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EXPERIENCES AND CHALLENGES OF
EIA LITIGATION IN THAIL AND
Chacrit Sitdhiwej | Faculty of Law | Thammasat University | Thailand
schacrit@tu.ac.th | chacrit.wordpress.com

1Selected experiences and challenges from Thailand
Access to justice regarding EIA matters in Thailand
Public participation in the Thai EIA process

EXPERIENCES AND CHALLENGES OF
EIA LITIGATION IN THAIL AND

2

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PUBLIC PARTICIPATION3

= the constitution with green provisions*ECNEQA = Enhancement and Conservation of the National Environmental Quality Act1981 Ministerial Notification

1973 Uprising1974 Constitution

1984 Ministerial Regulation

types and sizes of projects or activities

EIA specialist qualifications

criteria, procedures, practices and guidelines

1978 Amendment

1975 ECNEQA*
1991 Coupintroduced a formal EIA
process to Thailand forthe first time

EIA specialist qualifications

1991 Constitution

criteria, procedures, practices and guidelines
types and sizes of projects or activities

formally acknowledged the role of NGOs
in promoting environmental protection

1992 ECNEQA

Ministerial Notifications

1996 Administrative Procedure Act

CHRONICLE OF THE THAI EIA LEGISLATION
1997 Official Information Act

1999 Act on Establishment of Administrative Courts and Administrative Court Procedure
2005 Rule of the Office of the Prime Minister on Public Consultation

2006 Coup2007 Constitution

more adequate public consultation
ad hoc EIA expert committees

2010 Jaiharn’s Report2014 Coup
explicitly defines “EIA”
explicitly acknowledges existing SEAs
explicitly requires public participation
requires HIA where necessary

2016 Amendment

2017 Constitution

more competent EIA agency
In case of urgency, the Council of Ministers may approve a State agency incharge to proceed with bidding of any transportation, irrigation, publicdisaster prevention, hospital or public housing project or activity while
waiting for an EIA study.

2018 Amendment

4OtheCo
uncrs’
opi
il oExpf M nio
inis ns uertterpCoosnm’s
NEmr
equ
itte
B’s
est
e’s
opis
opi
nio
ONni onEP’nsopinion*under the 1992 ECNEQA as amended by theproposal
2018 Amendment without detailed ministerial notifications due to be issued by October 18, 2018
screening• projects, businesses or operations prescribed by ministerial notification• produces no impact on the environment• ditto• produces an impact on the environment

EIA required

EIA not required

proceeds the proposed
project, business oroperation without EIA

1992 ECNEQA as amended by the 2018
• dittoAmendment• may produce a severeAct,
impacts48
on naturalparas2resources,
andenvironmental
3 requirequality, health,publichygiene,quality of life, or other significant interest of the public, communities or the environment
participation in EIA process, details yet to be
EIA ministerial& HIA required notificationprescribed byscoping

scoping

as prescribed by a ministerial notification, at least comprises:• description of the proposed project, business or operation• description of the environmental baseline• consideration of alternatives• prediction of impacts• public consultation• mitigation

Under a 2018 Amendment
Act’s transitional provision, the• ditto• others as prescribed by2017 Notification of theMinistryof Natural Resources andministerial
notification
Environment Determining Criteria, Procedures, Practices andGuidelines for the Preparation of an Environmental Impact
Assessment
Report for a Project or Activity That May Cause
presentation
Severe Impacts to the Communities Regarding Environmental
review
Quality, Natural Resources or Health is still in force
any prescribed public project, business or
ONEP’s opinion
operation not legally required Council of
ONEP = Office of Natural Resources

PUBLIC PARTICIPATION IN THE THAI EIA PROCESS*
responsible agency

1997 Official Information Act

any prescribed public or public-private
project, business or operation legallyrequired Council of Ministers’s approval2005 Rule on Public Consultation
approved
proceed the proposed
project, business oroperation with themitigation & monitoring

responsible agency

and Environmental Policy and PlanningCouncil ofMinisters

NEB = National Environment Board

not approved

proposed project,business or operationterminatedEIA approved

re-proceeds
the proposal &revises EIA

5competent officer
may grant a permit &shall include terms ofEIA as conditions to
the proponent

ExpertCommittee

Ministers’s approval or any private one

proponent

EIA not approved

proposed project,business or operation
terminatedre-proceeds
the revised EIA

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ACCESS TO JUSTICE
6

Administrative Courts

Constitutional Court

JUDICIARY OF THAILAND
Courts of Justice

Military Courts

7

1999 Act on Establishment ofAdministrative Courts andAdministrative Court Procedure

S3 defines “plaint”
S9 provides the competence of the Courts

CourtsCourts ofSYSTEM
Justice
THEAdministrative
THAI DUAL
COURT

public entity v private entity
DISPUTES
public entity v public entity

82005-2015

2,504
environmental cases

120

120

120

120

120

120020020020020020

ENVIRONMENTAL DIVISION OF
THE SUPREME COURT OF THAIL AND
2005-2015 Environmental Cases
9Sources: Environmental Division of the Supreme Court of Thailand

2014 total

425cases

1992 ECNEQAENVIRONMENTAL DIVISION OF
THE SUPREME COURT OF THAIL AND
2014 Environmental Cases
10Sources: Environmental Division of the Supreme Court of Thailand

Building Control, Natural Resources and Environmental Cases
18,966
1999-July 2018

