VZCZCXRO3609
PP RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHBK #0701/01 0780939
ZNR UUUUU ZZH
P 190939Z MAR 09
FM AMEMBASSY BANGKOK
TO RUEHC/SECSTATE WASHDC PRIORITY 6451
RHEHNSC/NSC WASHDC PRIORITY
RUEHC/DEPT OF LABOR WASHDC PRIORITY
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC PRIORITY
INFO RUEHCHI/AMCONSUL CHIANG MAI PRIORITY 6329
RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 03 BANGKOK 000701 
 
STATE FOR EAP/MLS AND DRL/ILCSR 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ECON EINV ELAB SENV TH
SUBJECT: Thai Government and Courts Side with Environmentalists Over 
Business Interests in Pollution Case 
 
BANGKOK 00000701  001.2 OF 003 
 
 
Sensitive But Unclassified.  For Official Use Only. 
 
¶1.  (SBU) Summary: In a surprise verdict with potentially 
wide-ranging implications, an Administrative Court in the 
industrialized province of Rayong ruled March 3 that the Map Ta Phut 
Industrial Estate and its environs should be declared a pollution 
control area, requiring enforcement of yet-to-be determined but 
strict environmental standards.  The unprecedented ruling was in 
favor of a law suit brought by local communities against Thailand's 
National Environmental Board (NEB) for negligence.  The NEB, chaired 
by Thailand's Prime Minister, decided March 16 not to appeal the 
decision, much to the chagrin of businesses concerned about the 
investment climate (and their investments in particular), and the 
praise  of environmental activists who claim pollution is causing 
severe health problems to local community residents.  The Court 
ruling, and RTG decision not to challenge it, reflects an emboldened 
judiciary more willing to offer opportunities for citizen redress. 
End Summary. 
 
¶2.  (SBU) Comment: The Map Ta Phut case presents a multi-faceted 
issue, pitting many powerful interests against each other.  On the 
one hand, it is a success story for environmental/community activism 
that, at least indirectly, the USG has supported to help deepen 
civil society's role in Thailand. On the other hand, U.S. business 
interests have cause for concern for multi-billion dollar 
investments, despite having played a constructive role in developing 
voluntary environmental standards that surpass those contemplated by 
the government.  We will continue to advocate the interests of Dow 
Chemical to help ensure its environmental impact assessments are 
processed in a timely fashion, despite the turmoil.  At the same 
time, we will make it clear that we respect the Court's ruling and 
what it signifies for the environmental and civil society causes we 
also support.  End Comment. 
 
Case Background 
--------------- 
¶3.  (SBU) Under Thailand's 1992 National Environmental Quality Act, 
the National Environment Board or NEB (chaired by the Prime Minister 
with the Ministers of Natural Resources and Environment, Defense, 
Industry, Public Health, and Interior as members) may declare an 
area a pollution control area if it appears that any locality is 
affected by pollution problems that may cause health hazards to the 
public or otherwise have an adverse impact on environmental quality. 
Since the law came into force, the NEB has declared 16 areas 
pollution controlled, five of which are industrial estates.  In 
2005, the NEB began review of the Map Ta Phut district, in Rayong 
Province, as a pollution controlled area upon the request of the 
then Minister of Natural Resource and Environment (MNRE).  The Board 
declined the proposal and, instead, ordered the MNRE's Department of 
Pollution Control (PCD) and Thailand's Industrial Estate Authority 
(IEA) to develop voluntary pollution control plans with private 
businesses active in the area. 
 
