by Anna Moskwa and Anita Dmitruczuk, Gazeta Wyborcza

The Assessment Act enables the impact of a given investment on the environment to be established and describes how the authorities guarantee the citizens the ability to take part in issuing environmental decisions in the public consultation process.

According to the arguments presented by Deputy Minister of the Environment Małgorzata Golińska during the presentation of the bill in the Sejm, the proposal to amend the current regulations arises from the review of the inter-ministerial group responsible for the conditions of investment processes.

The objective is to streamline and accelerate everything, as well as to relieve the authorities issuing administrative decisions of excessive work. This is because investment decisions take years and – for some reason – there is no end in sight when they go into a protected area, a landscape park, an area of Natura 2000 area or a national park. We have a whole ‘network’ of these according to PiS MP Jan Duda. ‘The West first built the infrastructure, and then started to introduce laws on the protection of nature. We have only just been developing for twenty or so years and – through no fault of our own – and are forced to do this with account taken of the restrictive environmental law,’ he argued. In turn, Golińska spoke about defence considerations and the need to build nuclear power plants.

In reality, however, the changes being pushed through by PiS make the participation of citizens in matters that affect their immediate environment a mere caricature.

A strategic investment, namely one that the government wants

The key proposal in the government’s draft amendment to the Assessment Act is the emergence of a special category of investment projects – strategic investments. They are to have a simplified path for issuing environmental decisions, which will radically restrict public consultations and the influence of residents and local governments on what will be built under their noses and how.

The government will decide on what is and what is not a strategic investment on the basis of premises known only to it. This can apply equally to the construction of roads, railway lines, airports, barrages and river regulation, hazardous waste landfills, transmission lines, power plants and mines.

A strategic investment project is a project that pursues Poland’s interests. It will be announced by a regulation of the Council of Ministers.

‘The administration and state-owned companies cannot cope with the observance of the current regulations, which ensure that the public interest, environmental protection and protection of cultural property are taken into account in the investment process. The government plans to destroy these regulations to facilitate the implementation of controversial and environmentally harmful investment projects. This includes the liquidation of the effective protection of the most valuable natural areas in the Natura 2000 network,’ wrote the NGOs that took part in the consultations on the bill. Even so, this is also an exaggeration, because the consultations applied to a dummy of the bill that will finally be sent to the Sejm.

Consultations without consultation

The government added the most controversial provisions (those from Chapter Va) after the stage of public discussion. The NGOs took part in the consultations at the end of last year; meanwhile chapter Va was thrown into the version of the bill at the end of March.
‘The bill was reviewed by the Legal Committee of the Government Legislation Centre in February 2023. The previous version of the bill was also submitted to the Legal Committee for consideration, without the provisions on implementing strategic investment projects.’

However, the minister for the European Union read the bill that is being pushed through by the ministry of the climate. The opinion, which was signed by Undersecretary of State Karolina Rudzińska, was delivered to Minister Anna Moskwa on 3 April. Although it states that the bill can be considered compliant with EU law after taking into account Rudzińska’s comments, these comments destroy the bill. Meanwhile, this forecasts another battle between Poland and the European Commission.

Will the European Commission swallow it?

The Assessment Act and other acts amended by the PiS government regulate public involvement in issuing environmental decisions, which was also guaranteed to Poles by the previously issued EU directive. This directive, obviously, allows exceptions to this rule, but understands them narrowly. They are possible, for example, when urgent circumstances arise which could not have been foreseen earlier. This applies to the protection of the overriding good, e.g. public health or safety and, in addition, the derogation must be proportionate to the objective to which it is intended to apply.

According to the undersecretary of state, there are no such safeguards in the ministry’s proposal. ‘The generally formulated criteria for applying the derogation in question mean the Council of Ministers will have an excessive amount of discretion, which could lead to the application of this derogation to cases that are not justified under Article 2(4) of the EIA Directive,’ wrote Rudzińska.

‘It is not sufficient that the investment projects which are subject to this derogation are included within areas considered important from the point of view of Poland’s interests, as so-called strategic investments. The need to protect a specific good and the related overriding interest must be current at the time the application of the derogation is being considered,’ she added.

