The Interests of Local Communities in the Transboundary Dimension: Considerations on the Dispute Regarding the Turów Lignite Mine

The dispute regarding the PGE Turów lignite mine, which ended with the signature of an agreement between Poland and the Czech Republic, is the best example of the turbulent energy and climate transformation process on our continent, the course of which demonstrated numerous rationalisations and conflicts of interest arising between players at European, national, regional, local and, finally, civil levels. In the first place, this dispute should be considered from the point of view of bilateral, good-neighbourly relations with our southern neighbour, and of national energy security, not forgetting the European perspective. After all, it was the applicability of the EU legal regulations, the ordering of interim measures in the proceedings before the Court of Justice of the EU, and the real prospect of an unfavourable ruling that incited Poland to take active steps to bring the dispute to a fast conclusion. The view taken of the discourse often obscures the perspective of the interests of the local communities located in the immediate vicinity of the mine, which, after all, are the areas that are first and most severely affected by the decisions made at central level. This, in turn, once again makes it clear that the interest of the local community is pursued to an extent that extends far beyond the geographic boundaries of the given municipality, region or country. In the case in question, the local interest also applies to universal issues of humanity, such as climate protection, as well as guarantees of energy security. The Turów case is noteworthy because of its geographical location and traditions of international local government cooperation pursued at the point of interconnect of three countries, which in turn requires that the transboundary dimension of the local community’s interest is taken into consideration. Without ruling out the convergence, separateness and opposing interests of the local communities located in close geographic proximity and at the point of interconnect of the three borders, in each case, the same interest requires the search for ways of conducting a dialogue and agreement in the pursuit of the common good. The objective of these considerations is to look for the answer to the question of whether the current legal regulations contain adequate mechanisms to enable the realisation of the interests of local communities in the transboundary dimension. The background to the considerations of the research objective will be an analysis of the land use planning procedures in connection with the planned expansion of the area of the open cast Turów lignite mine.

II.

The interests of local communities and their transboundary dimension

The literature on the subject distinguishes between national interest and local interest; according to Polish law, the latter arises from the Act on Municipal Government,

The Act on Municipal Government, Journal of Laws of 2022, item 559 as amended – hereinafter referred to as AMG.

according to which municipal matters are of a public nature and of local significance (Articles 6 and 7). The interpretation of these provisions unambiguously indicates that the legislator accepts that the existence of a local interest is separate from the national interest.

Jerzy Regulski, Michał Kulesza (eds), Droga do samorządu. Od pierwszych koncepcji do inicjatywy Senatu 1981–1989 (Wolters Kluwer 2009) 72 et seq.

Simultaneously, there is a consensus in the legal doctrine that the two categories of local and national interest should not be compared on a hierarchical principle, but in order to identify their separate scope regarding subject matter and entities.

Lech Żukowski, ‘Wspólnota samorządowa a źródła prawa samorządu terytorialnego – problemy wybrane’ in Bogdan Dolnicki (ed), Źródła prawa w samorządzie terytorialnym (Wolters Kluwer 2017) 832 et seq.

This approach is best suited to an interpretation of local interest from the point of view of the statutory tasks of the local government unit and the competences of its governing bodies, although specific and separate solutions in this respect are observed in practically every European country.

Probably the most far-reaching interpretation applies in France, where the municipality’s interest is determined on a case-by-case basis depending on the specificities of local needs, cf. Jacques Ferstenbert, François Priet, Paule Quilichini, Droit des collectivités territoriales (Dalloz 2016) 254 – quoted from: Monika Augustyniak, Partycypacja społeczna w samorządzie terytorialnym w Polsce i we Francji. Studium administracyjnoprawne na tle porównawczym (Wolters Kluwer 2017) 118. Germany has a certain degree of freedom of interpretation because of the existence of autonomy with regard to the creation of new tasks and functions (Funktionenerfindungsrecht), cf. Matthias von Schwanenflügel, ‘Neues Verständnis kommunaler Örtlichkeit: Kommunale Selbstverwaltung im Lichte der Bürgergesellschaft’ (2005) 38(3) Kritische Justiz 314–322.

Attention should be drawn to the fact that the interest of the local community interpreted in the context of the statutory tasks of the municipality may be somewhat problematic if the transboundary dimension is taken into consideration. This is because the Polish legislator has not only stipulated that local and regional government units have the constitutional right to join international associations of local and regional communities and to cooperate with local and regional communities of other states (Article 172, para. 2 of the Polish Constitution

Constitution of the Republic of Poland of 2 April 1997, Journal of Laws no. 78, item 483 as amended.

