The Environment and Climate Change Law Review: Thailand
In response to the effects of global warming faced by countries throughout the world, the public and private sectors in Thailand have continued their efforts to put environmental issues the national agenda. The Thai Prime Minister, Prayuth Chan-o-cha, has also pledged his commitment during the recent Conference of the Parties to the 26th UN Climate Change Convention (COP-26) in Scotland. We hope therefore to see more measures in the years to come towards improving environmental quality. Generally, we have continued to see more enforcement in this area, stimulated also by high priority given to environmental standards by both the private and public sectors.
Key legislation and regulations of the Thai environment legal landscape are provided below:
- the Thai government is considering a draft of the new National Plan for Economic and Social Development for 2022 to 2027. Under the National Economic and Social Development Council Act, B.E. 2561 (2018), a National Plan for Economic and Social Development will be prepared every five years, as a guideline for Thailand's economic and social development in accordance with the state policies and national strategy, among others. This plan must also include environmental and sustainable development issues. The draft new plan, which will come into force from October 2022 to September 2027, is based on the Sufficiency Economy Principle, UN Sustainable Development Goals (SDGs) and Bio-Circular Green Economy (BCG). The draft plan sets out 13 targets, including:
- turning Thailand into a circular economy and low-carbon user;
- promoting reuse and waste recycling;
- reducing greenhouse gas emissions in industrial sectors; and
- reducing risks and impacts from natural disasters and climate change by reforestation;
- on 4 August 2021, the National Energy Policy Council approved the new National Energy Plan to demonstrate Thailand's commitment to the Conference of the Parties to the 26th UN Climate Change Convention (COP-26). The approved plan aims to reach the target of carbon neutrality in the energy and transport sector by 2070, whereby the country will commit to reducing annual greenhouse gases emission by 20–25 per cent by 2030. Measures under the plan include:
- increasing ratios of renewable and clean energies of new electricity plants;
- promoting electric vehicles;
- being a Liquefied Natural Gas (LNG) hub; and
- promoting production and use of renewable energy; and
- many attempts have been undertaken to fulfil the obligations under the international agreements and conventions that Thailand signed and ratified; examples of these are as follows:
- in September 2020, the Ministry of Commerce banned the import of 428 electronic waste items to comply with Thailand's Basel Convention's obligation; and
- in March 2021, the National Climate Change Committee approved a draft of Thailand's first Climate Change Act for submission to the Cabinet to comply with the country's obligation under the Paris Agreement. The draft is expected to be proposed to the Cabinet for approval soon.
Environmental issues have always been addressed in Thailand's Constitutions, including the current Constitution, B.E. 2560 (2017). The Constitution provides that the state shall conserve, protect, maintain, restore, manage and use or arrange for utilisation of natural resources, environment and biodiversity in a balanced and sustainable manner, provided that the relevant local people and local community shall be allowed to participate in and obtain the benefit from such undertaking as provided by law. Moreover, in regard to any undertaking by the state or which the state will permit any person to carry out, if such undertaking may severely affect the natural resources, environmental quality, health, sanitation, quality of life or any other essential interests of the people or community or environment, the state shall undertake to study and assess the impact on environmental quality and health of the people or communities and shall arrange a public hearing of relevant stakeholders, people and communities in advance, in order to take them into consideration for the implementation or granting of permission as provided by the law. A person and a community shall have the right to receive information, explanation and reasons from a state agency prior to the implementation or granting of permission. These provisions basically set out requirements of environmental impact assessment (EIA) and environmental health impact assessment (EHIA) reports. The state shall also take precautions to minimise the impact on people, community, environment, and biodiversity and shall undertake to remedy the grievance or damage for the affected people or community in a fair manner without delay. The Constitution basically sets out a framework of rights and obligations of the state and individuals regarding the environment and natural resources in general, while leaving subsequent legislation to deal with specific matters and requirements. However, the general rights and obligations afforded within the Constitution are still directly applicable without any need for implementing legislation.
The legislative basis for environmental management in Thailand is quite complex. In addition to the Constitution, there are over 50 pieces of legislation of which objectives are to protect and conserve environment, whether directly or indirectly. These laws have been issued to address some specific concerns throughout the years and thus there are some overlapping responsibilities across authorities, resulting in a certain amount of practical difficulties in coordination at the administrative level. However, certain main legislations provide a legislative framework to address these problems and provide for more comprehensive, effective, and coordinated environmental management.
