Mbabazi and Others v. The Attorney General and National Environmental Management Authority
Summary
In 2012, the plaintiffs sought declaratory and injunctive relief on behalf of four Ugandan minors. They argue that article 237 of the Ugandan Constitution makes the government of Uganda a public trustee of the nation’s natural resources including its atmosphere and that articles 39 and 237 require the government to preserve those resources from degradation for both present and future generations. Citing multiple examples of damage and loss of life resulting from extreme weather events, the plaintiffs allege that the government has breached its constitutional duty. In addition to asking the court to declare that the government is violating its public trust duty by not addressing climate change and thereby failing to prevent present and future harms, the plaintiffs request several forms of injunctive relief, such as orders compelling the government account accurately for nationwide greenhouse gas emissions and developing a plan to mitigate those emissions.
After a preliminary hearing, the High Court ordered the parties to undertake a 90-day mediation process, but has taken no further action as of October 2017.
At Issue: Ugandan government’s obligations to mitigate climate change pursuant to the public trust doctrine.
EXECUTIVE DIRECTOR NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA) V SOLID STATE LIMITED (CIVIL APPEAL NUMBER 0239 OF 2013. ) [2015] UGCA 97 (27 May 2015)
THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA (COA) AT KAMPALA, CIVIL APPEAL NUMBER 0239 OF 2013. AN APPEAL FROM THE DECISION OF THE HIGH COURT (CIVIL DIVISION) AT KAMPALA (KABIITO J) IN MISCELLANEOUS CAUSE NO. 148 OF 2012 DATED 19-09-2013.
THE EXECUTIVE DIRECTOR, NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY(NEMA)::::::::::::::::::::::::APPELLANT
VS
SOLID STATE LIMITED:::::::::::::::::::::::::::::::::: DEFENDANT
BACKGROUND FACTS
The respondent is a limited Liability Company incorporated in Uganda to carry out the business of stone quarrying among many others. It is a regulatory requirement that before any one carries out the business of stone quarrying, such a one has to first obtain a certificate of Environmental Impact Assessment from the appellant, (herein after referred to as the EIA Certificate).
On the 16th Day of July 2012, after fulfilling all the requirements as required by the appellant, the respondent was granted an EIA Certificate to quarry a rock at Lubani village, Butagaya Sub County, Jinja District. The stones were to be used for road and railway construction.
The respondent undertook various activities in preparation for the commercial quarrying of the stone and these included; borrowing money from Crane Bank to facilitate the purchasing of the rock, purchase and hire of equipment, as well as entering into contracts with construction companies to supply them with crushed rock stones, among others.
On the 24th October 2013, the appellant, without giving any explanation and without according a hearing to the respondent, cancelled the EIA Certificate that it had earlier on issued to the respondent.
Aggrieved, the respondent sought redress in the High Court by lodging Miscellaneous Cause NO. 148 of 2012 where in the respondent sought an order to quash the appellant’s order cancelling the EIA Certificate and also sought both special and general damages from the appellant. On the 29th day of September 2013, Hon. Justice Benjamin Kabiito granted the following orders;
- An order of Certiorari issued against the respondent (now applicant) to quash the cancellation of the EIA certificate NO. NEMA/EIA/4206 of 1&h July 2012.
- An order for the appellant to pay the respondent special damages of Ug. shs.896,000,000/- and US $ 17,595.
- An order for the appellant to pay the respondent general damages of Ug. shs. 400,000,000/-
- An order for the award of interest of 20% pa on the sums in (2) and (3) above.
- An order that the appellant pays costs of the application to the respondent.
Dissatisfied with the said orders, the appellant appealed to this Court through this appeal.
Grounds of the Appeal:
The Memorandum of appeal dated 12.12.2013 contained 7 grounds, however through a joint scheduling Memo dated 28.05.2014, the original ground 3 was dropped and substituted with a new ground that is set out so herein below. On 27.07.2014, by consent, the dropped ground 3 was reinstated and it became ground 8. So there are 8 grounds of appeal, all of them substantive and none in the alternative. The grounds are;
That the learned trial Judge erred in law and in fact in holding that the respondent was not accorded a fair hearing before the cancellation of the Environmental Impact Assessment Certificate.
In the alternative
The learned trial judge erred in law by arbitrarily exercising his discretion to grant a prerogative order of Certiorari when the circumstances of the case did not warrant such an order.
The learned trial judge erred in law and fact when he wrongfully entertained a claim for damages and awarded the same in the unwarranted circumstances of the matter before him.
That the learned trial judge erred in law and in fact in finding that the respondent was entitled to Ug. shs. 896,000,000 and US $ 17,595 as special damages when the same had not been properly pleaded and/ or strictly proved.
That having found that there was no evidence of special arrangement between the respondent and Mr. Isaac Isanga Musumba; the learned trial judge erred in law and in fact in awarding a sum of Ug. shs.
500,000,000 as the cost for the purchase of the rock
MAJOR ENVIRONMENTAL CASES GLOBALLY
Duke Energy
On August 18, 2014, Duke Energy caused a spill in the Ohio River of about 9,000 gallons of diesel fuel from its generating station in New Richmond, Ohio. The oil sheen on the river extended for about 15 miles, forcing the closure of the Northern Kentucky, Greater Cincinnati and Louisville water supply intakes. On November 22, 2016, representatives of Duke Energy Beckjord, LLC, pleaded guilty to negligent discharge of oil, in violation of the Clean Water Act.
The Ohio River is a source of drinking water for residents of both Kentucky and Ohio. Duke Energy reimbursed more than $1.2 million to 35 government and private sector agencies for emergency response and clean-up costs related to the spill. Duke also has deconstructed the bulk fuel oil storage tanks involved in the spill and no longer stores bulk fuel oil at this facility. For more information.
International Petroleum Corporation of Delaware (IPC)
International Petroleum Corporation of Delaware (IPC) was sentenced on February 2, 2017, to a $1,300,000 fine and $2,200,000 restitution to the City of Wilmington for environmental crimes, including a conspiracy to violate the Clean Water Act.
From 1992 through 2012, IPC operated a facility in Wilmington which processed used oil and hydrocarbon-containing waste water and then sold the reprocessed petroleum to various companies for reuse. IPC admitted that it tampered with monthly test samples required by CWA to determine if it was complying with its permit limitations before discharge into a city-owned sewer.
IPC also admitted that in June and July 2012, it transported hazardous waste for disposal in South Carolina without the required manifest in violation of the Resource Recovery and Conservation Act. This waste contained concentrations of benzene, barium, chromium, cadmium, lead, tetrachloroethene (also known as PCE), and trichloroethene (also known as TCE).
