15 May, 2018
On 19 April 2018, the Enhancement and Conservation of the National Environmental Quality Act (No. 2) B.E. 2561 (2018) (Amendment) was published in the Royal Gazette, and will be effective from 18 July 2018.
The Amendment will amend criteria, consideration processes and timing for environmental impact assessment (EIA) report, which is a pre-requisite for the approval of certain development projects, and enhance the enforcement of EIA report requirements. The Amendment also imposes penalties and daily penalties for the development of projects without EIA approval, which does not exist under the current Environmental Act.
Key Amendments
Key amendments include:
- Health Assessment Requirements: In order that the EIA requirement is in line with the Constitution of Thailand, the Minister of Natural Resources and the Environment, as approved by the National Environmental Board, has the authority to prescribe projects that have or potentially have material impacts on natural resources, environmental quality, health, sanitation, quality of life or other material interests of people, society or environment ("Significant Projects"). The EIA report of these projects must include a health assessment and a public hearing for relative interested parties.
- Initial Consideration: Under the current Environmental Act, an EIA report will be submitted to and considered by the Office of Natural Resources and Environmental Policy and Planning (ONEP), which will make recommendations to the EIA expert committee for approving or disapproving the report. Under the Amendment, the ONEP may, with approval from the National Environmental Board, assign such duties to other governmental authorities, in accordance with the criterial issued by the National Environmental Board.
- Revision Limitation: Under the current Environmental Act, no time period is specified for an applicant to revise an EIA report which is disapproved by the EIA expert committee. The Amendment; however, specifies that in case the EIA expert committee disapproves an EIA report, an applicant must revise the EIA report or conduct a new EIA report to address the issues specified by the EIA expert committee for such disapproval within 180 days; otherwise it shall be deemed that the applicant does not wish to proceed with the submission of the EIA report, but this shall not prejudice against the rights of the applicant to proceed with the new submission for initial consideration.
- Validity of EIA Report: Under the current Environmental Act, an approved EIA report has no expiry date. However, once the Amendment comes into effect, the approved EIA report will be valid only for and could be used for development application only within five years from the approval date.
- Compliance Report: Developers of projects of which an EIA report is approved must prepare a compliance report regarding the measures specified in the EIA report, and submit it to the development approving authority at least once a year, in accordance with the criteria issued by the Minister. Failure to comply with this condition will result in fine penalties being imposed, and the ONEP will make recommendations to the authority to enforce developers to comply with the compliance report obligations, which shall be conditions for issuing approval or renewing license for such projects.
- Non-Compliance Penalties: The Amendment imposes fine penalties of not exceeding THB 1 million on developers who commence construction before an EIA report is approved or deems to be approved, and daily fines of not exceeding THB 100,000 throughout the period that the construction continues. In addition, if such projects are Significant Projects, the fine penalties imposed shall be one and a half times of the rate aforementioned. The Amendment also imposes fine penalties on developers of not exceeding THB 1 million who fail to submit a compliance report.
Approved EIA Report Prior to the Amendment
For an EIA report that has already been approved before the Amendment comes into effect, the report could be used for project development application within five years from the effective date of the Amendment; otherwise the new EIA report approval process pursuant to the Amendment must be undertaken.
Impacts on Project Developers
Project developers should note the new criteria for conducting an EIA report and validity of the EIA report in order to plan for their developments. Project developers should also note the compliance report obligations, and the non-compliance penalties as these will directly impact developments.
We will keep monitoring the development of the legislation including relevant sub-legislation, and will provide updates accordingly.
For further information, please contact:
Sorachon Boonsong, Partner, Baker & McKenzie
sorachon.boonsong@bakermckenzie.com