These legislations include:
- the Enhancement and Conservation of National Environmental Quality Act, B.E. 2535 (1992) (NEQA);
- the Hazardous Substances Act, B.E. 2535 (1992) (HSA);
- the Public Health Act, B.E. 2535 (1992);
- the Factories Act, B.E. 2535 (1992); and
- the Navigation in Thai Territorial Waters Act, B.E. 2456 (1913), as amended in B.E. 2540 (1997) (No. 15).
The NEQA is a primary environmental legislation, designed to take precedence over other acts regarding environmental issues. The provisions in NEQA can be deemed as an umbrella framework law. It sets out an administrative framework and basis regarding various environmental issues, and provides a basis for claims of environmental damage caused by pollutants. The NEQA sets out quality standard levels for water, air, noise levels and soil, with benchmarks for desirable environmental conditions. However, there are no criminal sanctions provided under the NEQA if a person degrades the environment to a level lower than the standard. The NEQA also implements a constitutional requirement for environmental impact assessment (EIA) and environmental health impact assessment (EHIA) reports, with rules, conditions, and procedures for preparing and submitting these reports. Prescribed projects under the Ministry of Natural Resources and the Environment (MNRE) announcements must submit the reports. The project owner is obliged to submit the EIA or EHIA report to be examined by the ONEP and the state agencies, and approved by the expert committee who are appointed by the National Environment Board (NEB).
The NEQA also allows NGOs with the status of a juristic person under Thai law or foreign law, and that are directly engaged in activities concerning environmental protection or conservation of natural resources, without any objective to be involved in politics or to make profit from these activities, to register as NGOs for environmental protection and conservation of natural resources. At present, the NEQA is overseen by three agencies in the MNRE: the Department of Environmental Quality Promotion; the Pollution Control Department (PCD); and the ONEP.
Being a civil law country, Thailand's legislation plays a key role in setting out the basis of environmental jurisprudence.
International agreements or treaties2
Thailand is a member of and signatory to many organisations, treaties and conventions that have the objective of protecting natural resources and the environment. Some of the treaties that Thailand has signed and ratified are the Kyoto Protocol, the Paris Agreement, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal, the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Convention on Biological Diversity. Conventions that Thailand has not ratified but has signed or accessioned include the Convention on Wetlands (definitive signature) and the United Nations Convention to Combat Desertification (accession).3
A large bureaucracy serves the Thai government.4 The various entities concerned with environmental matters include the MNRE, the Ministry of Energy and the Department of Industrial Works (DIW). The MNRE was established under the Administrative Organisation of the State Act, B.E. 2534 (1991). It supports proactive integration of the administrative management of natural resources, environmental protection and biological diversity, based on public participation and good governance principles. The main policy of the MNRE, among others, is to restore the natural environment and work towards the inclusion of natural resources and the environment in the national agenda. The MNRE is therefore a main player in environmental management, preservation and protection in Thailand. The DIW governs environmental protection regulations related to industrial work, such as the rules about disposal of industrial waste and wastewater treatment by factories. While the MNRE is responsible for managing natural resources and the environment, the Ministry of Energy oversees climate change and renewable energy matters.
There is no specialised environmental court in Thailand but the country has environmental specialised case divisions in the following courts for environmental disputes:
- the Court of Justice – generally, the Court of Justice of the Environmental Case Division will handle criminal and civil cases that affect the environment and are within the scope of environmental, natural resources and pollution laws; and
- the Administrative Court – most environmental cases filed with the administrative courts are cases in which a state agency or government officials are sued because of administrative acts that have affected people's rights or obligations; for example, if an official illegally orders a factory owner to stop the expansion of a factory, by claiming that the construction will destroy the ecosystem of a nearby lake.
i Criminal liability
Thailand's many laws covering environmental protection and conservation include:
- the Canal Cleaning Maintenance Act, B.E. 2445 (1902);
- the Fisheries Act, B.E. 2558 (2015);
- the Atomic Energy for Peace Act, B.E. 2559 (2016);
- the National Park Act, B.E. 2562 (2019);
- the Minerals Act, B.E. 2560 (2017);
- the Hazardous Substances Act, B.E. 2535 (1992);
- the Wildlife Preservation and Protection Act, B.E. 2562 (2019); and
- the Energy Conservation Promotion Act, B.E. 2535 (1992).
