Under what rules can an ecological organisation challenge an air quality programme?
Last September we reported on proposed amendments to the Environmental Protection Law. The changes were designed to allow ecological organisations and other stakeholders to effectively challenge air quality programmes throughout Poland. Ultimately the proposal was not adopted, but a new version of the proposal was recently released.
What the bill involves
The changes were proposed after the European Commission filed a complaint against Poland in the Court of Justice of the European Union. The Commission accuses the Polish legislature of improper implementation of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe. The Polish regulations allegedly do not allow some stakeholders, including ecological organisations, to seek judicial review of air quality programmes. Consequently, Poland remains in a state of infringement, e.g. with respect to Art. 9(3) of the Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
The Commission correctly points out that although the Polish regulations do not literally deprive natural persons or ecological organisations of the right to challenge resolutions on air quality programmes or revisions of those resolutions, de facto the case law of the administrative courts does block this possibility. The administrative courts in Poland reject complaints in this area as impermissible because the petitioners—whether individuals or ecological organisations—cannot demonstrate a “legal interest” in obtaining relief. Thus the arguments raised by such petitioners are not considered on the merits.
These problems are to be remedied by amending the Environmental Protection Law to specify which entities can file a complaint with the administrative court over resolutions on air quality programmes. But the latest draft changes the conditions that must be met by an ecological organisation before it is allowed to file such a complaint.
Requirements for ecological organisations
Under the proposed Art. 96b of the Environmental Protection Law, the following could be appealed to the administrative court:
- Resolution on an air quality programme
- Resolution on updating an air quality programme
- Resolution on a short-term action plan, or
- Failure to adopt such resolutions.
A challenge in these cases could be filed by:
- Anyone whose legal interests or entitlements have been infringed as a result of adoption or non-adoption of such resolutions (under Art. 90(1) and 91(1) of the Voivodeship Self-Government Act of 5 June 1998)
- A natural person residing in the area for which an air quality programme, an update to such a programme, or a short-term action plan was adopted or should have been adopted (proposed Art. 96b(1) of the Environmental Protection Law)
- A legal person or organisational unit without legal personality conducting documented economic or statutory activity in such area for at least 24 months prior to passage of the resolution or the deadline for adopting a resolution (proposed Art. 96b(2))
- An ecological organisation relying on its statutory purposes, conducting documented statutory activity involving air quality or the protection of human health for at least 24 months prior to passage of the resolution or the deadline for adopting a resolution (proposed Art. 96b(3)).
The deadline for filing a complaint would be six months after publication of the resolution (proposed Art. 96c).
Particularly interesting in this context, the proposed Art. 96b(3) implements the need to award ecological organisations the right to seek judicial review, but it also tightens the requirements that must be met for such a complaint to be admissible.
Poland implemented the Aarhus Convention primarily in the Environmental Impact Assessment Act of 3 October 2008, but under Art. 44 of that act, a condition for admitting an ecological organisation to join a proceeding requiring social participation, with the rights of a party, is that it conducted statutory activity involving environmental protection or nature protection for at least 12 months before commencement of the proceeding.
By contrast, the proposed Art. 96b(3) requires not only that the ecological organisation has conducted statutory activity for a longer period (24 months, not 12 months), but also documentation of that activity.
As indicated in the justification for the proposal, “In the case of social organisations, an analogous condition of demonstrating an (actual) interest in seeking review is justified under the definition of such organisations in the Aarhus Convention, where ‘promoting [environmental protection]’ is interpreting as ‘actually promoting [environmental protection],’ in other words, already having some track record of such activity. Also in the case of such organisations, the indicated period of 24 months of operations will avoid the risk of the establishment of organisations ad hoc solely for the purpose of filing a complaint.”
It is clear from the cited passage that the aim of the changes is to heighten the requirements that must be met by ecological organisations before they are allowed to file complaints with the administrative courts. But interestingly, there is no current proposal to amend Art. 44 of the Environmental Impact Assessment Act, which is applicable in the great majority of environmental proceedings in which ecological organisations participate.
Summary
It is clear that the Polish regulations should specify in line with the EU requirements the set of entities entitled to file complaints with the administrative courts against a resolution on an air quality programme. Thus provisions addressing this issue should be adopted as quickly as possible.
But it is interesting in this context that the drafters followed the stratagem of tightening the requirements for the admissibility of filing of such complaints by ecological organisations. It remains an open question whether this heralds a tightening of the requirements for ecological organisations under Art. 44 of the Environmental Impact Assessment Act as well.
Karol Maćkowiak, Environment practice, Wardyński & Partners
