ENVIROMENTAL ISSUES IN INVESTMENT PROCESS – Part 5 of 5
Environmental impact assessment (“EIA”) includes the procedures described in this Section 3, all aimed at ensuring that the environmental impact of planned projects is taken into account before they are constructed. These procedures constitute a transposition into the Polish legal system of the EIA Directive on the assessment of the effects of certain public and private projects on the environment, introduced in 1985 (Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment; the “EIA Directive”) and amended in 1997 (Directive 97/11/EC), 2003 (Directive 2003/35/EC) and 2009 (Directive 2009/31/EC). The EIA Directive was replaced by the Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification), which is basically its codification. The EIA Directive has been transposed into the Polish law, by the Act dated 3 October 2008 on accessing information about the environment and its protection, the participation of the public in environmental protection, and environmental impact assessment (Journal of Laws of 2008, No. 199, item 1227, as amended) (“EIA Act”). The EIA Act has replaced the relevant provisions regarding the EIA previously included in the Polish Environmental Protection Law. Environmental decisions The EIA Act requires that a decision regarding environmental conditions (“environmental decision”) must be obtained prior to the implementation (as a rule before obtaining the planning permit or decision determining the location of public purpose projects) of planned projects which either (i) are likely to have always a significant effect on the environment or (ii) are likely to have potentially a significant effect on the environment. A final and valid environmental decision is a prerequisite for applying for a construction permit. For the first group of projects (referred to in point (i) above), EIA proceedings, involving the preparation of the EIA report, are mandatory. With regard to second group of projects (referred to in point (ii) above), EIA is facultative and depends on a decision of an authority issuing the environmental decision. If this authority decides that EIA is required, it determines at the same time the required scope of the EIA report to be prepared by the investor. The lists of the above mentioned two categories of projects are set out in the Ordinance of the Council of the Ministers on projects that are likely to have significant effect on the environment, dated 9 November 2010 (Journal of Laws of 2010, No. 213, item 1397) (the “EIA Ordinance”). Under the EIA Act, planned facilities which are technologically connected qualify as one project and are considered jointly, even if they were to be constructed by various investors, or if the project was to be covered by multiple construction permits for each of the development stages. Consequently, an environmental decision will be issued in relation to a whole project rather than in relation to individual parts thereof. An environmental decision is effective for four years (6 years in case where the project is implemented in stages, which needs to be confirmed in relevant procedure) from when it becomes final. After this time, a new decision would be required in order to apply for a construction permit. Depending on the size, complexity and location of the project, environmental decisions are issued by: (i) regional directors of the environmental protection (regionalny dyrektor ochrony środowiska), (ii) the General Director for Environmental Protection (Generalny Dyrektor Ochrony Środowiska), (iii) the county governor (starosta), (iv) regional director of the National Forests Management (dyrektor regionalnej dyrekcji Lasów Państwowych), or (v) the local governor (wójt, burmistrz, prezydent miasta). As an environmental decision is an administrative decision, it is issued in accordance with the Code of Administrative Proceedings and the related legislation. The comments relating to the duration of proceedings, parties and appeal procedures described in Section 1.1.3 above in relation to planning permits apply also to environmental decisions subject to certain exceptions. Environmental decisions, as a rule, are transferable. Issuance of an environmental decision is subject to an insignificant fixed stamp duty. EIA proceedings As mentioned above, planned gas pipelines are or may be subject to the EIA proceedings which consist of the verification of the EIA report prepared by the investor, obtaining consents of other authorities and public participation. EIA proceedings are conducted by the authority competent for the issuance of the environmental decision in relation to the given project. In certain circumstances, the EIA may be repeated (by the appropriate regional director of environmental protection) as a part of the proceedings aiming at granting the construction permit. This applies if so provided in the environmental decision, in particular in cases where data and documentation available at the environmental decision stage are not sufficient to assess the effect of the future facilities on the environment, the authority issuing the construction permit determines that the project as described in the application for the construction permit differs from the requirements of the environmental decision, or so requested by the investor. During the EIA, in particular the following aspects of the planned project are analysed and examined:
- the direct and indirect effect of the planned project on the natural environment, health and living conditions of humans, and historical monuments;
- possibilities of preventing and minimising the negative effect of the planned project on the environment;
- the required scope of monitoring the implementation of the project.
