Chapter 11: Poland
JERZY JENDROSKA
Arguably the most important of these features is the direct reference to the concept of sustainable development, which the constitution makes one of the fundamental constitutional principles. Article 5 states, "The Republic of Poland protects independence, guarantees freedoms and rights...and ensures environmental protection pursuing a principle of sustainable development."
Unlike the old constitution, the new constitution does not grant a general citizen's right to a healthy environment. Instead of this general right, Article 74 grants the right to environmental information. This article supplements the general right to information about public activity granted in Article 61, and it provides a number of concrete duties of the state authorities in relation to the environment.
Article 74 reads as follows: "Public authorities shall pursue a policy guaranteeing ecological safety to the present and future generations. The protection of the environment shall be the duty of public authorities. Every person shall have the right to information about the state and protection of the environment. Public authorities shall support the citizens' efforts in favor of the protection and enhancement of the environment."
The new constitution follows the old one and states that every person has a duty to take care of the environment and shall be held responsible for damaging it (Article 86). The same article says that ordinary legislation shall specify the scope of this responsibility.
Mention should be given also to Article 68, which requires public authorities to prevent negative consequences of environmental degradation.
Poland signed the Lugano Convention but has not ratified it. The Lugano Convention is quite detailed, and the Polish legal framework still requires some refinement. Nevertheless, most of the convention's provisions have already been implemented in Poland in practice.
Poland is also progressing with the implementation of the EC Directives. The status of these are as follows:
In all areas of access to information, access to environmental information and access to personal information, huge progress has been made, as such rights were not generally granted before the new constitution entered into force.
There still is no specific piece of legislation devoted to access/provision of information. The issue is covered by a number of separate provisions of separate laws. The constitution requires, however, that a general law on access to governmental information be adopted.
There is a Draft General Environmental Act prepared that has a specific, rather detailed, chapter on access to environmental information which is meant to implement both EC Directive 313/90 and the relevant provisions of the upcoming Aarhus Convention. This chapter could be adopted as a separate act, but the government prefers to have it within the General Environmental Act.
This draft legislation on access to environmental information provides the right to every person of access to environmental information and documents possessed by public authorities (i.e. governmental and self-governmental administration, and other bodies performing public duties and services). It also provides a definition of environmental information, and it lists statutory exemptions following strictly the EC Directive and convention exemptions. Finally, the draft mandates some duties of administration as to collecting and maintaining information, data and records, including the duty to establish some public registers.
There is no definition of environmental information as yet.
There have been no cases yet dealing with the issue of what is environmental information, simply because this constitutional right has been granted only a couple of months ago.
Conditions for Obtaining the Information
Access to information about pending procedures is generally regulated by the Administrative Procedure Code (APA [1960]) in Part II, Title 3, "Access to Files." Any public authority or other body (institution, organization or association) which while performing public functions has binding powers is obliged to provide information under the provisions of the above title. In particular, according to Article 73 of the APA.
Parties have the right to inspect all files concerning the case and to make copies of those files in all stages of the procedure. This right is granted not only to the parties but also to associations (NGOs) participating "with the rights of the party."
Access to information for participants in pending procedures seems to be implemented rather well judging from the extremely low number of court cases dealing with this issue. There are, however, practical problems of insufficient technical arrangements (i.e. lack of separate and quiet places to inspect the files, lack of copying facilities, etc.).
Outside pending proceedings, access to information is regulated separately for governmental officers (Code of Conduct, which does not carry clear legal force) and self-governmental officers (the Act on Self-Governmental Officers [1990]). The Code of Conduct ("Code of Conduct of Public Administration Officials and Rights of Citizens and Duties of Officials in Public Administration" [1984]) applies to all governmental officers. Implementation in practice varies from office to office and from case to case. Generally the code is followed.
With respect to time limits, requests for environmental information generally are considered to fall under the procedure for "handling cases." According to Article 35 of APA, all requests (including those concerning access to information) shall be handled without delay: simple cases immediately, those requiring inquiry no later than one month, and extremely complicated requests no later than two months.
There is generally a tendency to provide information immediately if the request concerns inspecting documents (which is a rule). As far as written requests are concerned, the deadlines are usually met but the information provided is not always full and sufficient. Often the response is simply a rather formal answer.
The right to receive environmental information applies only to citizens under the Code of Conduct, but in practice it applies to every person, legal or natural, regardless of citizenship. Only those who have interest in a particular case are entitled to information about that case, under Part II (Title 3) of APA (1960). And according to the Self-Governmental Officers Act (1990), every person has a right to information about the actions of government officials.
