Briefing on Pak Beng Dam Lawsuit

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On 8 June 2017, Mekong communities in Thailand – represented by the Rak Chiang Khong Group – filed a lawsuit against Thai government agencies regarding their responsibilities in relation to the Pak Beng Dam proposed for the Mekong River in Lao PDR and expected cross-border impacts on communities in Thailand. The lawsuit is the second case filed against Thai government agencies regarding a dam project outside of Thailand and addressing the transboundary environmental and social impacts of hydropower projects on the Mekong River.

The following is a summary of the key points raised in the lawsuit.

Pak Beng Dam Lawsuit Summary

  • The case was brought to Thailand’s Administrative Court by the Rak Chiang Khong Group led by Mr. Niwat Roikaew, Mr. Chirasak Inthayos and Mr. Pitsanukorn Deekaew. 
  • The accused in this case include Director General of the Department of Water Resources (DWR), Department of Water Resources (DWR) and the Thai National Mekong Committee (TNMC).
  • The attorneys include Ms. Sor. Rattanamanee Polkla and Ms. Chalermsri Prasertsri, Community Resource Center (CRC).

Project information

The Pak Beng Hydropower Project is proposed for construction on the lower Mekong River mainstream in Oudomxay Province, Northern Laos. The project is located about 14 kilometers north of Pak Beng town on the Mekong River. The Pak Beng Dam is a concrete dam with powerhouses, dam sluice gates, boat passage and fish passage. According to studies prepared by the developer, the levels of water in the dam reservoir will vary from 16-27 meters depending on the water flow each season. With installed capacity of 912 megawatts, the power – the majority of which is planned for export to Thailand – will vary from season to season. The project is being developed by China’s Datang Overseas Investment (Datang) and construction is slated to begin in 2017. According to Datang, the project should be completed and ready to generate power in 2023 (EGCO, a subsidiary of the Electricity Generating Authority of Thailand (EGAT) reportedly holds 30% of the ownership of the project).

Prior Consultation

On 20 December 2016, the Pak Beng Dam commenced Prior Consultation under the Procedures for Notification, Prior Consultation, and Agreement (PNPCA), as required by the 1995 Mekong Agreement. The initial six-month process was scheduled for completion on 19 June 2017, with an option for the MRC Joint Committee to extend the process to address concerns and requests for information.

In May 2017, International Rivers published an independent review of the project’s Environmental Impact Assessment (EIA) and other studies and project documents submitted under the Prior Consultation procedure. Overall, the review found that project documents are substantively inadequate, and provide an extremely limited picture of the Pak Beng Dam’s expected environmental and social impacts, especially the transboundary and cumulative impacts of the project.

As Secretary of the Thai National Mekong Committee (TNMC), the Department of Water Resources (DWR) conducted four public forums in three provinces during the Prior Consultation period to disseminate information about the project. Members of the public who participated in these forums found the information presented inadequate, particularly in relation to understanding the project’s transboundary impacts in Thailand. The dam is located just 92 kilometers from the Thai border in Pha Dai, Wiang Kaen District, Chiang Rai. The close proximity of the dam to communities in Thailand has led to extensive concern over transboundary impacts which have not been adequately assessed in the project studies.

Positions by Thai State agencies 

The Electricity Generating Authority of Thailand (EGAT) has proposed to purchase power from the dam. Negotiations on the power purchase agreement are yet to be concluded. In 2012, EGAT was sued due to their involvement in the Xayaburi Hydropower Project, also located on the Mekong River in Lao PDR, and has since adopted a policy of not entering into a Power Purchase Agreement (PPA) with Lao PDR unless the project has completed the PNPCA process. Plans for the Pak Beng Dam indicate that the power generated will be fed into the EGAT’s transmission lines in Tha Wang Pha District, Nan Province, then transmitted further on to the Mae Moh High Voltage Substation.

Before the lawsuit was filed, villagers submitted letters to Thai state agencies with responsibilities relevant to the Prior Consultation procedure, requesting further information about the project and about the agencies’ position and comments in relation to the Pak Beng Dam. This information had not been shared with stakeholders during the forums held under the PNPCA process. 

In their response to the communities, the Thai Office of Natural Resources and Environmental Policy and Planning (ONEP) stated that their review of the project’s Environmental Impact Assessment (EIA) found that it contains outdated information, lacks current data and may also contain inaccurate data since there have been multiple developments in the river basin since the study was conducted and conditions in the river have changed significantly. 

The Royal Irrigation Department (RID) stated that due to the construction of the Pak Beng Dam, the water level in the Ing River during the dry season (from November to April), and the average water level at the mouths of the Ing and Ngao Rivers at all times, will fluctuate and rise unexpectedly. 