EIA report If EIA proceedings are conducted, the investor is obliged to prepare and submit an EIA report. The EIA report must in particular contain a description of the planned projects, the local elements of the natural environment, an indication of any historical monuments located closed to the planned location, a description of the possible and preferred manner(s) of completing the projects, an estimate of the effect of the planned projects on the environment, a description of the planned preventive and mitigating actions aimed to reduce the environmental impact of the project, as well as the proposed manner of monitoring of the project. For projects which are likely to have always a significant impact on the environment, the investor may either prepare an EIA report in line with the EIA Act and attach it to the application for an environmental decision (taking the risk that the authority issuing such decision will deem such EIA report incomplete and request its supplementing), or apply for an environmental decision on the basis of the so-called “project information card” (karta informacyjna przedsięwzięcia) and a request to the issuing authority to determine the exact required scope of the EIA report. The project information card provides only the most important data in relation to the project. In such case the authority issuing the environmental decision determines the scope of the EIA report, and the investor has to comply with its instructions in this regard. Costs of the preparation of the EIA report (i.e. remuneration of the advisers preparing such reports) are borne by the investor. Whenever EIA proceedings are carried out, the relevant authority must ensure that general public is appropriately informed about them, in particular, allow the public to submit their comments and recommendations for a period of at least 21 days following the announcement of such proceedings. The submitted comments and recommendations must be considered, but the authority is not obliged to follow them. Participation of non-governmental environmental organisations The EIA Act allows a broad access to the EIA proceedings to non-governmental environmental organisations that may, subject only to the protection of the environment being one of their aims, as specified in the statutes of such organizations participate in any EIA proceedings on the rights of a party; and/or appeal against any environmental decision or against a construction permit issued after conducting the EIA, even if the applicable organisation did not take part in the EIA proceedings. Natura 2000 The Natura 2000 programme, also referred to as the “European Ecological Network” (“Natura 2000”), is a system of protected areas introduced mainly by the Act dated 16 April 2004 on the nature protection (consolidated text: Journal of Laws of 2009, No. 151, item 1220, as amended) and EIA Act in the transposition of the EU Directives in the above respect, aimed at ensuring the preservation of flora and fauna, the conservation of valuable and endangered natural habitats, and the integration of nature conservation and human activity. Natura 2000 constitutes an EU action programme and is applicable in Member States. The basic purpose of Natura 2000 is to protect the European environmental heritage, and to implement the sustainable development concept within the EU. The Natura 2000 programme provides protection to special areas of conservation for natural habitats, and wild birds. The lists of the special areas of conservation for natural habitants and wild birds are prepared by the member states but they require approval of the European Commission. Currently, the list of birds’ Natura 2000 areas is included in the ordinance of the Minister of Environment dated 12 January 2011 on the areas for the special protection of birds (Journal of Laws of 2011, No. 25, item 133, as amended). In respect of special areas for the conservation of natural habitats, there are still some outstanding areas. The process of their selection and approval is pending. Therefore, in our opinion, due to the approach of the European Commission aimed at widening the scope of the Natura 2000 programme by supplementing the government list of areas with the areas indicated by the non-governmental organisations, while analysing the possible impact of the Natura 2000 programme on the planned projects, also areas considered to be selected or approved as Natura 2000 areas should be taken into account, as this may have a significant impact on the EIA proceedings and development of the project. Natura 2000 impact proceedings In addition to both categories of projects which are likely to have significant effect on the environment there may be other projects that may have negative effect on the Natura 2000 areas. In such a case an appropriate authority for the issuance of a construction permit should initiate Natura 2000 impact proceedings. In practice, authorities are reluctant to allow the implementation of projects at Natura 2000 areas, therefore it is advisable to avoid locations at such areas or in the close vicinity of them.