Our Practice Areas
Environmental and Industrial Law
The legal landscape governing environmental compliance for industrial operations in Thailand is both complex and dynamic. Factory operators, from small and medium-sized enterprises (SMEs) to large-scale plants within and outside industrial estates, face the continuous challenge of aligning their business activities with a comprehensive set of national and local regulations. This extends from initial project permitting to ongoing operational compliance and the management of potential disputes arising from environmental and community impacts.
This article serves as a practical guide for business owners, factory managers, and in-house legal and compliance teams. It provides a structured overview of Thailand’s key environmental legal framework, common types of disputes, and strategic considerations for managing environmental risks effectively, with all information based on official legal and governmental sources.
Relevant Laws (Practical Guide for Operators)
Operating a factory in Thailand means navigating a web of legislation, each with distinct objectives and enforcement agencies. A clear understanding of these legal obligations is the foundation of effective dispute prevention.
The Enhancement and Conservation of National Environmental Quality Act, B.E. 2535 (1992), as amended by (No. 2), B.E. 2561 (2018), is the cornerstone of Thailand’s environmental law. This Act, commonly known as NEQA, established two primary regulatory bodies with significant authority over the industrial sector:
- Office of Natural Resources and Environmental Policy and Planning (ONEP): ONEP’s primary function is to formulate national environmental policies and plans. Crucially for industrial projects, it oversees the Environmental Impact Assessment (EIA) and the more stringent Environmental and Health Impact Assessment (EHIA) processes. For specified types and sizes of industrial projects, an approved EIA or EHIA report is a mandatory prerequisite for obtaining construction and operating licenses.
- Pollution Control Department (PCD): The PCD is the country’s main environmental enforcement agency. It is responsible for setting national environmental quality standards (e.g., for air and water), monitoring pollution levels, and taking enforcement action against polluters. Its “Pollution Control Officers” are empowered to inspect facilities, collect samples, and issue administrative orders to compel compliance or halt polluting activities.
This structure creates a dual-track regulatory system for operators. The project approval track is managed by ONEP through the EIA/EHIA process, while the operational compliance track is enforced by the PCD. A factory may successfully obtain an EIA approval but can still be ordered to suspend or cease operations by the PCD if its day-to-day activities violate pollution control standards.
National Environmental Quality Act (NEQA) and Powers of PCD/ONEP
Factory Act, Hazardous Substances Act, Water Resources Act, Public Health Act
Beyond the primary environmental act, several other specialized laws impose direct obligations on factory operators:
- Factory Act, B.E. 2535 (1992), as amended by (No. 2), B.E. 2562 (2019): This is the core legislation for factory licensing and operational control. It classifies factories into three categories based on their potential environmental and safety impact. Category 3 factories, which include most significant industrial operations, must obtain a Factory License (known as Ror. Ngor. 4) before commencing operations and must adhere strictly to the conditions stipulated in the license and related ministerial regulations. Non-compliance can result in orders to modify operations, or even suspension or revocation of the license.
- Hazardous Substances Act, B.E. 2535 (1992), as amended by (No. 4), B.E. 2562 (2019): This Act regulates the production, import, export, and possession of hazardous substances. Operators must register, declare, and obtain permits according to the classification of the substances used in their facility, and ensure proper storage, handling, and disposal protocols are followed.
- Water Resources Act, B.E. 2561 (2018): This law classifies the use of public water sources for industrial purposes as a Type 2 or Type 3 water use, which requires a license and may be subject to water usage fees.
- Public Health Act, B.E. 2535 (1992), as amended by (No. 3), B.E. 2560 (2017): This Act grants local government officials the authority to control “nuisances” that can affect public health. For factories, this can include issues like odors, excessive noise, dust, or vibrations that impact neighboring communities, providing a broad basis for local authorities to issue corrective orders.
IEAT Laws/Regulations and Estate-Specific Rules
Factories located within an industrial estate are subject to an additional layer of governance under the Industrial Estate Authority of Thailand Act, B.E. 2522 (1979) and the specific regulations of the Industrial Estate Authority of Thailand (IEAT).
