Thai Legal Framework on Public Participation in Environmental Decision-Making: Recommendations for Reform Based on the U.S. Experience

Paul Violette and Watcharee Limanon¹

I. Introduction

Thailand's rapid industrialization and urbanization over the last 30 years have led to significant environmental challenges. According to the State of the Environment in the year 2000, developed by Ministry of Science of Technology and Environment (MoSTE), "the state of the environment remains in crisis or near crisis for most resource sectors."² Specific on-going challenges include the depletion of forests despite a ban on logging over a decade ago, continued deterioration of water quality, and an increasing production of hazardous waste, which exceeds treatment capacity.

Engaging the public in environmental decision-making is critical for the effective performance of a country's environmental management system.³ Legal practitioners and policy makers have identified strengthening citizen involvement in the environment as a

¹    Limanon and Violette are with Planning and Development Collaborative
International (PADCO), Washington, DC, USA, working with the U.S.-Asia
Environmental Partnership (US-AEP).

²    State  of Environment  Report,   Ministry   of Science,   Technology  and
Environment (2000).

³    Magda Lovei and Charles Weiss, Jr., Environmental Management and
Institutions  in  OECD Countries,   Lessons from Experience,   World  Bank
Technical Paper No. 391, p. xvi (1998).

top priority for ensuring sustainable economic growth in Southeast Asia.⁴

In developing the 8th National Economic and Social Development Plan, the Royal Thai Government recognized the linkage between continued economic prosperity and the protection of natural resources and human health.⁵ To meet Thailand's development goals, the Plan focuses in part on allowing greater public participation in the governmental decision-making process.⁶ Extending and expanding on this policy, the 9th National Economic and Social Development Plan explicitly provides for an increased role for the public in environmental decision-making.⁷

Achieving these objectives, however, has been a continuing challenge in Thailand. Government and private sector development of large infrastructure projects frequently faces strong public opposition, due to inadequate procedures for consulting the public, or to alleged legal violations of environmental laws by project proponents.⁸ Responding to ever increasing demands by the public, prominent Thai lawmakers, officials and representatives from the environmental community have called for the development of new laws that enable more effective public involvement in the governmental decision-making process.⁹

⁴ Environmental Priorities in Southeast Asian Nations, Standing Committee on
Environmental Law, American Bar Association, 67 (1997).

⁵ Thailand's Action for Sustainable Development, Thailand's Country Report to
UN   Commission   on   Sustainable   Development,   Ministry   of   Science,
Technology and Environment Publication, 37 (1997).

⁶ Development Guidelines of the Eighth National Economic and Social
Development Plan, Office of the National Economic and Social Development
Board, Office of the Prime Minister 34 (1997).

⁷ Ninth National Economic and Social Development Plan, Office of the
National Economic and Social Development Board, Office of the Prime
Minister (2002).

⁸ Senate Panel Wants Coal and Pipeline Projects Reviews, BANGKOK POST,
May 4, 2001:

⁹ NGOs Urged to Grab Chance, bangkok post, June 23, 2001.

This brief paper outlines some of the Thai legal requirements that provide for public involvement in environmental decision-making, and offers recommendations for reforms based on U.S. law and practice. The objective of the paper is to provide a starting point for discussion on strategies for revising Thai law to establish a more effective framework for public involvement in environmental decision-making.

II. Legal Foundations of Public Participation

Public participation in environmental decision-making is an international legal principle that has been incorporated into over twenty international and regional agreements.¹⁰ Principle 10 of the Rio Declaration of 1992 states that:

"Environmental issues are best handled with the participation of all concerned citizens, on a relevant level. On a national level, each individual should have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States should facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, should be provided."

As demonstrated by the 1998 UN Economic Commission for Europe (ECE) agreement signed at Aarhus, Denmark, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Principle 10 is finding expression in international agreements.¹¹

¹⁰         The  Aarhus  Convention,  An  Implementation  Guide,  United Nations,
Economic Commission for Europe 2 (2000).

¹¹     Id.

The Aarhus Convention obliges parties in Articles 4 through 9 to guarantee three mutually reinforcing rights known as the three pillars: "guarantee access to information, public participation in decision-making and access to justice in environmental matters."¹²

National legal systems that protect these three rights rely on a range of legal mechanisms, including constitutional provisions; environmental laws, policies and regulations; and administrative laws. As for constitutional rights, these provisions generally cannot be enforced directly, and specific rights and mechanisms must be codified in national, state or local legislation. As a result, the legal basis for public participation in environmental decision-making is found primarily in national, state and local level environmental or administrative laws and regulations.

Actual implementation of these national requirements relies on the development of specific procedures and practices that enable public involvement and achieve regulatory objectives. Establishing effective mechanisms that actually result in meaningful comment and effective governmental decisions, however, is a significant challenge facing all governments. One commentator has suggested that source of this on-going challenge lies in a lack of consensus on what public participation is supposed to accomplish: empowerment of disenfranchised groups, or improved government decisions.¹³ Every government must balance a range of interests in developing a participatory process within the constraints of its democratic practices and institutions.

¹²     Id. at 89.

¹³     Thomas C. Beierle, Public Participation in Environmental Decisions: An
Evaluation   Framework, Using   Social   Goals,   Resources   for  the   Future,
November 1998.

III. Thai Law on Public Participation and Recommendations for Reform

While the 1997 Thai Constitution does not provide for a specific right to a clean environment, it does establish specific rights and duties that relate to public participation and environmental protection and natural resource management, including provisions dealing with access to information, public participation, and government accountability.¹⁴ These constitutional rights and duties, however, are not self-executing and require enabling statutes to establish legal obligations and requirements.

Over the last several years, Thailand has enacted laws and other legal requirements supporting constitutional requirements for public involvement in environmental decision-making.¹⁵ While these laws provide a foundation for an increased role for the public, most are in the early stages of implementation, or are being revised to reflect new directions in Thai environmental law and policy.

For example, according to a study commissioned by the Pollution Control Department (PCD), which has implementation authority under the National Environmental Quality Act (NEQA), there are significant limitations in the law on public participation in environ­mental decision-making.¹⁶ As immediate solutions, the government study recommends enactment of new legal requirements strengthening

¹⁴      Constitution of Thailand, 1997, Articles 46, 56, 58, 59, 60, 62, 69, 76, 79,
196, and 276.

¹⁵      Key component laws of this legal framework include: Administrative
Procedure Act B.E. 2539 (1996), Official Information Act B.E. 2540 (1997),
Establishment of Administrative Courts and Administrative Court Procedure
Act B.E. 2542 (1999) and Prime Ministerial Regulations on Public Hearing
(1996).   In   addition,   the   Enhancement   and   Conservation   of  National
Environmental Quality Act (1992) provides a basis for citizen participation for
certain circumstances.

