A draft amendment to Poland’s Act on Access to Environmental Information, Public Participation in Environmental Protection and Environmental Impact Assessments (UD224) introduces a number of changes to the procedure for obtaining environmental decisions (DŚU – decisions on environmental conditions).
The proposed changes include, among other things, simplifying the transfer of decisions to new investors, clarifying the definition of a party to the proceedings, and transferring the authority to issue environmental decisions from municipalities to counties. These measures are intended to streamline the investment process.
“At the same time, we may be witnessing a revolution in the system of fees for environmental decisions, which could increase from a few hundred złoty to as much as 30,000 PLN, as well as the introduction of new obligations related to environmental impact assessments,” comment Paulina Buczek and Kamil Król, lawyers at the Wolf Theiss law firm.
Easier Transfer of Environmental Decisions
One of the key changes introduced by the amendment is the simplification of the procedure for transferring an environmental decision to another entity.
Instead of requiring a separate assignment procedure, the change of investor would take place through a modification of the administrative decision itself. Moreover, a new owner or perpetual usufructuary of the property covered by the investment would automatically assume the rights and obligations arising from the environmental decision.
“This is another step toward simplifying the investment process following the 2020 amendments to the Construction Law, which made it easier to transfer building permits. The direction is consistent, as lawmakers are adapting procedures to the realities of the investment market and giving investors greater comfort that when they acquire property they can also take over a package of important administrative decisions in a simplified manner,” says Kamil Król, Associate at Wolf Theiss.
Clearer Definition of Parties in Proceedings
The draft legislation also precisely defines who will be considered a party in proceedings concerning the issuance of an environmental decision.
In addition to the investor, parties will include owners and users of properties located, among other places, within a 100-meter radius of the investment area or within the area potentially affected by the project.
“Clarifying the definition of a party should be viewed positively. Transparently defining the group of entities entitled to participate in proceedings will limit the practice of sabotaging investments by entities that have no real legal interest. The practical question, however, is whether this change will actually enable authorities to more quickly issue decisions denying participation to entities attempting to obstruct the process. Even in cases where it is obvious that a party has no right to participate, decisions on this issue often take weeks or even months, which can ultimately determine whether an investment proceeds,” adds Kamil Król.
According to lawmakers, the change is intended to accelerate procedures and reduce the number of appeals, which are often filed solely to delay investment projects.
Environmental Decisions to Be Issued by Counties
The draft amendment also proposes transferring the authority to issue environmental decisions from municipal governments to county-level authorities.
The justification for this change is the relatively small number of such proceedings in many municipalities and the lack of specialized staff.
“An environmental decision is a key document preceding, among other things, zoning decisions or building permits, and from an investor’s perspective it is often the most difficult one to obtain. Properly determining the environmental impact area, identifying the parties to the proceedings, and deciding whether an environmental impact report is required have been real challenges for many municipalities. It therefore makes sense to transfer these competencies to the county governor (starosta), who would be responsible for issuing both environmental decisions and building permits,” explains Kamil Król.
He also notes that the county governor maintains the Land and Building Register (EGiB), which will facilitate efficient administrative proceedings, including the precise identification of parties involved in the process.
Higher Fees for Environmental Decisions
One of the most noticeable changes for investors could be the introduction of differentiated fees for issuing environmental decisions.
Instead of the current flat fee of 205 PLN, the new fee would depend on the complexity of the case and could reach a maximum of 30,000 PLN.
“This represents a significant increase in costs that investors will need to take into account when planning project budgets. Moreover, moving from a single fixed fee to a differentiated fee system requires a more complex administrative structure that will require additional supervision and control. Clear criteria will need to be established to determine the appropriate fee depending on the type of investment,” says Kamil Król.
Changes to Environmental Impact Assessments
The amendment also introduces changes to the Environmental Impact Assessment (EIA) procedure.
For projects that may potentially have a significant environmental impact, an investor’s request to conduct an EIA would become binding on the authority, regardless of the project’s location.
This means that investors will be able to submit an EIA report together with the application for an environmental decision. Under current law, such a request is binding on authorities only when projects are planned in areas protected under nature conservation regulations.
Light Emissions to Be Included in Environmental Reports
Another planned change is the obligation to include light emissions in the EIA report and in the project information sheet, both during the construction phase and operational phase of the project.
“From an environmental protection perspective, this solution deserves support. The issue of light pollution and its negative impact on ecosystems is increasingly discussed in public debate. At the same time, current legislation does not regulate this matter. It is also worth noting that the proposed change reflects the assumptions of Directive 2011/92/EU of the European Parliament and the Council (the EIA Directive). Light—alongside pollution, noise, and waste—is explicitly listed in Annex IV of the directive as one of the types of emissions that should be analyzed in an EIA report,” explains Paulina Buczek.
Changes to Project Variants and Legalization Procedures
The draft legislation also modifies the rules regarding alternative variants of planned projects. If the variant selected for implementation is also the most environmentally beneficial option, the report author will be allowed to present only two variants instead of several alternatives.
The amendment also introduces a formal procedure for legalizing projects that were implemented or are being implemented without the required environmental decision.
In such cases, the responsible entity will have 60 days from the moment it learns that the decision is required to submit an application for obtaining the environmental decision.
“In practice, determining the date from which the deadline for submitting such an application begins may prove problematic and could lead to disputes with administrative authorities. If the entity learns about the requirement from the authority—for example during an inspection or as a result of a refusal to grant permission to start using the facility—the starting date should be clear. However, if the investor discovers the missing decision independently, for example during the investment process or during due diligence before a transaction, the situation may be much more complex,” says Paulina Buczek.
A Reform With Mixed Effects for Investors
According to experts, the draft amendment to the environmental law contains many additional solutions that will have a practical impact on investment projects, including provisions concerning the suspension or discontinuation of proceedings related to environmental decisions.
The reform includes both measures that streamline the investment process and mechanisms that strengthen administrative oversight of projects.
On one hand, the amendment simplifies procedures, clarifies the group of parties involved in proceedings, and professionalizes decision-making by transferring competencies to counties. On the other hand, it introduces additional financial burdens and expands investors’ obligations.
It should also be noted that the provisions discussed above may still undergo significant changes. The draft has been submitted for public consultation and review, but comments from reviewing institutions and responses to those comments have not yet been published on the website of the Government Legislation Centre.
Source: ceo.com.pl
