Review of Polish Environment Law - the need for a cohesive and integrated system of Environment Law

Introduction

The state of Environment Law in Poland today has resulted, as has been the case in many other jurisdictions, from a disparate and often isolated approach to specific problems. As a result environment regulation is often very specific to particular issues e.g. fishing, air, protection, reserve areas and particular industrial activities.

Since the 1980s it has been recognised that the challenge facing environment regulation in Poland is to design a cohesive and integrated system of Environment Law in Poland. There has been a significant amount of discussion in that regard but as yet little action.

If Poland is to successfully harmonise its current system of environment laws with those of the European Union it will need to move towards implementing such a cohesive system of Environment Regulation. To understand this challenge it is necessary to consider the state of environment regulation today and perhaps by comparison with other jurisdictions such as the UK (which itself has only recently moved from a similarly fragmented system of environment regulation) to understand the extent of the harmonisation which will be required.

The Polish legal system and the environment

Poland is a civil law country and as such it has a hierarchy of legislative acts. That hierarchy is followed in environment protection regulations. At the top of this hierarchy is the Polish Constitution of 1997, which establishes the following principles:

• public authorities shall enforce policies providing ecological safety, environmental protection, public access to information and support for public initiatives benefiting the environment;
• individuals are obliged to protect the environment and they are liable for any deterioration caused by their activity.

The next level in this hierarchy is the Environmental Protection Act of 1980 ("EPA 1980") as amended. This Act was originally conceived as a framework for the enhancement of all aspects of environmental protection and in contemporary terminology underlines the principle of sustainable development. It could be said that the EPA 1980 represents for Polish environment regulation a source of inspiration and direction and now the framework on which to build Polish regulation of this area in order to achieve harmonisation with the EU.

The EPA 1980 provides for a wide range of regulation in areas such as: emissions to atmosphere; mineral resources; water protection; nature protection; landscaping; noise and vibration; radiation; zoning or planning restrictions; civil liability; fines for breach of environment regulations.

In addition to the EPA 1980 there are a number of specific legislative acts which address specific areas of environment concern. These can be separated into two types:

• Industrial regulation Water Law of 1974 (will be amended soon) regulates issues of permits for water use, waste water discharge and construction of water treatment facilities; Waste Law of 1997 regulates the manner of waste management, storage, permitting and international wastes transfers; Nuclear Law of 1986 regulates procedures for managing nuclear materials and wastes including various aspects of nuclear-related structures and civil liability for damages incurred in connection with nuclear activity; Sea Pollution Prevention Law of 1995 regulates the scope of sea pollution generated by ships. However, the liability for the damage is covered by the Maritime Code;
• Preservation of natural resources Forestry Law of 1991 provides for forest management and protection and state supervision over those resources; Protection of Forest and Agricultural Areas Law of 1995 focuses on special limitations on investments in forests and agricultural areas, rules on changing those areas' status and prevention of land degradation; Nature Protection Law of 1991 regulates the principles of protection for natural heritage, sites of national importance and regulates the scope of the state's ecological policies. This is acheived in part by establishing National Parks and other forms of protection for wildlife and habitats.

Environment protection provisions are also to be found in various laws, whose main purpose may not be environment regulation e.g. spatial planning laws, construction laws, geological and mining laws.

The next level of the legal hierarchy are the various ministerial and governmental regulations made under or pursuant to various legislative acts. It is these which will prescribe the specific norms, specifications and technical detail or procedural issues necessary for the detailed implementation of the environment acts. The number of such regulations which address the detailed requirements necessary to implement the general principles described in the relevant acts, are estimated to number at least 80 separate pieces of legislation. Obviously parallels can be drawn between acts of parliament and secondary legislation in the UK which operate in a similar manner.

Poland is also a party to 29 international conventions dealing with issues such as climate protection, protection of endangered species and the cross-border movement of polluting substances.
Therefore, as mentioned above, it is not easy to describe or even set out a coherent framework for Environment Law in Poland. Obviously there are other related areas of regulation to environment regulations such as health protection, work and safety, hazardous materials, transportation, chemical storage. However, in an article of this length it is not possible to address these related areas.

