degrees Celsius as per the pre-industrial levels<\/a>. It subsequently came into force in 2016.\u00a0<\/span><\/span><\/p>\n This has, in several ways, led to the adoption and use of renewable energy, which is a clean and environmentally friendly energy and comes from natural sources. It includes solar, wind, hydroelectric, and geothermal energy. The types of renewable energy mentioned above have been adopted in the following ways in Kenya.<\/span><\/p>\n a. Solar energy: <\/em><\/strong>This entails using sun rays for several purposes, such as heating homes and supplying power to households. The solar cells, also known as photovoltaic (PV) cells, transform the sunlight directly to electricity, wherein the systems generate electricity for homes and businesses. This<\/span>can be done using<\/a> solar panels on the roof that has been built towards the generation of clean energy and mitigation of climate change. Currently, solar energy in Kenya<\/span>has a potential<\/a> of 15,000 MW.<\/span><\/span><\/p>\n b. Hydroelectric Energy: <\/em><\/strong>This is referred to as energy in moving water. It is the use of moving water for the supply of electricity. Kenya has been using hydropower to mitigate climate change and currently<\/span>has a capacity of 825.69 MW<\/a> of hydropower.<\/span><\/span><\/p>\n c. Geothermal energy: <\/em><\/strong>This form of energy includes the heat from within the earth, wherein the energy is manifested in the earth\u2019s surface in the form of hot springs. To supply electricity, the steam is pumped into a turbine rotating the generator to produce electricity. Currently, Kenya<\/span>has a capacity of 690 MW<\/a> of geothermal energy.<\/span><\/span><\/p>\n d. Wind energy: <\/em><\/strong>This uses airflow to generate electricity wherein wind turbines or wind energy conversion systems are used. Currently, Kenya has adopted wind energy<\/span>as a form of renewable energy and has about 26MW of wind energy<\/a>.\u00a0<\/span><\/span><\/p>\n In finality, at the COP-26 Summit on 2 November 2021, the President of Kenya asserted<\/a> that Kenya is determined to have a complete transition to clean energy by 2030.<\/span><\/p>\n <\/strong><\/p>\n 3. Consequential Effects of Climate Change in Kenya: Climate Risks, Economy, and Society<\/strong>\u00a0<\/strong><\/span><\/p>\n Kenya has come up with<\/span> several measures,<\/span><\/a> such as its Climate Change Action Plan of 2018-2022. It has prioritized enhancing energy efficiency and adopting renewable energy as one way to mitigate climate change. This is in tandem with the<\/span> global efforts to reduce climate<\/a> change under the United Nations Low Emission and Climate Resilient Development (hereinafter \u201cLECRD\u201d<\/strong>). Thus, this is one of the many ways to reduce the adverse effects of climate change.<\/span><\/span><\/p>\n A. Climate Risks from Climate Change in Kenya<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n Some of the climate risks that climate change has occasioned include increased temperatures, unprecedented shifts in rain patterns, increased sea levels, melting glaciers, and ocean acidification. As stated in the Nation Climate Change Action Plan of 2018-2022, Kenya has been experiencing a warming trend since 1960, and it is predicted that the rising temperatures will continue. The rain patterns have changed with the rain reducing significantly, which has led to the intensifying of drought in terms of its frequency and severity. There has also been a rise in the sea level in the Indian Ocean, caused by the melting of glaciers and ice sheets and thermal expansion due to ocean warming. These severe climate risks lead to several consequences, including, but not limited to, the loss of lives, diminished livelihoods, decreased crop production, and livestock, and have also caused damage to Kenya\u2019s infrastructure. In a balance of probabilities, it is most probable that climate change will adversely affect the development of Kenya and the<\/span>implementation of Vision 2030<\/a> and the<\/span>current development agenda<\/a> known as the \u201cBig 4 Agenda<\/em>\u201d entailing food security, manufacturing, affordable health care, and decent housing.<\/span><\/span><\/p>\n B. Climate Change and the Kenyan Economy<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n The Kenyan economy is highly vulnerable to climate change as it relies on sectors such as agriculture, water, energy, forestry, and tourism which are sensitive to climate change. When these sectors are affected, it<\/span>leads to an increase<\/a> in poverty due to the weak resilience capacities of these sectors, thereby increasing the exposure and vulnerability of these sectors to climate shocks.