Game not going our way? So let’s change the rules of the game

Of even greater concern, according to the NGOs, are the changes that would be applied to environmental procedures which are still pending, namely to investment projects that the government cannot push through under the current law. There is no need to look too far for examples – the first one that comes to mind is the construction of a barrage on the Vistula River in Siarzewo, which could not be completed for at least eight years. Aside from the dubious ecological and economic sense of the investment project, this also happened because of mistakes made by the ministry during the whole procedure.

But the ministry’s bill is not only building a muzzle to be applied to the environmental organisations taking part in such procedures. It also significantly restricts the rights of private individuals who could be affected by the decision to conduct the investment project in their neighbourhood.

‘The special procedure for issuing permits for “strategic” investments does not envisage consultations with local residents or owners of land lying within the area of the planned investment project. Therefore, the conditions of “strategic” investments will not be negotiated with local communities, but will be imposed on them.’

– explain the NGOs in their joint analysis. ‘The immediate neighbours may not even be aware of many investment projects before the first shovel goes into motion, because the amendment reduces the obligations of the administrative bodies with regard to informing the public,’ they add.

The government also wants to allow for investment projects it considers strategic to be implemented even if this is in conflict with the land use plan in the given municipality. This, in turn, binds the hands of local governments, because it is the municipal councils that adopt these plans.

The occupier’s right

During the parliamentary debate on the bill, Joanna Mucha (Polska 2050) said ‘The criteria for acknowledging the investment to be strategic in your bill are formulated in such a way that your flagship investment, namely the asphalt road to Prime Minister Szydło’s house, could also be considered strategic. The procedure for issuing permits which are in conflict the will of the municipalities, despite their land use plans, is a procedure of an occupant, an invader. Because only such authorities do not consult local residents about investment projects in their neighbourhood.’

It should also be noted that the report on the possible impact of the investment project on the environment, which is the starting point for the environmental procedure, is currently prepared by the investor. This is his privilege.

However, the environmental proceedings lay down specific conditions that the investor must satisfy at the design, construction, operation and project liquidation stages, so that it is no more arduous on the environment than absolutely necessary.

‘The authority issuing the decision is obliged to review the reservations and motions of the public and sometimes specify a different variant of the project to the investor than originally planned and, in justified cases, may even refuse consent for implementing the investment project. In the case of “strategic” investments, there will be only one variant of the implementation of such a project,’ warn the environmental organisations.

After all, in the case of areas of Natura 2000, where investments are admissible today as long as they are not significantly harmful to the protected ecosystems, the bill also lifts this restriction in the case of decisions that the government considers strategic.

The safety measure for the government depends on the government

According to the bill, the safety measure for all these proposals is to be the General Director for Environmental Protection. ‘The investor will only prepare documentation (and not a complete report!), the scope of which will be specified individually by the General Director for Environmental Protection (GDOŚ) without any public control. An application will be submitted on the basis of such documentation for the investment permit that is required in the given case (e.g. planning permission for the construction of a road). The authority issuing the permit will be required to agree on the decision with the GDOŚ,’ summarise the NGOs in their analysis.

In Polish realities, the GDOŚ is completely dependent on the government. He is appointed by the prime minister on the motion of the minister of the climate and environment. He appoints and dismisses the regional directors. It is possible to imagine how this works in practice just by going back to the case of Siarzewo. When the regional director for environmental protection in Bydgoszcz did not agree to this investment project, a search for a new director started the next day.

Therefore, it is difficult to believe that the GDOŚ could object to the government’s excessive efforts.

The joint analysis of the project and the declaration on the changes to the Assessment Act proposed by PiS were issued by the Frank Bold Foundation, the Greenmind Foundation, the Polish Society for the Protection of Birds, Greenpeace, Pracownia na rzecz Wszystkich Istot [Workshop for All Beings], ClientEarth, WWF Poland and Fundacja dla Biebrzy [Foundation for the Biebrza River].

‘The amendment to the so-called Assessment Act is an attack on the right of residents and local government to jointly decide about the place where they live,’ they concluded.

Translated by Roman Wojtasz

The article was published in Polish in Gazeta Wyborcza, June, 16 2023.