), but the legislator also qualified such cooperation as the municipality’s own task. In addition to matters of spatial order, municipal roads, water supply and sewage systems, as well as local public transport, the example list of a municipality’s own tasks specified in Article 7, para. 1 AMG also includes cooperation with local and regional communities of other states. While interpreting local interest from the point of view of the tasks listed in Article 7, para. 1 AMG, it should be acknowledged that one form of local interest will be cooperation with the local and regional communities of other countries. When analysing this provision exclusively on the basis of the linguistic interpretation, it seems inevitable that is should be treated as cooperation across state borders as an intrinsic task of the municipality, as a state of affairs to be maintained or achieved, whereby the traditional meaning of a task (objective) is referred to the category of value (a state of affairs fulfilling some value).

Magdalena Tabernacka, ‘Konstrukcja prawna zadania publicznego’ in Adam Błaś, Konrad Nowacki (eds), Współczesne europejskie problemy prawa administracyjnego i administracji publicznej. W 35. rocznicę utworzenia Instytutu Nauk Administracyjnych Uniwersytetu Wrocławskiego (Wydawnictwo Uniwersytetu Wrocławskiego 2005) 409 et seq.

In the light of such an interpretation, the—one way or another inevitable—appearance of divergent local interests between municipalities cooperating across borders appears problematic.

Therefore, the systemic interpretation needs to be applied, taking into account the wording of Article 172, para. 2 of the Polish Constitution, which provides for the ‘right’ of local and regional government units to cooperate with local and regional communities of other countries. Then, cross-border cooperation is one of the factors determining the legal structure of the independence of local government units. Just as in the case of other rights of local government units contained in the Constitution, the right to cooperate with local and regional communities of other countries was also laid down in order to realise the basic function of local government, which is the performance of public tasks (Article 163 of the Polish Constitution). Therefore, the systemic and purposive interpretation requires transboundary cooperation to be treated as an instrument or a means of realising this appropriate interest, namely satisfying the collective needs of the local community.

For more on this see Renata Kusiak-Winter, Współpraca transgraniczna gmin Polski i Niemiec. Studium administracyjnoprawne (E-Wydawnictwo. Prawnicza i Ekonomiczna Biblioteka Cyfrowa. Wydział Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskiego 2011) 132–135.

Anticipating somewhat the considerations about the dispute regarding the Turów mine, it should be emphasised that, in this case, local interest should be viewed in the context of the comprehensive challenges of the current times of an environmental (climatic) or economic and social nature, which often require diverse actions to be taken on many levels of the administration of public space. In this sense, in terms of type, the subject of local government administration does not differ from the subject matter of state administration,

As Tadeusz Bigo states: ‘the subject matter of local government administration does not differ from that of central government administration; from this point of view, local government administration cannot be compared with state administration, because local government is only a different organizational form of state administration’, see Tadeusz Bigo, Związki publiczno-prawne w świetle ustawodawstwa polskiego (Wydawnictwo Kasy im. Mianowskiego 1927) 140.

while the realisation of local interest is interdependent on the activities of other public entities targeted at realising national, European or global objectives.

A method of interpreting the interest of the local community that acknowledges the interdependence of the objectives and functions pursued at various levels of administration should therefore be admitted. The adoption of various declarations, resolutions, positions or appeals by local authorities,

In this sense, see the case law of the Supreme Administrative Court, according to which ‘the legislator has not prohibited the governing bodies of local government from presenting a declaration or an appeal. (…) In practice, the governing body also makes appeals, presents motions, resolutions and positions, etc. Such appeals or declarations fall within the centuries-old tradition of the right of petition. A declaration or appeal does not have to apply exclusively to public matters which are reserved by statute for the municipality – in contrast to the authoritative actions, which must be based on norms of substantive law’, see the ruling of the Supreme Administrative Court of 25/05/2017, I OSK 297/17, LEX no. 2442347.

the nature of which refers to the centuries-old tradition of the right of petition and are therefore a special way of articulating local interest, is an example of activities that are closely related to the tasks of the municipality, albeit sometimes extending beyond their statutory scope. The condition of admissibility of such resolutions is the lack of the element of authority in them, which means that they should not in any way limit, restrict or increase an individual’s personal rights, which are guaranteed in other sources of the generally applicable law.

An illustration of these cases is, for example, the adoption of so-called anti-LGBT resolutions, the subject matter of which extends beyond the scope of competence awarded by statute. For more on this subject, see Maciej Hadel, ‘Problematyka aksjologicznego nadużycia kompetencji w kontekście tzw. uchwał ‘anty-LGBT’. Rozważania na kanwie aktualnego orzecznictwa sądów administracyjnych’ [The issue of the axiological abuse of powers in the context of the so-called ‘anti-LGBT’ resolutions. Considerations based on the current case-law of the administrative courts] (2020) 12 Samorząd Terytorialny 7 et seq. and the judgments cited therein.

