In today's Tuesday Mornings for Construction, as part of the series on decisions on environmental conditions, we would like to bring you closer to another issue, this time concerning the body's determination that there is no need to conduct an environmental impact assessment for a project.
First, it should be noted that Polish law currently recognizes two types of environmental decisions. The first type is a decision whose issuance was preceded by an environmental impact assessment, while the second type covers cases in which a decision can be issued without this stage of the proceedings.
This article concerns the second type of decision, which is indicated in Article 84 of 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 provision specifies what should constitute the decision in question if an environmental impact assessment procedure has not been conducted.
It is not without reason that we are pointing to this decision, because after the changes in the Environmental Protection Act that came into force in 2019, the authority does not issue a decision on the lack of need to conduct an environmental impact assessment for the project, but immediately issues a decision concluding the proceedings.
It should be emphasized that the regulation regarding the determination of the lack of need to conduct an environmental impact assessment for a project is extremely laconic, which is why the perception of Article 84 of the Environmental Protection Act raises many interpretational doubts.
Article 84 of the Environmental Protection Act merely states that the absence of an environmental impact assessment requirement means that the project will not have a significant impact on the environment, and therefore, there are no contraindications to its implementation. The greatest difficulty lies in determining what the authority should consider when issuing an environmental impact assessment decision, when it was not preceded by an environmental impact assessment procedure. It is certainly a significant simplification that the area in question is subject to the provisions of a local spatial development plan, as, pursuant to Article 80, paragraph 2 of the Environmental Protection Act, the authority should primarily consider the compliance of the planned project's location with the regulations contained in the aforementioned local law.
Accordingly, it should be emphasized that the joint analysis of Article 84 with Article 80 paragraph 2 of the Environmental Protection Act allows for the conclusion that when issuing this type of decision, the authority should be guided by the criteria indicated in other legal acts.
At this point, another issue should be considered, namely the content of a decision on environmental conditions issued without conducting an environmental assessment. As we have already indicated, Article 84, paragraph 1 of the Environmental Act only indicates the necessity of stating in such a decision that there is no need to conduct an environmental impact assessment after obtaining the opinion referred to in Article 64, paragraphs 1 and 1a of the Environmental Act. To clarify the content of the decision in question, paragraph 1a of the discussed provision should be used, as it is there that the conditions and requirements that the authority should follow when issuing the decision are indicated. Therefore, such a decision should include: ( i ) conditions for the use of the environment during the implementation and operation or use phase of the project, with particular emphasis on the need to protect valuable natural values, natural resources and historical monuments, and to limit the impact on neighboring areas; ( ii ) environmental protection requirements necessary to be included in the documentation required for the issuance of the decisions referred to in Article 72, paragraph 1, in particular in the plot or land development plan or in the architectural and construction plan, in the case of decisions referred to in art. 72 sec. 1 points 1, 10, 14, 18, 23, 26 and 27, ( iii ) imposing the obligation to avoid, prevent, and limit the project's impact on the environment, as well as the obligation to monitor the project's impact on the environment. This means that this decision contains the same decisions as those that result in part from art. 82 sec. 1 of the Environmental Protection Act (concerning a decision on environmental conditions issued after conducting an environmental impact assessment for a project).
Article 84 of the Environmental Protection Act also includes paragraph 2, which stipulates that a project description must be attached to the decision in question. Therefore, the scope of projects implemented without an environmental impact assessment will essentially depend on the project's description.
In summary, it should be emphasized that following the amendments to the Environmental Protection Act, if the authority determines there is no need to conduct an environmental impact assessment for a project, it no longer issues a resolution, but a decision concluding the proceedings. Furthermore, the content of this decision contains elements that appear in a decision issued after conducting an environmental impact assessment for a project.
In the next article, we will present the changes in the law that have taken place in the last month.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of November 15, 2022
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