The Department of Fisheries (DOF) noted that the Mekong River is the second largest hub of biodiversity with high volumes of migratory fish. Any blockade of the river would disrupt the life cycle of Mekong fish and impact their migration and reproduction patterns, potentially leading to decline or extinction of species. The DOF also noted that due to its length, the fisheries mitigation (fish passage) proposed for the 1.6 kilometer long Pak Beng Dam is unlikely to work and insufficient to mitigate impacts. Furthermore, the critically endangered Mekong giant catfish will not be able to swim through the dam. Because of these issues, the DOF proposed that a fish passage designed similar to the design for the Xayaburi Dam should be adopted for the project.

The position articulated by the DOF clearly recognizes that the project will have transboundary impacts on fish. The letter highlights the important question as to whether compensation will be provided for declining fish populations, and if so, how such compensation would be calculated and implemented. The DOF also notes that the project may impact the overall biodiversity of the Mekong River. The DOF states that there is inaccurate data in the EIA report and recommend that more data should be made available as to the species of fish found in the greatest numbers and the species expected to be mostly significantly affected by the Pak Beng Da

The responses from Thai state agencies indicate that these agencies recognize the project will have transboundary impacts in Thailand, with potentially serious consequences for local ecosystems and communities, and that these impacts have not been adequately assessed or shared in the information and studies submitted as part of the Prior Consultation process. Nonetheless, the Thai agencies propose only to focus dialogue around options for mitigation and not on prevention.

The consultation and decision-making process for the Pak Beng Dam risk following a similar pattern to that of the Xayaburi Dam, the first hydropower project on the Lower Mekong mainstream. Concerns over lack of adequate studies and information on impacts, and requests for further data collection were not transparently addressed during consultations, and no transboundary impact assessment was conducted in Thailand. The Xayaburi Dam is the subject of an ongoing lawsuit filed by Thai communities in Thailand’s Administrative Court challenging Thai government approval of the Power Purchase Agreement (PPA) for the project in the absence of adequate consultation and impact assessment around the project’s impacts on communities in Thailand.  

The plaintiffs have asked the Court to rule that:

  1. The acts of the three accused are unlawful and the implementation and public consultations that have been conducted per the PNPCA process and other process relating to the Pak Beng Dam in Thailand shall be annulled. Any opinions made regarding the Pak Beng Dam and submitted to the Mekong River Commission (MRC) shall be annulled as well.
  2. The three accused shall be compelled to perform their duties as set out in the Constitution of the Kingdom of Thailand and statutory laws, in order to preserve natural resources, the environment, community and the public, preventing any transboundary impacts from development projects on the Mekong River. In particular, information should be disseminated properly and public consultation must be conducted sufficiently and meaningfully. The project’s documents should be translated in their entirety into Thai, ensuring that there is sufficient information on the environmental and social transboundary impact assessment in Thailand and neighboring countries. All this must be done prior to the commencement of the Pak Beng Dam’s construction by the Lao PDR and/or prior to the signing of the power purchase agreement.
  3. The three accused should be compelled to enact laws and regulations and to amend the existing laws and regulations regarding transboundary environmental impact assessment to ensure the protection of people’s rights and freedoms and the preservation of natural resources and the environment in Thailand.
  4. The three accused should be compelled to conduct public hearings on the Pak Beng Hydropower Project and other projects in all affected provinces as a result of developments on the Mekong River.
  5. The three accused should be compelled to raise their concerns to the World Commission on Dam (WCD) and to Lao PDR regarding the construction of dam in the Mekong, particularly the Pak Beng Dam.
  6. The three accused should be compelled to inform all relevant agencies to postpone the signing of the power purchase agreement relating to the Pak Beng Dam in Lao PDR until further study and measures have been made to ensure that the project shall render no impacts on community in Thailand. 

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The Thai National Mekong Committee (TNMC) led by the Minister of Natural Resources and Environment as Chairperson and the Permanent Secretary of the Ministry of Natural Resources and Environment, Permanent Secretary of the Ministry of Agriculture and Cooperatives, Permanent Secretary of the Ministry of Interior, Deputy Permanent Secretary of Ministry of Natural Resources and Environment, Chief Officer of the Underground Water Resources Division, Director of the Budge Bureau, Secretary General of the Office of the National Economic and Social Development Board (NESDB), Governor of the Electricity Generating Authority of Thailand (EGAT), Director General of the Department of Alternative Energy Development and Efficiency, Director General of the Department of Treaties and Legal Affairs, Director General of the Department of International Organizations, Department of International Organizations of the Royal Irrigation Department, Director General of the Harbour Department, Director General of the Department of Fisheries, Director General of the Meteorological Department, Director General of the Pollution Control Department, and Secretary General of the Office of Natural Resources and Environmental Policy and Planning as Committee Members and Director General of the Department of Water Resources (DWR), and Deputy Director General of DWR as Committee members and Secretary and Assistant to the Secretary.

TNMC is obliged to act according to the 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (the ‘Mekong Agreement’) and the framework for cooperation with international river basins organization regarding the development of the river basin which should be made to comply with the strategies set forth by the Mekong River Commission (MRC) and to propose possible solutions to foster participation of all sectors in Thailand’s river basins as well as to propose solutions to the arising conflicts.