Promoting Public Acceptance of Wind Energy Projects in Kenya: Towards a Wind- Wind Solution

WORKING PAPER No. 10, November 2017. Promoting Public Acceptance of Wind Energy Projects in Kenya: Towards a Wind- Wind Solution Clarice Wambua The integrated and inter-disciplinary research conducted by the Strathclyde Centre for Environmental Law and Governance (SCELG) seeks to address real-world knowledge gaps in partnership with government institutions, NGOs, private institutions and local communities. Our researchers hold considerable expertise in the fields of comparative, EU and international environmental law, with regard to, among others, biodiversity, land, food and agriculture, climate change and energy, water and oceans, as well as corporate accountability, environmental justice, human rights and sustainable development. For more information, visit: http://www.strath.ac.uk/scelg Or contact: [email protected] Framework Convention on Climate Change Promoting Public (UNFCCC) are increasingly demonstrating this Acceptance of Wind Cheshire Cat wisdom, given their clarity on indi- vidual goals aimed at contributing to averting Energy Projects in dangerous climate change. Kenya: Towards a Wind- Kenya was among the list of countries that sub- Wind Solution mitted its NDCs following the Warsaw call, join- ing a total of 147 Parties (75% of all Parties to the UNFCCC) who responded to the invitation to Clarice Wambua submit NDCs by the 1st October 2015 deadline.2 Kenya’s NDC covers both mitigation and adap- tation, and aims to foster low carbon climate re- LLM in Climate Change Law and Policy, 3 University of Strathclyde – LLM Dissertation silient development. It seeks to abate the country’s GHG emissions by 30% by 2030 relative to the BAU scenario of 143 MtCO2eq; and in line with its sustainable development agenda.4 To 1. Introduction achieve this target, the NDC highlights that priority mitigation activities will include expansions In the famous classic tale, Alice in Wonderland, in the national production of geothermal, solar, the Cheshire Cat gives Alice sound advice on wind and other renewable and clean energy op- travelling. According to the Cat, the traveler tions. Similarly, goal 7 of the Sustainable Devel- needs to know where he wants to go, to know opment Goal (SDGs) calls for the provision of af- which way to go.1 This advice is relevant to all fordable and clean energy, and 2014-2024 has been declared as the United Nations Decade of countries operating under a post-2015 interna- 5 tional climate change regime. The necessary Sustainable Energy for All (SE4All), with the fo- transition to a low carbon society is only possible cus of this initiative aimed at inter alia doubling the share of renewable energy in the global en- where a country is clear about its goal to reduce 6 its greenhouse gas (GHG) emissions, and ergy mix by 2030. Kenya is among the countries chooses a pathway congruent with this goal. that have signed on to the initiative and is the Through their Nationally Determined Contribu- second country in the world to adopt a national tions (NDCs), Parties to the United Nations 1 Lewis Caroll, Alice’s Adventures in Wonderland 4 Ibid (BookVirtual 2000) at 89. 5 United Nations Department of Public Information, ‘United 2 UNFCCC, Synthesis report on the aggregate effect of Nations General Assembly Declares 2014–24 Decade of the intended nationally determined contributions, Sustainable Energy for All’ (Press Release, GA/11333 FCCC/CP/2015/7, 30 October 2015. EN/274, 21 December 2012); See also 3 Republic of Kenya, Kenya’s Intended Nationally Deter- http://www.un.org/sustainabledevelopment/sustainable- mined Contribution (INDC), Ministry of Environment and development-goals/. Accessed 02.10.2016 Natural Resources, 23 July 2015. Available at 6 ‘Sustainable Energy for All: A Vision Statement by Ban http://www4.unfccc.int/submissions/INDC/Pub- Ki-moon, Secretary-General of the United Nations’ (United lished%20Docu- Nations, November 2011) 4. ments/Kenya/1/Kenya_INDC_20150723.pdf Accessed 13.09.2016 The place of useful learning The University of Strathclyde is a charitable body, registered in Scotland, number SC015263 action plan to guide its implementation of the in- 2. Energy Developments in itiative, and an investment prospectus to high- light priority projects proposed by stakeholders.7 Kenya: Which Way Is the Wind Blowing? Wind energy is therefore among the key sources of renewable energy which as a component of Kenya’s energy mix, has the potential to aid in Energy policy in Kenya has evolved through ses- the attainment of the NDC target as well as lead sional papers, regulations and Acts of Parlia- Kenya to the attainment of the SDGs. However, ment, and renewable energy issues have been a challenge to the attainment of these targets encapsulated in these varying documents