¹⁶   Recommendations for Laws and Regulations for Environmental Protection
and Operating Mechanisms for Control and Enforcement, Executive Summary,
Pollution   Control   Department,   Ministry   of   Science,   Technology   and
Environment, 4-5, (1997).

access to information, and providing legal standing to nongovern­mental organizations for initiating environmental legal cases.¹⁷

This paper will also formulate recommendations for strengthening Thailand's ability to engage the public more effectively by considering Thailand's legal system in the context of U.S. law and practice. At the outset, it is important to note that U.S. federal agencies must follow public participation requirements set out in a range of federal environmental statutes, as well as the Administrative Procedure Act (APA).¹⁸ In addition to federal statues and the APA, other sources of public participation requirements are agency regulations, agency policies, and executive orders issued by the President. Of the four legal mechanisms, only statutory and regulatory requirements are reviewable by courts.

To simplify treatment of Thai law of public participation in environmental decision-making, it is useful to discuss Thai legal requirements with reference to the three pillars of the Aarhus Convention:

A. Access to information,

B. Public participation, and

C. Access to justice.

After discussion of specific Thai legal requirements in the context of these three public rights, this paper will provide specific recommen-dations based on U.S. law and practice.

A. Access to Information: Right to Know

Citizen access to information is a prerequisite for effective environmental protection. Four of the Rio Declaration's twenty-seven principles deal with improved access to information. A common regulatory strategy for enforcing laws is to leverage public involvement in the enforcement process by providing citizens and

¹⁷ Id. at 19.

18

Promulgated in 1946, the APA establishes both the procedures that U.S. agencies must follow in exercising government power, and the framework for judicial review of agency decisions and actions.

other stakeholders with environmental information on pollution emissions, project impacts or potential hazards. Increasingly, public disclosure of environmental performance information of firms harnesses market and community forces for improved firm compliance with environmental requirements.¹⁹

Thailand has established a legal framework for providing citizen access to information. The 1997 Constitution establishes a citizen right to obtain public information from governmental agencies unless the disclosure affects national security, public safety or interests of other persons as provided by Iaw.20 Two laws that give effect to constitutional guarantees are the Enhancement and Conservation of National Environmental Quality Act of 1992 (NEQA) and the Official Information Act, though Thailand should enact further requirements that promote improved access to information.

1. Enhancement and Conservation of National Environmental Quality Act

To promote public participation in national environmental protection, NEQA grants citizens the right to gain access to official information. In particular, section 6(1) provides that citizens have the right

"To be informed and obtain information and data from the government service in matters concerning the enhancement and conservation of environmental quality, except the information or data that are officially classified as secret intelligence pertaining to national security, or secrets pertaining to the right to privacy, property rights, or the rights in trade or business of any person which are duly protected by law."²¹

As a statute intended to fill the gaps in all other laws related to the environment, NEQA applies to all agencies that have

¹⁹ Greening of Industry, The World Bank (1998).

²⁰1997Constituti(

²¹ NEQA, §6(1).

responsibilities for gathering and maintaining environmental information. NEQA does not, however, establish procedural requirements on how agencies should release information, resulting in at least one challenge in the Court of Justice.

In particular, in 1997 a Thai environmental nongovernmental organization challenged the Ministry of Science, Technology and Environment (MoSTE), which is the agency responsible for implementing the act, for refusing to grant access to environmental information related to the development of a government building. The trial court dismissed the case, reasoning that although NEQA section 6(1) gave citizens a right to information, there was no stated duty for the government to release information.²² On appeal, however, the Thai Supreme Court ruled that under section 6(1) agencies in fact had a duty to release the information and that the government's refusal to disclose information did not fall within an NEQA section 6 exception.²³

2. Official Information Act

Responding to public demands for increased government accountability and access to the government decision-making process, the Thai parliament enacted the Official Information Act of 1997 (OIA), establishing a legal basis for the public right to know.²⁴ Applying to government agencies, courts, state organizations and independent agencies, OIA requires the Thai government to disclose specific "official information", which is defined as "information in the possession or control of a State agency, whether it is the information relating to the operation of the State or the information relating to a private individual."²⁵

Modeled after the U.S. Freedom of Information Act, the OIA establishes the standard for what information agencies should

22

23

Dika 861/2540 (1997) p. 15. Id. at 39.

²⁴  Official Information Act B.E. 2540 (1997).

²⁵ Id. at § 4.

disclose. Under the Act, there are three mechanisms that the public may use to obtain information: (1) consulting information published in the Government Gazette, (2) inspecting information that agencies are required to make available; and (3) requesting other specific information.²⁶ Under the law, the public, regardless of special injuries or interests, is entitled to receive information in possession or control of agencies.

Upon receipt of an information request, agencies must disclose official information unless it falls within several broad exceptions, such as information that may jeopardize the Royal Institution, compromise national security, reduce the efficiency of law enforcement, affect internal agency opinions, endanger the life and safety of any person, or violate individual privacy rights.²⁷ The public is entitled to reasons and explanation from agencies when agencies choose not to make available the requested information. If a request is denied, the public is entitled to lodge a compliant with the Official Information Board with an appeal to the Information Disclosure Tribunal.

Under the Act, governmental agencies must pass enabling regula­tions establishing procedures and processes for the public to exercise their right to know. To date, most agencies, including environmental agencies, have not passed regulations, or do not have data systems that categorize information to facilitate public access. As of 1999, only 297 of 8,729 state agencies implemented Section 7 requiring that their internal information be published in the Royal Gazette.²⁸ In addition, only 22 of 76 provinces set up news and information centers as required under Section 9.²⁹

²⁶ Id. at §§7,9, and II.

²⁷ Id. at §15.

²⁸ Agencies still leave people in the dark: Constitutional right put on back
burner, BANGKOK POST July 29, 1999.

²⁹ Id.

3. Recommendations for Reform

New or improved Thai laws or regulations could significantly strengthen citizen access to information, greatly increasing public participation in the environmental decision-making process in Thailand. When developing new legal or regulatory reforms, it is useful to consider the U.S. experience. What follows are three preliminary recommendations based on the U.S. experience that are considered to be both feasible and cost-effective within current legal and institutional arrangements:

-  Accelerating Access to Official Information

-  Improving Reporting of Environmental Performance
Information

-  Requiring Release of Information on Toxics and other Hazards
a. Accelerating Access to Official Information

Enacted in 1966 and amended in 1996, the U.S. Freedom of Information Act (FOIA) establishes the public right to know by establishing a presumption that records in the possession of government agencies should be accessible to the people.³⁰ FOIA does not apply to elected officials of the federal government, including the President, Vice President, legislators, or private companies, state, or local governments. Many state and local governments, however, have passed laws similar to FOIA.

