Thai Legal Framework on Public Participation in Environmental Decision-Making: Recommendations for Reform Based on the U.S. Experience (Paul Violette และ วัชรี ลิมานนท์)
Thai Legal Framework on Public Participation in Environmental
Decision-Making: Recommendations for Reform Based on the U
Thai Legal Framework on Public Participation in Environmental
Decision-Making: Recommendations for Reform Based on the U.S. Experience
Paul Violette and
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
1Limanon and Violette are with Planning
and Development Collaborative International (PADCO),
Washington, DC, USA, working with the U.S.-Asia Environmental Partnership (US-AEP).
3Magda Lovei and
Charles Weiss, Jr., Environmental Management and InstitutionsinOECD Countries,Lessons from Experience,WorldBank 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
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
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
4Environmental Priorities in Southeast
Asian Nations, Standing
Committee on Environmental Law, American Bar
Association, 67 (1997).
for Sustainable Development, Thailand's Country Report to UNCommissiononSustainableDevelopment,MinistryofScience, Technology and Environment
Publication, 37 (1997).
Guidelines of the Eighth National Economic and Social Development
of the National Economic and Social Development Board, Office of the Prime
Minister 34 (1997).
Economic and Social Development Plan, Office of the
National Economic and Social Development Board, Office of the Prime Minister (2002).
8Senate Panel Wants
Coal and Pipeline Projects Reviews, BANGKOK POST,
May 4, 2001:
9NGOs Urged to Grab
Chance, bangkok post, June 23,
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
II. Legal Foundations
of 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
10TheAarhusConvention,AnImplementationGuide,United Nations, Economic Commission for Europe 2 (2000).
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
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.
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
12Id. at 89.
13Thomas C. Beierle, Public Participation
in Environmental Decisions: An EvaluationFramework, UsingSocialGoals,ResourcesfortheFuture, November 1998.
III. Thai Law on Public Participation and Recommendations for
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
14Constitution of Thailand, 1997,
Articles 46, 56, 58, 59, 60, 62, 69, 76, 79, 196, and 276.
15Key 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).Inaddition,theEnhancementandConservationofNational Environmental Quality Act
(1992) provides a basis for citizen participation for certain circumstances.
Laws and Regulations for Environmental Protection and
Operating Mechanisms for Control and Enforcement, Executive Summary, PollutionControlDepartment,MinistryofScience,Technologyand Environment,
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
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
strategy for enforcing laws is to leverage public involvement in the
enforcement process by providing citizens and
17 Id. at 19.
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
market and community forces for improved firm compliance with environmental
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
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
201997 Constitution, Article 58.
21 NEQA, §6(1).
responsibilities for gathering and
maintaining environmental information. NEQA does not, however, establish procedural
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
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
Dika 861/2540 (1997) p. 15. Id. at 39.
Information Act B.E. 2540 (1997).
25Id. 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
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
26Id. at §§7,9, and II.
27Id. at §15.
28Agencies still leave
people in the dark: Constitutional right put on back burner,
BANGKOK POST July 29, 1999.
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
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;
30The Freedom of
Information Act, 5 U.S.C. § 552.
31Id. 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
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
request whether on not to disclose the
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
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
32Id. at §552
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
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
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
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
c. Requiring Release
of Information on Toxics and other Hazards
environmental performance information can generate community and market pressure for
emissions reductions. Under the Emergency Planning and Community Right-to-Know
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
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
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.
39EPA 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
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
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
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
develop regulations similar to TRI.
Id at xix.
Participation: Right to be Heard
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.
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
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
41Marion Cox, Integrating
Public Input into Environmental Decisions: How Far
Have We Come?, 2 Interact: The J. of Pub. Participation 35 (1996).
42Article 76 and Article 79.
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
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),
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).
47Environmental 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
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
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
Conservation of National Environmental Quality Act of 1992 §
50Prime Minister Office
Regulations on Listening to the Public by Public Hearing
are general, applying to "State Projects" that include a
concession, license, permit or approval from a State Agency.51
guidelines, public hearings are triggered when a minister, provincial governor or the
governor of the Bangkok Metropolitan Administration determines that the proposed
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
51Id. at §3. State
Agency is defined to include ministries, departments, provincial administrations,
local administrations, and state enterprises.
52Id. at §7. 33 Id. at §8. "id. at §14.
55Id. at §21.
56Thawilwadee Burekul, Public
Participation in Environmental Management in
Management, Politics, 27-28 April 2000, Brisbane, Australia.
due to a lack of stakeholder participation in the
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
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.
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
Office, Report on Public Hearings, PM1308/10574, December
Conducting Public Hearing in Thai Society, Research Paper, TDRI,
158, May 9, 2001.
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.
595 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.
60Id. at §553.
5 U.S.C. §§553, 556
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
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
Procedure Act, 167 (2000).
64Changes 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.
65Draft Principles for
the Public Consultation Bill, Council of State, August 3,
hearing process to encompass a range
of activities, including rulemaking, through a prescribed minimum level of process,
such as notice
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
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).
68Id. 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
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.
Participation under the National Environmental Policy Act, SecondEdition,DOEPublication,1998.Thegoalsof DOE'sPublic 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.
71Id. at 13.
Environmental Policy Act, A Study of its Effectiveness after
Twenty-five Years,ExecutiveOfficeofthePresident,Councilon 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
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
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.
Environmental Impact Assessment Process in Thailand, Asian
Development Bank, T.A. Project No. 2351-THA, 4 (1997).
74NEQA at §46.
75The 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 SubstancesControlAct;ResourceConservationandRecoveryAct, 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
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
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.
Id. at §25.1 78 Id. at §25.3.
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
79Id. at §25.2.
80Id. at §25.5 (b).
81Id. at §25.5 (c).
82Id. at §25.5 (d).
83Id. at §25.5 (e).
84Id. at §25.5 (f).
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
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.
Involvement & Public Participation at the U.S. EPA, Lessons Learned,
Barriers, & Innovative Approaches, January 2001.
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
89Article 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."
90Article 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
public involvement in environmental decision-making, including the EIA process.
91Id. 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
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
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
2.Administrative Procedure Act
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
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.
92Id. at Art. 196.
Procedure Act of 1996, § 30.
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
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),
95Id. at §45.
Administrative Courts and Administrative Court Procedure Act of
97Id. 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
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.
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.
98Id. at §72.
99Id. at §42.
100Id. at §45.
101Id. at, §42.
102Id. 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
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
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.
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
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
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.
104Id. 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
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
law does not provide for organizational standing for environmental groups and
associations. Under NEQA, NGOs have standing to sue on behalf of injured citizens
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
105Barry 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.
106Robert B. June, Citizen
Suits: The Structure of Standing Requirements for Citizen
Suits and the Scope of Congressional Power, 24 Envtl. OL. 761 (1994).
107Sierra Club v. Moron, 405 U.S. 727 (1972).
108Save Our Community v.
EPA, 971 F.2d 1155 (5th Cir. 1992).
109NEQA 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
b.Establishing Guidelines for Documenting Agency Actions and Decisions
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
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
relevant files that could form the administrative record for subsequent court
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,
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,
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.
113Barry Goyer and Errol
Meidinger, Privatizing Regulatory Enforcement: A
Preliminary Assessment of Citizen Suits under Federal Environmental Laws, 34
Buff. L. Rev. 833 (1985).
114NEQA at §80.
Chief among these changes is the Administrative Court, which provides citizen
access to justice.
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