Poland: Energy Legal Alert
Energy Legal Alert / March 2013
The work on the so-called “small tri-pack” proceeds
According to the information provided by the Ministry of Economy, the Council of Ministers meeting that took place on 26 March 2013 discussed MPs’ draft amendment to the “Energy Law” Act, popularly known as “small tripack”, the goal of which is to accelerate adjustment of the domestic laws to the EU laws. The “small tripack” is aimed at implementing directives of the European Parliament and of the Council regarding Directive number 2009/72/EC concerning common rules for the internal market in electricity, number 2009/73/EC concerning common rules for the internal market in natural gas and number 2009/28/EC on the promotion of the use of energy from renewable sources. According to the information published at the website of the Ministry of Economy, the Council of Ministers issued a positive opinion on the draft “small tripack”, but they will adopt a common position at the meeting scheduled to take place after Easter. After the Council of Ministers issues a common position on the matter, it will be forwarded to the parliamentary commission of economy, which will continue the work on the draft.
Who may be a party to a procedure for issuance of an environmental decision?
As there is no legal decision regarding the “scope of impact” of a project on the environment, the catalogue of entities that may be a party to the procedure for issuance of an environmental decision becomes increasingly more extensive. If an entity claims to be within the scope of impact of a project on the environment and submits an application for admission to the procedure, the administration body conducting the procedure is obliged to examine the application and potentially admit the applicant to the pending procedure as a party. In the latest judgment of the Voivodship Administrative Court in Poznań dated 06 February 2013 (IV Sa/Po 330/12), the Court resolved this disputable matter and found that a person claiming that the 1st instance authority refused to admit it as a party to a procedure where the decision appealed against regards its legal interest may be awarded the status of a party.
According to the established line of judicial decisions, a status of a party to the procedure for issuance of an environmental decision is generally available to an entity having a title to a property situated in the immediate neighbourhood of a planned project as well as to any other entity if its property is situated within the scope of impact of a planned project, which means that the fact of potential impact of a project on the property alone may be sufficient to award a status of a party to the procedure. The administration body conducting the procedure should take into account the assessment of various threats (such as noise emissions, air pollution) which, due to their specificity, may not be retained within the boundaries of plots immediately neighbouring on the property where a project will be implemented.
However, it must be borne in mind that a greater number of entities having the status of a party does not automatically determine the nature of the decision issued in the procedure. The status of a party to a procedure only enables the entity to participate in the procedure on equal terms and to influence the decision within the confines of the entity’s legal interest, which should be protected at least equally as that of the investor.
Energy Regulatory Office (URE) published an interactive map of Poland with RES facilities
The Energy Regulatory Office published at its website an interactive map of Renewable Energy Sources. The map enables a comparison of the capacities installed by provinces and types of Renewable Energy Sources. The project was implemented within Project No. 2006/018-180.02.04.04: Development and distribution of tools and legislative procedures used for RES sector and electric energy generated in Cogeneration within the Transition Facility 2006/018-180.02.04 project. The RES map enables to compare national, provincial and county data.
According to the data provided on the RES map, 696 wind power plants with a capacity of 2496.748 MW have been already instead in Poland. Most wind power plants are situated in Kujawsko-Pomorskie Province – 210 wind power plants with an installed capacity of 281.884 MW, and the fewest – 5 wind power plants with the lowed installed capacity of 2.150 MW – are situated in Lubelskie province.
The RES map may be found at http://www.ure.gov.pl/uremapoze/mapa.html
Environmental requirements for photovoltaic panels
Under the current law, it is not clear whether construction of photovoltaic panels requires an environmental impact assessment (“EIA”) to be carried out. In practice, some entrepreneurs carry out an EIA and some do not. According to the law, an EIA is required for projects that may always have a significant environmental impact and for projects that may have a potential significant environmental impact, if the EIA requirement is imposed by an authority obliged to issue a decision on environmental conditions. Photovoltaic panels are not directly mentioned in the Regulation on projects that may have a significant environmental impact as facilities that may always have or may have a potential significant environmental impact, which require an EIA procedure. Facilities for which such procedure is required are enumerated in the Regulation.
According to the position presented by the General Directorate for Environmental Protection (GDOŚ), photovoltaic panels should be included in the so-called industrial facilities, which are classified as projects that may have a potential significant environmental impact. In such case, the authority in charge of issuing decisions on environmental conditions may impose an obligation to carry out the environmental impact assessment. However, the position of GDOŚ is not binding.
A photovoltaic farm will be classified as a project that may have a potential significant environmental impact as an area of industrial facilities if it is situated on a specific surface area specified by law. For projects situated in areas subject to various environmental protection forms, this will be 0.5 ha. For any other areas, a photovoltaic farm will be classified as a project that may have a potential significant environmental impact if situated on a surface area of at least 1 ha. The built-up surface area includes both, the area occupied by structures and the remaining area to be transformed as a result of alteration.
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