Under FOIA, the government must establish a need for secrecy, which is defined by specific exceptions, most of which are similar to exceptions under Thailand's OIA.³¹ These statutory exemptions, however, cannot be used to withhold an entire document; rather,

³⁰ The Freedom of Information Act, 5 U.S.C. § 552.

³¹  Id. at § 552 (b). Examples include: (1) classified documents for interest of
national defense or foreign policy; (2) internal personnel rules and practices;
(3) information exempt under other laws; (4) confidential business information;
(5) internal government communications; (6) information related to personal
privacy; and (7) law enforcement records.

government agencies must delete the exempted portions and release the remaining document.

As with the Thai Official Information Act, FOIA requires agencies to publish information in the Federal Register or make records available for inspection and copying. In responding to public requests, agencies must determine within 20 days after receiving a

\*)

request whether on not to disclose the information.

If the request is denied, the agency must provide reasons and inform the requester of the right to appeal to the head of the agency. The administrative appeal is a relatively simple procedure, which does not require legal representation. If the administrative appeal is denied, the requestor may appeal the denial in federal district court, and the burden of justifying the withholding remains with the government.

When comparing this process to the Thai OIA, it is apparent that the FOIA process operates over a compressed timeframe with specific time limits for government response, at least during the early steps of the process. Since the need to acquire environmental information can be time sensitive, Thailand could establish a reasonable time limit such as 30 days requiring government agencies to respond to citizens with the requested information, or a denial. Under section 11 of the current law, government agencies must only respond within a "reasonable period of time."

Establishing a time requirement, however, must be balanced against an overall lack of agency capacity to respond to information requests. According to a 1999 report by the Office of Official Information, agencies generally do not understand requirements under the law, are unsure how to interpret exceptions, and in many cases are fearful about the consequences of releasing information.³³ In fact, ninety percent of all appeals resulted in reversals of agency decisions

³² Id. at §552 (a)(6)(A).

³³ Summary of Implementation of the OIA, Office of Official Information,

Office of the Prime Minister, 64 (1999).

not to release. Requiring a time limit should be balanced with efforts to strengthen agency capacity.³⁴

b. Improving Mandatory Reporting of Environmental Performance Information

The Clean Water Act (CWA) is the main U.S. federal water pollution control statute that aims to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."³⁵ Under the CWA, polluters are required to submit discharge monitoring reports (DMR) on a monthly basis to the federal government or a delegated state agency, detailing the polluter's compliance record with permit requirements.

Citizens and environmental organizations may gain access to this compliance information through written Freedom of Information Act (FOIA) requests, and use this information for a range of activities, including informally confronting polluters, or filing citizen law suits against the polluter. Thus, under the CWA and FOIA, citizens are provided with the tools to gain access to information that can be used to strengthen the enforcement of environmental requirements.

Under NEQA, MoSTE's Pollution Control Department (PCD) is required to develop regulations requiring point sources of pollution to submit performance information.³⁶ To date, PCD has not yet developed these regulations, which could provide both the government and citizens with useful information about pollution sources, and promote improved compliance with environmental requirements. One strategy for developing these regulations might be to consult the US Environmental Protection Agency (EPA) under an existing Memorandum of Understanding between the agencies, and review the effectiveness of the DMR under the CWA. Linking the disclosure of the performance information with the OIA would

³⁴ Id. at §60.

³⁵   The Clean Water Act, 33 U.S.C. §1251 et. seq.

³⁶ NEQA at §80.

provide   increased   incentives   for  firms  to  gather  and   disclose information.

c. Requiring Release of Information on Toxics and other Hazards

Disclosure of environmental performance information can generate community and market pressure for emissions reductions. Under the Emergency Planning and Community Right-to-Know Act (EPCRA), which was enacted in response to the Bhopal incident in 1984, a large segment of the U.S. manufacturing industry is required to disclose information on their annual releases of toxic chemicals.³⁷ The main purpose of EPCRA is to provide the public with the information about toxics chemicals released in their communities and to establish emergency planning and notification procedures for communities.³⁸

Known as the Toxic Release Inventory (TRI), this information is disseminated widely to the public, resulting in significant waste reductions as corporations respond to adverse publicity and fears of potential liability. Over the last fifteen years, the TRI program has proven successful in reducing the discharge of toxic chemicals into the environment. As reported by EPA in 1997, toxic chemicals released from 1988 to 1995 decreased by 45.65% from 2.96 to 1.61 billion pounds.³⁹

Not only does TRI data enable governments and industry to work more effectively to reduce pollution, but provides citizens and communities with important information to respond to potential threats and to work with companies to achieve a cleaner and safer

³⁷  Under EPCRA requirements, regulated industries under SIC code 20-39 that
have employees of 10 or more must submit Form Rs that contain the total
annual amount of toxic chemicals directly release to air, water, or land as well
as any transfers of these chemical to offsite location. The EPA will then
compile these reports into an inventory, called Toxic Release Inventory, and
then disclose the information to the public.

³⁸    EPCRA §§301-311, 42 U.S.C. 11, 001-11, 023 (1997).

³⁹   EPA Proceedings,  1997 Toxic Release Inventory and Right to Know
Conference, p. vii (1997).

environment. As stated by the former EPA Administrator Carol Browner:

" [SJince 1988, when TRI reporting began, industrial facilities required to report their toxic releases have reduced their emission almost by half. The bottom line is that right-to-know works-and we ought to be making this kind of information better, more reliable and more readily available to the public. It is more than just a "right-to-know." It's about "being able to know." And our administration is determined to see that Americans have not only the right but also the ability to access important information about their environment. Fortunately, the ongoing revolution in communications and information is going to help make this job easier. Computers, electronic data collection technologies and the Internet have all combined to vastly increase our ability to do this."⁴⁰

Thus, as demonstrated by the experience in the U.S. with TRJ, public disclosure of environmental information can be a cost-effective strategy for enforcing environmental laws since communities, citizens and local governments can use the information to apply pressure on polluters. Thailand could develop similar requirements without significant legal reforms, or excessive implementation costs.

In particular, under NEQA, PCD could develop regulations requiring factories and other industrial facilities to report on toxics and other hazards, and publish the information on the internet and through other means to enable communities to have an improved understanding of potential environmental hazards. Additionally, other agencies under the Ministry of Industry, such as the Department of Industrial Works or the Industrial Estates Authority of Thailand, could develop regulations similar to TRI.

40

Id at xix.

B. Public Participation: Right to be Heard

Developing effective environmental policies and environmentally sound projects and plans is a complex enterprise that requires significant input from a range of stakeholders.⁴¹ Establishing fair and cost effective procedures for soliciting and incorporating public comments on proposed projects, plans, policies and regulations are essential for ensuring effective environmental management.