The constitutional right to information under Article 61 includes inspecting documents and the right of access to meetings of elected collegial bodies, with the right to make aural and visual recording. These constitutional rights are too new to assess the practice of their implementation.
Most of the other legal acts refer to "inspecting documents," but the Code of Conduct refers to "providing information." There is no explicit right to specify the form of information to be provided but in practice information is provided in the requested form.
Refusal to Provide Information
In Poland, there is presumption toward disclosure. Information may be (in fact, it must be) refused only if the law explicitly requires it not to be disclosed. Article 61 (Section 3), states that right of access to information may be limited only if the release of the information hinders protection of the rights and freedoms of other persons and economic entities, or if it threatens public order, security or important economic interests of the state. These constitutional provisions are supposed to be implemented in ordinary legislation. There is, however, no clear-cut legislation in this respect; instead, a number of laws introduce specific secrets without much correlation among them. This covers:
There is a general rule that requires public authorities to make a public interest test whenever they have any discretion. Most exemptions, however, are not subject to discretionary power and therefore there is not much room in the existing laws for the public interest test.
There have been many complaints recently that public authorities disclose business secrets too negligently. Even though the complaints are generally related to disclosing information to competitors and not to public requests for environmental information, the very debate about it may well result in tighter control over information in general and therefore may affect public access to environmental information.
Informal Guidelines for Agencies and the Public
There are no informal guidelines for agencies about how to provide information or for the public about how to obtain it.
Specific Institutions/Officials to Provide Information
The Environment Ministry has established a Bureau of Public Communication responsible for providing information. This was created after 1995. The bureau is in charge of providing information and arranging meetings with NGOs and consultations. The office also gets information from relevant units within the ministry and sends it to NGOs.
If an Authority Does Not Possess the Information
According to the Code of Conduct, if an agency does not have information it must forward the request to the agency that is responsible for holding the requested information.
In practice, forwarding is observed and often abused; sometimes people requesting information are referred several times to different authorities or individuals within one office and eventually none is able to give a full answer.
Information Held in Public Registers
Public registers are available free of charge. PRTR registers are a relatively new phenomenon, and there is no practice regarding their operation as of yet. Draft regulations are under preparation to regulate all practical issues related to maintaining registers. The rules most likely will be similar to rules governing other public registers which operate like libraries and where the applicant needs to ask an official in charge to find the file requested to be inspected.
Costs of Obtaining Information
Charges do not as yet seem to provide any obstacle to receiving information, perhaps because there is not yet a clear legal framework for assessing charges. In practice, even voluminous information is often provided without charges.
However, self-operated copying machines for obtaining copies of inspected documents or public registers on payment are rather rare, and getting copies takes some time. Copying machines, if they exist, are usually operated by the official in charge of running the register. Price lists for copying are displayed, so the likely total fee is known in advance.
The State Environmental Protection Inspec-torate is bound by law to collect and update environmental information via the so-called "Monitoring System." Some statutes also provide general obligations to disseminate information to the public. These requirements in environmental laws are vague and do not provide for any procedural rules. For example, as Article 28/1 of the State Environmental Protection Inspectorate Act (1991) simply states, "the State Environmental Protection Inspectorate safeguards informing the public about the state of the environment."
However, the aggregated data about the state of the environment and about activities of environmental administration seem to be eagerly distributed and widely accessible in the form of brochures, etc. For example, the State Environmental Protection Inspectorate (PIOS) is publishing a series of brochures called "The Library of Monitoring." These brochures are distributed to the different governmental agencies and libraries. PIOS also publishes memos and sends them to the different institutions interested in them (i.e. media, some ECOs). The regional offices of PIOS publish their own materials on the state of the environment in their respective regions and distribute the materials to libraries, governmental agencies, media and NGOs. Finally, the Central Statistical Agency publishes an annual Environment Report (about 500 pages) with all general and aggregated data about the state of the environment, pressures on it, and protection activities. The report is exhaustive in terms of Article 5/4 of the draft Aarhus Convention. According to Article 115 of the Environmental Protection Act (1980) the environment minister shall present to parliament, every three years, a report about implementing environmental legislation.
There is no routine practice of public authorities informing the public about the possibilities of submitting information to international bodies concerning noncompliance with international rules, but this becomes available quite often via articles in government-sponsored periodicals and brochures.
As far as data concerning individual polluters is concerned, this information became accessible only recently under the 1997 Amendment to EPA 1980. This amendment established the following public registers held by the regional environmental administration:
These registers represent enormous progress in environmental legislation since 1995.
There remains no clear legal procedure with respect to informing the public about emergency situations, a fact that has been widely criticized in the wake of the floods of 1997. Law-drafting has since been initiated to comprehensively regulate information dissemination in emergency situations, including duties to inform the public.