The IEAT serves a dual role as both an investment promoter and a regulator. It offers significant incentives, such as permitting 100% foreign ownership of land (a right that is otherwise heavily restricted in Thailand) and providing a “One-Stop Service” center for permits. However, in exchange, operators must comply with the IEAT’s own set of environmental, safety, and operational rules, which can be stricter than general national laws. These estate-specific rules often govern wastewater discharge into central treatment facilities, industrial waste management, and environmental monitoring protocols.
Civil and Commercial Code (Torts Sec. 420) and Class Actions
When a factory’s operations cause harm to the life, health, or property of third parties, affected individuals can file a civil lawsuit to claim compensation. This liability arises from two main legal principles:
- Section 420 of the Civil and Commercial Code (Tort): Under this traditional tort principle, the plaintiff (the injured party) bears the burden of proving that the factory (the defendant) acted wrongfully—either intentionally or negligently—and that this wrongful act caused the damage. Proving negligence in complex environmental cases can be a significant challenge for plaintiffs.
- Section 96 of the NEQA (Strict Liability): This provision establishes a “strict liability” regime for owners or possessors of a source of pollution. If a leak or dispersion of pollutants from a factory causes harm, the factory is liable for damages regardless of whether it was negligent or intended to cause harm. The plaintiff only needs to prove that the pollution originated from the factory and that it caused their damages. This significantly lowers the burden of proof for claimants.
Furthermore, amendments to the Civil Procedure Code have introduced a Class Action mechanism in Thailand. This allows a large number of individuals who have suffered similar harm from the same event to consolidate their claims into a single lawsuit, empowering communities to seek redress more effectively in widespread pollution incidents.
Common Administrative Disputes in Industry
Administrative cases arise when an operator challenges an order issued by a government agency, seeking to have it revoked or amended by the Administrative Court.
Closure/Suspension Orders, Revocation/Non-renewal, Pollution Abatement Orders
Common administrative orders faced by industrial operators include:
- Abatement Orders: An order from the PCD to install specific pollution control equipment by a set deadline.
- Suspension Orders: An order from the Department of Industrial Works (DIW) to temporarily suspend operations to rectify a safety violation.
- Closure or Revocation Orders: The most severe measures, typically issued for serious and persistent violations of law.
- Administrative Fines: Monetary penalties for specific statutory violations.
Administrative Appeals, Stays of Execution, Litigation before the Administrative Court
An operator who disagrees with an administrative order has a defined legal recourse:
- Internal Administrative Appeal: The first step is to file an appeal with the authority specified in the law, usually a higher-ranking official or committee within the same ministry. This must be done within a strict timeframe, often 15 or 30 days from receipt of the order.
- Filing a Case with the Administrative Court: If the internal appeal is rejected, or if no decision is made within a reasonable time, the operator can file a case with the Administrative Court. This must typically be done within 90 days from the date the final appeal decision is received.
- Request for a Stay of Execution: An administrative order remains in effect while the case is being heard. To temporarily halt the enforcement of the order, the operator must file a separate request for a “stay of execution.” The Court will only grant a stay if three conditions are met:
- The administrative order is likely to be unlawful.
- Enforcing the order would cause serious and irreparable harm that cannot be remedied later.
- The stay would not pose a significant obstruction to public administration or public service.
Civil Claims Arising from Pollution and Environmental Harm
Civil litigation focuses on compensating individuals and communities for damages and restoring the environment.
Torts—Damages, Environmental Restoration, Class/Consumer Cases
Plaintiffs in environmental civil cases typically seek compensation for:
- Health-related costs (medical bills, lost wages).
- Damage to property (e.g., contamination of farmland, reduced property values).
- Costs associated with restoring the environment to its original state.
- Non-economic damages for mental anguish.
As noted, the class action mechanism is a powerful tool for aggregating these claims into a single, high-value lawsuit.