Each of these laws provides criminal offences for those who violate their provisions. Some also impose criminal penalties on company directors. For example, the Hazardous Substances Act (HSA) provides that a director, manager, expert, staff member or any other person who is responsible for the operation of a legal entity, or has the duty to act or omit but neglects to do so, is subject to the same offence as the legal entity itself if the action or omission is the cause of a crime.
ii Civil liability
In addition to criminal liability, the NEQA, HSA, and the Civil and Commercial Code (CCC) impose civil liability on those who pollute. Both private individuals and government authorities may sue for damages caused by pollution. Currently there is no legislation that empowers the courts to impose punitive damages. However, under Section 43 of the draft Environment Case Procedure Act, it is envisaged that the courts will have the power to award punitive damages up to five times the amount of actual damage.
Section 96 of the NEQA provides that an owner or occupier of any place of origin that is a source of pollution that results in injury to life or health, or results in damage to private or public property, is liable to compensate the victim, regardless of whether the pollution was the result of a wilful act or an act of negligence. This is an offense of strict liability. The only defence is to prove that the pollution was a result of force majeure or an act of war, obeying an order of a government official, or an act or an omission by the person injured or by another person who has direct or indirect responsibility for the damage. If found liable, the owner or occupier will be responsible for all costs incurred by the government in cleaning up the pollution and for compensation to private individuals.
Under Section 97 of the NEQA, polluters can also be held liable for loss or damage to state natural resources as a result of any unlawful act or omission. In this case, the polluter has to pay the compensation to the state.
There are some provisions in the HSA that allow a person to sue an employer, principal or client of a service provider to be jointly liable for the offence that an employee, agent, service provider or business operator has committed during the course of employment or work. An importer, exporter, middleman or distributor may also be liable for tort that occurs during distribution between them and a producer. Both a person and a state agency can sue a perpetrator for compensation under the HSA.
Anyone who unlawfully injures the life, body, health, liberty, property or any right of another person – whether wilfully or negligently – is liable to pay compensation for damage or tort. The CCC also imposes joint liability on an employer for wrongful acts committed by its employees in the course of employment. Section 437 of the CCC also imposes strict liability on companies or individuals for any damage caused by things in their possession that are inherently dangerous.
iii Administrative liability
The Performance by the Administration Act, B.E. 2539 (1996) came into effect in 1996 and aims to regulate administrative orders, rules or actions of the state and state officials, so that individuals who are affected by state action can file an appeal against it. An individual who is environmentally affected by a state order, rule or action can appeal against that action before the court. The court may order the state agency to remedy its action to be in accordance with the law. The victim can also claim damages in an administrative case, and the court may also order a business operator to be jointly liable with the state agency.6
Reporting and disclosure
The Securities Exchange Commission (SEC) has regulated that listed companies must make a sustainability disclosure as part of the submission of Form 56-1 (One Report) annually, within three months after the end of the accounting period. Such disclosure includes information regarding environmental, social and governance (ESG), such as total fuel consumption within the organisation from non-renewable sources, in joules or multiples, and the fuel types used.
At present, Thailand does not have protection for whistleblowers under environmental and climate change law. However, many companies in Thailand have included whistleblower protection in their good corporate governance practice and policy.
i Air quality
Air emissions are regulated by the MNRE, the Ministry of Industry (MOI) and the Ministry of Public Health (MOPH). The MNRE, through the PCD, has issued a notification that prescribes ambient air standards and tests methodologies for carbon monoxide, nitrogen dioxide, sulphur dioxide, suspended particulate matter, ozone and lead. Air quality standards are specified under various regulations, including announcements of the Pollution Control Committee, announcements of the PCD, and notifications of the MNRE. Currently, there is no specific legislation that gathers all air quality standards. The standards and average amount for each type of substance in the air are set out in separate laws and regulations.
The PCD is also responsible for identifying structures, operations and conveyances deemed to be sources of air pollution that must control the release of air pollutants. Once a place of origin has been identified, it is the duty of the owner or lessor of that place to install an air pollution treatment system and any other equipment or tools to limit or eliminate pollution that may affect air quality, with approval from PCD officials.