The 1997 Constitution explicitly established rights for the public to participate in governmental decision-making. Under the 1997 Constitution, the State is required to promote and encourage public participation in developing policies, including conservation of natural resources and pollution control.⁴² Likewise, citizens "have the right to participate in the decision-making process of State officials in the performance of administrative acts which affect or may affect his or her rights and liberties, as provided by law."⁴³

What is more significant, however, is that the Constitution explicitly establishes rights for citizens to participate in environmental decision-making. Article 56 not only establishes such a right, but also specifically prohibits the development of projects of activities without first conducting an environmental impact study with inputs from environmental organizations and academia. Further, Article 59 both establishes a right to environmental information, and a right to provide public comment on the environmental impacts of projects through public hearings.

Based on these Constitutional guarantees and newly enacted implementing legislation, Thailand is establishing the legal and institutional foundation for enabling stakeholder input into environ­mental decision-making, but much work remains. Stakeholders typically do not have a meaningful opportunity, however, to provide

⁴¹  Marion Cox, Integrating Public Input into Environmental Decisions: How
Far Have We Come?, 2 Interact: The J. of Pub. Participation 35 (1996).

⁴²   Article 76 and Article 79.

⁴³ Article 60.

input into the government's development of environmental projects, much less plans, regulations, or policies. To date, legal, and institutional reforms have focused almost exclusively on procedures for defusing conflict over the development of large infrastructure projects, rather than on more general approaches for including stakeholder viewpoints.⁴⁴

1. Enhancement and Conservation of National Environmental Quality Act

Under NEQA, there is no provision for stakeholder access to the decision-making process for the development of regulations, policies or projects. Under NEQA, PCD develops environmental standards, for example, with limited stakeholder input from the regulated community or citizens. In practice, many standards in Thailand are borrowed directly from other countries, notably the United States.⁴⁵

On the policy side, MoSTE's Office of Environmental Policy and Planning (OEPP) is responsible for developing a range of plans and policies, including, for example, the Environmental Quality Management Plan for implementation by individual provinces.⁴⁶ In the development of these policies and plans, there is no provision for stakeholders to exercise their constitutional right to be heard by providing their comments or opinions.

OEPP is also responsible for overseeing the environmental impact assessment (EIA) process and has passed regulations specifying certain types and sizes of projects that must conduct environmental impact studies.⁴⁷ For public projects, the agency responsible for a proposed project must prepare an EIA during the

⁴⁴ Patcharee Siroros and Kenneth J. Haller, Thai Public Hearings: Smokescreen or Ceremony?, Thammasat Review (2000) Volume 5(1), 147-164.

⁴ Watcharee Limanon, Thai Industrial Environmental Performance Rating Program (TIER): Using Public Disclosure to Reduce Emissions from Industrial Estates, LL.M. Thesis, George Washington University Law School, 34 (1999).

⁴⁶  NEQA, §35.

⁴⁷     Environmental Impact Assessment in Thailand, Office of Environmental
Policy and Planning, 23-32 (1998).

feasibility study stage and then submit it to OEPP for comments. OEPP will then forward the EIA to the Expert Review Committee, the composed of experts in specific fields, for their comments before forwarding to the National Environmental Board (NEB). The NEB will review and comment and then forward it to the Cabinet for final decision.⁴⁸ The Cabinet may request opinions from experts or institutions.

For private projects, the project proponent is responsible for preparing the EIA, which is submitted to the permitting agencies and OEPP. OEPP will review and comment on the report within 15 days and forward these comments to the Expert Review Committee for approval within 45 days. In this case, the Expert Review Committee is the final decision maker. If the Committee approves the project, the permitting agency shall grant a permit with conditions on mitigation

49

measures.

Throughout this entire process, there is no provision for public input or comment. The process is completely dominated by the government, which is often has a stake in the project, and the private sector developer. Significantly, the new Constitution explicitly requires that the public be given a role in the EIA process. To date, MoSTE has not developed regulations strengthening public participation in the EIA process.

2. Public Hearing Guidelines

In response to frequent controversy surrounding the development of infrastructure projects, the Office of the Prime Minister promulgated guidelines that establish a process for consulting interested stakeholders through public hearings.⁵⁰ These guidelines

⁴⁸             Enhancement and Conservation of National Environmental Quality Act of
1992 § 47.

⁴⁹  Id. §§48-50.

⁵⁰             Prime Minister Office Regulations on Listening to the Public by Public
Hearing (1996).

are general, applying to "State Projects" that include a concession, license, permit or approval from a State Agency.⁵¹

Under these guidelines, public hearings are triggered when a minister, provincial governor or the governor of the Bangkok Metropolitan Administration determines that the proposed project "may impact the environment, culture, occupation, safety and quality of life, or may cause damage to the community or society and may lead to controversy among stakeholder groups".⁵² Additionally, stakeholders may make a "request" to the State Agency, ministers or governors to order a hearing related to a specific project.⁵³

Once a hearing has been ordered, the minister or governor must select a Public Hearing Committee composed of a chairman and no fewer than three members who are determined not to have a stake in the project. The Committee is mainly responsible for organizing and conducting the public hearing, based on specified procedures.⁵⁴ The results of the hearing are summarized by the Committee in the form of an official report, the conclusions of which do not bind the agency in project development.⁵⁵

Since the guidelines came into effect in 1996, the public hearings organized by agencies have not been successful. In practice, these procedures have not effectively incorporated stakeholder viewpoints, often resulting in a situation where stakeholders refuse to even participate in the hearings.⁵⁶ As reported by Office of the Prime Minister in 1998, public hearings do not adequately reflect

⁵¹    Id. at §3. State Agency is defined to include ministries, departments,
provincial administrations, local administrations, and state enterprises.

⁵² Id. at §7.
³³ Id. at §8.
"id. at §14.

⁵⁵ Id. at §21.

⁵⁶ Thawilwadee Burekul, Public Participation in Environmental Management in
Thailand,   Presented   at   Asia   Pacific   Governance   2000:   Ethics,   Law,
Management, Politics, 27-28 April 2000, Brisbane, Australia.

stakeholder opinions due to a lack of stakeholder participation in the

hearings.⁵⁷

Limited opportunities stakeholder input, however, is not the cause of the problem but merely a symptom. As detailed in a recent report by the Thai Development Research Institute (TDRI), there are significant limitations in the process due in large part to inadequate resources, lack of transparency and a lack of commitment on the side

tft

of the government in ensuring a fair process. Recognizing these limitations, the government has been working to prepare a new law that will provide an improved process for incorporating public views into the development of major projects.

