Thailand draft bill would bring hazardous substance cases into environmental courts

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Thailand is proposing a new procedural bill to establish a dedicated court process for environmental civil and criminal cases, including offences under Thailand’s Hazardous Substances Act (HSA). 

The measure would bring relevant hazardous substances offences under Thailand's special environmental litigation procedure. These include failures to notify the production or import of listed substances, breaches of labelling and packaging requirements, illegal dumping of hazardous industrial waste, and false or misleading advertising of hazardous substances.

Under the new procedure, courts can gather evidence on their own initiative, order sampling and analysis, and question witnesses to clarify disputed facts.

The draft further establishes a mechanism to bring specialist expertise directly into the proceedings to assist with a case.

Rationale for change

According to the draft, environmental disputes require specialised procedures because they often involve technical environmental issues and differ from ordinary civil and criminal cases in their approach to damages and enforcement.

The draft argues that the current system is ill-equipped to address environmental disputes. For example, courts cannot independently gather evidence, call additional witnesses or seek clarification where uncertainty remains. Nor can they revise judgments or issue follow-up directions if an order later proves difficult or impossible to implement.

As a result, protection is less effective than it should be, and any resultant consequences could extend well beyond the current generation, the draft said.

The draft bill, therefore, seeks to move environmental cases away from the current "accusatorial" (adversarial) system to a judge-led inquiry system.

Expanded access to justice

Thailand’s HSA is one of more than 40 laws and acts that will fall under the new special environmental litigation procedure, and one of its most notable provisions would give communities a direct pathway to the courts when environmental damage occurs.

Under the draft, at least 50 members of an affected community could jointly appoint a representative to bring a case on their behalf. The representative could ask the court to order measures to stop environmentally harmful activities, require restoration of damaged natural resources, seek compensation for environmental losses, or recover costs already spent on clean-up and restoration.

Registered NGOs would also be able to bring environmental cases, but only after first reporting the alleged harm to the relevant state agency. If the agency fails to respond effectively within 60 days, the organisation could file a case itself.

The draft would exempt injured individuals, community representatives and qualifying NGOs from court fees in environmental cases; however, safeguards are included. For example, plaintiffs acting in bad faith, inflating claims or delaying proceedings could be ordered to repay waived fees and community or NGO cases could not be withdrawn or settled without court approval.

Courts can award punitive damages of up to four times actual damages against operators who knew or should have known of the risk, and judgments can be revised for up to ten years where the full extent of harm cannot yet be known.

The bill is intended to expand access to environmental justice by enabling communities to pursue collective action rather than requiring affected individuals to bring separate claims.

A hearing of opinions on the draft is open until 20 August.