The MOPH is the agency that regulates business detrimental to health. Under Thai law, any business that pollutes by releasing a large amount of noxious gases is categorised as a business detrimental to health, and the owner must obtain a licence to operate it. Businesses detrimental to health regarding air quality problems are those that collect and burn coal, mining, and metal smelting and forging.
ii Water quality
Various laws have been enacted and implemented regarding water quality and water effluent issues. The Navigation in Thai Territorial Waters Act, B.E. 2456 (1913), as amended in B.E. 2540 (1997), contains provisions that prohibit a person from discharging anything into a watercourse that could cause pollution, harm aquatic plants and animals, or obstruct navigation unless permitted otherwise. A similar prohibition is stipulated in the Fisheries Act, B.E. 2558 (2015), and the Royal Irrigation Act, B.E. 2485 (1942), but the latter applies only to 'irrigation canals'. Point source pollution that could affect watercourses is also subject to control by law. The Factory Act, B.E. 2535 (1992) empowers the MOI to regulate effluent standards for wastewater discharged from factories. Under the Public Health Act, B.E. 2535 (1992), in conjunction with the Building Control Act, B.E. 2522 (1979), the Ministry of the Interior may issue a ministerial directive to regulate the discharge of wastewater into watercourses.
The NEB has the authority under the NEQA to issue notifications prescribing environmental quality standards regarding the following matters:
- water quality standards for rivers and canals, marshes, swamps, lakes, reservoirs and other inland public water sources, categorised by use and water catchment area;
- quality standards for underground water; and
- quality standards for seawater and the seaboard, including coastal and estuarine waters.
The NEB is authorised to issue standards for controlling pollution from drainage of wastewater or effluent discharged into the environment, in order to meet the environmental quality standards prescribed by the NEB.
Penalties are imposed under both the Navigation in Thai Territorial Waters Act and the Fisheries Act for the release of pollutants into water sources.
The main and important legislation that regulates chemicals that are hazardous to health is the HSA. Only certain substances are controlled under the HSA. The HSA prescribes a list of hazardous substances and mixtures under four classifications, each of which has different requirements and prohibitions:
- if the hazardous substance is classified as type 4, it is prohibited to possess, import, export or manufacture it;
- an importer, exporter or possessor of a type 3 hazardous substance must register it and apply for an import, export or possession licence;
- an importer, exporter or possessor of a type 2 hazardous substance must register it and notify the relevant authority; and
- if the hazardous substance is classified as type 1, there is no requirement for the importer, exporter or possessor to register it or notify officials. The importer must submit a declaration to the authority before import
The HSA regulates hazardous substances as well as products that contain them. The governing agency for this is the DIW. However, the PCD will work with the DIW to investigate factories where pollution has been complained about, and if the PCD finds that pollution is related to hazardous waste, it will contact the DIW to investigate and take the case.
There are also other laws that deal with chemicals for specific purpose, such as those relating to employee health and safety that requires, among others, that employers provide employees with sufficient information about each chemical and instructions for use.
The recent update on chemicals regulation in Thailand is the prohibition on the use, trade, manufacture and possession of paraquat and chlorpyrifos by the National Hazardous Substances Committee (NHSC) on 30 April 2020. As a result, on 15 May 2020, the MOI endorsed a notification to re-categorise the two substances from type 3 (permission needed) to type 4 (prohibited for production, importation, exportation and possession).
iv Solid and hazardous waste
There is no specific law that governs solid and hazardous waste. However, most types of waste are classified as hazardous substances under the HSA. Thus, procedures and requirements under the HSA will apply to them. For a factory operator specifically, they are obliged by the Notification of the Ministry of Industry and the Announcement of the DIW issued pursuant to the Factory Act to manage their industrial wastes according to the prescribed measures and standards, report waste storage, disposal, and management annually and obtain DIW's approval before transporting the waste outside of their factory, among others.