Recently, it has been a common practice that interested NGOs are on the mailing list of those consulted on lawmaking and policymaking issues (another advancement since 1995). Both the government and parliament, as well as local legislative bodies, have a mailing list of NGOs to be consulted. The government even sponsored an electronic database about ecological NGOs that is updated regularly. The government still prefers active distribution of information via written materials, brochures, etc., while parliament prefers to use electronic means (i.e. a website) to report on its activities.
Methods of Dissemination
The typical methods used by the Environment Ministry for provision of information include:
SOEM is an NGO established for the purpose of facilitating contacts between NGOs and the ministry. It was originally meant to be sponsored regularly by the ministry to perform these tasks, but in practice there is no regular core funding from public sources for SOEM.
For years already there has been a mandatory self-reporting requirement (linked with the pollution charging schemes) which mandated annual (for bigger polluters, quarterly) reporting to respective regional authorities about regulated pollutants emitted into air and water and disposed.
Only recently, however, under the 1997 amendment to the EPA, these data become publicly accessible in the form of public PRTR-type registers. As already mentioned, this is an enormous step forward since 1995.
Electronic Means of Dissemination
There is not yet any general obligation to disseminate information electronically. In practice there has been substantial progress over the past year both in the central government and parliament. The environment ministry website is quite elaborate and provides information in both Polish and English about various issues, including:
Parliamentary websites are a bit less thorough but probably more useful in obtaining current information because they are regularly updated and quite detailed. For example, these sites give information on meetings of the environmental committee, including information about what was discussed, what resulted, etc.
Nongovernmental Informational Centers
There are some institutions that function as nongovernmental information centers. As part of the previously mentioned "Project on Cooperation," plans are under way to introduce a network of such regional centers. According to the plan, the Ministry of Environment would make funding available for providing such services and award it through the public bid procedure.
The Project on Cooperation suggested establishing a network of 10 to 12 regional offices that would distribute environmental information. The ministry would provide funding to run the network and issue a call for tenders. Any organizations or institutions or coalitions of two capable of providing a sufficient number of offices to create a nationwide network would be eligible to tender. The contract would be for three years, and provision of services would be supervised by a steering committee comprising representatives of the Ministry and NGOs.
The ministry would regularly supply the information offices with electronic data and with written documents to be made accessible for inspection. The information offices would be obliged to make information available not only to NGOs but to everyone seeking it. Information would be free to inspect, but charges might be imposed for copying longer documents.
Under the previously mentioned Article 61 of the new constitution, all meetings of elected bodies at all levels are publicly accessible. Article 113 applies this openness to parliamentary proceedings. Meetings of environmental committees are in practice also accessible, though formally this is at the discretion of their chairpersons. In practice, NGOs are always represented at the Parliamentary Environmental Committee meetings, and they participate actively on the same footing as, for example, official parliamentary experts. NGOs formally need an invitation to participate, but in practice it does not seem to present problems: there are some representatives of NGOs who routinely participate.
The Land Use Act (1994) provides broad participation rights. Article 18 regulates these rights in the planning process. First, the public must be informed (by announcement in the local press or in a way customarily used in the given locality) of the initiation of the planning process, and the public must be allowed to give recommendations. Then, the draft plan is prepared with consultation and displayed publicly together with the Environmental Impact Statement concerning likely impact of the proposal. There is 21-day public comment period.
The public must be informed (by announcement in the local press or in a way customarily used in the given locality) about the draft going on display at least seven days in advance, and the public has the right to submit reservations and suggestions. Submissions that are not accepted must be answered in writing and reasons for doing so explained. Local plans are approved as resolutions of local councils, and the public must be informed about it.
According to Article 101 of the Local Self-Government Act (1990), everyone whose legal interests or rights are impaired by a resolution of local authorities may challenge such a resolution at the administrative court (NSA). According to the new Act on NSA (1995), ECOs or anyone who has legal interest may challenge at NSA local acts issued by the voivodships.
In practice, the land use plan procedure - the only procedure which in a comprehensive way regulates public participation in lawmaking - works extremely well. Well-developed procedural participation rights (notice and comment) appear neither to produce abundant burden on the administration nor to make the procedure slower because of a "flow" of preposterous public interventions. The practice shows the number of reservations and suggestions is relatively small, they are well-reasoned, and abuses of procedural rights are extremely rare.
