The next article in our Tuesday Mornings for Construction series, as part of our series on environmental permits, is devoted to the refusal to issue an environmental permit. It's important to note that an environmental permit is a binding decision, meaning that if the conditions for its issuance are met (we wrote about the conditions in last week's article #126 ), the authority is obligated to issue a positive decision, establishing the environmental conditions for the project, in accordance with the party's request. The same applies to negative decisions, i.e., refusing to issue an environmental permit and refusing consent to implement the project – this can only occur in strictly defined cases, specified in the Act of 3 October 2008 on the provision of information on the environment and its protection, public participation in environmental protection and on environmental impact assessments (hereinafter referred to as the " Environmental Act ").
This means that the Environmental Protection Act provides a closed list of cases in which a body may refuse to issue an environmental decision or refuse consent to implement a project. Therefore, if none of the negative conditions exist, the body is obligated to establish the environmental conditions for the project. The grounds for refusal are as follows:
- Inconsistency of the project's location with the local development plan (Article 80, paragraph 2 of the Environmental Protection Act) – the project's location's compliance with the provisions of the local development plan is the primary criterion for assessing the investment intentions of the entity applying for an environmental decision. A conflict between the project's location and the local development plan exempts the body conducting the proceedings from further action, in particular from conducting an environmental impact assessment, analyzing and evaluating the impact of the project, or consulting with other bodies, and allows it to refuse to issue an environmental decision.
- Refusal to agree on the conditions for the implementation of the project or the issuance of a negative opinion by the approving body (Article 80, paragraph 1, item 1 in conjunction with Article 77, paragraph 1 of the Environmental Protection Act) – entitles the body to refuse to issue an environmental decision. To supplement this point, it is worth citing the judgment of the Supreme Administrative Court of 1 July 2016, file reference II OSK 339/15: "In the event of a negative position of the approving body, the body conducting the proceedings cannot issue a decision on environmental conditions permitting the implementation of the project. However, if the approving body adopts a positive position, this does not mean that a decision refusing consent to the implementation of the project cannot be issued ." This also raises the question of what happens if some of the approvals from the bodies are positive and some are negative, i.e., a contradiction occurs. In such a case, the body conducting the proceedings regarding the decision on environmental conditions shall resolve these contradictions within 14 days from the date of receipt of the agreements, after prior agreement with the authorities whose agreements were contradictory, and shall take this resolution into account in the decision concluding the proceedings, issued within 30 days from the date of receipt of the authorities’ agreement (see Art. 77 sec. 9 of the Environmental Act).
- If the applicant does not consent to the implementation of the project in a variant other than the one proposed, and the environmental impact assessment demonstrates the justification for implementing the project in a different variant (Article 81, Section 1 of the Environmental Protection Act), the body conducting the proceedings for issuing a decision on environmental conditions may select – with the applicant's consent – a different variant of the project (from among those indicated by the applicant) than the one proposed by the applicant. In the absence of the applicant's consent, this right may constitute the basis for issuing a decision refusing consent to implement the project*.
- demonstrating that the project may have a significant negative impact on a Natura 2000 site, when the implementation of the project is not justified by the necessary requirements of overriding public interest, including requirements of a social or economic nature, and there are no alternative solutions (i.e. the conditions referred to in Article 34 of the Nature Conservation Act; Article 81 paragraph 2 of the Environmental Protection Act are not met) – to clarify this point, it should be added that when the environmental impact assessment of the project shows that the planned project will have a significant impact on the environment within a Natura 2000 site, the body conducting the proceedings does not issue a decision refusing to issue a decision on environmental conditions, but a decision refusing consent to the implementation of the project.
- demonstrating that the project may result in failure to achieve the environmental objectives included in the river basin management plan (Article 81, paragraph 3 of the Environmental Act) – in order for the body conducting the proceedings to have grounds for issuing a negative decision refusing consent to the implementation of the project, the explanatory proceedings must clearly show that the assessed project will make it impossible to achieve the above-mentioned environmental objectives and, at the same time, the conditions for the permissibility of failure to achieve good ecological status and failure to prevent deterioration of the ecological status of groundwater are not met.
Today we invite you to read the next article on the subject of obtaining decisions on environmental conditions, which will appear in a week and will concern the decision on the lack of the need to conduct an environmental impact assessment.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of November 8, 2022
* K. Gruszecki [in:] Commentary to the Act on providing information on the environment and its protection, public participation in environmental protection and on environmental impact assessments, 3rd edition, LEX/el. 2020, article 81.
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