On 15 September 2020, the Ministry of Commerce announced a ban on the import of 428 items of electronic waste into Thailand, which was the movement to fulfil the Basel Convention obligations. The full list of items can be found on the Department of Foreign Trade's website. Violations are punishable by a term of imprisonment for up to 10 years or a fine of five times the value of the electronic waste imported illegally, or both.
v Contaminated land
The Notification of the National Environment Quality Committee No. 25 (B.E. 2547) re: Standards of Soil Quality (the Notification), issued under the NEQA, sets out acceptable levels of soil contamination. The Notification divides soil into two main categories:
- soil used for the purposes of living and agriculture; and
- soil used for other purposes.
The amount of certain compounds in soil will be used to evaluate the acceptable level of contamination for each category of soil. The Notification also establishes specific methods for testing soil for contamination with each type of compound.
Even though the NEQA is the preliminary source law for regulations that govern contaminated land, it imposes no punishment on anyone who degrades soil to a level that does not meet the quality standards. However, strict civil liability may apply if the degradation causes harm to an individual's life, health or property. Currently, there is no definition given for 'contaminated land'. The Notification defines 'standard of soil quality', but does not define substandard soil as 'contaminated land', and the quality standards under the NEQA merely indicate a benchmark for desirable environmental conditions.
Thailand's Land Development Act, B.E. 2551 (2008) (the LDA), empowers the Ministry of Agriculture and Cooperatives to regulate the use of land that uses or is contaminated by chemicals or other materials that could degrade the land's suitability for agricultural use. The LDA also prescribes appropriate measures to remedy land contamination.
Generally, the owner or possessor of the source of pollution is liable to pay compensation for damage, regardless of whether the leak or contamination is the result of a wilful or negligent act. Compensation includes reimbursement for all expenses incurred by the government to clean up any pollution that arises from the leak or contamination. Under the LDA, a polluter must also restore contaminated land back to its original condition, or compensate the state or persons suffering damage from contamination.
Under the NEQA, a landowner or person who possesses land (tenants) is liable to pay compensation and clean-up costs. For example, the owner of a factory is responsible for compensation and clean-up costs regarding the emission of wastewater that causes damage to the public. However, if an owner leases a factory to a tenant and, during the time the tenant occupies the premises, the factory emits harmful wastewater, the tenant will be responsible for the costs.
Under the LDA, the polluter will also be responsible for restoration of the contaminated land to its original condition.
i Climate change bill
A draft bill on climate change will be proposed to the government in order to meet Thailand's commitment under the Paris Agreement, which Thailand has signed and ratified. If it is enacted, it will establish a committee called the National Climate Change Policy Committee, which has authority to suggest policies, measures and regulations, necessary operations and model schemes, to the Cabinet and state agencies, regarding the management of climate change. The bill also specifies rights of citizens to be informed by the state about climate change information, to prepare for changes and consequences, to give information and express opinions for solutions to climate change, and to be sponsored for operations to deal with climate change. The state has obligations under this bill to evaluate and assess the effect of climate change, and to provide information and warnings to the public, to sponsor research and development of technology and innovation that will help with adaptations to cope with climate change, and to adopt policies that take climate change into account.
The bill also states that the National Climate Change Policy Committee must provide a plan to reduce greenhouse gases, which will be compulsory for state agencies to follow, and to ask the private sector to cooperate. Under the bill, the Thai Meteorological Department will be working with the ONEP to deliver a central database for the country's weather that provides information regarding changes in weather, temperature and water levels, and the impact of those changes on water management, agriculture, food supply, public health, travel, natural resource management and habitation. Public and private sectors can also request financial support from a fund that will be established under this bill to operate or conduct projects, research or activities, regarding greenhouse gas emission and storage, greenhouse gas reduction and climate change operational efficiency. The bill also has a section about penalties for anyone who fails to comply with its requirements. Penalties under this bill will only be administrative fines, but if a convicted person does not pay the fine, their property may be seized instead.
The ONEP is preparing the bill and related documentation, to propose to the Cabinet for approval. Once approved by the Council of Ministers, the bill will be introduced to the National Assembly for consideration.
ii Incentives and other measures to limit emissions
The strategies included in the framework of Thailand's nationally determined contributions (NDCs) to achieve the new National Energy Plan goal include:7
- drafting an act that helps to regulate greenhouse gas emissions;
- cooperating with international agencies to support climate change solutions;
- beginning to promote the use of electronic vehicles (EVs); and
- planting 100 million new trees across the country by the end of 2022.
