Two key decisions last week—one by the government of Laos and the other by a court in neighboring Thailand—appear to have provided a rare respite to Southeast Asia’s Mekong River.
They could result in more hurdles for Laos as it scrambles to build two controversial dams along the Mekong that environmentalists say threaten the livelihood of millions of people relying on the regional artery.
The Lao government last Thursday decided to open the proposed Don Sahong dam to further scrutiny following claims by experts that it would disrupt one of the key pathways of fish migrating between Cambodia, Laos, Thailand, and Vietnam.
Two days earlier, a court in Thailand declared that it would hear a two-year-old lawsuit brought by villagers against the country’s decision to purchase electricity generated by another Lao dam, the Xayaburi, which is under construction and which environmentalists believe will destroy the river’s complex ecosystems.
“Definitely, the two decisions last week are positive signs and the result of efforts from the downstream countries and from civil society organizations,” Marc Goichot, a hydropower expert at the World Wide Fund for Nature (WWF), told RFA. “The pressure is building up steadily and strongly.”
In April, the leaders of Cambodia and Vietnam had pressured Laos to allow the Don Sahong dam to come under a regional consultation process when they met at a summit of the Mekong River Commission (MRC) established to coordinate dam projects on the river.
Thailand, the fourth member of the MRC, had pushed for the Don Sahong dam to undergo the full “Procedure for Notification, Prior Consultation and Agreement” or PNPCA as outlined in the 1995 Mekong River Agreement that led to the formation of the commission.
The pressure from the ground against the Don Sahong, meanwhile, came from 200,000 people who have signed a petition launched by WWF.
“The petition is still running. Thus, this number is increasing every day,” Goichot said.
Surprise
Laos had previously agreed to only notify MRC members of the progress of the dam, which it wanted to begin building in December.
But Deputy Lao Minister of Energy and Mines Viraphonh Viravong sprang a surprise at the MRC council meeting in Thailand’s capital Bangkok last week by saying that his country would agree to resubmit the Don Sahong project to the prior consultation process.
"The change from notification to prior consultation means that everything we have put on the table will be put on the record," Viraphonh said.
But his clarification to the media later that preparatory work for the dam building would continue even though construction would not begin during the six-month consultation process has raised suspicions that Laos is using a delaying tactic.
“Worryingly, the interventions from the representatives from Laos at the MRC Council meeting in Bangkok give the impression that the prior consultation will just be a formality, and that the outcome will be a slight delay in the start of the construction, and, at best, a small change in the design—very much consistent with the model of the Xayaburi dam case,” Goichot said.
A site visit early last month by global environmental group International Rivers confirmed that workers have begun construction of a bridge connecting the mainland to an island near where the Don Sahong dam would be built. The bridge will create an access route for construction.
“Laos’ decision to submit the Don Sahong Dam for prior consultation appears to be yet another empty political promise,” International Rivers Southeast Asia Program Director Ame Trandem told RFA.
“Rather than undergoing the consultation process in good faith and seeking agreement from neighboring countries over whether to build the project, the Lao government has already announced its intentions to proceed with building the dam,” she said.
Laos, eager to become the "battery of Southeast Asia," had already set a “bad precedent” with the Xayaburi Dam, by building the project during consultations and declaring the process closed without the agreement of neighboring countries, Trandem added.
“They probably believe they can get away with the same bad process with the Don Sahong Dam, as the procedures have yet to be reformed and they are allowing entering into the process without planning to really engage in meaningful consultation with neighboring countries.”
'Fig leaf'
As Laos had planned to launch work on the Don Sahong in December, the six-month consultation period it has agreed to would only delay its plans for a month, experts noted.
“So the Lao concession in Bangkok seems very much like a fig leaf for the government's ultimate intention to build the dam,” said Milton Osborne, a Southeast Asian expert at the Lowy Institute, an international policy think tank in Sydney, Australia.
The Lao Government has shown itself adept at “gaming the rules and regulations” stemming from the 1995 Mekong River Agreement, he wrote on his blog.
MRC Chief Executive Officer Hans Guttman acknowledged that under MRC regulations, there is no need to suspend or stop the Don Sahong project during the consultation process.
Unless the four governments remedy the existing problems with the regional decision-making process, the Don Sahong dam is likely to follow the same problematic path as Xayaburi, “where science, accountability, and the public’s well-being takes a back seat to private interests,” Trandem said.
Construction on the Xayaburi Dam, the first of 11 dams proposed for the Lower Mekong River, began in 2012.
Environmentalists warn it could open the floodgates for the other dams to go forward, with significant consequences for the river and people living along it.
Questions
The Thai court decision has raised questions over the Xayaburi’s future.
The Thai Supreme Administrative Court asserted that it has jurisdiction to hear a lawsuit filed by villagers living along the Mekong River.
Thirty-seven Thai villagers filed a case nearly two years ago saying a power purchase agreement signed between the Electricity Generating Authority of Thailand (EGAT) and the Xayaburi electricity generating company in Laos is illegal, approved without an assessment of the project’s environmental and health impacts and without consultations in Thailand.
Any court decision that questions the validity of the power purchase plan could dampen the U.S. $3.5 billion dam project, experts warn.
“The decision by the Thai Supreme Administrative Court to take on the Xayaburi Dam’s lawsuit was a positive step forward as the Thai government must also be held accountable for their role in allowing the project to proceed,” Trandem said.
Thailand has been one of the main drivers behind the dam as it is building and financing it and planning to purchase the bulk of its electricity.
“By committing to investigate whether the constitutional rights of Thai villagers were violated, as well as the Mekong Agreement, we hope this case will cancel Xayaburi Dam’s power purchasing agreement and that future dam projects will undergo greater scrutiny before major agreements are signed,” Trandem said.
The EGAT and four other government bodies hauled to court have about three months to respond to the claims made against them before the lawyer representing the impacted Thai communities responds to the submissions.
The Thai court’s decision to accept the case filed by Thai villagers may also open the floodgates to more suits.
"It's setting a precedent that should apply to other dams in Laos that have clear transboundary impacts,” said WWF’s Goichot. “Villagers from Cambodia, Thailand, and Vietnam might consider legal action against Don Sahong.”