On 20 April 2021, the President of Poland signed into law an act amending a number of laws on public participation in proceedings concerning projects likely to have a significant impact on the environment.
The Act Amending the Act on Access to Information on the Environment and Environmental Protection, Public Participation in Environmental Protection and Environmental Impact Assessments and Certain Other Acts will enter into force 14 days after publication. The amendment will equip environmental organisations with new tools potentially enabling more effective participation in proceedings regarding projects that may have a significant impact on the state of the environment.
Opportunities for environmental organisations
The amendment introduces a number of provisions important from the perspective of the rights of environmental organisations in the process of issuing project decisions. In particular, the amendment addresses the issue of whether a decision on environmental conditions is regarded as enforceable, and thus whether it is possible to effectively seek a stay of enforcement of such a decision. Until now, this was essentially impossible. When discussing the bill, we wrote about the enforceability of a decision on environmental conditions.
The amendment clearly confirms that from now on, it will be possible to obtain a stay of implementation of a decision on environmental conditions. The amendment provides for such a right in two situations:
- If an administrative appeal is brought against a decision on environmental conditions with immediate enforceability, execution of the decision may be stayed by the appellate administrative body.
- If a complaint is brought in the administrative court against a decision on environmental conditions, execution of the decision may be stayed by the appellate administrative body or the court.
If a complaint is lodged against the decision, an application for a stay should be considered by the province administrative court promptly, but no later than 30 days from receipt by the court.
If the court grants the stay, it should then rule on the underlying complaint within three months after issuance of the stay. If the stay is denied, the environmental organisation will be able to appeal that decision to the Supreme Administrative Court, which should rule on the appeal within two months after receiving it.
The possibility of staying the execution of a decision on environmental conditions seems to be an important tool in the hands of environmental organisations. The greatest benefit can be seen in the fact that as a result of stay of execution of such a decision, the body competent to issue the project permits (i.e. the decisions referred to in Art. 72(1)(1), (2), (4)–(6), (8)–(10), (14), (17), (18), (20), (21), (23) and (26) of the Act on Access to Information on the Environment) should suspend the pending proceedings in whole or in part within 7 days after learning of stay of execution of the decision on environmental conditions. Previously, in such circumstances, an environmental organisation was generally unable to prevent an investor from applying for further project permits. The investor could continue its plans on the basis of a non-final decision, which violates the principle of the two-instance nature of administrative proceedings and renders it illusory in this respect.
Under the amendment, an environmental organisation will also be able to appeal against a project permit preceded by a decision on environmental conditions issued in a procedure requiring public participation. This right will extend only to an environmental organisation that:
- Has carried out statutory activity in the field of environmental protection or nature conservation for at least 12 months prior to initiation of the proceeding seeking the project permit (even if the organisation did not participate in the proceeding before the body of first instance), or
- Was a party to the proceeding seeking a decision on environmental conditions.
However, the scope of a permissible appeal has been limited. Under the amendment, an environmental organisation will be able to challenge a project permit before the body of second instance only to the extent to which the body of first instance was bound by the decision on environmental conditions pursuant to Art. 86(2) of the Act on Access to Information on the Environment.
Additionally, immediately after issuing a project decision listed in Art. 72(1) of the Act on Access to Information on the Environment preceded by a decision on environmental conditions, the authorities will have to ensure that the public can learn of issuance of the decision and have an opportunity to review the substance of the decision and the documentation in the case. Such information should be published in the Public Information Bulletin on the website of the office for the administrative body. The informational obligation also requires that the content of the decision itself be made available for a period of 14 days. The information should indicate the date when the content of the decision will be made available, so it can easily be determined whether the body has fulfilled this obligation.
In addition, it is possible to apply for access to a decision on environmental conditions through exercise of the right to information on the state of the environment set forth in the Act on Access to Information on the Environment. This right is not limited in time and does not require demonstration of a legal or factual interest.
Project permits, i.e. what kind of permits?
Although the amendment cites key provisions in the Act on Access to Information on the Environment, it does not apply only to decisions on environmental conditions. Stay of execution of such a decision will affect, among others, proceedings seeking issuance of:
- A building permit
- A decision approving the design for development of a plot or site or an architectural and construction design
- A permit for execution of a road project
- Consent to convert forest land to agricultural use
- Concessions governed by the Geological and Mining Law
- A waste collection, waste processing, or waste collection and processing permit
- A water permit
- A building permit for offshore wind farms
preceded by a decision on environmental conditions issued in a procedure requiring public participation.
Decisions issued in the above cases are the ones against which an environmental organisation will be able to lodge an administrative appeal or a complaint to the province administrative court.
In such appeal proceedings, the environmental organisation will participate “with the rights of a party,” which somewhat limits the catalogue of its rights against a party as such (e.g. the investor).
Participation “with the rights of a party”—meaning what?
The amendment specifies that an environmental organisation will be able to participate in the appeal proceedings “with the rights of a party.” However, this does not mean that the organisation is a party to the proceedings.
Participants “with the rights of a party” hold a slightly weaker position. For example, they cannot request a stay of proceedings, or resumption of stayed proceedings, pursuant to Art. 98 of the Administrative Procedure Code.
According to commentators, the law does not condition the possibility of participation with the rights of a party on whether an environmental organisation has legal personality (commentary to Art. 31, A. Wróbel, in Administrative Procedure Code: Commentary, ed. M. Jaśkowska et al. (Warsaw 2020)). This is good news for environmental organisations operating, for example, as ordinary associations.
At first glance, the amendment will bring environmental organisations many benefits. However, the new tools by themselves will not make decisions on projects that may have a significant impact on the environment more favourable for the environment. The key is for organisations to provide thorough and sound argumentation persuading administrative bodies and the courts that the project should not be implemented, at least not in the agreed form.
The claim that the new rules will allow environmental organisations to “block projects more effectively” also seems doubtful. As mentioned, in the event of stay of execution of a decision on environmental conditions, the court will be required to rule on an appeal against the stay within the following three months. Comparing the wording of the law with the existing practice, it appears that proceedings initiated by such complaints have usually lasted longer than that. Thus it seems that, paradoxically, the courts will dismiss unjustified complaints much more efficiently than they have in the past. Time will tell if the practice proves to be kinder to the environment.
From the investors’ point of view, we write about the amendment in the article “It will be more difficult to implement projects requiring an environmental decision.”
Paulina Wojtkowska, Environment practice, Wardyński & Partners