The Supreme Administrative Court's decision last week to dismiss the Xayaburi Dam lawsuit should serve as a reminder of an issue rarely mentioned -- the Thai government's unrealised pledge to promote environmental conservation and human rights protection in transboundary investments.
These rights and environmental safeguards are listed in the National Action Plan on Business and Human Rights (NAP) which was adopted in 2019. In that same year, Thailand was praised as being the first country in Asia to have a stand-alone plan on business and human rights.
According to NAP, the Thai government is committed to reviewing and amending laws in four areas. First is labour; second on community, land, natural resources and environment; third on protection and human rights defenders and fourth on cross-border investment and multinational enterprises. The Xayaburi Dam lawsuit posed the big question of whether the Thai government has updated local laws to align with the NAP.
Filed 10 years ago, the Xayaburi lawsuit was the first community-filed complaint related to dam building on the Mekong River, and the first lawsuit on a transboundary project in the Mekong region.
The Mekong River is becoming a hotspot for development as a series of dam projects are built upstream -- mainly in China and Laos. The dams in Laos have foreign investors, with the Xayaburi project, as an example, being overseen by Thai developer CH Karnchang while also being financed by loans from Thai banks. Most of the electricity produced is sold to Thailand.
The lawsuit was filed by 37 people representing residents of eight riparian provinces who claim to have been impacted by the power purchase contract. They have accused Thai state agencies -- including the National Energy Policy Council, the Thai cabinet, and the Electricity Generating Authority of Thailand (Egat) -- of approving the power purchasing agreement (PPA), saying it is unlawful because no assessment of the project's impact on the environment, public health or society was carried out in either country.
The Supreme Administrative Court on Aug 17 said it found no grounds for the claim.
In terms of environmental impact, the court ruling said that Section 47 of the 1992 Environmental Protection Act didn't require any such assessment of possible environmental impacts at the time the contract was signed; therefore Thai agencies are not obliged to submit an environmental impact assessment report when initiating the power purchase contract with Laos.
The court cited that the Ministry of Natural Resources and Environment already published details of the Xayaburi Dam, as much as was permitted by the government of Laos, on the website of the Mekong River Commission, the ruling found.
The bigger question is what the Thai government will do to make transboundary investment laws sustainable and more receptive to local villagers.
In addition to the Xayaburi Dam, the Thai government is planning to import electricity from Laos' Luang Prabang Dam, Pak Beng Dam and the Pak Lay hydroelectric plant. The energy procurement is part of the current government's plan to use more "clean power" to achieve carbon neutrality.
That said, it's about time for the Thai government to require energy projects to conduct transboundary impact assessments and have a monitoring mechanism in place. Thailand did the right thing by adopting the NAP in 2019. Now it is time to walk the talk.