¶4.  (SBU) Under this initiative, businesses in the area promised to 
spend more than 10 billion baht on toxic-emission controls. 
Thailand's PTT Group and Siam Cement Group alone promised a combined 
7 billion baht investment in environmental projects.  Nonetheless, 
community members, believing the NEB's decision allowed for the 
degradation of the environment and health of the people in the area, 
sued the Board for negligence in October 2007.  In its March 3 
decision, the Rayong Administration Court ruled the NEB must 
formally declare Map Ta Phut a pollution control area within sixty 
days, and spelled out which administrative sub-districts were 
covered in the ruling. The NEB determined March 16 not to appeal the 
decision, with the press reporting Prime Minister Abhisit Vejjajiva 
as stating it will help the RTG to eradicate the problem that the 
local community has faced for a long time.  According to PCD's legal 
office, the Rayong Provincial Governor now has the authority to 
develop the environmental rules for the pollution control area, 
which will be done with input from local officials and community 
leaders. 
 
Environmental/Community Activism 
-------------------------------- 
¶5.  (SBU) According to media reports, the Court was convinced by 
several official reports, including a MNRE study citing excessive 
toxic leaks and waste produced by factories in the Map Ta Phut 
estate and detected in surrounding areas.  The press referenced 
other studies considered by the Court, such as a Thailand National 
Cancer Institute report on the incidence of cancer and leukemia 
among local residents (five times higher than the national rate), as 
well as others on genetic defects among community residents and 
levels of heavy metals beyond safety standards.  A community 
activist involved in the case explained to Emboff March 12 the 
rationale behind the law suit against the NEB.  Local residents had 
 
BANGKOK 00000701  002.2 OF 003 
 
 
not been pleased with what they considered a non-transparent process 
arranged by the NEB to deal with the environmental and health 
situation in Map Ta Phut.  He claimed that the situation in the area 
has not improved and that when community leaders inquired into the 
voluntary environmental indicators established by government and 
industry to measure improvements, they were met with stone-walling. 
To bolster his claim, he told us that there were four incidences in 
2008 of chemical leakage in the area, which resulted in 400 people 
being hospitalized.  Now that the Court has ruled, the activist said 
his group would soon decide whether to file civil and criminal 
lawsuits against members of the National Environment Board for 
negligence in failing to designate Map Ta Phut a pollution control 
zone.  He told us activists plan to monitor the implementation of 
pollution measures and push for increased local community 
participation in their development and implementation. 
 
¶6.   (SBU) The Thailand Country Program Director of the Solidarity 
Center (the international arm of the AFL-CIO) , told the Embassy 
that the Ford/Mazda Workers Union of Thailand joined with Map Ta 
Phut villagers to conduct advocacy activities in support of the 
court case and the broader campaign against polluting companies in 
Map Ta Phut.  He noted that the Asia Labor Network on International 
Financial Institutions (ALNI) prepared a report on pollution 
problems inside the plants in Map Ta Phut, but that this activity 
was separate from the campaign on the court case.  (NOTE: In the 
wake of the 1997 financial crisis in Southeast Asia, a group of 
trade unions, academics, labor NGOs, and other civil society 
organizations formed the Asia Labor Network on International 
Financial Institutions (ALNI) with support from the Solidarity 
Center.  The USG, through USAID, provides funds for Solidarity 
Center's support of ALNI.  End Note) 
 
¶U. S. and Thai Business Reaction and Potential Impact 
-------------------------------------- 
¶7.  (SBU) The Thai businesses active in Map Ta Phut, which control 
about 90 percent of production there, reacted strongly to the Court 
decision.  Supachai Watanangura, chairman of the Federation of Thai 
Industries' (FTI) Petrochemical Industry Club, told the media after 
the ruling that the Court's decision would negatively affect new 
investment in Thailand.  Prime Minister Abhisit reportedly dismissed 
this claim March 17, quoted in the press as saying "we have 
announced many places as pollution control zones and there is 
nothing wrong with investment.  Business can run as usual." 
Nonetheless, according to a March 9 statement by another FTI 
official, the ruling will affect 138 factories in six industrial 
estates within the Map Ta Phut area, which have invested between 400 
and 500 billion baht and which, along with related industries, 
employee 100,000 individuals.  Deputy Energy Permanent Secretary 
Norkhun Sitthipong, in his capacity as Chairman of the Board of PTT 
(Thailand's now privatized national energy conglomerate) stated 
March 3 that while PTT will honor the ruling, PTT's subsidiaries 
would need to submit their investment plans to PTT's Board for 
reconsideration.  Drawing attention to the fear of decreased 
investments, PTT announced it may have to review a planned natural 
gas separation plant and related petrochemical project worth a 
combined 100 billion baht (2.8 billion USD) to take into account the 
issuance of new environmental rules. 
 
