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«Case Study of Mae Moh Power Plant, Lampang The Mae Moh coal- fired power plant is located in the mountains of the Mae Moh district in Lampang ...»

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In its ruling, the court relied on a report provided by the Pollution Control Department stipulating that the air in Map Ta Phut Estate contained 40 volatile organic compounds, 20 of these compounds being carcinogenic. 19 of these carcinogenic compounds exist in amounts that violate the permitted standards up to 693 times. The court also cited statistics prepared by the National Cancer Institute demonstrating that the cancer incidence rate in Rayong was five times that of other provinces. There is a higher incidence of leukemia among villagers of the Map Ta Phut region (seven out of 100,000 contracting the disease) as opposed to other regions (3 out of 100,000 contracting the disease). The court held that residents living near the estate experienced health risks from the pollution emitted by the estate‟s petrochemical plants.8 The predicament of the villagers in Map Ta Phut is further supported by the results of an environmental governance assessment carried out by Thailand Environment Institute (TEI) and Thailand Environmental Governance Coalition (TAI Thailand), which revealed on the same day as the court‟s ruling, that the government had persistently encouraged the operations of industrial plants at Map Ta Phut to the detriment of the health of the communities and the environment. The environmental governance assessment was initiated in 2007 to evaluate the Petrochemical Industrial Development Master Plan (Phase III), the Pollution Reduction and Mitigation Action Plan for Rayong Province, and the Map Ta Phut Town Plan. TAI indicator-based methodology was used to examine three pillars of people‟s access rights, notably, access to information, participation in decision-making, and access to justice. The assessment found that the three plans abovementioned failed in successfully implementing the right of public participation.

Following the court‟s decision, the Member of Parliaments for Rayong and six other agencies have submitted a Statement on 11 March 2009 recommending the government not to appeal against the ruling.

These agencies included:

o Thailand Environment Institute o Thailand Environmental Governance Coalition o Thailand Council of Lawyers o Union for Civil Liberty o Social Research Institute o Chulalongkorn University and Society for Industrial Pollution Impacts Study and Campaign.

The statement also recommended that the government revise the position of the Industrial Estate Authority in relation to Map Ta Phut Industrial estate, that the government permits public participation in future pollution control plans, and that the government allows for environmental information to become public information in accordance to Article 9(8) of Thailand‟s Official Information Act 1997.

On the other hand, the government has been urged by the business sector to appeal the court‟s decision as investments would be jeopardized if the area became a 8 Ibid.

Case Study from the EETAP WG4 Draft Report: Representation and Who Decides in Energy Planning pollution control zone. The business sector claims that a pollution control zone designation would damage Rayong‟s tourism and food industries. Nevertheless, since 1992, 13 areas have been termed pollution control zones by the NEB. These areas consist of Pattaya, Songkhla‟s Muang and Hat Yai districts, Phuket, Phi Phi in Krabi and the provinces Samut Prakan, Pathum Thani, Nonthaburi, Nakhon Pathom and Samut Sakhon.

So far there has been no evidence indicating that the designation of these areas as pollution control zones has led to negative impacts on their tourism or industries.

Fortunately on 16 March 2009, NEB did not appeal the court‟s ruling and agreed with designating Map Ta Phut municipality as a pollution control zone.

The Map Ta Phut verdict provided the impetus for the Ministry of Industry‟s „green factory‟ project. According to the Minister of Industry Charnchai Chairungrueng, the project aims to “improve the quality of the environment and communities surrounding factories”. Investors were urged to invest in high technology industrial waste and fume treatment systems to meet the project‟s objectives. The ministry has also started to establish health units, and laboratories in local areas to examine air and water quality.

Analysis of the Thai Cases for Consistency with Ethical Principles of Law

Notably, Thailand has ratified the Rio Declaration, Agenda 21 and the UNFCCC. It is thus bound by its commitment to invoke the precautionary principle and values of sustainable development as prescribed by the declarations. The Constitution of the Kingdom of Thailand B.E 2550 (“the Constitution”) (2007) expressly provides for the use of the sustainable development principle under section 85(5) which stipulates that Thailand shall act in compliance with the land use, natural resources and environment policies by “conducting the promotion, conservation and protection of the quality of the environment under the sustainable development principle, and controlling and eliminate pollution which may affect health and sanitary, welfare and quality of life of the public…” Within this context, the Thai government possesses the right to decide on energy technologies for its people under the principle of state sovereignty; however, under the precautionary principle, if the government‟s decisions were to cause irreversible damage, the government should ensure that effective measures be implemented in order to prevent environmental degradation or threats to human life even if the full extent of the harm has not been established scientifically.

The laws examined in this study of Thailand do not expressly provide for the use of the precautionary principle; however section 9 of the Environment Act contains an implied reference. According to the section 9 in case of danger arising from pollution, which will endanger the health of the people, prompt action shall be taken to control, extinguish or mitigate the danger or damage.

In ratifying the international instruments Thailand expressed the desire to comply with the precautionary principle and the principle of sustainable development, and other ethical principles of these instruments.9 However, the case studies above suggest that there is still a need for effective legal implementation.

9 Refer to EETAP WG1 report for detailed description of the ethical principles included in each instrument.

Case Study from the EETAP WG4 Draft Report: Representation and Who Decides in Energy Planning As mentioned, the Mae Moh and Map Ta Phut residents suffered from severe illnesses such as respiratory diseases and cancers as a result of the emission of toxic chemicals by the Mae Moh plant and Map Ta Phut‟s plants and factories. The actions of the Thai government in permitting and encouraging the activities of the Mae Moh plant and the Map Ta Phut factories in order to further economic advancement to the detriment of the local residents and the environment demonstrate an inconsistency with the implementation of the precautionary principle and the principle of sustainable development More specifically, Thailand has failed to comply with the objectives of

international guidelines for environmental protection, for instance:

o Chapter 6 of Agenda 12, to reduce health risks from environmental pollution and hazards;

o Chapter 9 of Agenda 21, to protect the atmosphere by using energy sources that respect the atmosphere, human health and environment as a whole (9.9);

o Chapter 15 of Agenda 21, to conserve biological diversity; and o Principle 4 of the Rio Declaration, to achieve sustainable development through environmental protection.

Furthermore, the emissions from the Mae Moh power plant and the Map Ta Phut Industrial Estate inevitably contribute towards the atmospheric concentration of gases producing a greenhouse effect, which affects life, land, lifestyles and natural resources through climate change. Thailand has recognised the significance of climate change and global warming by becoming a member of the United Nations Framework Convention on Climate Change (UNFCCC) in December 1994, and later ratifying the Kyoto Protocol in August 2002. The Kyoto Protocol is a protocol to the UNFCCC, which has the objective of achieving “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate change”.10 The Kyoto Protocol is a legally binding agreement which establishes binding commitments for the reduction of four greenhouse gases being carbon dioxide, methane, nitrous oxide and sulphur hexaflouoride, and two groups of gases being hydrofluorocarbons and perfluorocarbons. However, Thailand as a “Non Annex I” country has a non-binding obligation under the Kyoto Protocol, and thus is not required to curtail emissions under the principle of “common but differentiated responsibilities”. Nevertheless, the nation is still expected to abide by the objectives of the UNFCCC and the Kyoto Protocol. Coal is the most carbon-intensive of all fossil fuels, and is a leading cause of global warming.

Coal combustion, regardless of the country it occurs in, contributes towards the risks associated climate change and threatens sustainability.

10 Article 2 of the UNFCCC

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