Environmental Law: Sources of Environmental Law in Kenya

nmental law, being a relatively new field, is largely contained in written texts, although some common law principles and relevant and customary international law is emerging. Governments protectthe environment on the basis oftheir various constitutional and statutory powers to promote the general welfare, regulate commerce and manage public lands, air and water. National authorities may accept additional duties to protect the environment by entering into bilateral and multilateral treaties containing specific obligations. Promulgation of regulations and permits by administrative authorities is another important source of environmental law. Reporting, monitoring and civil and/or criminal actions to enforce environmental law are critical components of environmental law systems. Some constitutions also contain reference to environmental rights or duties, making these constitutional provisions and their interpretation and application another potentially important source of environmental law. Litigation enforces the laws and regulations by civil or criminal actions. If a constitution contains a right to a specified environmental standard, the provision must be interpreted and applied. Issues may also arise as to the appropriate remedy, which constitutions usually do not specify. Besides defining obligations for regulated entities, statutory provisions may allow individuals to bring suit against an administrative body that abuses its discretion or fails to comply with its mandate, and insome circumstances allow for direct citizen action against thepolluters themselves.

National Law as a source of Environmental Law
The range of subjects that potentially involve environmental issues has a breadth that extends across virtually the entire field of legal regulation. For example:
• Antiquities laws may prohibit looting or unauthorized excavation of protected archaeological or natural sites.
• Regulation of agricultural activities may involve issues of the quality and quantity of water use, as well as limiting recourse to pesticides and fertilizers.
• Public health laws can regulate spraying toxics to eliminate disease vectors such as mosquitoes or raise questions about the safety of vaccines.
• Land use regulation and public trust doctrines may be used for environmental protection.
• Coastal zone management, fisheries and forestry law seek to conserve the resources they regulate.
• Mining and energy laws may regulate the emissions of greenhouse gases and other airpollutants.
• Regulation of industrial activities may establish restrictions on emissions and effluent from industrial operations.
Some environmental cases appear at first glance as consumer protection suits against the manufacturers or sellers of hazardous products. Other cases involve efforts to obtain information about environmental conditions or present actions against government officials and agencies that allegedly have failed to enforce the law. Thesemany topics related to environmental law are regulated by various sources ofnational law.

Constitutional Law
On the national level, the Kenya constitution now contains provisions establishing environmental rights, or set forth governmental duties to protect the environment and the state’s natural resources. It provides for the right to a clean and healthy environment, imposes a duty on the state to prevent environmental harm, or mentions the protection of the environment or natural resources.
. It remains to be seen what role constitutional environmental rights might playalongside common law, statutory, and regulatory means for protection of the environment.

Environmental Legislation
Most environmental cases probably appear before judges as part of an effort to enforce statutory or administrative law or as an appeal from administrative decisions, such as denial of a permit or an order to halt emissions.Legislative texts often establish general environmental policy, supplemented by specific laws and administrative regulations. Broad frameworks of environmental statutes have been adopted in many different countries.

These statutes use common techniques and procedures of environmental protection, including environmental impact and risk assessment, prior licensing, and emission standards. At the same time, they often respond to specific environmental concerns in the particular country, such as the safety and environmental consequences of nuclear power plants, large dams, or extractive industries like oil or coal. In most countries environmental legislation is supplemented and given greater specificity in administrative regulations.In addition to general framework laws, national laws often regulate a single environmental milieu, or “medium”, e.g. water, air, soil, orbiological diversity, due to the particular environmental problems facing a given area, political or economic priorities, or the ease of achieving consensus on a specific environmental issue.

While such media-specific legislation can often deal more thoroughlywith a particular sector than framework legislation, one difficulty with such medium-by-medium regulation is that it can sometimes overlook the interrelated and interdependent nature of the environment. For judges, such laws may present problems of reconciling divergent requirements or establishing priorities among the competing laws. One means to address this is sectoral legislation, which simultaneously addresses all environmental impacts from a particular economic sector, e.g.chemicals or agriculture.

Promulgation of standards for various pollutants is often a critical component of the legal framework for environmental protection. Standards may be expressed in terms of ambient standards, which are often health based and normally embody broad objectives, and performance standards or technology-based standards to achieve those goals. Countries may use permit systems to elaborate the application of broad standards to specific facilities.

Administrative Regulations
Legislation on environmental matters often delegates to administrative agencies regulatory powers, including rule-making, standard-setting and enforcement, to achieve the legislative mandate. In order to achieve environmental protection, many administrative agencies and officers have newpowers to obtain information and a wide range of civil enforcement options from orders to injunctions.

In many instances citizens have been granted the right to initiate lawsuits to obtain information about the environment or participate in decision making, as well as enforce environmental laws and regulations, including suits against government officials who fail to perform their duties properly.

As a consequence, courts and judges increasingly exercise oversight of administrative agencies.In permit or licensing proceedings, the court is typically asked to determine whether an administrative agency or governing body’s licensing decision was consistent with the legal requirements. Frequently, in assessing the consistency of agency action with legal requirements, courts will confine their review to the administrative record of decision – that body of information and facts that was before the agency at the time the decision was made.

A courtmay need to reject an administrative decision by an administrative agency or governing body if it determines that the law has been applied in an arbitrary manner or one that infringes basic rights.

International Law
The relationship between national law and international law varies considerably from one legal system to another. International law is considered the supreme body of law by international tribunals and in international relations among states. Thus, a state may not invoke a provision of its national law to excuse its violation of international law. The law of state responsibility provides that each breach of an international obligation attributable to a state automatically gives rise to a duty to cease the breach and make reparation for any injury caused, irrespective of national law. Within states, international law may be legally binding and applied by courts as a result of one or more means that are usually specified in the constitution. Legal doctrine hasdeveloped two theories known asmonism and dualism in an attempt to explain and classify national practice, but the reality is more complex than the theory. Monism posits a unified body of rules, and since international law is the most complete expression of unified law, it automatically forms part of this body of rules and is hierarchically superior to other law. Dualism sees separate legal orders and looks to each jurisdiction to determine the sources of law and their hierarchy.In general, the theory of monism and dualism is most relevant to customary (or law not created through written international agreement) international law and even then in limited fashion. Some legal systems require that customary international law be transposed into national law through legislation or executive order before it becomes the lawof the land. Other legal systems view international law as automatically part of the legal order and enforceable by judges without legislative action.

The position of treaties in national law varies even more; some constitutions specify thatratified treaties are automatically the law of the land and must be applied by judges in cases where an issue concerning them arises.