¶8.  (SBU) U.S. company Dow Chemical is concerned the ruling could 
derail its 1.5 billion USD expansion project.  Company 
representatives explained that, unlike its Thai competitors, Dow's 
existing environmental standards exceed both voluntary and proposed 
mandatory standards.  Dow's main concern is that the RTG will freeze 
all environmental impact assessments (EIA) until new environmental 
standards for Map Ta Phut are in place.  With two pending EIAs due 
before Dow can move forward with its investment for a jetty project 
and another for a hydrogen facility, Dow fears that a delay could 
last months, or even years.  According to PCD's legal department 
March 19, the new standards could take anywhere from three months to 
one year to be developed.  (NOTE: Dow claims the study  regarding 
cancer rates in Rayong, compared with other provinces, is faulty as 
the research did not take into account the large migrant population 
in Rayong, which when added to the population brings the cancer rate 
to normal levels.  In addition, company officials explained that 
workers at the Dow facility have regular health screenings and their 
health rates are all normal.  End Note) 
 
Thai Judiciary Empowered? 
------------------------- 
¶9.  (SBU) The NEB's decision not to appeal the Administrative 
Court's designation of Map Ta Phut as a pollution control zone may 
reflect an empowered Thai court system that is willing to offer 
better opportunities for citizen redress.  A member of a human 
rights-focused civil society group told us on March 6 that the 
Administrative Court was one of the few courts to respond positively 
 
BANGKOK 00000701  003.2 OF 003 
 
 
to pressure or campaigns from civil society groups.  He noted that 
the Court of Justice and the Office of Attorney General (OAG) 
rarely, if ever, acknowledged civil society campaigns.  He told us 
that, in contrast, only one Administrative Court ruling against 
civil society came to mind - the 2007 rejection of a civil society 
petition for revocation of the privatization of the Petroleum 
Authority of Thailand (PTT).   Even in that case, however, civil 
society groups planned to resubmit the petition, and remained 
optimistic the court would rule in their favor. 
 
¶10.  (SBU) A prominent practitioner of environmental law who argued 
multiple cases in the Administrative Court told us on March 13 that 
the trend of civil society groups finding a sympathetic ear with the 
Administrative Court started when the Consumer Protection Board 
lacked resources to wage effective campaigns on behalf of civil 
society.  He explained that people instead raised complaints in the 
form of petitions to the Administrative Courts and took note as the 
Court ruled in favor of the civil complaints.  He also told us that 
the Court's favorable rulings on the environment were a direct 
result of a training program, sponsored by Japan and the United 
States, to educate judges about environmental law.  He explained 
that in cases like Map Ta Phut it became a natural "duty" of the 
Administrative Court to intervene due to the horrendous pollution 
levels.  "The Court is protected by the Constitution," he said, and 
noted that the Constitution guarantees the Administrative Court's 
right to be responsive to civil society participation.  He 
considered the Map Ta Phut ruling, as well as a separate ruling in 
Lampang, to be unprecedented because citizens affected by pollution 
levels now have the right to demand compensation from the 
government.  However, our contact pointed out that the 
Administrative Court's ability for continued citizen redress in 
terms of environmental cases like Map Ta Phut is limited.  He 
explained that future battles between environmentalists and 
investors would have to be fought in the Constitutional Court since 
each side cited provisions in the constitution to bolster their 
cases.  The Constitutional Court, he noted, is the only Court 
empowered to settle discrepancies regarding interpretations of the 
constitution and would be the final battleground to address the 
conflicts between the two groups.