A draft environmental law being considered by the NLA is being pushed for approval on 19 January 2018. Community members, scholars, and activists have criticized the bill for failing to resolve environmental problems and for an EIA process that cannot be trusted. They add that the environmental protection law is an investment promotion law in disguise.
On 14 January 2018, a seminar entitled "Environmental Law: Strengthening or Weakening Environmental and Natural Resources Protection?” was held at Thammasat University, Tha Phrachan Campus. The seminar was co-hosted by the Puey Ungphakorn School of Development Studies, the People's Network for Sustainable Development, and the ENLAWTHAI Foundation (EnLAW) to discuss issues around the draft amendment of the Promotion and Conservation of National Environmental Quality Act.
Community representatives from different regions whose lives have been disrupted by public and private sector projects attended the seminar to discuss the problematic environmental impact assessment (EIA)/environmental and health impact assessment (EHIA) processes under the bill which the NLA is scrutinizing. Madtayom Chaitem from the Songkhla-Pattani People Against Coal-fired Power Plant Network said EHIAs have been troublesome from the beginning of the public hearing process, which is intrinsically illegitimate. He said that during the first public hearing, people were recruited to sign up for the public hearing in exchange for milled rice. The first public hearing concluded that 80 percent agreed to a coal-fired power plant.
The panelists in the seminar held at Thammasat University.
Illegitimate public hearing processes and EIAs
"At the second public hearing, people who disagreed with the power plant could not join. They were blocked at the third hearing. There were barbed wire barricades around the site to keep opponents out. Signs from the governor forbade people who disagreed from participating because of the fear that they would cause disorder,” said Madtayom.
He also criticised false information in the EIA report on the coal-fired power plant. The report claimed that the sea is not fertile. And the local sea is a habitat for only four fish species, and only small number of the local population are fishermen. The impact assessment was not inclusive. The Pattani area was excluded from the study, although it is just a few kilometres away from Thepha District. Most importantly, he said, the community members have filed an objection to the impact assessment paper and asked for a clarification. The report is incomplete. The content submitted to the Office of Natural Resources and Environmental Policy and Planning (ONEP) is inaccurate. “The complaint we filed was not considered. Finally, the Expert EIA Review Committee did not review the whole content thoroughly. I think we have submitted a complaint, so there should be an investigation. But there was no investigation. We told them the facts, but they took no action. The impact assessment report has now reached the National Environmental Board, which I think is not fair.”
"I think what is most painful is that people who protect the community and natural resources were sued and seen as a group obstructing national development. … The environmental law does not protect the environment and the affected people," said Madtayom.
Yothin Malai from the Coal-fired Power Plant Impact Monitoring Network, Khao Hin Son Subdistrict, Chachoengsao, recounted a similar experience at a problematic public hearing where people were given goods to participate in the hearing. He also agreed that an impact assessment does not cover all aspects. "The revision we want in the law is the timeframe for review, not to get the report out and the community members say it is not good enough so it’s sent back for revision, like a kid endlessly correcting their homework. The Expert EIA Review Committee should have the authority to say that if it’s done and it’s not complete, it will be scrapped.”
Chadaporn Chinnabut from the Khon Rak Ban Koed Bamnet Narong Group from Chaiyaphum recounted her experience fighting a coal-fired power plant in her locality. Eventually, the project was converted into a biomass power plant. There was a public hearing in July 2017, but details were not released to the public. There were rumours that people could sign up and be paid 300 baht in exchange for going to the public hearing. Many villagers signed up, while Khon Rak Ban Koed Bamnet Narong members were prohibited from participating or commenting.
Villagers from Thepha District, Songkhla Province, protests against the coal-fired power plan project
Increasing democratic legitimacy through EIAs
These are some examples of the EIA process, a recurring theme since EIAs were introduced in environmental legislation in 1992. Sutthichai
Ngamchuensuwan, a lecturer at the Faculty of Law, Prince of Songkla University, said that not only is the participatory process controversial, but from his experience in the past, the constitution, which is the nation's supreme law, and the draft environmental law ignore what the legislation says they intend to protect.
Environmental legislation speaks of balanced development, sustainability, and good governance. Indeed, all of these have been neglected, and even worse, the promises envisioned above are not mentioned in the Bill. After all, the Bill is a hasty amendment to the sections on EIAs to meet the deadline of 19 January 2018 as required by the Constitution.
Sutthichai said that historically the EIA was used, first and foremost, as a database for officials to consider granting or refusing permission for a project, as well as a database for the state to consider other alternatives. On principle, if the report contains false or misleading information, it may lead to faulty judgements.