Liability under environment regulation

All of the legislative acts and regulations which make up Polish Environment Law form part of Polish administrative law. Individuals and businesses are compelled to comply with environment regulations by the threat of various penalties if they do not. The EPA and Penal Code make it clear that in certain cases directors of a company, as well as the company itself, may be personally criminally liable for a breach of environment regulations by that company.

The penalties available to the administrative authorities should either a company or an individual fail to comply with any particular environment regulations include fines, arrest and the limitation of freedom. It is also open to the authorities in particular cases to close down particular polluting processes. The levels of fines, powers of arrest and other penalties are found in the particular acts or regulations concerned, the Polish Criminal Code and the Trespass Code.

Such exposure to criminal penalties and the possibility that a non-complying industrial process may be shut down has clear parallels with the quasi criminal nature of environment regulation in the UK.

Fines may be imposed in Poland where:

• emissions limits laid down in each company's emission permit are exceeded, the level of such a fine being dependant on the particular pollutant. A non-complying industrial process may even be shutdown where, after fining, non-compliance continues;
• a company conducts a process for which a permit is required and does not apply for an emissions permit. The level of the fine is currently 200% of the cost to that company of obtaining an emission permit, as calculated by the district environment authority. This is to be increased to 500% from 1 January 2000.

Civil liability

The principles of civil liability dealing with damages for imminent harm are based on the Polish Civil Code.

Whereas environment regulation focuses on the administrative side, the Civil Code addresses private relationships between parties to a claim. The Civil Code allows in certain cases a direct means of action for persons or companies affected by an environmental state of affairs by way of either compensation for damage caused or by means of an injunction to prevent an activity from continuing to cause damage.

The Polish Civil Code essentially address such liabilities under three articles, namely:

• Fault based liability Under Article 415, any person, who through his own fault causes damage to another person then has an obligation to that person to redress the damage. There are obvious comparisons with the UK's principles of Common Law negligence.
• Risk based liability Article 435 has been interpreted to apply to any industrial facility, given that these are activities which carry a high degree of risk of causing harm. Those embarking on such operations should be responsible for their consequences without fault. Here there are obvious comparisons with the strict liability approach taken by UK environment legislation to the regulation of industrial activities.
• Nuisance Article 144 imposes on the owners of real property a duty to refrain from activities which may cause nuisance to adjacent plots of land. The Polish courts have clearly established that air, water and noise pollution fall within the definition of nuisance. This has been developed further under the EPA 1980 to cover lessees of adjacent plots affected by the nuisance, who may bring an action in nuisance.

Remedies for civil liability

The Polish Civil Code provides the following remedies where liability has been established under Articles 415, 435 and 144 described above:

• monetary compensation albeit this is restricted to the "ordinary" consequences of the action or omission from which the damage results in connection with a given type of business activity;
• restoration of a damaged site to its former state. Under Article 222 an owner of property whose rights have been or are being violated is entitled to demand the restoration of the property to its former state and can obtain an order or injunction against further violations.

This compares with the UK, where damages are available to individuals for negligence and nuisance type claims, but not to claimants for breaches of most statutory controls on polluting activities. The UK remedies are generally criminal and administrative in nature.

Enforcement

Although civil liabilities are being enforced by the authorities, there have been relatively few successful claims. Administrative measures are taken more seriously, although the creation of large scale local unemployment has in some cases acted as a deterrent to the closing down of polluting sites.

Harmonisation

This brief review of Polish Environment Law illustrates that there is a developing system of environment regulation in Poland, albeit it is still largely of a disparate and reactive nature. Regulation is geared to individual issues and areas of the environment or particular industry sectors. The next step is likely to be the adoption of a more holistic approach in line with that being taken in the EU through measures such as the Integrated Pollution Prevention and Control Directive and a similar integrated pollution control law is due to be implemented in Poland in the near future.

In many respects the approach to environment regulation already has many similarities with other EU member states such as the UK. This is illustrated by the requirements for the permitting of industrial activities and the risk based or no fault approach to liability, which will be instantly recognisable to environment lawyers across the EU. Therefore, whilst Poland has some work ahead to harmonise its environment regulation with the EC it already has a system which will stand it in good stead for this challenge.

Monika Krawczyk and Anthony Hobley