In transboundary terms, an example that can be distinguished is the joint open appeal of mayors of Polish and German towns and presidents of Euroregions in the Polish-German border area to Poland’s and Germany’s central and federal authorities, adopted on the 30th anniversary of the signature of the Treaty between the Republic of Poland and the Federal Republic of Germany on good neighbourliness and friendly cooperation, signed in Bonn on 17 June 1991.

Journal of Laws of 1992, No. 14, item 56.

In it, the signatories expressed their concern about the situation on the border in connection with the outbreak of the Covid pandemic and appealed that, in future, despite crisis situations, the central authorities should enable continuity of cooperation in healthcare, crisis management and communication—for the good of the residents of the border areas.

A bilingual (Polish/German) version of the appeal is available at: <https://www.kooperation-ohne-grenzen.de/wp-content/uploads/2021/08/CDR_Apel-PL_final.pdf> accessed on 12 February 2023.

In the light of this initiative, it should be argued that the interests of local communities viewed in a transboundary dimension can and even should be articulated with account taken of a broader perspective than the statutory scope of tasks and competences of local authorities according to the current challenges of modern times, the effects of which are especially felt at the point of interconnect of national borders. Therefore, the further considerations will attempt to answer the question of whether, in the light of the dispute regarding the Turów mine, local transboundary initiatives have been taken up that emphasise the will to maintain good neighbourly relations, despite the emergence of a line of conflict at the central level.

III.

The dispute regarding the Turów mine from the point of view of municipal land use planning and the environmental impact assessment procedure

Interest of local communities

As mentioned in the introduction, most of the discussions on the dispute regarding the Turów mine are handled from a European perspective, a national perspective, or in the context of good neighbourly relations with the Czech Republic. However, less attention is paid to the local perspective, namely, the communities living in the immediate vicinity of the Turów mine and power station. However, it is worth remembering that it is the voice of the inhabitants of the nearby Czech villages regarding the problems of the falling levels of groundwater, as well as the stability of the geological subsoil and air pollution from the mine, that is the primary and fundamental subject of the dispute. Two opposing positions are therefore emerging in this light. While the interests of local communities in the Czech Republic have been interpreted with particular attention paid to environmental issues,

For more on this subject, see, inter alia, Petycja w sprawie ochrony źródeł wody pitnej na czesko-polsko-niemieckim pograniczu <https://eko-unia.org.pl/petycje/imgturysta/files/2/stopturow.pdf> accessed on 11 January 2023.

the Polish local government units have made economic interests, especially the need to maintain jobs at the nearby mine, a priority. This method of interpreting local interest in Poland clearly arises from the analysis of older and more recent strategic documents adopted by the authorities of the Municipality of Bogatynia,

See, for example, Development Strategy of the Municipality of Bogatynia for 2014–2020 attached as an appendix to resolution no. XCV/11/14 of the Bogatynia Town Council of 30 October 2014 and Draft Development Strategy of the Municipality of Bogatynia for 2021–2027 attached as appendix 1 to resolution no. L/333/20 of the Bogatynia Town Council of 30 December 2020 on the start of the preparation of the Development Strategy for Municipality of Bogatynia for 2021–2027 and on the detailed procedure and schedule of preparation of the draft development strategy of the municipality, including the consultations procedure referred to in Article 6 para. 3 of the Act on the Principles of Pursuing the Development Policy of 6 December 2006.

and is also indicated by the joint initiatives of Polish municipalities taken up to maintain the Turów mine.

See, e.g., Petition of the heads of counties and mayors of municipalities of the Zgorzelec, Bolesławiec and Lubańska areas of 28/05/2020 addressed to the President of the European Commission Ursula von der Leyen against the closure of the Turów mine and power station in Bogatynia, see: http://zawidow.eu/wp-content/uploads/2020/05/List-do-Komisji-Europejskiej-1.pdf [accessed on: 12/01/2022]. The local government representatives who signed the petition expressed ‘concern about the actions of our Czech neighbours intended to bring about the closure of the Turów mining and energy complex’.