3. Recommendations for Reform

The following reform recommendations for strengthening public involvement in environmental decision-making in Thailand do not require the development of new laws but only new regulations or amendments of existing regulations. To demonstrate the direction of possible reforms, each recommendation is developed from a specific US approach:

•            Requiring Stakeholder Participation in Agency Rulemaking

•            Requiring Public Involvement in the EIA Process

•            Establishing Public Participation Policies and Regulations
a. Requiring Stakeholder Participation in Agency Rulemaking

One approach for U.S. administrative agencies to formulate agency policy is through rulemaking. In establishing prospective rules of general application, rather than relying case-by-case decisions, U.S. agencies are required to consult with affected citizens and other

⁵⁷  Prime Minister's Office, Report on Public Hearings, PM  1308/10574,
December 24, 1998.

⁵⁸  Guideline for Conducting Public Hearing in Thai Society, Research Paper,
TDRI, 158, May 9, 2001.

stakeholders    through    specific    procedures    prescribed    by   the Administrative Procedure Act (APA), or other statutes.⁵⁹

Under the APA, agencies generally create new rules by "informal rulemaking" which requires published notice by the agency of a proposed rule, opportunity for public comment, and publication of the final rule with a statement of its purpose and basis.⁶⁰ In particular, APA §553 provides that "[gjeneral notice of proposed rulemaking shall be published in the Federal Register. The notice shall include ... either the terms or substance of the proposed rule or a description of the subjects and issues involved."

Through this notice requirement, citizens are given the opportunity to comment on new agency rules, which promotes fairness, clarity and better rules.

On rare occasions, a statute may require an agency to follow formal rulemaking procedure "on the record" with a hearing that included trial-type procedures with the submission of evidence, an impartial decision maker and an explanation of the decision.⁶¹ Under the Negotiated Rulemaking Act, agencies may also hold formal negotiations among interested parties through a negotiating committee of stakeholders with the final consensus proposal submitted for notice and comment.⁶² Also, in addition to APA requirements, Congress may establish specific statutory rulemaking procedures and mechanisms for the agency to follow in developing standards or other rules. In sum, under U.S. law, stakeholders groups, including citizens, industry and communities, are guaranteed the right to be heard in the development of environmental rules, ensuring the development of balanced rules that reflect a range of opinions.

⁵⁹   5 U.S.C. § 553. Promulgated in 1946, the APA establishes both the
procedures that U.S. agencies must follow in exercising government power, and
the framework for judicial review of agency decisions and actions.

⁶⁰ Id. at §553.

5 U.S.C. §§553, 556 and 557.

⁶² 5 U.S.C. §§561-570.

Like the U.S., Thailand has enacted an Administrative Procedure Act that sets out specific procedures and requirements for Thai administrative agencies, though the Thai law applies only to administrative orders, and not to agency rules or regulations.⁶³ The Thai government, however, is developing a new Public Consultation Act that will provide an improved approach for incorporating public comment into the regulatory process, including for environmental decision-making.

While an early draft bill was only a slight departure from the Prime Ministerial guidelines on public hearings and was intended primarily to facilitate public input into projects developed by state agencies,⁶⁴ recent drafts developed by the Thai Council of State are focusing on expanding the scope and practices for public participation, and is considering allowing public input into the rule-making process.⁶⁵ In developing this draft bill, the Council of State is consulting with a range of stakeholder agencies and organizations to discuss specific methods for soliciting opinion, types of activities that require public consultation, and agency responsibility in responding to public opinion. The Council of State is also considering international experience, including that of the U.S.

Based on the U.S. experience, therefore, the new law should take into account shortcomings of current public hearings and establish a new process that can be implemented for a wide range of applications by central, provincial and local government agencies, especially in view of the new decentralization requirements under the Decentralization Act. The overall focus of the proposed act should shift to a process that looks beyond the mega-project and the public

⁶³ Administrative Procedure Act, 167 (2000).

⁶⁴  Changes from earlier drafts include stakeholder access to the Advisory
Committee, establishment of a new office in the Office of Prime Minister to
oversee the process, and a requirement for public hearings after the project
proponent has conducted an environmental impact assessment.

⁶⁵  Draft Principles for the Public Consultation Bill, Council of State, August 3,
2001.

hearing process to encompass a range of activities, including rulemaking, through a prescribed minimum level of process, such as notice and comment.

b. Requiring Public Involvement in the EIA Process

Enacted in 1969, the National Environmental Policy Act (NEPA) established the broad goals for U.S. environmental policy, including a requirement that all federal agencies prepare an environmental impact statement (EIS) on major federal actions significantly affecting the quality of the environment.⁶⁶ To implement NEPA, Congress established the Council on Environmental Quality (CEQ) to coordinate agency compliance in part through the promulgation of regulations on EIA requirements.⁶⁷

In completing the EIA, under the CEQ regulations, agencies are required to involve the public and other federal agencies through a range of mechanisms including public hearings or meetings.⁶⁸ For example, under separate regulations developed in accordance with CEQ requirements, the U.S. Department of Energy (DOE) holds at least one public meeting as part of the scoping process for EISs that is attended by the project proponent, agencies, and other interested persons. DOE holds the public meeting at least fifteen days after the Notice of Intent is published and allows thirty days for the receipt of public comments.⁶⁹

⁶⁶            NEPA §102.

⁶⁷   Regulations for Implementing the Procedural Provisions of the National
Environmental Policy Act (1992). Under these requirements, the major steps in
the EIA process include: (1) determination that an action is categorically
excluded from NEPA; (2) preparation of an Environmental Assessment (EA) to
determine if a full EIS is required; (3) preparation of a Finding of No
Significant Impact (FONSI) if no full EIS is required; (4) preparation of a
Notice of Intent (NOI) to prepare an EIS for publication in the Federal
Register; (5) preparation of a draft EIS; (6) preparation of a final EIS; and (7)
preparation of a Record of Decision (ROD).

⁶⁸ Id. at §1506.6.

10 CFR 1021.311.

In completing this scoping process, however, DOE follows the prescribed steps with flexibility in accordance with the agency's public participation policy, which includes provisions for enhanced public participation.⁷⁰ For the scoping process, this means that the Agency tailor the process to achieve its objectives, possibly lengthening the timeframe of certain steps in the process, supplying additional government resources, or identifying specific individuals that have existing knowledge of the site or an alternate approach.⁷¹

Likewise, for other steps in the EIA process where public participation is required, DOE will conduct hearings and solicit comments in accordance with agency regulations and policies. Having developed a broad range of projects over the last thirty years in compliance with NEPA, DOE and other federal agencies recognize that the "success of the NEPA process heavily depends on whether an agency has systematically reached out to those who will be most affected by a proposal, gathered information and ideas from them, and responded to the input by modifying or adding alternatives".⁷²

Building on this experience, Thailand could strengthen its EIA process and reduce inefficiency by involving the public directly in the EIA process. Opportunities for public involvement could include the project scoping, commenting on draft EIAs, and project monitoring to ensure implementation of mitigation measures.