\u00a0<\/span><\/span><\/p>\n Small scale rain-fed agricultural cultivation is highly vulnerable to shifting rain patterns caused by climate change which, in turn, lead to drought and food insecurity. It is<\/span>estimated<\/a> that the average temperatures in Kenya\u2019s ASALs (Arid and Semi-Arid Lands) exceeded the global target of 1.5 degrees Celsius in the past years due to climate change caused by carbon emissions. Consequently, this led to food insecurity and famine in these areas, adversely affecting the economy.\u00a0<\/span><\/span><\/p>\n Consequently, Kenya also experiences floods in some parts of the country, causing widespread damage to the crops and fisheries, which employ multiple people in the coastal areas. These sectors are delicate and vulnerable to climate change, including sea-level rise, ocean acidification, and increased intensity of storms which, in turn,<\/span>lead to<\/a> the destruction of coastal and marine ecosystems and productivity losses. Further, the economic costs of floods are estimated to create fiscal liability<\/span>equal to 2.8% of the Gross Domestic Production (GDP) per annum<\/a>. Thus, it can be said that climate change can and has led to the debilitation of the Kenyan economy.<\/span><\/span><\/p>\n C. Climate Change Impacts on Society<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n Climate change disasters, including drought and floods, have also had a detrimental impact at<\/span>the household level<\/a>, leading to food insecurity, property damage, and high food and fuel prices. Firstly<\/em>, this affects the allocation of the government\u2019s resources as money<\/span>meant for specific projects<\/a> is reallocated to other sectors for relief purposes. Secondly<\/em>, droughts increase water scarcity which, in turn, lead to a negative impact on the communities, especially the women and the girls, as they must travel long distances in search of water. This also negatively impacts their education. Thirdly<\/em>, pastoralists in the Arid and Semi-Arid Land (ASALS) have lost their livestock due to the intense droughts. Fourthly<\/em>, climate change has also led to cattle rustling, causing the loss of lives and livelihoods.\u00a0<\/span><\/span><\/p>\n Thus, considering the preceding, Kenya is working towards climate change mitigation with a raft of measures wherein the government has curated its overall power development plan in line with renewable energy generation,<\/span>which started in 2017 and is projected to run up to 2037<\/a>. The government has projected that, by 2037, renewable energy resources will provide<\/span>slightly above 60% of installed power capacity<\/a> in Kenya. Some projected renewable sources include hydropower, wind power, and solar power. Under the same veil, the government has, in recent years, also put in place various other measures geared towards the renewable energy sector, which include the enactment of the Energy Act, 2019 and the establishment of \u2013 Energy and Petroleum Regulatory Authority (EPRA), Energy and Petroleum Tribunal (EPT), Rural Electrification and Renewable Energy Corporation (REREC), Renewable Energy Resource Advisory Committee (RERAC), and the Renewable Energy Feed-in-Tariff System (REFiTS).<\/span><\/span><\/p>\n \u00a0<\/span><\/p>\n 4. Legal and Regulatory Framework for Renewable Energy in Kenya<\/strong><\/span><\/p>\n A. Constitution of Kenya<\/em><\/strong>\u00a0<\/strong><\/span><\/p>\n \u201c<\/span>Article 42 of the Constitution<\/em><\/a>\u201d has established the right to a clean and healthy environment. In line with the energy sector, under \u201cPart 1 of the Fourth Schedule of the Kenyan Constitution<\/em>,\u201d the government has been given several responsibilities such as protecting the natural resources and the environment to establish a durable and sustainable development system and develop an Energy Policy including \u201celectricity and gas reticulation and energy regulation<\/em>.\u201d\u00a0<\/span><\/span><\/p>\n Considering the preceding, it is imperative to discuss the case of<\/span>Save Lamu et al. v. National Environmental Management Authority and Amu Power Co. Ltd<\/em><\/strong>.<\/a> This case involved setting up a coal plant in Lamu, Kenya. It was filed before Kenya\u2019s National Environmental Tribunal. The Tribunal found that the National Environmental Management Authority (NEMA) \u2014 an authority established under the Constitution of Kenya to implement environmental policies \u2014 violated the Kenyan Constitution by failing to conduct an Environmental Impact Assessment (EIA). Due to this violation, NEMA was ordered to ensure that the environment is well protected and that an Environmental Impact Assessment (EIA) is conducted for every project involving the energy sector before implementing such projects.