New rules ahead for environmental reports and assessments | In Principle

The proposed amendment to Poland’s environmental impact assessment regulations contains not just procedural changes. It also goes directly to the nature of environmental impact assessments and the contents of EIA reports.

The bill to amend the Act on Access to Information on the Environment and Environmental Protection, Social Participation in Environmental Protection and Assessments of Environmental Impact of 3 October 2008 reached the lower house of the Polish Parliament in July 2015 (print no. 3677). According to the wording, most of the provisions in the bill are to enter into force at the beginning of 2017. The bill is primarily intended to implement amendments to the Environmental Impact Assessment Directive (2011/92/EU) made by Directive 2014/52/EU, but along the way it also clears up certain imperfections in the existing Polish regulations.

The proposed solutions seeking to ensure consistency between the studies developed at the strategic level (even if only of local relevance) and assessments of the environmental impact of specific projects are welcome. The changes aimed at increasing the usefulness of the information contained in studies prepared for purposes of environmental proceedings should also bring beneficial results.

A project information sheet should contain all the information that is necessary for proper determination of whether an intended development project requires a full environmental impact assessment. The EIA report for the project should be prepared in a way that enables a comparison of the effects of implementation of specific variants under consideration, as well as comprehensively reflect the impact that the project would have on the environment. The EIA report must be prepared by persons competent to ensure the high quality of the study. Many of the changes proposed in the bill touched on below are designed to achieve these goals.

Project information sheet

This document contains basic information about the planned project. In the case of projects that will always require an environmental impact assessment, the information sheet should be presented when the developer requests the administrative authority to determine the scope of the EIA report. Some types of construction projects require an EIA only in certain instances. This is determined by the authority after conducting a screening procedure. In that case, the information sheet must be enclosed with the application for an environmental decision, as it will enable the authority to determine whether the project requires a full impact assessment.

The bill removes the term “project information sheet” from the glossary section of the act. The requirements for this document are specified instead in the new Art. 62a of the act. Under that provision, information sheets will also have to include information about the ecological corridors located within the reach of significant impact of the project, the risk of occurrence of a serious breakdown or natural or construction catastrophe, as well as the anticipated quantities and types of wastes that will be produced and their impact on the environment. But it appears that the most important clarification in the bill is the requirement that the information sheet contain information about projects already implemented or being implemented on the site where the project is planned, and in the area of impact of the project, insofar as they could contribute to cumulative impacts together with the project in question.

The bill also specifies that the information in the sheet must enable an analysis of the criteria determining the necessity to conduct an environmental impact assessment, and also reflect the available results of other EIAs conducted on the basis of other regulations.

EIA report

The contents of an environmental impact assessment report are specified in Art. 66 of the act. The bill introduces significant new elements in this respect.

First, the description of the planned project in the report should include additional information, for example concerning biodiversity, effects on natural resources such as land, soil and water, and energy demand and consumption. Second, the report should address the risk of serious breakdowns or natural or construction catastrophes, based on scientific knowledge and reflecting the substances and technologies used, including risks connected with climate change (Art. 66(1)(1)(d)–(g)).

Entry into force of the changes set forth in the bill will require authors of EIA reports to include more detailed descriptions of natural elements, including a description of the ecological corridors and the hydromorphological, physiochemical, biological and chemical properties of waters. Findings concerning the anticipated impact should include a determination of the impact on climate, including greenhouse gas emissions and impacts relevant to adaptation to climate change.

To enable a comparison of specific variants, the bill requires the report to contain a comparison of the impact of the analysed variants on humans, plants, animals, fungi, natural habitats, water, air, land, soil, material goods, forms of nature protection and so on.

The bill provides for the Minister of the Environment to issue a regulation specifying the format of EIA reports.

The requirements concerning presentation in the report of the results of the natural inventory, analysis of cumulative impacts, and the impact the project will have on climate are also to be made more precise.