Second, stakeholders and public participation in the EIA is a rights safeguard mechanism before approaching the judicial mechanism. The EIA process enables stakeholders to discuss with officials and project representatives the potential effects of projects and prevention before damage is done. Thus, the EIA prevents further problems that will require litigation in a court. The benefits can be realized through genuine participation. Finally, the EIA helps make the right decision to implement a project or to legitimize a government project. Most importantly, he added, the EIA fosters direct democratic legitimacy from local stakeholders in the area. At present, social phenomena are more complex, and the environmental law has been written vaguely and too broadly. The details to be elaborated are at the discretion of administrative bodies. From an academic perspective, there is a widening gap between the administration and the people. As a result, democratic legitimacy is weakened. The EIA in key projects attempts to address this flaw. Government officials who have discretionary power must increase democratic legitimacy through the stakeholder participation processes. “The EIA is important; if the process is illegitimate, this must lead to the EIA being revoked. The Thai Administrative Court set a rather good principle. If the public participation process has problems, the Court has revoked it."
Lawyer: the new law is not responsive to current problems
Sutthichai further said that EIAs under the last environmental law reflected many problems. First, the EIA is a separate assessment for each project. Even if the projects are interrelated, there has never been a strategic level assessment or assessment of local capacity to accommodate projects.
Access to information in the EIA process relies on the bill, although the 1997 Public Information Act can be used to obtain information. However, it often requires a struggle to access information. Private sector projects are not covered under the Public Information Act. The environmental bill creates barriers for villagers to access information on projects of the private sector.
Third, the draft law does not identify how public participation should be conducted. The administrative bodies have the authority to determine the process, in spite of the fact that public participation is the heart of the EIA. Additionally, the important principle of participation should be stipulated in the environmental bill. Participation should not be left at the discretion of the administrative bodies.
"From my own experience at Thepha, 60 people expressed the wish to present their ideas in two and a half hours,” he said. “When they had spoken, there was no immediate response but it would be included in the EIA report. There was no response at that time and the EIA report did not sincerely consider the people’s opinions on how the project should be adjusted to lead to other alternatives," the law academic said.
Fourth, the impact assessment is a projection of potential issues which may happen in the future. If the assessment does not go as planned, the bill does not require the EIA to be reviewed.
Fifth, EIA report drafters are not genuinely independent from project owners. Legally, an impact assessment must be paid for by the project developers, which is valid, because entrepreneurs are using specific resources to do business. In the end, society shoulders the burden. The issue is how to have independent consultants operating on academic principles. One recommendation to address independence safeguards is an independent fund to hire consultants, from contributions from the private sector or developers.
Sixth, the consideration period for the Expert EIA Review Committee is limited in the bill to 45 days, without any possibility of extension. The bill also indicates that if the consideration of the EIA is not completed within the given period, the EIA is deemed to be approved. This provision may backfire on entrepreneurs, because if the Expert EIA Review Committee cannot consider an EIA report within the timeframe, the Committee may decide not to approve it. Entrepreneurs have to shoulder increased costs from the waste of time. Above all, this provision indicates the direction the bill is inclined to. The period for considering EIA reports should be extendable if there is a genuine necessity.
Seventh, the compliance monitoring measures imposed on the EIA are feeble. The draft Bill attempts to address this issue. For example, there is a requirement that an operator must report the implementation of EIA compliance measures once a year, otherwise, an operator will be fined. People are not involved in the monitoring and oversight. The original draft by the Natural Resources Ministry included this provision, but it was axed.
Sutthichai concluded that the bill has two significant flaws: first is that the hearings do not enable well-informed people to voice their concerns and participate and second is that the timeframe of involvement is limited.
"The environmental bill has become an investment promotion act,” said Sutthichai.
Environmental law and EIAs: bankrupt in trust
Phakphum Withantirawat from the Assembly of NGOs for the Protection and Conservation of Environment and Natural Resources said that around 1987, environmental issues were booming. Finally, in 1992, the environmental law materialised with the requirement of EIAs. It was a remarkable achievement. “It appears now that both the law and EIAs have failed. They are bankrupt in trust because they have accumulated losses over a lengthy period. The process cannot provide answers or solve problems.”
Phakphum said the way out is the complete reform of environmental laws and EIAs. The draft law currently being considered does not lead to that reform. He proposed cutting the employer-employee relationship between the project owners and the consulting firms for transparency and reducing the influence that project owners use to interfere with the EIA outcome. The Expert EIA Review Committee must have a clear mandate so that the people will be able to investigate and to prosecute them in the Administrative Court. ONEP has to reform its organisation to ensure transparency in the EIA process. ONEP must be flexible, responsible and more academic.
Phakphum added that the real problem is the issue of setting the direction for local development. Before any project, there should be a discussion at the provincial level. Every province has its strategy or a strategic vision, but when the government wants to impose a project, the state pays no attention to these visions. “The central government must consider the local development goals as the motivation of the people in the province which will create a balance of power with the central government, which essentially focuses on investment.”
"I think we cannot now do anything with the draft that is with the NLA. It is due to be completed on the 19th. What to do next with the whole thing is an issue we must consult each other on," he admitted in the seminar.