In view of the earlier arrangements, according to which transboundary cooperation should be treated as an instrument for pursuing local interests, it is worth asking why the dispute was not resolved at its very source, namely, at the local level, taking advantage of the experience and proven mechanisms of longterm transboundary cooperation. In view of the location of the mine within the Municipality of Bogatynia, a fundamental role should be attributed to this municipality’s planning authority, which decides on the intended purpose of the land with a guarantee for all interested parties to be able to participate in the planning process. The question is reasonable because Bogatynia is not only a member of Euroregion Neisse–Nisa–Nysa, but has also been cooperating for years within the so-called Small Triangle, namely the Union of Towns of the ‘Small triangle near Hradek nad Nisou, Bogatynia and Zittau’. According to the agreement, the Union of Towns was established indefinitely and its main objective was specified as the representation of transboundary common interests, whereby the most important objective is to develop mutual relations between the citizens of the three towns and to gain benefits from economic contacts and the development of infrastructure.

See Article 4(1) of the contract of the Union of Towns ‘Small triangle near Hradek nad Nisou, Bogatynia and Zittau’ attached to resolution XXXXIX/288/2001 of the Bogatynia Municipal and Town Council of 11 September 2001 on starting to jointly form the Union of Towns ‘Small triangle near Hradek nad Nisou, Bogatynia and Zittau’ <http://test.bogatynia.pl/wp-content/uploads/2021/04/3.-Uchwala-nr-XXXIX_288_2001-w-spr.-przystapienia-do-wspoltworzenia-Zwiazku-Miast.pdf> accessed on 13 February 2023.

It is symptomatic that the objective of the cooperation involving the representation of common interests forms a typical and recurring element of the content of the town twinning contracts.

For more on this see Renata Kusiak-Winter, Umowy miast partnerskich in Jan Boć, Ludmiła Dziewięcka-Bokun (eds), Umowy w administracji (Kolonia Limited 2008) 327–334.

It therefore seems more than desirable to seek dialogue and constructive solutions to conflicts which arise, even in the face of the diverging interests of the municipalities on both sides of the border.

The neighbouring Czech municipalities have been indicating problems with the Turów mine for years, referring to the negative impact on the drainage of drinking water uptakes constituting a threat to the stability of the geological substructure, as well as increased air pollution, which was confirmed by independent expert studies.

See current studies on this: Wolfgang Junkermann, Jorg M. Hacker, ‘Ultrafine Particles in the Lower Troposphere: Major Sources, Invisible Plumes, and Meteorological Transport Processes’ (2018) 99(12) Bulletin of the American Meteorological Society 2587–2602; Zbigniew Karaczun, Andrzej Kassenberg, Analiza wpływu rozbudowy kopalni i elektrowni w Turowie na polskie zobowiązania w zakresie ochrony klimatu (Warszawa 2020) passim.

However, it was only the planned expansion of the land of the open cast Turów lignite mine that created the opportunity to articulate these interests in the planning procedure.

Amendment of the local land use plan

After the Bogatynia Town Council adopted the relevant resolution of 26 February 2016 on the preparation of the amendment to the land use plan of the Town and Municipality of Bogatynia—the area of the open cast Turów lignite mine in the region of Opolno–Zdrój,

See Resolution XXIX/209/16 of 26 February 2016 on the start of the preparation of the amendment to the local land use plan of the Town and Municipality of Bogatynia – the area of the open cast Turów lignite mine in the region of Opolno–Zdrój <http://bip.bogatynia.pl/?a=8399> accessed on 12 January 2023.

a call was made to submit applications to change this plan in the procedure of Article 17, para. 1 of the Act on spatial planning and development of 27 March 2003

Journal of Laws of 2022, item 503.

(hereinafter referred to as ASPD) and in the procedure of Article 39, para. 1, items 1, 3 and 4 of the Act on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments of 3 October 2008

Journal of Laws of 2021, item 2373, as amended.

(hereinafter referred to as ‘AEIA’). Furthermore, with respect to, inter alia, local land use plans or their amendments, the implementation of which can result in a significant environmental impact, the AEIA stipulates that a so-called strategic environmental impact assessment (Article 46, para. 1, item 1 and Article 50), hereinafter referred to as ‘strategic EIA’ must be prepared. A forecast of the environmental impact is prepared within the strategic EIA, an obligatory element of which is the inclusion of information on the possible transboundary environmental impact (Article 51, para. 2, item d AEIA).

The interpretation of these provisions indicates that the legislator provides for two separate and obligatory modes of participation, one based on the Public Procurement Law (PPL) and the other based on the AEIA. However, only the provisions of the latter of these Acts envisage a special procedure regarding the transboundary impact originating in Poland in the case of land use plans (Article 113 in connection with Article 46, para. 1, item 1 AEIA). Therefore, the question should be asked about the possibility of foreign municipalities taking part in such a procedure. In this respect, the AEIA envisages the involvement of the ‘state’ as a participant in the procedure, which could suggest the adoption by the legislator of a large-scale perspective, which does not differentiate between representation of national interest and representation of local interest in pending proceedings. However, Article 114 in fine AEIA directly stipulates ‘the need to ensure that the competent authorities and the public of this State are able to take part in the proceedings’. Therefore, it should be accepted that a foreign municipality will be able to participate through the involvement of a ‘competent authority’ representing the specific interests of the local community.