Local authorities seem to be the most open to contact with the public, perhaps because it is with this branch of government that the public most frequently interacts. Most NGOs have these contacts because they are involved in meetings of local government councils and commissions. More than half of the NGOs polled within the framework of the already mentioned "Project on Cooperation between the Environment Ministry and Ecological NGOs" estimated that during the past 12 months (July 1995 to July 1996) they were involved in consulting local government documents, while 20 percent of the NGOs served as consultants on a commercial basis. Also important is that the number of positive evaluations of the result of the cooperation with local authorities is almost twice the number of negative responses.
It appears the process of public consultations on the local level will become more common. For example, in Krakow there is the initiative of the Green Table, which was created by local ECOs and local authorities as a way to consult the public about local environmental policy in Krakow. Representatives of the City Executive Board, the District Councils and ECOs participate in it. This institution is still not ideal because both sides have learned how to use it for their benefit, but its role is constantly growing.
Some big cities (i.e. Gdynia and Wroclaw) have introduced programs of cooperation between the local government and NGOs, established mostly through resolutions adopted by the respective local authorities. The programs define tasks for the local authorities to support NGOs (offices, funds for ECOs and so on) and cooperation in various forms, including consultation on programs, laws and other activities. However, the programs do not always regulate sufficiently the rules concerning participation in the local policymaking process.
There always has been a formal legal requirement (currently Paragraph 9.2 of the Resolution of the Council of Ministers [1997] concerning the rules of procedure for the government) that if public consultations were carried out, due account must be given to public opinion and results of consultations must be presented in the justification for the proposal. There are no general fixed time frames for consultation, nor are there provisions for format or notification. Usually consultations are set up ad hoc according to the drafting works schedule. Because this schedule is usually tight, public comment and notice time are usually short. However, it often happens that consultations take place several times during drafting (i.e. consecutive drafts submitted for consultation).
A recent good example is the public notice on the website of the Environment Ministry encouraging the public to give suggestions for the new Ecological Policy to be adopted. Recent practice of notification is by announcement on the website, but most often there is an announcement in newspapers or journals and/or individual invitations for comment from NGOs on the list of those consulted. The list includes NGOs, people active in or critical to a given field and those who specifically indicate their willingness to be consulted.
Unlike local procedures, the national legal framework concerning participation in environmental decisionmaking is extremely complicated and full of gaps, inconsistencies and shortcomings. It comprises the general-purpose procedural provisions of the Administrative Procedure Code (APA) and of the NSA Act, combined with specific provisions of substantive legislation. The different pieces of legislation decide if and which of the general purpose procedural rules apply to particular situations. As a result, the legal possibilities of NGOs to participate are different in different environmental decisionmaking procedures.
Generally, procedural rights of NGOs, as with any other associations, are regulated by APA and the the NSA Act. APA regulates participation rights in administrative procedures while NSA Act regulates rights connected with judicial review of administrative action.
According to Article 31 of APA, civic associations have the following special procedural rights:
Civic associations may petition authorities to initiate proceedings concerning another party's rights or duties (Article 31/1/1) or to be allowed to participate in proceedings concerning another party's rights or duties if the civic association proves it is motivated by its statutory goals and public interest requires it (Article 31/1/2).
In case of refusal, a petitioner may not only lodge a complaint to the next higher authority but also may file a complaint to the administrative court (Article 16/1/2 of the NSA Act [1995]). If the petition is accepted, the association participates in the proceedings "with the party's rights" (Article 31 u 3), meaning the civic association has exactly the same procedural rights as the party itself, including the right to raise objections, the right to be heard, the right of access to all files concerning the case (excluding those protected as a state secret according to Article 74) and the right to make copies of the files. A party also has the right to initiate a review procedure at the next higher administrative authority.
Because associations first of all need to know about such proceedings to make use of the above-mentioned procedural right, Article 31 (Paragraph 4) states if the authority instituting proceedings recognizes that any association might be interested in participation and that the public interest requires this participation, this association should be informed about such proceedings.
Even a civic association that does not participate "with the party's rights" still has the right to submit an opinion concerning the case (Article 31/5).
Provisions concerning administrative hearing also play an important role in facilitating public participation in decisionmaking. As a rule, APA provides mainly for "cabinet" proceedings. A hearing is obligatory (Article 89) only if a specific provision of a substantive law explicitly requires it (i.e. the Water Law Act [1974] requires hearings in case of issuing water pollution permits or imposing respective non-compliance fines) or in any other case if a hearing would make proceedings shorter or simpler).
Article 90 requires authorities to invite the following parties to participate in the hearing: all parties involved (including affected third parties), witnesses and experts, and associations and individuals whose factual interests might be affected and whose participation is motivated by the subject of the case. According to Articles 91 and 92, those invited must be informed in writing at least seven days in advance about the time, place and subject matter of the hearing. If the authority has a reason to believe there are other parties likely to be affected in addition to those specifically invited, the information about the hearing should be publicly displayed.
