Stimson Centre/NREM Conference in Chiang Rai

The Stimson Centre partnered with Natural Resources and Environmental Management Centre at Mae Fah Leung University to a hold a workshop on Solutions to Equitable Hydropower Development Planning in the Lower Mekong Basin.

Matthew Baird, Environmental Counsel, presented a paper on the Legal Issues Surrounding the Mekong Main Stream Dams. This paper highlighted the increasing legal and financial risk for Mekong River hydro-power, including the Xayaburi Dam, as a consequence of the developments of environmental law in Thailand and also the development of EIA and Transboundary EIA in Cambodia, Thailand, Myanmar, Vietnam and China.

Abstract of paper

The development of large-scale hydro-power faces many challenges. One of the significant legal risks is associated with the failure of the project proponent to undertake adequate assessment of the environmental and social impacts of the hydro-power project. Compliance with domestic Environmental Impact Assessment Regimes is, of course, a fundamental prerequisite for project approval and is also required by IFC in order to secure funding. However the consequences for the failure of a project to fully comply with EIA law is not so clear.

Recent decision in Thailand highlight a growing legal risk associated with the failure to comply with domestic legal obligations. Both the decision on the Stop-Global Warming Association against the 300 THB Billion Flood Mitigation Scheme in 2013 and the recent 2014 decision on the legal challenge to the Xayaburi Power Purchase Agreement has shown that failure to comply with domestic EIA laws can have significant legal and financial repercussions.

An analysis of these decisions leads to the overwhelming conclusion that the legal and financial risk for main-stream dams is increasing. The significance of that risk raises doubt as to the viability of future main-stream dams. One analysis of the current legal environment may also raise the question of lender-liability for environmental and social harm, whereby the banks and other financial institutions will be required to provide compensation for such harm.

In the context of the Mekong River Basin a further legal risk is the development of Transboundary EIA obligations. Under the present arrangements for the Mekong River Commission, there is a need for Prior Notification, Prior Consultation and Agreement. The failure of host-countries to following these procedures can also increase the legal risk for proponents, construction companies and financial institutions.

 

 

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