EIA/EHIA for Factories and Industrial Projects
The EIA/EHIA process is arguably the most critical regulatory hurdle for new or expanding industrial projects.
Key Differences, Projects Requiring EIA/EHIA, Review & Public Participation
- EIA (Environmental Impact Assessment): The standard assessment required for projects of certain types and sizes as specified in notifications issued by the Ministry of Natural Resources and Environment.
- EHIA (Environmental and Health Impact Assessment): A more rigorous assessment required for projects deemed to have the potential to cause “serious impacts” on natural resources, the environment, and community health and quality of life.
A core component of both processes is public participation. The law mandates public hearings to allow stakeholders to voice concerns and provide input, which must be addressed in the final report. This process is more extensive and scrutinized for EHIA projects.
Approval Conditions—Compliance—Monitoring
Why Reports “Fail” and Documentary/Data Remedies
An EIA/EHIA report can be rejected by the expert review committee (known as the Kor Chor Kor) for several reasons, but the most common grounds for legal challenges are:
- Inaccurate or insufficient baseline scientific data.
- Flawed impact assessment modeling.
- Inadequate mitigation measures.
- A defective public participation process. This is a frequent and critical point of failure, as courts have shown a willingness to invalidate approvals where community engagement was deemed insufficient or improperly documented.
Table 1: EIA/EHIA Report Risk Mitigation Strategies
Risk Area | Common Cause | Strategic Remedy |
|---|---|---|
Flawed Public Participation | - Inadequate notification to stakeholders. - Poorly documented public hearings. - Failure to address community concerns in the report. | - Develop a systematic public engagement plan. - Use professional stenographers to create detailed meeting minutes. - Include a "Concern-Response Matrix" in the report's appendix to show how each issue was addressed. |
Challenged Scientific Data | - Non-standard sampling methods. - Use of outdated secondary data. - Inappropriate predictive models. | - Engage qualified experts for all field sampling. - Always conduct new primary baseline surveys. - Use internationally recognized and locally appropriate models, and justify their selection. |
Insufficient Mitigation Measures | - Measures are too vague and not specific. - Measures are not technically or financially feasible. - No budget allocated for implementation. | - Define measures that are Specific, Measurable, Achievable, Relevant, and Time-bound (SMART). - Conduct feasibility studies for key measures. - Clearly state the budget for each measure in the report. |
Litigation Procedure & Managing Technical Evidence
The outcome of an environmental lawsuit often hinges on the quality and admissibility of scientific evidence.
Procedural Timeline: Inspection—Orders—Appeal/Suit—Court Stages
A typical dispute follows a clear timeline:
- Inspection: A regulator inspects the facility.
- Order: An administrative order is issued if a violation is found.
- Internal Appeal: The operator files an internal appeal (15-30 day window).
- Court Filing: A case is filed with the Administrative Court (90-day window after the appeal process concludes).
- Court Proceedings: Exchange of pleadings, witness examination, hearings, and judgment.
Environmental Evidence: Sampling, Chain of Custody, Accredited Labs (ISO/IEC 17025)
The credibility of scientific evidence depends on a rigorous and documented process:
- Sampling: Samples of water, soil, or air must be collected using methodologies approved by Thai regulatory agencies like the PCD or DIW to ensure they are representative.
- Chain of Custody: This is a critical legal and forensic concept. It is an unbroken, chronological paper trail documenting every person who handled a piece of evidence from the moment of collection to its presentation in court. A gap or flaw in the chain of custody can render the evidence inadmissible.
- Accredited Labs: All sample analysis must be performed by a laboratory accredited under ISO/IEC 17025. This international standard for testing and calibration laboratories ensures that the analytical results are scientifically valid and legally defensible.