Except for parties and associations acting as "participants with party's rights," the rights of other participants (i.e. the general public) are limited to providing statements and evidence. In particular, they do not have the right to challenge the final decision in the administrative court.
The New Act on the Supreme Administrative Court (NSA Act) of May 1995 seems to have extended significantly the powers of NSA and made it even easier to gain access to it. The NSA in certain cases is now entitled to adjudicate a case on merit. In addition to administrative decisions and resolutions (by-laws) of local authorities, NSA review is now applicable to all types of individual acts of public administration and to legal acts of provincial administration. In the case of resolutions (by-laws) of local authorities, a kind of class action is possible whereby a person can file a lawsuit on behalf of residents who authorized this person to do so. Associations now can file a lawsuit to the NSA without having participated in the administrative procedure "with the party's rights" but simply by showing that the case falls within its statutory goals. This opens new possibilities for NGOs in the courts. Often local environmental groups are established in response to an immediate threat (most often a proposal for an incineration or waste disposal site or a highway), but before they get organized formally it is too late to officially participate in the proceedings "with the party's rights." This eliminated the possibility to appeal the decision to the NSA under the old legislation. The new NSA Act removes this obstacle to public participation.
The general APA provisions concerning public participation apply to all types of environmental permits (i.e. water permit, air permit, waste permit, noise permit, etc., as well as development authorizations like planning permissions and construction consents). In the case of development consent authorizations requiring EIA, there are additional special public participation provisions.
Article 100 (Section 2) of the EPA 1980 requires public authorities to inform interested NGOs and local citizen organizations before issuing a planning permission (the first stage of the development authorization procedure) and construction consent (the second stage) relating to a development project requiring EIA (i.e. those listed in regulations implementing Annex I and Annex II of EIA Directive and Espoo Convention). The interested NGOs or citizen organizations may then, under Article 31 of KPA, demand to be allowed to participate in the proceedings as a "participant with the party's rights" or may limit themselves to give recommendations and raise objections. In the latter case, the authority is obliged to consider these recommendations and objections as well as to inform the associations about the way the recommendations and objections have been taken into account in the decision (EPA Article 100, Section 3 [1980]).
Compared with the general participation rights of associations provided by APA, these provisions considerably strengthen the participation rights of NGOs in relation to development control proceedings. Article 100 (Section 2) introduces a "categorical approach" to informing associations about pending proceedings. Ecological associations must be informed about location proceedings concerning projects which require EIA. In other words, authorities do not have discretion to decide if or which associations have to be informed — the law itself dictates all ecological associations from the given area. Moreover, those informed do not have to prove that public interest requires their participation in order to participate "with the party's rights" in the proceedings.
In practice, the above-mentioned procedural provisions of APA have not always been applied. The provisions regarding hearings are not widely observed unless substantive law requires a mandatory hearing. Authorities rarely call for a hearing in cases where it is justified by APA provision. For example, almost all planning permissions and construction consent requiring mandatory EIA concern controversial issues and therefore warrant a hearing, but rarely do such hearings take place.
Article 31/4 of APA concerning notification is rarely used in case of pollution permits because often authorities simply do not know which organizations they should inform. As a result, NGOs often learn about proceedings after a decision has been made and effectively lose their right to participate and forward their opinions during the decision process. Often this results in decisions that violate environmental regulations (i.e. non-compliance with a local land-use plan) and therefore are legally void. However, NGOs still have recourse in these cases because the new NSA Act does not make participation in the proceedings a pre-condition for challenging decisions in court. An NGO can challenge any decision or activity regardless of whether it participated in the original proceedings.
To avoid the above situations, the 1997 Amendment to EPA added a requirement that public authorities shall establish a list of NGOs which because of their statutory goals are willing to be notified about applications for planning permissions and construction consents requiring EIA (Article 100/5, in force since January 1, 1998).
Under the Referendum Act of 1995 (Article 5/1), a national referendum may be called by the sejm, the senate, the council of ministers or a group of 500,000 eligible voters. Any issue may be subject to referendum except that incomes of the state, national security and amnesty can not be subject to referendum initiated by a group of citizens. Referendum is decisive only if more than half of citizens with the right to vote take part in it (Article 9). This Referendum Act represents progress since 1995 in relation to the legal framework of referendum, but at the same time it abolished the Consultation and Referendum Act of 1987, which regulated the procedure of consultation. This has left some legal vacuum in this respect.
So far, there has been no national referendum on environmental issues.