127,420
aggregated cases

15%
Other Cases
108,454ADMINISTRATIVE COURTS OF THAIL AND
1999-July 2018 Aggregated Building Control, Natural Resources andEnvironmental Cases Against Other Aggregated Cases
11Sources: Administrative Courts of Thailand

Annual Building Control, Natural Resources and Environmental Cases

Annual Cases

12,00010,776
9,718

9,000

8,505

6,000

5,101
4,304

4,380

4,309

5,270

4,991

2,754

3,0002,1791020y209775J ul

200887717202007

1,372

162020697

1,043

1520562

1420589132058212206961120899

06

05

1,232

202004

02

20

2001

03

20

523

608

20

512

622

6,845

4,628

4,277

3,642

7,256

6,381

5,927

5,382

838

7,912

801

ADMINISTRATIVE COURTS OF THAIL AND
2001-July 2018 Annual Building Control, Natural Resources andEnvironmental Cases Against Annual Cases
12Sources: Administrative Courts of Thailanddetails yet to be prescribed by ministerial notification

1992 ECNEQA as amended by the 2018Amendment Act, s48 paras2 and 3
September 19, 2018: 2018 Notification of the Ministry of Natural Resources and Environment Determining
Criteria, Procedures, Practices and Guidelines for the Preparation of an Initial Environmental Evaluation or ana2018
Amendment
Act’stransitional
provision
Environmental Impact Assessment Report in the Environmental Protection Areas in Ban Laem District, Muang
Petchaburi District, Cha-am Distritct, Ptechaburi Province, and Hua Hin District and Pranburi District,
Prachuab Khiri Khan Province+2017 Notification of the Ministry of Natural Resources and Environment
Determining Rules, Procedures, Practices and Guidelines for the Preparation ofscoping
an Environmental Impact Assessment Report for a Project or Activity That May
reviewing draft EIS
Cause Severe Impacts to the Communities Regarding Environmental Quality,
NaturalResources
orHealth
public participation
13scoping

public participation

An unlawful administrative act may be revoked, whether
An official or his or her superior may revoke anin whole or in part, either retroactively or prospectively
administrative act under the rules specified in section
or with effect for the future as prescribed. In case of a51, section 52 and section 53 irrespectively of
beneficial administrative act, the revocation shall be inwhether the period of appeal or dispute under thisaccordance with the provisions of section 51 andAct or any other laws has lapsed.
section 52.

Ss49-50•

reviewing draft EIS

1996 Administrative Procedure Act• The revocation of an administrative act giving rise toa right or an advantage (beneficial administrative act)shall be made within ninety days as from the date theofficial or his or her superior knows the ground forrevocation of such administrative act, except in thecase where the administrative act was issued withthe assertion of a falsehood or the concealment of afact which should be revealed or by threat or bribery.

14

scoping

reviewing draft EIS

public participation• the case involving a dispute in relation to an

the case involving a dispute in relation to an unlawful act
by an administrative agency or a State official, whether inconnection with the issuance of a by-law or an
order or in connection with any other act, by reasonof acting without or beyond the scope ofpowers and duties or inconsistently with thelaw or the form, process or procedure which is
the material requirement for such act or in bad faith
or in a manner indicating unfair discrimination or
causing an unnecessary process or an excessive
burden to the public or amounting to an undue
exercise of discretion

administrative agency or a State official neglecting
official duties required by the law to be
performed or performing such duties withunreasonable delay

1999 Act on Establishment of• the case involving a dispute in relation to awrongful act orCourts
any other
Administrative
andliability of an
administrative agency or a State official arisingfrom the exerciseof power
under the law orAdministrative
Court
Procedure

S9from a by-law, an administrative order or any otherorder, or from the neglect of official duties requiredby the law to be performed or the performance ofsuch duties with unreasonable delay• the case involving a dispute in relation to anadministrative contract

15

Supreme Administrative Court
Judgment No A218/2009

Supreme Administrative Court
Judgment No A244/2010

Revocation of Expert Committee’s resolution todisapprove the EIS of the Baiyok Sky Project

Screening and public participation criteria of themunicipal solid waste projectSupreme Administrative Court
Judgment No A963/2013
Revocation of the EIS and permit of the ThaiMalaysia Pipeline ProjectImage courtesy: goo.gl/tZ6gwV

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SELECTED EXPERIENCES AND CHALLENGES

17

Supreme Administrative Court
Supreme Administrative Court
Judgment No A218/2009
Judgment No A218/2009
Expert Committee’s resolution is an
Revocation of Expert Committee’s resolution to‘administrative act,’ hence can be challenged indisapprove the EIS of the Baiyok Sky Project
the Administrative Courts

Supreme Administrative Court
Supreme Administrative Court
Judgment No A244/2010Judgment No A244/2010
Screening and public participation criteria are
Screening and public participation criteria of the‘rules,’ hence can be challenged in themunicipal solid waste project
Administrative Courts

Supreme Administrative Court
Supreme Administrative Court
Judgment No A963/2013
Judgment No A963/2013
EIS approval and permit issuance are
Revocation of the EIS and permit of the Thai‘administrative acts,' hence can be challenged inMalaysia Pipeline Project
the Administrative Courts

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WHERE THERE IS LITTLE OR NO PUBLIC OPINION, THEREI S L I K E LY T O B E B A D G O V E R N M E N T, W H I C H S O O N E R O RL ATER BECOMES AUTOCRATIC GOVERNMENT.
– W I L L I A M LYO N M AC K E N Z I E K I N G19