Natural inventory

A new item in the bill (but only formally new, because in practice it is also included in reports) is the requirement to reflect the results of a natural inventory, if conducted, together with a description of the methodology used. A natural inventory is understood to mean a set of field tests conducted for the purpose of characterising the elements of the natural environment. It is particularly essential to comply with the requirements for a natural inventory when assessing impacts on Natura 2000 areas and impacts on specific forms of nature that are subject to legal protection. The case law and legal literature have maintained for years that scientific criteria should be applied in an environmental impact assessment. Exclusion of a negative impact must therefore be made on the basis of facts that are objective and documented, e.g. a properly conducted natural inventory (see Commission v Italy, Case C-304/05). For example in Commission v Germany (Case C-98/03), the Court of Justice held that in order to exclude the possibility of a negative impact, it must be certain that there are no reasonable doubts as to the lack of negative consequences from carrying out the project. Consequently, the failure to conduct appropriate field tests may constitute a material violation of the rules for conducting an impact assessment (Commission v Ireland, Case C-418/04).

Cumulative impacts

The bill also clarifies and expands the duty to include information in the EIA report on connections with other projects. This is defined in a very complicated way in the bill: the report must contain information in particular on the accumulation of impacts of projects being realised, already realised, or planned, for which a decision on environmental conditions has been issued, located on the site where the project in question is planned to be carried out, and in the area of impact of the project, or whose impact falls within the area of impact of the planned project—insofar as their impact may lead to accumulation of impacts from the planned project.

The point essentially is that information on cumulative impacts should primarily:

• Reflect cumulative impacts not only from projects already completed, but also those that are in the implementation phase or only planned
• Address not only the site where the project in question is to be carried out, but also the area of the project’s impact.

It is not clear in this context whether the developer must reflect in the report the cumulative impact only from projects for which an environmental decision has already been issued. It seems that this is the requirement formulated in the bill when it requires information to be reflected in the report concerning “accumulation of impacts of projects being realised, already realised, or planned, for which a decision on environmental conditions has been issued”. But the condition of obtaining of an environmental decision should essentially apply only to planned projects. This is because many projects that have existed for years were carried out at a time when there was no obligation to obtain a decision on environmental conditions, and it is hard to accept the view that projects of this type would not be considered when analysing cumulative impacts.

Another question is whether the analysis of cumulative impacts should reflect all projects not yet carried out for which decisions on environmental conditions have been issued. It is obvious that the limitation of the analysis only to planned projects for which decisions have been obtained is aimed at making the analysis realistic. The analysis should primarily address planned investments for which tangible steps have been taken that demonstrate a serious intention to carry out the project—specifically the step of obtaining a decision on environmental conditions. It would be hard to accept the position that the impact of another project has to be factored in when it is only a potential project, and the developer may not even be aware that it is being planned or have any idea of the nature of the impact the other project might have. It is also problematic whether the analysis of cumulative impacts should cover all unrealised projects on the same site for which an environmental decision has been obtained. It may turn out that for certain projects environmental decisions have been obtained but the developer has abandoned its intention to carry out the project. It does not seem that an analysis of cumulative impacts should cover such projects, although it is difficult to take an unequivocal position on this issue. The environmental decision for the other project might be “transferred” to another developer who then pursues it to completion.

In light of these issues, the eventual amendment will probably not dispel all doubts about how EIA reports should deal with cumulative impacts.

Requirements for authors of reports

The bill introduces a requirement that the report and the information sheet be signed by the author, or if prepared by a team, then by the head of the team, with the person’s name and the date of the report. A statement that the requirements imposed on authors of reports have been complied with must also be enclosed with the report. These requirements, included in the bill, are designed to ensure the high quality of reports.

The author of the report—or the head of the team if the report is prepared by a team—must be a person who has completed a degree in the areas of science referred to in the bill or has the appropriate experience. This new requirement is derived from Directive 2014/52/EU, which requires that EIA reports be “prepared by competent experts.”

Interim regulations

Art. 6(2) of the bill provides that the existing regulations will continue to apply to pending matters for which a report was already submitted or an order was already issued specifying the scope of the report. However, at the request of the developer planning to carry out the project, the new regulations will apply.

Considering that the new regulations are to enter into force on 1 January 2017, there seems to be plenty of time to prepare for the changes. But the complicated nature of environmental proceedings and the length of the documentation process means that participants in environmental proceedings should begin now to familiarise themselves with the planned changes.

Dominik Wałkowski, Environmental Law Practice, Wardyński & Partners