Detailed rules concerning local referenda are provided for in the Local Self-Government Act (1990) and the Local Referendum Act (1991). Article 8 of the 1991 act grants the right to call a referendum to every resident, group of residents or association, provided the petition is supported and signed by 10 percent of the local residents with the right to vote (Article 13 of the 1990 Act). According to Article 14 of the 1991 Act, local authorities have 30 days to accept or refuse the petition. In cases where the petition is refused or not answered within that time, the petitioner has 14 days to file a claim to administrative court (Article 16 of the 1991 Act).
Local referenda are used quite often (there are several each year), and most often they concern environmental issues, mostly incineration plants or waste disposal schemes.
Most of these attempts have failed because of a high threshold limit: 30 percent of residents with the right to vote must participate to make the results of referendum valid. A few examples:
There are no privileged groups when it comes to referenda, and there are no cases in which a referendum must be called.
Right to Initiative
There is a constitutional right of initiative for lawmaking whereby a group of 100,000 eligible voters can present to the sejm a bill (draft law) with a justification estimating costs of its implementation (Article 118). The only example of formal initiative concerning environmental issues so far was in 1994, under the Act on Preparation of a New Constitution of 1992 (as amended in 1994). This act stipulates that if 500,000 citizens support submitting draft proposals for a new constitution, these proposals must be officially considered and addressed by the special Parliamentary Constitutional Commission. In 1994, environmental NGOs led an initiative to prepare ecological provisions for a new constitution, and they attempted to collect the 500,000 signatures necessary to make the constitutional commission consider these provisions. They failed to get the required number of signatures, but the goal was informally achieved because the commission not only considered but also approved most of the proposals throughout 1995 and 1996.
Novel also is the procedure of their nomination, which is more objective and less discretionary than before. Under the 1997 Amendment to EPA (1980), representatives of ecological NGOs are elected by the NGOs from a pool of candidates proposed by the NGOs. In practice, these provisions are duly observed, and elections of NGOs representatives according to the new rules took place in February.
The effectiveness of participation depends on the reputation of the NGO: some well-respected NGOs are quite effective. For example, the NGO Institute for Sustainable Development participated, among others, in the preparation of the 1997 Amendment to EPA (1980), and the institute's definition of "sustainable development" was adopted in this law.
With regard to lawmaking, as previously mentioned, the Consultation and Referendum Act of 1987, which provided a detailed legal framework for public comment and notice procedure, was abolished by the Referendum Act (1995). Since then, there has been a legal vacuum in this respect, but in practice the old procedures are still being followed. In fact, there has been progress even in using consultations. In certain matters, like land-use planning, there are separate procedures that provide for detailed requirements as to the public comment and notice.
Consultation is required by certain specific statutes, but this applies only in a limited range of issues (i.e. land-use plans as described below) or in only certain subjects (i.e. consultations with trade unions). In the case of legal acts related to nature protection and environmental protection, it is mandatory to hear the opinion of the State Nature Protection Council and State Environmental Protection Council, which both include NGO representatives.
In cases of concrete decisionmaking, the APA (1960) guarantees that comments of individuals/NGOs participating in administrative procedures are taken seriously into account. The participation is increasingly effective mostly due to the threat of challenging the final decision to the court. Limitation is both time and money, but the biggest limitation to public comment is the relatively short time frame for consultation.
In lawmaking, NGOs who are known to be interested in the issue are often notified. In administrative decisions, usually the parties with a legal interest and NGOs are notified.
There has been great progress in practice since 1995 on notification, too: in addition to the above-mentioned lists of NGOs that are notified individually, authorities now make announcements in newspapers more often.