⁷⁰ Effective Public Participation under the National Environmental Policy Act,
Second   Edition,   DOE   Publication,   1998.   The  goals   of DOE's   Public
Participation Policy are to: (I) actively seek and consider public comments and
incorporate the views of stakeholders in making decisions; (2) inform the public
in a timely manner and empower them to participate in DOE's decision-making
processes, which should be open, understandable, and consistently followed;
(3) incorporate credible, effective public participation processes into all of
DOE's activities, at headquarters and in the field.

⁷¹  Id. at 13.

⁷² The National Environmental Policy Act, A Study of its Effectiveness after
Twenty-five   Years,   Executive   Office   of  the   President,   Council   on
Environmental Quality, x (1997).

Indeed, OEPP is well aware of the need for increased public involvement in the process, ⁷³ and has recently developed specific strategies for reforming the process, based in part from collaborative work with the EPA. Changes in the process could be through NEQA amendments, or MoSTE could pass regulations based on NEQA.⁷⁴ It is also worth noting that Article 59 of the Thai Constitution requires a process where the public provides direct input in the EIA process:

Any project or activity which may seriously affect the quality of the environment shall not be permitted, unless its impacts on the quality of the environment have been studied and evaluated and opinions of an independent organization, consisting of representatives form private environmental institutions and from higher education institutions providing studies in the environmental field, have been obtained prior to the operation of such project or activity, as provided by law.

What remains is for Thailand to develop laws or implementing regulations that give effect to this constitutional mandate.

c. Establishing Public Participation Policies and Regulations

The U.S. achieves environmental protection goals through a comprehensive array of environmental statutes. To ensure effective stakeholder participation, many of these statutes require EPA to promote and facilitate public participation for a range of activities including rulemaking, permit enforcement and lawsuits against polluters.

⁷³  Strengthening the Environmental Impact Assessment Process in Thailand,
Asian Development Bank, T.A. Project No. 2351-THA, 4 (1997).

⁷⁴   NEQA at §46.

⁷⁵ The principal federal environmental statutes include: National Environmental
Policy Act; Clean Air Act; Clean Water Act; Federal Insecticide, Fungicide,
and Rodenticide Act; Ocean Dumping Act; Safe Drinking Water Act; Toxic
Substances   Control   Act;   Resource   Conservation   and   Recovery   Act,
Comprehensive Environmental Response, Compensation, and Liability Act; and
Emergency Planning and Community Right-to-Know Act.

To meet these statutory requirements, EPA has promulgated regulations prescribing how EPA must implement public participation programs and activities required by individual environmental statutes. ⁷⁶ These regulations prescribe minimum requirements and suggested program elements for activities under the Clean Water Act, the Resource Conservation and Recovery Act (which governs solid and hazardous waste management), and the Safe Drinking Water Act.

According the regulations, the requirements are "intended to foster public awareness and open processes of government decision-making."⁷⁷ As a matter of policy under the regulations, EPA states that:

"[p]ublic participation includes providing access to the decision-making process, seeking input from and conducting dialogue with the public, assimilating public viewpoints and preferences, and demonstrating that those viewpoints and preferences have been considered by the decision-making official. Disagreement on significant issues is to be expected among government agencies and the diverse groups interested in and affected by public policy decisions. Public agencies should encourage full presentation of issues at an early stage so that they can be resolved and timely decisions can be made. In the course of this process, responsible officials should make special efforts to encourage and assist participation by citizens representing themselves and by others whose resources and access to decision-making may be limited."⁷⁸

These regulations cover a range of agency activities, including: rulemaking; permit issuance, modification and enforcement; development of informational materials; policy guidance development; and development and implementation of plans,

⁷⁶40CFRCh. 1 Part 25.

77

programs, and standards.⁷⁹ In very specific terms, the regulations establish specific requirements for public hearings, public meetings and advisory groups.

In conducting a public hearing, for example, the regulations require EPA to notify interested and affected parties of the hearing by publication of notice or by mail either 30 or 45 days in advance, depending on the complexity of the issue. Notice of the hearing must include a discussion of the Agency's tentative determination on major issues, and relevant materials re to be made available at least 30 days prior to the hearing.⁸⁰ As for the location and time of the hearing, they must be held so as to facilitate participation by the public "to the maximum extent feasible".⁸¹ The Agency must also schedule presentations to "ensure maximum participation"⁸², and conduct hearings that do not "unduly inhibit free expression of views"⁸³. The agency must also prepare a record of the hearings that will be available to the public at cost.⁸⁴

Since promulgation of these regulations in 1981, EPA has continued to develop improved practices for promoting public involvement. In December 2000, EPA issued the draft 2000 Public Involvement Policy for public comment that is intended to incorporate improved administrative procedures and public involvement requirements, such as environmental justice considerations and the internet-based tools.⁸⁵ Further, in January 2001, EPA's Office of Environmental Policy Innovation issued a summary of lessons learned

⁷⁹ Id. at §25.2.

⁸⁰ Id. at §25.5 (b).

⁸¹   Id. at §25.5 (c).

⁸² Id. at §25.5 (d).

⁸³ Id. at §25.5 (e).

⁸⁴ Id. at §25.5 (f).

⁸⁵ Federal Register, Vol. 65, No. 250, December 28,2000.

in public participation to assist EPA staff in improving practices and capabilities.⁸⁶

Turning now to Thailand, under NEQA, the National Environment Board (NEB) has the authority to "submit policies and plans for the enhancement and conservation of national environmental quality to the Cabinet for approval."⁸⁷ Likewise, NEB has the authority issue regulations that are "necessary to ensure systematic operation of the laws relating to enhancement and conservation of environmental quality to the fullest extent possible."⁸⁸

Given EPA's experience and international best practices in public participation, under NEQA Section 13 the NEB and MoSTE could develop agency level policies and regulations for public involvement that engage stakeholders in environmental decision-making. While it would be useful to orient this policy or regulation within the overall administrative legal framework for public participation, MoSTE has the authority now to enable citizens to exercise their constitutional rights of public participation in environmental decision-making.

C. Access to Justice: Right to Challenge Agency Decision-Making

To ensure effective public involvement in the environmental decision-making process, citizens should have access to courts or other tribunals to review agency decisions that affect their right to know and right to be heard, and provide adequate remedies in the case of violations. Establishing an effective system can depend on creating sound institutional and legal arrangements, but also on practical considerations such as whether citizens groups can be granted legal standing to bring cases, or if courts have the authority to enforce decisions.

⁸⁶ Stakeholder Involvement & Public Participation at the U.S. EPA, Lessons
Learned, Barriers, & Innovative Approaches, January 2001.

⁸⁷ NEQA §130).

⁸⁸ NEQA §13(9).

