The Council of Ministers is working on a comprehensive reform of the regulations concerning the issuance of environmental decisions. The draft amendment provides, inter alia, for the digitalization of proceedings, a change in the competence of authorities, a significant increase in fees for the issuance of the decision, the introduction of strict financial penalties, and the extension of the powers of authorities in the scope of selecting a project variant.
The amendment to the Act on Providing Information on the Environment and its Protection, Public Participation in Environmental Protection and Environmental Impact Assessments (the “Act”), as well as certain other acts (the “Amendment”), is at the stage of legislative work of the Council of Ministers. In April this year, a new version of the draft Amendment was published. The Amendment mainly concerns the procedure for issuing decisions on environmental conditions (the “Environmental Decision”). The changes concern, inter alia, the digitalization of the process of issuing the Environmental Decision, the amount of the fee for issuing the decision, the transfer of proceedings from commune offices to starosts, or the introduction of financial penalties for carrying out investments without first obtaining the Environmental Decision.
Due to the wide scope of changes in the Amendment, in this article we have focused on issues that are key from the perspective of investors. The publication constitutes a summary of a series of materials concerning the Amendment – a more detailed discussion of individual issues can be found in previous articles [LINK].
Change of authority competence: the starost will take over the tasks of the head of commune
The government proposes that the authority competent to issue the Environmental Decision, instead of the head of commune (wójt), mayor (burmistrz) or city president (prezydent), should in most cases be the starost (starosta). According to the author of the bill, such a solution will improve supervision over the implementation of investments important for a given region and will eliminate situations in which the Environmental Decision is issued for the benefit of a commune (as an investor) by its own commune head/mayor/city president.
Digitalization of proceedings
The Amendment provides for the introduction of the ICT system (System for Handling Proceedings in the Scope of Environmental Impact Assessments), which will allow proceedings to be conducted in electronic form. The ICT system is to enable, inter alia, the submission of applications, including an application for issuing the Environmental Decision, the collection of various letters and documents, communication, and the sharing of documentation and information. At the same time, it will still be permissible to submit an application for the Environmental Decision in paper form – in such a case, the administrative proceedings will be conducted under the existing rules.
Fee for issuing the Environmental Decision: up to PLN 30,000
The government proposes increasing the fee for issuing the Environmental Decision, which currently amounts to PLN 205. Its exact amount would be specified in a regulation of the minister competent for climate matters, but it could not exceed the limit of PLN 30,000. In turn, the fee for amending the Environmental Decision would amount to 50% of the fee that would be required in the case of applying for issuing the Environmental Decision for that project.
Possibility for the authority to indicate another project variant
Under the Amendment, authorities issuing the Environmental Decision would obtain the power to assess the variants presented in the environmental impact assessment report in terms of their impact on the environment. This assessment would consider both environmental (including social) and economic benefits. If such a comparison showed that a variant other than the one indicated by the investor is more advantageous, the authority could indicate it in the Environmental Decision as permitted for implementation. However, this would require the investor’s consent, although the lack thereof would result in the authority refusing to issue the Environmental Decision.
Joint liability for the implementation of the Environmental Decision
The Amendment provides for a change to the provision allowing the transfer of the Environmental Decision to another entity. First of all, it has been clarified that the transfer takes place in the form of an amendment to the decision, and the authority competent in this matter is the authority of first instance. Moreover, the Amendment explicitly indicates that it is possible for several entities to simultaneously assume the rights and obligations under the Environmental Decision. In such a case, they will be jointly liable for the implementation of the conditions resulting from the Environmental Decision.
Automatic transfer of the Environmental Decision to a new property owner
The government proposes that in the event of a change of the owner or perpetual usufructuary of the real property on which a project is being carried out or has been carried out on the basis of the Environmental Decision, such entity would assume the rights and obligations resulting from the Environmental Decision. At the same time, if the project is related to the conduct of business activity, the rights and obligations resulting from the Environmental Decision would transfer by operation of law to the entity conducting that activity at the moment of acquiring legal title to the real property. In a situation when the rights and obligations have been transferred to multiple entities (e.g. to several new owners), they are to be jointly liable for the performance of obligations under the Environmental Decision.
Carrying out an investment without the required Environmental Decision? A penalty of up to PLN 10 million!
Currently, the provisions of the Act do not provide for financial penalties for, inter alia:
- carrying out an investment without obtaining the Environmental Decision or undertaking actions on the basis of a non-final Environmental Decision, or
- conducting works despite the issuance by an administrative court of a decision to suspend the execution of the Environmental Decision.
According to the Amendment, such violations will be subject to the imposition of a financial penalty ranging from PLN 100,000 to PLN 10,000,000.
Status of a party to the proceedings only for the owner or perpetual usufructuary
Currently, the provisions of the Act do not specify which property rights to real property located within the area of impact of a project allow a given entity to be recognized as a party to the proceedings for issuing the Environmental Decision. In the Amendment, it has been explicitly indicated that such property rights may only be the right of ownership of real property, perpetual usufruct, or a cooperative ownership right to premises.
Extension of the deadline for public comments
With regard to public participation in the process of issuing the Environmental Decision, the Amendment provides for the possibility for the authority to extend the deadline for submitting comments and applications from 30 up to even 45 days, if this would be justified by the nature of the case or other circumstances.
New ground for discontinuation of proceedings
The Amendment proposes the introduction of a legal fiction consisting in recognizing that an application for issuing the Environmental Decision has been withdrawn in specified cases. This solution is to apply to situations where the authority suspends proceedings concerning the issuance of the Environmental Decision until the applicant submits an environmental impact assessment report, and this document is not submitted within 3 years. In such a case, the authority will be obliged to discontinue the proceedings.
The Environmental Decision without a time limit in certain cases
In accordance with the provisions of the Act, in many cases the Environmental Decision must be issued before the investor obtains other administrative decisions, such as a zoning decision or a building permit. In such situations, the Environmental Decision must be attached to the application for issuing the given decision. As a rule, this can be done within 6 years from the date on which the Environmental Decision became final, whereas in specific cases the administrative authority may extend this period – up to a maximum of 10 years.
The government proposes that in selected cases the 6- (or 10-) year time limit should not apply. This derogation is to apply to entities planning to undertake activities related to waste management that are required to obtain a building permit (or make a construction notification) and are subject to the obligation to obtain an integrated permit. In such a case, the above-mentioned time limits will not apply to applications for issuing a permit for waste collection, a permit for waste processing, or a permit for waste collection and processing, and thus also to applications for issuing an integrated permit replacing the above-mentioned waste permits.
Final and transitional provisions
It is assumed that proceedings conducted under the Act that were initiated and not completed before the entry into force of the Amendment will be conducted on the basis of the existing provisions, although several exceptions have been provided for in this respect. Moreover, individual functions of the ICT system will be available no earlier than in 2028.
Summary
The draft Amendment introduces a broad package of changes in the procedure for issuing the Environmental Decision – from a change in the competence of authorities and the gradual digitalization of proceedings, through a significant increase in fees, to the clarification of the rights and obligations of parties and the introduction of new sanctions. The proposed provisions also organize issues of legal succession related to the Environmental Decision and provide for new grounds for discontinuation of proceedings and exceptions to the time limits for the use of the Environmental Decision. Although some of the solutions are intended to improve and standardize the practice of applying the provisions, the overall set of changes constitutes a major challenge for investors. Due to the early stage of legislative work on the Amendment, it is crucial to monitor changes on an ongoing basis, as the final shape of the provisions may still change. If you are interested in receiving information in this area, we encourage you to subscribe to our newsletter: https://lnkd.in/dHc7tfQZ.