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Planning and environmental damage

The act of planning and preparation for a venture cannot be regarded as an “activity” causing an imminent threat of environmental damage.

Supreme Administrative Court of Poland judgment of 9 August 2013 (Case II OSK 685/12)

The purpose of Poland’s Act on Prevention and Remediation of Environmental Damage of 13 April 2007 (known as the “Environmental Damage Act”) is to protect nature against the results of the harmful activity of man. As a rule, an entity exploiting the environment whose actions cause a threat to the environment or damage to the environment is required to take immediate preventive or remedial measures. The competent authority may issue a decision ordering the investor to take specific measures.

In this case, an ecological organisation sought issuance of a decision ordering preventive and remedial measures with respect to the planned construction of an artificial lake. The organisation sent a letter to the competent regional director for environmental protection alleging the existence of an imminent threat of damage to protected natural habitats and protected species.

The dispute which was ultimately resolved by the Supreme Administrative Court concerned the date when an imminent threat of environmental damage occurs. In the view of the ecological organisation, this was the date of signing of an agreement to prepare an environmental impact assessment for the project. This position was rejected by the regional authority and then by the General Director for Environmental Protection before the case finally reached the Supreme Administrative Court.

No damage yet when the environmental impact is just being studied

In analysing the case, the court interpreted three legal definitions set forth in the Environmental Damage Act: “environmental damage,” “imminent threat of environmental damage,” and “activity.”

“Environmental damage” is defined in Art. 6(11) of the act as “a measurable adverse change in the condition or function of a natural resource, assessed with reference to the baseline condition, which was caused directly or indirectly by activity conducted by an entity exploiting the environment.” Art. 6(1) of the act defines “imminent threat of environmental damage” as “a high likelihood that environmental damage will occur in the foreseeable future.”

In this case the ecological organisation claimed that the planned project would exert an adverse effect on protected species or protected natural habitats. Under Art. 6(11)(a) of the act, this type of damage does not include previously identified adverse effects which result from an act by an operator which was expressly authorised by the relevant authorities in accordance with, among other items, a decision on environmental conditions. At the time the ecological organisation applied to the regional director, the proceeding for issuance of a decision on environmental conditions for the project was still pending, and the decision was necessary for implementation of the project.

The environmental authorities took the view that one of the elements of the proceeding for issuance of a decision on the environmental conditions for the project was the environmental impact assessment. If negative environmental impacts were identified, the authority would issue a decision specifying the measures the investor would have to take in order to carry out the project. This would exclude application of the Environmental Damage Act with respect to actions authorised in the decision.

The ecological organisation disputed the correctness of this interpretation, under which the authorities would consider its application only depending on the results of the proceeding for issuance of a decision on environmental conditions. The organisation also alleged that there was no express legal basis for this precondition.

Under Art. 2(1) of the Environmental Damage Act, the act applies to (1) an imminent threat of environmental damage caused by the activity of an entity exploiting the environment presenting a risk to the environment, and also (2) to other actions of an entity exploiting the environment if they involve protected species or protected natural habitats and occurred due to the fault of the entity exploiting the environment. Here the ecological organisation alleged that point (2) applied because construction of the lake would result in destruction of natural habitats and protected species.

But a plan is not activity

According to the environmental authorities, because the applicant had not yet begun to operate the lake or even begun construction work, it could not be said that the applicant was conducting activity causing a risk of environmental damage. Design and preliminary work could not be regarded as such activity. Obtaining the relevant administrative decisions and approvals does not guarantee that the planned project will actually be carried out. The date indicated by the organisation was the date of preparation of one of the documents necessary to obtain a decision on the environmental conditions for the project. At that time the investor had not yet taken any actions constituting immediate interference with the environment.

The organisation argued that in this case the destruction of protected habitats and species would be an unavoidable consequence of implementation of the planned construction of the lake. Asserting its reliance on principles of the public interest and EU law, the organisation claimed that it was necessary to protect the environment against the threat of harm, both actual and potential.

The Supreme Administrative Court upheld the position of the court of first instance in this case. “Activity” for purposes of the Environmental Damage Act consists of performance of specific acts within natural elements causing a threat of damage. The environmental impact assessment procedure for the planned project, serving to identify threats connected with implementation of the project, is governed by a separate law, i.e. the Act on Access to Information on the Environment and Environmental Protection, Social Participation in Environmental Protection and Assessments of Environmental Impact of 3 October 2008.

It is hard to disagree with the position taken by the two courts here. The law provides two separate regulations for two different situations. If a project is in the design phase, and a decision on environmental conditions must be obtained before it can be carried out, an environmental impact assessment is conducted for the project. After the assessment is conducted, the competent authority may require the investor to take certain measures to address the harm caused by the venture. An imminent threat of environmental damage cannot be said to exist until the actions by the entity constitute actual intervention in natural elements (for example construction work or operation of the facility). It is not permissible to apply both laws to the same set of facts at the same time.

Bartosz Kuraś, Environmental Law Practice, Wardyński & Partners