| BOX 1: Cooperation Between the Environmental Ministry and Ecological NGOs |
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To assist implementation of the National Environmental Policy and of international obligations (including the Sofia Guidelines) in relation to access to information and public participation in environmental protection, the Environment Ministry in Poland, in cooperation with the Harvard Institute for International Development (HIID), commissioned the "Project on the Cooperation between the Ministry for the Environmental Protection, Natural Resources and Forestry (MEPNRF) and Ecological NGOs" in May 1996. A special Steering Committee was established to supervise the project. The Deputy Head of the Ecological Policy Department of MEPNRF acted as the chair of the committee, which included representatives of the MEPNRF, the National Environmental Fund (NFOGW), ecological NGOs and HIID. The group that won the tender for the project was a team of experts from the Polish Environmental Law Association (PELA), the Foundation for the Support of Ecological Initiatives from Krakow and the Miedzyuczelniane Lobby Ekologiczne from Lodz. The team was supported by MilieuKontakt Osteuropa and the Environmental Law Institute in Washington. The results of the project were published in a 220 page report in February 1997. The report comprises nine chapters, divided into two parts, and provides a comprehensive analysis of relationships between NGOs and environmental authorities. Part One presents relevant international documents and obligations of Poland (chapter 1), a description of the existing situation abroad (chapter 2) and in Poland (chapter 3), as well as conclusions (chapter 4). Part Two is devoted to the future. It contains elaborated proposals of the Project Team and a description of relevant legal and organizational changes independent from the project. Chapter 9 estimates likely costs of proposed changes. To facilitate comparisons, both parts follow the same pattern. The pattern reflects the assumption that the issue should be examined in three inter-related aspects: legal, organizational and financial, while the main areas of cooperation include access to information, participation in policymaking and lawmaking, participation in decisionmaking, and participation in enforcing the law. To define the form of contacts between ECOs and the state administration, an opinion poll and interviews were conducted with NGOs and governmental agency representatives, especially in the Ministry of Environmental Protection, Natural Resources and Forestry. Interviews were conducted with the directors of the Ecological Policy, Nature Protection, and Air and Soil Protection departments within the ministry. There were also interviews held with the representatives of the Legal Department, the Economy Department, Water, Forestry and the Section of Ecological Promotion and Information (SEPI) at the Ecological Policy Department, including the coordinator responsible for cooperation with NGOs. Other interviews were held with representatives of the National Environment Protection Fund, the State Inspectorate of Environment Protection (PIO) and with employees of the Ministries of Transport and Water Economy, of Industry and Trade, of Privatization, and of Housing. All the interviews were conducted by the same person. An opinion poll was carried out among NGOs. Because there are 700 diverse NGOs in Poland, it was only possible to survey a relative sample. The representative group for this survey contained 10 percent ecological NGOs. The survey was organized on the basis of a standard interview. The interview questionnaire's methods and substance were decided with the assistance of a sociologist who was responsible also for drawing conclusions on the questionnaire basis. Members of organizations grouped in the Polish Green Network were commissioned to hold the interviews according to the questionnaire. ECOs were selected to be part of the research according to geography and the field of their activity. The findings of the project were channeled into an Implementation Program adopted by the MEPNRF. The first immediate result was an updated version of NGOs database commissioned by the ministry to serve for consultation purposes, as well as in inducing progress in notification and consultation practices (i.e. development of websites, list of NGOs to be consulted, etc.).
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Whenever there is transparent process there is always a legal possibility to try to influence the decision. There are no privileged groups or individuals in this regard.
Openness of Parliamentary Committees
As mentioned above, sessions of parliament are legally bound to be open for observers. Parliamentary committees are usually also open, but this is subject to the discretionary decisions of the chairperson. NGOs usually are granted the same rights as experts and therefore can give written comments and speak.
The lobby facility is meant to represent the interests of ecological NGOs at parliament and at the government. Its tasks will include assisting NGOs in understanding policymaking and lawmaking processes and facilitating contacts with officials or MPs responsible for given issues or documents prepared.
The right to the environment set out in the old constitution was invoked in the courts but was too vague to be effective. The current constitution is too new to have much experience. Public participation rights set out in ordinary legislation are routinely used as the basis for lawsuits, mostly in administrative courts but also in civil courts.
There are no statistics available to say precisely how many environmental cases have been brought before the courts. However, it is estimated to be several hundred each year in administrative courts, a similar number in civil courts, up to 10 per year in the criminal courts (not including the thousands of cases tried at the magistrates for petty offenses), and about one per year before the constitutional court and supreme court.
Most of the administrative cases are brought by polluters, while civil cases are mostly neighborhood disputes. As far as genuine public interest cases are concerned (i.e. brought by ecological NGOs), there are about 100 each year in the administrative courts and up to 10 in the civil courts. About half are successful. The number of environmental cases has been increasing, and so has the number of public interest cases.
