Pianporn Deetes
International Rivers
June 20, 2014
On Tuesday June 24, the Supreme Administrative Court accepted the lawsuit filed by 37 Thai villagers against the signing of the Power Purchase Agreement for the Xayaburi Dam. In an unprecedented ruling, the Court ordered the five government bodies, against which the lawsuit was brought, to “undertake their duty under the Constitution, laws and resolutions of the [Thai] Government, through the notification and dissemination of appropriate information, adequate hearing and consultation and further environmental, health and social impact assessment for the Xayaburi Dam.” This is a landmark case, as it is the first to recognize the transboundary impacts for Thailand of a project being built in a neighboring country, and the first to require a Thai state-owned company building a project overseas to comply with Thai laws. We hope that this case becomes a new standard for Thai state-owned companies building and investing in projects overseas.
Two years ago a group of around 100 villagers from provinces in the north and northeast of Thailand arrived outside the Thai Administrative Court in Bangkok carrying signs that read “Justice for the Mekong,” “Fish Yes, Dams No” and “No Dam on the Mekong.” Among the group were 37 villagers who entered the Court in order to file a lawsuit against the Xayaburi Dam – the first dam planned on the Mekong mainstream. On Tuesday, June 24, these villagers will be back in court to hear a ruling from the Supreme Administrative Court, who will meet to decide whether or not to accept the lawsuit filed in August 2012. While it has been a lengthy legal process, opposition to the Xayaburi Dam and concern for the future of the Mekong River among communities in Thailand has remained strong, and there is a sense of hope for what Tuesday’s decision could bring.
The lawsuit – filed against five government bodies, including the National Energy Policy Council, the Thai Cabinet, and the Electricity Generating Authority of Thailand (EGAT), who is set to buy 95% of the power from the Xayaburi Dam, claims that approval of the project’s Power Purchase Agreement (PPA) is illegal under both the Thai Constitution and the 1995 Mekong Agreement. The PPA made between EGAT and the Xayaburi Power Company Limited, was approved without an assessment of the project’s environmental and health impacts and without consultations in Thailand, in volition of the Thai Constitution.
The villagers who brought forward the lawsuit come from areas along the Mekong River that would be directly impacted by the Xayaburi Dam.
While the lawsuit was first filed on August 7th, 2012, the Administrative Court responded in February 2013 by denying jurisdiction to hear the communities’ case. However the communities did not give up, and instead held a consultation to understand the Court’s ruling and discuss the appeal process. They filed a formal appeal in March 2013. After more than a year’s wait, the Supreme Administrative Court will meet on Tuesday (June 24) to review the case and decide whether or not to accept the lawsuit. If the lawsuit is accepted it would be within the Courts power to suspend the PPA until transboundary impact studies are carried out and consultations are held in Thailand. Ultimately if the Court finds that the PPA was approved illegally, it could cancel the Agreement all together.
The PPA was signed between EGAT and the Xayaburi Power Company Limited in October 2011; however, this approval was likely in breach of a previous Thai Cabinet resolution, the Thai Constitution and the 1995 Mekong Agreement, which includes the Prior Consultation procedures. While the PPA should only have been signed once regional obligations under the 1995 Mekong Agreement were fulfilled, Thailand went ahead and signed it while the Prior Consultation process for the Xayaburi Dam was still underway and before the Lao government had provided the studies and data requested by neighboring countries. In May 2012, the Thai National Human Rights Commission also questioned the signing of the PPA, stating that they found irregularities in the PPA that did not conform to human rights protection principles under the Thai Constitution. In a public statement, they recommended, “The Prime Minister should review the implementation of the dam construction.”
Cambodia and Vietnam have also raised concerns over the expected transboundary impacts of the Xayaburi Dam and problems with its regional decision-making process. Most recently, in May, the Cambodian Senate sent a letter to Mekong leaders calling on Thailand to cancel the PPA for the Xayaburi Dam, “in recognition of objections raised by both Cambodian and Vietnamese Governments, and the Project’s failure to complete the MRC’s prior notification and agreement process mandated by the 1995 Mekong Agreement…” The letter goes on to state that the “[Xayaburi] Project constitutes the greatest trans-boundary threat to-date to food security, sustainable development and regional cooperation in the lower Mekong River basin.”
The lawsuit shines a light on Thailand’s role in the Xayaburi Dam as well as the role that the PPA, between Thailand and Laos, has played in driving progress on this dangerous project. An independent analysis of the PPA published in August 2013, concludes that the Agreement is a large reason why Laos has moved forward with construction of the dam, despite ongoing objections from Cambodia and Vietnam. The report highlights critical elements of the Agreement, which demonstrate the risk – mostly financial – for Laos if the project were delayed or cancelled. For example, the PPA states that financing must be secured within six months of approval of the PPA. Construction must then be completed within 70 months. For everyday that that construction is delayed, the Xayaburi Power Company must pay the Thai government USD$30,000 per generator, per day. The dam has 7 generators, so this payment could amount to $210,000 per day. What this means is that any delay to construction would be at a great cost to Laos.
Through the Xayaburi PPA, Laos is effectively selling a part of the Mekong as a commodity to Thailand. And while the Thai government sees economic potential from the Xayaburi Dam, they have failed to recognize the significant impacts the project will have on its own people and country. The lawsuit brought forward by Thai villagers is a call for greater accountability from Thailand towards its own people. It’s time for the Court to uphold the rights of the Thai people and accept the case on June 24th. Once accepted, the Court should demand a suspension to the PPA until an EIA, health impact assessment and meaningful consultation in Thailand is conducted.