Table 2: Technical Evidence Management Protocol
Evidence Type | Collection & Preservation | Common Errors |
|---|---|---|
Wastewater Sample | - Use sterile, appropriate containers. - Add chemical preservatives if required. - Preserve at ~4°C. - Affix a detailed, waterproof label. | - Using a non-sterile container (e.g., old water bottle). - Failing to preserve, allowing microbial activity to alter the sample. - Incomplete or missing Chain of Custody form. |
Soil Sample | - Use stainless steel or Teflon tools. - Collect a composite sample from multiple points. - Store in a glass jar or sealed bag. - Chill if analyzing for volatile compounds. | - Using rusty tools that contaminate the sample. - Taking only a single, unrepresentative surface sample. - Improper labeling. |
Air Sample | - Use calibrated air sampling equipment. - Follow a standard methodology (e.g., US EPA). - Record meteorological conditions during sampling. | - Using uncalibrated equipment. - Incorrect sampling duration (too short or too long). - Failure to document airflow rates. |
Experts, Dispersion Modeling, SCADA/EMS Data Logs
Complex environmental cases rely heavily on expert witnesses to interpret technical data for the court. This often involves using sophisticated tools like air dispersion models to demonstrate the link between a pollution source and an affected area. Furthermore, a factory’s own operational data from SCADA (Supervisory Control and Data Acquisition) or CEMS (Continuous Emission Monitoring Systems) can be pivotal evidence—either to prove compliance or, if it shows exceedances, to prove liability.
Pre-Dispute Compliance Strategies
The most effective legal strategy is to prevent disputes from arising in the first place through robust internal compliance programs.
Self-Audit & Corrective Actions, Defensive Documentation for Inspections
Operators should implement a program of regular Environmental Self-Audits to proactively identify and address compliance gaps. When an issue is identified, it should be managed through a formal Corrective and Preventive Action (CAPA) process:
- Identify the non-compliance.
- Analyze the Root Cause.
- Implement a Corrective Action to fix the immediate problem.
- Implement a Preventive Action to ensure the problem does not recur.
Keeping a well-organized set of “defensive documents” ready for a regulatory inspection demonstrates competence and good faith, which can significantly de-escalate a potentially contentious situation.
Why Engage Counsel Early in Environmental Matters
Engaging experienced environmental legal counsel from the outset is a strategic investment in risk management, not merely a litigation expense. Early involvement provides value by:
- Conducting legal risk assessments for new projects.
- Ensuring the EIA/EHIA process is legally defensible, particularly the public participation component.
- Guiding crisis management and communications during an environmental incident.
- Structuring internal investigations to potentially protect sensitive communications under attorney-client privilege.
- Building a strong defensive case before a dispute escalates to formal litigation.
FAQ (Frequently Asked Questions)
This is determined by the latest "Notification of the Ministry of Natural Resources and Environment Re: Types and Sizes of Projects or Undertakings Requiring an Environmental Impact Assessment." You must check this official list against your project's specifications.
A request for a stay must be filed with the Administrative Court along with the main lawsuit. You must argue that the order is likely unlawful, that its enforcement will cause serious irreparable harm, and that the stay will not obstruct public services.
Damages are based on actual, provable losses, including medical expenses, lost income, property damage, and the costs of environmental remediation. All claims must be supported by clear evidence.
Timelines vary with case complexity. A case in the Administrative Court of First Instance can take 1-3 years, with a potential appeal to the Supreme Administrative Court taking another 1-2 years.
Fees depend on the complexity, scope of work, and counsel's experience. Arrangements can include hourly rates (time charges) or a flat fee for defined stages of the litigation process.
An improper or poorly documented public participation process is a fatal flaw. It is a primary reason for successful legal challenges that can lead to the court revoking an already-approved EIA report.
Documents to Prepare
Key Document Checklist
- Factory License (Ror. Ngor. 4) with all attached conditions.
- All other relevant permits (e.g., hazardous substance, water use).
- The complete, approved EIA/EHIA report.
- Monitoring Reports submitted to ONEP for the last 3-5 years.
- Environmental monitoring results (wastewater, stack emissions, ambient air) from accredited labs.
- Industrial waste disposal manifests.
- Records of employee training on environmental and safety procedures.
- Emergency response plans and drill records.
- Maintenance logs for all pollution control equipment.
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