\u00a0<\/span><\/span><\/p>\n Further,<\/span>Articles 2(5) and 2(6) of the Kenyan Constitution<\/a> provide that international law shall be part of the Kenyan law, and if Kenya ratifies any treaties or conventions, they shall be part of Kenyan law respectively. This helps to address the issue of energy, considering that the various international law instruments that Kenya has adopted and ratified now form parts of its domestic laws, such as the<\/span>United Nations Framework Convention on Climate Change<\/a> (UNFCCC) (adopted and ratified in 2015 by one hundred and ninety-six countries, including Kenya) and UNFCCC\u2019s<\/span>Kyoto Protocol<\/a> whose purpose is to operationalize the UNFCCC and is a commitment by industrialized countries to mitigate climate change nationally.<\/span><\/span><\/p>\n B. The Environmental Management and Coordination Act, 1999<\/em><\/strong><\/span>\u00a0<\/span><\/p>\n The \u201c<\/span>Environmental Management and Coordination Act, 1999<\/em><\/a>\u201d (hereinafter \u201c1999 Act\u201d<\/strong>) was formulated to regulate matters related to environmental institutions and the protection of the environment, such as conducting EIA, environmental audits, and environmental monitoring. Further, Section 3 of the 1999 Act states that every person has a right to a clean and healthy environment, which entails freeing the environment from high-level carbon emissions. This shows that the right to a clean and healthy environment is constitutional and statutory.<\/span><\/span><\/p>\n C. The Energy Act, 2019<\/em><\/strong><\/span>\u00a0<\/strong><\/p>\n The \u201c<\/span>Energy Act, 2019<\/em><\/a>\u201d (hereinafter \u201c2019 Act\u201d<\/strong>) was adopted for renewable energy generation and environmental protection. In line with the 2019 Act, the Cabinet Secretary for the Ministry of Petroleum and Energy<\/span>has been mandated<\/a> to develop, publish, and review renewable energy plans and ensure reliable energy resources at the least possible cost. Subsequently, the Cabinet Secretary<\/span>has also been mandated<\/a> to develop a favorable environment for promoting investment in any renewable energy infrastructure. Lastly, the 2019 Act has also mandated that the national and county government acquire land to develop energy infrastructure.\u00a0<\/span><\/span><\/p>\n According to Section 9 of the 2019 Act, the Energy and Petroleum Regulatory Authority (EPRA) has been established. According to Section 10 of the 2019 Act, the EPRA is mandated to perform certain functions, some of which are as follows:<\/span><\/p>\n a. Regulate, produce, convert, and encourage the use of renewable energy.<\/span><\/p>\n b. Collect and maintain data related to energy.<\/span><\/p>\n c. With the collaboration of the Kenya Bureau of Standards, EPRA must ensure that appliances imported to Kenya are those generating clean energy, i.e., cost-effective and energy-efficient equipment and appliances.\u00a0<\/span><\/p>\n Section 11 of the 2019 Act bestows varied degrees of powers to the EPRA, some of which are as follows:<\/span><\/p>\n a. Issuing and renewal of licenses permitting all work conducted in the energy sector.<\/span><\/p>\n b. Management of tariffs supplying power.<\/span><\/p>\n c. Formulation, setting, enforcing, and reviewing standards in the energy sector.<\/span><\/p>\n d. Investigation and determination of disputes between Parties in any issue relating to licenses and license conditions under the 2019 Act.<\/span><\/p>\n e. Imposing sanctions due to violations.\u00a0<\/span><\/p>\n Thus, this shows that the 2019 Act ensures that the energy sector is adequately regulated to ensure its smooth functioning and management.<\/span>\u00a0<\/span><\/p>\n D. The Energy and Petroleum Tribunal (EPT)<\/em><\/strong><\/span>\u00a0<\/span><\/p>\n Section 25 of the 2019 Act establishes the EPT to hear and determine disputes and appeals arising from or in connection with the 2019 Act or any \u201cother written law<\/em>.\u201d The jurisdiction of the EPT becomes clearer under Section 36 of the 2019 Act, which states that the jurisdiction of the EPT is related to hearing and determining matters related to the energy and petroleum sector arising out of the 2019 Act or any other Act. Thus, the EPT is integral for renewable energy because it is a decision-making body wherein its decisions and pronouncements<\/span>can ensure that renewable energy is enhanced and well promoted<\/a>.<\/span><\/span><\/p>\n E. Rural Electrification and Renewable Energy Corporation (REREC)<\/em><\/strong><\/span>\u00a0<\/span><\/p>\n