The tools to support these strategies are incentives to give individuals who support environmental protection. The National EV Policy Commission is considering both tax and non-tax incentives for manufacturers and consumers. However, other agencies already provide some incentives. For example, car and motorcycle excise tax is collected by the Excise Department based on the emission rate of CO2 from those vehicles.8 In addition, EV-related businesses and some other environmental-friendly businesses are also supported by Board of Investment (BOI) incentives. The BOI makes some benefits conditional upon environmental protection.9
Thailand also supports voluntary greenhouse gas reduction through the Clean Development Mechanism. The Thailand Greenhouse Gas Management Organisation (TGO), an agency under the MNRE, established the Voluntary Carbon Market in 2012 and developed the Thailand Voluntary Emission Trading Scheme (Thailand V-ETS) to support efficient carbon-reducing activities.10 The sale and purchase of tradable carbon emission permits will be applicable to sale and purchase agreements under the CCC.11 However, the Regulatory Carbon Market that will be regulated by the government has not yet been established in Thailand. This future initiative is expected to help reduce industrial carbon emissions if the government strictly sets a maximum capacity on emissions for each type of industry.
Outlook and conclusions
Thailand has been active in proposing measures to deal with climate change and carbon emission reduction, although it is still at a very early stage. On 19 October 2021, the Cabinet endorsed the Long-Term Low Greenhouse Gas Emissions Development Strategy (LT-LEDS) that set targets for the country to achieve net-zero emissions by the latter half of the century.12
Various sets of substantial environmental laws are also in the pipeline, including the Climate Change Act, the Clean Air Act and the Administration for Clean Air Act. Both the Clean Air Act and the Administration for Clean Air Act have similar main contents in establishing a clean air committee with a citizens' representative, giving people the right to enjoy clean air and sue polluters, and obligating the state to develop a preventive system for air pollution. There is also a draft Pollutant Release and Transfer Registers Act, which will require private entities and state agencies to report the types and amounts of pollution emissions and transfers, and require them to assess and report the said amount. It remains to be seen to what extent their actual implementation can be successfully achieved.
1 Bulin Sanooj, Ornsiri Samarnmitr and Nam-Ake Lekfuangfu are partners, and Pattarapreya Sangsawang is an associate at Baker & McKenzie Limited.
3 W.Charoenpholnapachai, Legal Measures to Control the Dumping from Boats at Sea, Office of the Council of the State, p. 2.
4 F. Mattei, N. Sinhaseni, and C. Homklinchan, Thailand: Environment & Climate Change Laws and Regulations 2021, ICLG.com, 2021, p. 1; last accessed on 10 October 2021; available at https://iclg.com/practice-areas/environment-and-climate-change-laws-and-regulations/thailand.
5 The Supreme Court, Environmental Case Division; last assessed on 14 October 2021; available at http://www.supremecourt.or.th/division/%E0%B9%81%E0%B8%9C%E0%B8%99%E0%B8%81%E0%B8%84%E0%B8%94%E0%B8%B5%E0%B8%AA%E0%B8%B4%E0%B9%88%E0%B8%87%E0%B9%81%E0%B8%A7%E0%B8%94%E0%B8%A5%E0%B9%89%E0%B8%AD%E0%B8%A1.
7 S. Rattiwan, Thai PM to Announce Thailand's Climate Change Reduction Plans At COP26, National News Bureau & Public Relations, 2021; last accessed on 5 November 2021; available at https://thainews.prd.go.th/en/news/detail/TCATG211101102733054.
8 Regional Excise Office 8, Excise Department and Tax Collection for the Society, Environment, and Energy, Excise Department, p. 1.
9 K. Sumawong, The Study of Tax Incentives and Laws for Green Businesses, Fiscal Policy Office, 2017, p. 62.
10 P. Lohsomboon, Combating Climate Change with Carbon Pricing, Thailand Greenhouse Gas Management, 2018, pp. 6–7.
11 N. Pattanaworapong, The law in carbon credit trading, Thammasat University, 2013, p. 118.
12 P. Wangkiat, Embracing COP26 climate challenge, Bangkok Post, 2021; last accessed on 5 November 2021; available at https://www.bangkokpost.com/opinion/opinion/2203459/embracing-cop26-climate-challenge.