The 1997 Constitution provides for a citizen right to challenge agencies for failing to perform their duties under the law.⁸⁹ Recognizing the importance of the environment, the Constitution specifically provides rights for citizens to sue agencies for failing to perform duties related to environmental protection, including public involvement in the decision-making process, and the completion of EIAs.⁹⁰

More generally, the 1997 Constitution requires the establishment of a specialized administrative court separate from the Court of Justice to enable citizens to lodge challenges against administrative agencies.⁹¹ With this requirement, the Constitution establishes an institutional and legal framework for strengthening government accountability and transparency not only for the decisions of environment agencies, but all government agencies.

⁸⁹ Article 62 provides that "the right of a person to sue a Government agency,
State agency, State enterprise, local administration or other State organization
which is a juristic person to be liable for an act or omission done by its
Government official, official or employee shall be protected, as provided by
law." Article 56.

⁹⁰ Article 59 states: "The right of a person to give to the State and communities
participation in the preservation and exploitation of natural resources and
biological diversity and in the protection, promotion and preservation of the
quality of the environment for usual and consistent survival in the environment
which is not hazardous to his or her health and sanitary condition, welfare or
quality of life shall be protected, as provided by law. Any project or activity
which may seriously affect the quality of the environment shall not be
permitted, unless its impact on the quality of the environment have been studied
and evaluated and opinions of an independent organization, consisting of
representatives from private environmental organizations and from higher
education institutions providing studies in the environmental field, have been
obtained prior to the operation of such project or activity, as provided by law.
The right of a person to sue a Government agency, State agency, State
enterprise, local administration or other State organization to perform the duties
as provided by law under paragraph one and paragraph two shall be protected."
Further, article 56 provides an explicit right for citizens to sue the government
for public involvement in environmental decision-making, including the EIA
process.

⁹¹  Id. at Art. 276-280.

In addition, prior to the 1997 Constitution, Thailand enacted legislation that enables citizens to make administrative claims requiring access to information or public participation in environmental decision-making. As detailed below, the Official Information Act and the Thai Administrative Procedure Act provide opportunities for citizens to challenge environmental agency decisions.

1. Official Information Act

The Official Information Act of 1997 provides for citizen administrative challenges to decisions by agencies not to release official information. Citizens may appeal through the Official Information Board to an Information Disclosure Tribunal, as well as challenge the Tribunal's decision in the Administrative Court. Citizens also have the legal right to lodge complaints with the Ombudsman when officials fail to perform their duties or act beyond their authorized powers.⁹²

2. Administrative Procedure Act

The Thai Administrative Procedure Act of 1996 establishes a process for agencies to enable citizens to participate in decisions related to specific orders or adjudications, such as the issuance of permits or licenses. Under the law, citizens who may be affected by a particular order may review relevant information or provide information related to the order prior to its issuance.

Within this law is an appeals process where affected parties may challenge individual agencies for failure to perform their duties under the law.⁹⁴ Citizens affected by agency orders or actions must first appeal to the official who issued the administrative order within 15 days, unless there are specific appeal procedures established under the law or regulation of that agency, or if a minister was involved with issuing the order in question.

⁹² Id. at Art. 196.

⁹³ Administrative Procedure Act of 1996, § 30.

94

Id. at § 44.

On appeal, if the official who made the decision does not modify

the original decision, the appeal is forwarded to an authorized person (which is generally a superior to that official), who must rule on the appeal within thirty days, though this period can be extended for thirty more days if necessary.⁹⁵ With the establishment of the Administrative Courts, parties may now further appeal decisions in that court.

While it appears that this law provides citizens with important opportunities to participate in government decisions that impact the environment, in practice this law is not widely used by affected citizens to redress grievances. One reason for this is that citizens are not widely aware that this law exists, and in fact agency officials themselves are not generally aware of the law and how it might impact their decision-making.

3. Establishment of Administrative Courts and Administrative Court Procedure Act

In March 2001, Thailand's institutional machinery for providing citizen access to justice was transformed with the opening of the Administrative Court, a judicial organ of government separate from the Thai Court of Justice. Mandated by Article 276 of the 1997 Constitution and a subsequent establishment law, the Administrative Court has the power to adjudicate disputes between the public and agencies and disputes between officials and agencies.⁹⁶

Under the law, the jurisdiction of the court extends to the administrative regulations, administrative orders, administrative contracts, wrongful acts or other liability of an administrative agency, or negligence of an official.⁹⁷ Administrative Court judges have broad powers to remedy administrative harms, including revoking a rule or administrative order (applying either retrospectively or prospectively),

⁹⁵   Id. at §45.

⁹⁶ Establishment of Administrative Courts and Administrative Court Procedure
Act of 1999.

⁹⁷ Id. at §9.

enjoining an agency or official to complete or omit a specific act, or requiring the transfer of funds or property in the case of a wrongful

act.⁹⁸

One feature of this court is that the bar to filing a claim is very low. Under the law, the plaintiff can be "any person" who is "inevitably aggrieved or injured or who may be inevitably aggrieved or injured".⁹⁹ As for filing itself, there is no specific form, but only a requirement that the complaint be written in "polite and courteous language" and include the name and address of the plaintiff, the agency being challenged, the facts and circumstances, relief sought and a signature.¹⁰⁰ There is no filing fee unless damages are sought. A party need not appoint an attorney, and the complaint can be sent by mail.

Other procedural limits include filing within time limits provide by the governing statute, and exhaustion of remedies.¹⁰¹ (For example, citizens must first exhaust the remedies within the Official Information Act by appealing to the Official Information Board and the Official Tribunal for a final decision before making a claim for the release of information in the Administrative Court.)

The most significant innovation of this new court system is the application of the inquisitorial process. Under these court proceedings, the judge appointed to discover the facts of the case has wide powers to gather evidence from the administrative agency by requesting documents, interviewing officials or making site visits, activities that are in many cases beyond the powers of the plaintiff.¹⁰² Furthermore, actual decisions at the trial level are made by judges from other divisions, promoting more objective decision-making.

⁹⁸ Id. at §72.

⁹⁹ Id. at §42.

¹⁰⁰ Id. at §45.

¹⁰¹   Id. at, §42.

¹⁰² Id. at, §57.

