The government is working on an amendment to the regulations concerning the issuance of environmental decisions, which may significantly affect the course of proceedings and the role of authorities. The draft provides, inter alia, for the extension of the competences of authorities in the scope of selecting a project variant, the extension of public participation, and the gradual digitalization of the procedure.
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 currently 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 proceedings, the indication by the authority of project variants, or new grounds for discontinuation of proceedings.
The Amendment covers a wide range of changes; therefore, in this article we focus on those that are of key importance from the perspective of investors. This publication is part of a series of articles in which we present the solutions proposed in the Amendment.
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 concerning the Environmental Decision to be conducted in electronic form. The ICT system is to enable, inter alia:
- submission of applications, including an application for issuing the Environmental Decision,
- collection of various letters and documents,
- communication (exchange of letters) and sharing of documentation and information.
This solution will enable the proceedings for the issuance of the environmental decision (DŚ) to be conducted entirely in a digital form, which may contribute to a slight shortening of the time for processing an investor’s application. 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.
Possibility for the authority to indicate another project variant
The government proposes granting authorities issuing the Environmental Decision 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.
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 certain 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. In specific cases, the administrative authority may extend this period – up to a maximum of 10 years.
However, considering that the implementation of certain investments is time-consuming, the author of the bill 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. For this reason, investors who would like to obtain the Environmental Decision under the existing provisions have time to submit an application until the Amendment enters into force.
Moreover, it should be underlined that according to the Amendment, individual functions of the ICT system will be available no earlier than in 2028.
Summary
The proposed Amendment introduces a number of changes that are important for investors planning projects requiring the Environmental Decision. The key ones include the digitalization of proceedings (although in practice noticeable only from 2028), the possibility for the authority to indicate a project variant other than that proposed by the investor, the extension of deadlines for public participation, and new rules for discontinuing proceedings in the absence of an environmental report.
Particular attention should also be paid to the proposal to depart – in selected cases – from the time limitation for the use of the Environmental Decision, which may be of significant importance for long-term projects in the waste management sector.
From a practical perspective, this means, on the one hand, the introduction of improvements in the exchange of letters and documentation with authorities, and on the other – the need to prepare for an increased role of authorities in deciding the fate of a project. 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.