In brief

In recent years, environmental issues have been increasingly prioritized, leading to positive results in the development of national policies in Thailand. Many draft environmental legislations, which were previously stalled, are now regaining momentum as key enablers to drive Thailand towards a more sustainable future.

In depth

Some key environmental bills which have been made available to the public so far include:

• Draft amendment to the Enhancement and Conservation of National Environment Quality Act, B.E. 2535 (1992) (NEQA) (“Draft New NEQA“)
• Draft Sustainable Packaging Management Act (“Draft Packaging Act“)
• Draft Waste Electrical and Electronic Equipment Management Act (“Draft WEEE Act“)

Additionally, in parallel with the development of these bills, a study is underway to introduce a new draft law, namely the “Draft Act on Sustainable Waste Management and Promotion of Circular Economy” (“Draft CE Act“). The Draft CE Act is intended to be the main governing law for the management and utilization of all types of waste, maximizing them as resources in a sustainable way and facilitating the transition to a circular economy with more responsible consumption. The Draft CE Act is expected to involve various governmental agencies, academic institutes, and the private sector in the drafting process.

This series of newsletters aims to provide an overview of significant concepts under these developing pieces of legislation. In Part I, we will discuss the Draft New NEQA. Part II and III will cover the Draft Packaging Act and Draft WEEE Act, respectively.

The Draft New NEQA

The NEQA is a primary environmental legislation, designed to take precedence over other laws regarding environmental issues. The provisions in the NEQA can be deemed as an umbrella framework law. It sets out an administrative framework and basis regarding various environmental issues and provides a basis for claims of environmental damage caused by pollutants. The NEQA sets out quality standard levels for water, air, noise levels and soil, with benchmarks for desirable environmental conditions.

The Draft New NEQA, which was already approved in principle by the Cabinet and recently completed the deliberation process by the Council of State, contains noteworthy points as outlined below:

• Major environmental principles – Major environmental principles including the prevention principle, precautionary principle and polluter pays principle are taken into consideration.
• Extended applicability – To include continental shelf and high seas.
• Revised pollution control mechanism – The Minister of Natural Resources and Environment under the advisory of the Pollution Control Committee is empowered to determine and issue “pollution control standards at source” and criteria to categorize “pollution generating sources” with specific requirements including preparation of directory on pollution emission and movement and public disclosure of the directory.
• Pollution control standards as licensing conditions – Once the pollution control standards at source are issued, the standards will be deemed as conditions of issuance and renewal of relevant licenses under the applicable laws. Violation of the standards may be subject to suspension, revocation, or rejection of renewal of the licenses.
• Environmental collateral requirement – The Draft New NEQA includes a new requirement on placing collateral for damages on certain types of businesses or projects (to be determined by the Minister of Natural Resources and Environment) that use harmful substances or have a nature that may significantly pollute or affect the natural environment, national environmental quality, human lives, public health or well-being.
• Extended and more clarified civil liability – The criteria for calculating compensation are clearer, where damages will be calculated by considering the total affected area, other environmental effects, and the remedial period. Any person – not only the government – who helps contain a source of damage or limits the spread of pollution will also be entitled to compensation. The courts have discretion to impose punitive damages of up to four times the actual damages and may order a polluter to place a security for any possible future damages that it is unable to determine at the time of the judgment or order. The owner or possessor of the pollution generating sources will also be liable to the injured for the consequences of the actions of its employee or any third person who act for its benefit.

It should also be noted that the existing concepts under the current NEQA, such as the environmental fund and the requirements in connection with the EIA (environment impact assessment) and EHIA (environmental and health impact assessment), will be inherited in the Draft New NEQA.

The Draft New NEQA will be further considered by the Parliament. If enacted, the existing NEQA will be repealed and replaced by this new piece of legislation with an expectation on more effective pollution prevention and rectification of damages against the quality of the environment.

In the next issue, we will discuss notable concepts under the Draft Packaging Act. Meanwhile, if you have questions or wish to discuss specific implications on your business and how we can assist, please contact us.