To date, the Administrative Court has not yet rendered final decisions on environmental cases, of which there are over forty pending.¹⁰³ These cases challenge actions or omissions by a range of agencies, including agencies under the Ministry of Science, Technology and Environment, Ministry of Public Health and the Ministry of Industry. While the majority of the cases are nuisance claims, specific complaints cover a range of remedies from the request for the revocation of regulations on protection of conservation areas, to a petition citing failure of an agency to act in allowing a polluter to discharge pollutants into a river.¹⁰⁴

4. Recommendations for Reform

Establishing the Administrative Court was an important step in providing access to justice to Thai citizens in participating in environmental decision-making. Additional Administrative Court procedures or amendments to environmental laws based in part on the U.S. experience would strengthen citizen ability to challenge environmental agency decision-making. Recommendations include:

a.  Broadening Standing Requirements to Allow Citizen Access to
Justice

b.  Establishing Guidelines for Documenting Agency Actions and
Decisions

c.  Establishing Citizen Suits in NEQA to Promote Increased Agency
Accountability

a. Broaden Standing Requirements to Allow Organizational Standing

Most federal U.S. environmental statutes include "citizen suit" provisions that allow private citizens and organizations to file civil actions to enforce performance of nondiscretionary statutory duties by federal agencies, or remedy statutory violations by regulated

¹⁰³     Dr. Chamchai Sawangsagdi, An Overview of the Structure and Court
System, Environmental Legal System and the Administrative Courts' Role in
the Protection of the Thai Environment, Presented at the Conference on
Administrative Law and Environmental Protection, p. 17, December 7,2001.

¹⁰⁴ Id. at p. 18.

entities¹⁰⁵. While these suits have proved to be an extremely valuable tool in promoting environmental protection a key issue facing courts is the conditions under which courts will grant standing to sue.¹⁰⁶

In general, citizens may bring suit under U.S. environmental statutes if they have suffered an actual harm that is traceable to the violation and is redressable by a court decision, even if the injury is aesthetic.¹⁰⁷ Moreover, U.S. law grants standing to organizations to sue on behalf of members under the following conditions: (1) members have standing; (2) the interests at stake in the case are related to the group's mission; and (3) the litigation will not be adversely affected by the absence of individual plaintiffs.^I08

Thai environmental law does not provide for organizational standing for environmental groups and associations. Under NEQA, NGOs have standing to sue on behalf of injured citizens for compensation and damages, what that means in practice is citizens are reluctant to come forward with a claim against powerful state or industrial interests.¹⁰⁹

To promote citizen access to justice, Thailand should amend NEQA to grant organizational standing and allow citizens groups and associations to file cases on behalf of their members, or its own behalf to protect the public interest. Interestingly, this concept is not foreign

¹⁰⁵ Barry Boyer and Errol Meidinger, Privatizing Regulatory Enforcement: A
Preliminary Assessment of Citizen Suits under Federal Environmental Laws,
34 Buff L. Rev. 833 (1985). In general, citizen suits may be brought against
any person, including the government, who is in violation of the statute, or
against EPA for failure to perform a nondiscretionary duty. Before filing a suit,
citizens must give notice to the government, and may not bring suit that the
government is actively prosecuting. Judicial relief includes injunctions, and
civil penalties for violations. In addition, courts may also award costs and
reasonable attorneys fees to successful parties.

¹⁰⁶  Robert B. June, Citizen Suits: The Structure of Standing Requirements for
Citizen Suits and the Scope of Congressional Power, 24 Envtl. OL. 761 (1994).

¹⁰⁷    Sierra Club v. Moron, 405 U.S. 727 (1972).

¹⁰⁸ Save Our Community v. EPA, 971 F.2d 1155 (5^th Cir. 1992).

¹⁰⁹ NEQA at §8(5).

to Thai law. Before the establishment of the Administrative Court, the Petition Council ruled that a group or association also has standing to lodge a compliant on behalf of members under the Thai APA."°This theory could be expanded to NEQA or the Administrative Court generally. Under the Thai EAPA, "any person who is inevitably aggrieved or injured or who may be inevitably aggrieved or injured" has standing to sue in the Administrative Courts, and "person" could be interpreted to include organizations.¹¹¹

b. Establishing Guidelines for Documenting Agency Actions and
Decisions

Under the inquisitorial system, the Thai Administrative Court has significant powers to investigate the actions of administrative agencies when responding to citizen complaints.¹¹² Past experience working with Thai environmental agencies suggests that despite this new power of the court, agencies may not carefully document decisions or actions, or may not maintain complete comprehensive files., which could have a significant impact on investigations or adjudications.

As a result, to ensure increased transparency and accountability, the Cabinet could pass a resolution requiring environmental and other agencies to establish specific guidelines or other requirements stipulating how they must document their actions and decisions. Under these guidelines, agency officials would be required to maintain relevant files that could form the administrative record for subsequent court investigations.

c.  Incorporating Deadlines into NEQA to Promote Increased Agency
Accountability

Most major U.S. federal environmental statutes include citizen suit provisions that empower citizens to promote improved

¹¹⁰ Petition Committee Council of State, Decision 47/2541.

¹¹'eapa. at §42.

¹¹² Under the EAPA Section 55, the Court may "examine and inquire into the facts as is appropriate".

enforcement of environmental laws by filing civil actions against polluters to remedy statutory violations, or administrative actions against federal agencies for failing to perform nondiscretionary duties.¹ As indicated above, over the past three decades, citizen suits have enabled U.S. citizens to act as "private attorneys general" by suing to enforce public legislation.

In these suits against the government, citizens sue to compel agencies to bring an alleged polluter into compliance, or to meet a statutory deadline related to promulgating some form of regulation. Putting aside the enforcement dimension of citizen suits, NEQA could be amended to include specific deadlines that would enable citizens to sue the agency to ensure development and promulgation of required regulations.

For example, despite a specific requirement in NEQA that the PCD establish regulations for point sources to provide self-monitoring information to the government, ten years have passed and PCD has yet to promulgate these regulations.¹¹⁴ Incorporating specific deadlines in an amended NEQA for agency action on establishing regulatory requirements would enable citizens to force the government to complete its nondiscretionary duties, thereby strengthening agency accountability.

IV. Conclusion

In recent years Thailand has made great strides in establishing the legal and institutional framework for enabling citizen involvement in the environmental decision-making process. The 1997 Constitution mandated new rights and duties, resulting in the establishment of new institutions that allow citizen involvement in the regulatory process.

¹¹³  Barry Goyer and Errol Meidinger, Privatizing Regulatory Enforcement: A
Preliminary Assessment of Citizen Suits under Federal Environmental Laws,
34 Buff. L. Rev. 833 (1985).

¹¹⁴  NEQA at §80.

Chief among these changes is the Administrative Court, which provides citizen access to justice.

Other significant advances include environmental and administrative laws promoting citizen access to information, and establishing mechanisms for citizen input in the regulatory and policy-making decision-making process. One recent effort to meet constitutional mandates is work by the Council of State in preparing the Public Consultation Act, which will establish a new mechanism for citizen participation that will have impacts beyond environmental regulation.

In support of efforts by the Council of State, this paper reviews current Thai law in the context of the "three pillars" of public participation, and presents specific recommendations for modifying Thai law. While the recommended regulatory approaches are based on the U.S. experience, the challenge for Thai policy makers is to develop new laws and regulations that are effective in the Thai context.