over through increased wind energy production is that time.10 The focus initially was on the electricity there have been instances of local community and petroleum sub-sectors,11 and this is not sur- opposition to wind energy projects, delaying and prising given that renewable energy issues have in some cases halting the implementation of the only gained prominence both nationally and in- projects.8 The central question in this essay is ternationally, in the recent past.12 In Sub Sa- what legal mechanisms and incentives should haran Africa countries such a Kenya, renewable be adopted under Kenya’s energy regulatory energy promises a very much desired increase framework to reduce such opposition. In answer- in access to and affordability of electricity.13 Less ing this question, the essay will begin by review- than 30% of the households in Kenya have ac- ing developments in energy in the country, with cess to electricity, and majority cannot afford the a specific focus on wind. The essay will then turn high cost of electricity.14 These access and af- to a review of the legal measures taken by Den- fordability challenges are further compounded mark to encourage local acceptance of wind by the fact that projections show a variance be- power generation projects, and the applicability tween current available installed capacity and of these measures in the Kenyan context. The the anticipated peak load estimated to grow to choice of Denmark stems from its pioneering 15,000 MW by 2030, which means that there is status in wind energy developments.9 The es- need to accelerate the facilitation of a variety of say’s central argument is that there are lessons energy sources to meet the country’s electrical for Kenya from the Danish experience on the supply and consumptions needs.15 creation of a regulatory framework that en- hances acceptance of wind projects. However, Whereas it may appear that recent oil discover- the socio-economic circumstances and realities ies in Kenya will see a slowing down of momen- of Kenya need to take center stage in the adop- tum and a diminished role for renewable en- tion of lessons learned. ergy,16 Kenya has created a relatively robust 7 Mosad Elmissiry, Kenya’s Sustainable Energy Goals on Available at http://www.cofek.co.ke/ERCStudy_ExecSum- TracK, Daily Nation, Thursday March 12, 2015. Available mary_02082010.pdf. Accessed 21.02.2015. at http://www.nation.co.ke/oped/Opinion/Kenya-Energy- 12 Richard L. Ottinger et al, ‘Introduction’ in Richard L. Ot- Economy-National-Action-Plan/-/440808/2650044/- tinger et al (eds) Compedium of Sustainable Energy Laws, /11g16f8/-/index.html. Accessed on 19 March 2015. (Cambridge University Press 2005) at x. 8 For example, see Macharia Mwangi, SH 13bn Wind 13 Republic of Kenya, Scaling Up Renewable Energy Pro- Farm Project runs into Headwinds Due to Cash and Poli- gram (SREP). Investment Plan for Kenya, May 2011. tics, Daily Nation 2nd March 2015. Available at 14 EED Advisory, Why Policy, Capacity and Governance http://www.nation.co.ke/counties/Sh13bn-wind-farm-pro- are Not the Greatest Limitations to the Spread of Grid- ject-runs-into-headwinds-/-/1107872/2640546/-/39jm6w/- Based Electrification in East Africa, EED Energy Access /index.html Accessed 04.03.2015. Review June 2014 14-Q2EA at 1. 9 Paul Gipe, Wind Energy Comes of Age, (John Wiley & 15 Republic of Kenya, Least Cost Power Development Sons 1995). Plan, (GoK 2010). 10 These documents include the Least Cost Power Devel- 16 Following the discovery of oil and gas deposits in opment Plan (LCPDP), the Scaling Up Renewable Energy Kenya, there is increased interest in the Kenyan upstream Program (SREP) Investment Plan for Kenya, the Energy oil and gas sector with a good deal of transactional activity Act of 2006 and regulations thereunder, the Feed-in Tariff going on involving the Government of Kenya entering into (FiT) Policy, the Kenya National Climate Change Re- agreements such as Production Sharing Contracts. See sponse Strategy and Action Plan, and the Kenya Vision Freshfields Bruckhaus Deringer and Kaplan and Stratton, 2030. Kenya: Oil and Gas Developments, Freshfields Bruckhaus 11 A Comprehensive Study and Analysis on Energy Con- Deringer LLP News Brief, March 2013. Available at sumption Patterns in Kenya, Synopsis of the Draft Final http://www.freshfields.com/uploaded- Report submitted by KIPPRA to ERC, July 2010, at 15. 2 regulatory environment for a renewables path- Specifically with regards to wind energy, Kenya way, and made heavy financial investments for is among the top seven African countries with this energy transition. Thus, commitment to sus- large on-shore wind energy potential.21 Gener- tainable energy is unlikely to waver. This is also ally, wind energy markets in the continent re- likely due to the

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