| TABLE 1: Administrative Standing | ||
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| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | x | x |
NGOs |
||
| everyone | x1 | - |
| interested/affected | x | x |
| 1. Ecological NGOs who have environmental protection as a statutory goal can gain standing | ||
The statutory time limit for administrative appeal is 14 days and for judicial appeal the limit is one month. Information usually is provided within statutory time limits. Other environmental administrative appeals take longer because NGOs tend to use all procedural means. For example, the procedure for authorizing an incineration plant in Warsaw has been going on for about five years already.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | x | x | x | - | x |
NGOs |
|||||
| everyone | x1 | - | - | - | - |
| interested/affected | x | x | x2 | - | x |
|
1. Ecological NGOs who have environmental protection as a statutory goal can gain standing 2. Only a few NGOs are individually listed to have such rights. |
|||||
Under Article 100/1 of EPA (1980), in conjunction with Article 31 of the APA, ecological NGOs have the right to make sure enforcement actions are carried out by the proper authorities. Ecological associations not only have the right to sue polluters in civil courts, but also the right to demand that agencies use their powers to make sure the environment is not harmed. This general right covers different situations (i.e. the demand for imposing certain conditions on polluters under Article 82 of the EPA), but first of all it is the right to institute enforcement proceedings leading to administrative sanctions. Administrative sanctions, as compared with criminal or civil sanctions, are the most commonly used means of enforcement of environmental laws. There are two forms of administrative sanctions:
The law provides six categories of fines imposed respectively in the case of:
The administrative sanctions may be treated as an equivalent to criminal liability of legal persons because they do not apply to individuals. The sanctions are imposed by the State Environmental Inspectorate according to the procedural rules of the general administrative procedure provided in APA. If an agency fails to institute proceedings, an association may sue it in the administrative court. Also, a final decision may be challenged at the administrative court if an association is not satisfied with the imposed sanctions. The administrative court may uphold a decision, annul the decision or rule it invalid. In the case of annulment, an agency must make a new decision. In practice this rarely happens because the Inspectorate (PIOS) is usually quite willing to enforce regulations.
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x | x | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x1 | - | - |
| 1 Only a few NGOs are individually listed to have such rights. | |||||
Administrative and constitutional courts are established exclusively for challenging the government and not to challenge other private bodies. Therefore only civil and criminal courts apply. In these cases, individuals must show they are affected to gain standing. NGOs who are interested because of their statutory goals can also gain standing in civil courts. Only a few NGOs are individually listed to have such rights in criminal courts.
The Petty Offenses Procedure Code (1971) authorizes some associations, including ecological groups (i.e. the Nature Protection Guard and the Animals Protection Association), to act as public prosecutor in these proceedings. The procedure is modeled on the criminal court procedure. The associations have all the rights of a public prosecutor, including the right to appeal to the criminal court. The fines for petty offenses may also be imposed in ticket procedure by the police or some other governmental officers (i.e. officers of the national park service or forest service). Here again, but only in relation to petty offenses concerning nature conservation, authorized members of some ecological associations have the right to impose fines in ticket procedure.
In 1992, there were 113,800 association interventions; in 7,468 of them fines were issued in ticket procedure, and in 650 proceedings the organizations appeared at the above-mentioned quasi-judicial bodies as public prosecutors. The activity of the Nature Protection Guard is approved of by the Nature Protection Department of MEPNRF, which considers this an inexpensive and effective form of activity. Sometimes, but only rarely, the Nature Protection Guard's performance is defined as "over-activity."
However, if the case is an EIA case involving a developer against the state and it involves commercial lawyers and experts, then costs may easily reach 20 times the average monthly salary.
As for recovering costs, in administrative courts there is a rule that a public authority may be ordered to pay the other party's costs, but the public authorities are usually not entitled to have their costs recovered.
In civil courts, the court fees for most environmental cases (like injunctions) are fixed and rather low; also about 10 percent of the average monthly salary. In cases involving compensation, the court fee depends on the amount at stake.
In addition to PELA, public interest lawyers are affiliated with the following NGOs:
Other mechanisms to provide expert advice for public participation are listed below.
The supervision of the offices was to be exercised by the Board of Directors BORE elected at the ecological movement meeting in Brwinow. However, it collapsed in 1992 and since then it consisted mainly of the members of the Polish Green Net. At present BORE does not adequately fulfill most of its goals. This results partly from the lack of financial resources for stable activity and partly from the lack of a clear program (the BORE staff deal with a typical activity for NGOs). It is now a member of the Polish Green Net as an office for the Warsaw region with a wider competence.
Research conducted in the latter part of 1995 by the Interacademic Ecological Lobby showed the need to create such an institution in Poland.
After a meeting in June 1996 in Warsaw, a group was established to set up such an office.
The national KCEE ceased to exist in 1994. At present there are about 20 active local centers. Each of them conducts its own activity based on its character. Once again, the initiative acquires a new identity. It seems that after the necessary changes the network of regional centers for ecological education as a structure will always support the process of ecological education in Poland.
Both computers and technical staff will be employed to establish the network. The coordinators also plan to organize special training sessions and computer programming configuration. Information available in MOST will include a calendar of ecological meetings and information on existing law concerning environmental protection. One of the important issues is Skrzynka Sugestii Uzytkownika (the Users' Proposal Box). The information available in the network will depend on the user needs and suggestions.
There are also a number of institutions supporting the entire sector of nongovernmental organizations in Poland.