In the case in question, namely the planned amendment to the land use plan of the Town and Municipality of Bogatynia—the area of the open cast Turów lignite mine in the region of Opolno–Zdrój—it is the mayor, as the body preparing the draft,

According to Article 30, para. 2, item 1 of the Act on Municipal Government of 8 March 1990 (Journal of Laws of 2022, item 559, as amended), the mayor is the authority that prepares draft resolutions of the municipal council.

who also conducts the strategic environmental impact assessment (Article 46, para. 1, item 1 AEIA) and holds consultations through the General Director of Environmental Protection with the Czech party (Article 115, para. 1 AEIA). Pursuant to Article 115, para. 1 in fine AEIA, the consultations are about the measures for eliminating or reducing the transboundary environmental impacts.

Czech participation in the procedure on the amendment of the land use plan

As for the procedure regarding the transboundary environmental impact, Germany did not express its intention to participate, while the Czech Republic reported its participation by explicitly invoking the provisions of Article 7 of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment.

See Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, Official Journal of the EU L 26/1.

The fact that regional (Liberecký kraj) and local authorities, namely the two municipalities of Heřmanice and Kunratice, also submitted their comments, in addition to numerous central and local government authorities of the Czech Republic (e.g. the minister responsible for the environment, the Czech geological services, the local mining authority), is extremely important to the further considerations.

Cited in: Summary of the strategic environmental impact assessment of the draft amendment to the land use plan of the Town and Municipality of Bogatynia – the area of the open cast Turów lignite mine in the region of Opolno–Zdrój, 7 et seq, attached as an appendix to resolution no. XIII/83/19 of the Bogatynia Town Council of 28 May 2019 on the adoption of the amendment to the land use plan of the Town and Municipality of Bogatynia – the area of the open cast Turów lignite mine in the region of Opolno–Zdrój, Official Journal of the Lower Silesian Voivodship 2019, item 3649.

In their comments, the local authorities highlighted the threat of a total loss of sources of drinking water, the threat of a landslide, and the instability of the rock bed on the side edges of the mine, as well as the noise, increased ignition, the movement of heaps of coal, the creation of new heaps and a change in the landscape.

Summary (n 24) 63.

It should be stated that the comments formulated by the above local authorities of the Czech Republic are fully consistent with the comments and demands formulated by the central and local government authorities of the Czech Republic, as well as the regional government administration (Liberecký kraj).

Summary (n 24) 54–64.

In this sense, the subject matter of the interests of the local communities, as well as the regional and national interests of the Czech Republic, is identical.

The documentation on the consultation procedure indicates that its most important part was the exchange of positions, which were presented in writing and communicated through the General Directorate for Environmental Protection. One meeting of the Polish-Czech working party on environmental impact assessments was held at that time. During the consultations, the Czech Republic repeatedly emphasised that it disagreed with Poland’s position on the pending procedure and demanded that all the comments it had sent were to be accepted. The Czech position was particularly emphatically stated in para. 10.1 of the documentation, which reads: ‘the Czech Republic does not agree with the ending of the transboundary consultations’.

Summary (n 24) 64.

In these circumstances, it is surprising that the proceedings were completed in early 2019 with the statement that the Czech Republic ‘did not raise any further reservations’ and that its participation in the transboundary consultations had therefore ended.

Summary (n 24) 10.

The closure of the transboundary consultations at this stage is in conflict with the provisions of international law,

See Article 11(1) of the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, prepared in Kiev on 21 May 2003, Journal of Laws of 2011, no. 180, item 1074.

EU law,

See Article 8 of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197, 21.7.2001, p. 30), commonly referred to as the ‘Strategic Environmental Assessment (SEA) Directive’.

as well as Polish law (Article 116 AEIA), which provides that the document referred to in Article 46 or Article 47, para. 1 (in this case, it is the adoption of the amendment to the land use plan) should not be accepted before the end of the proceedings on the transboundary environmental impact.

As a result of the acceptance of the assumption regarding the completion of the transboundary environmental impact proceedings, in a resolution of 28 May 2019, the Bogatynia Town Council accepted the amendment to the land use plan of the Town and Municipality of Bogatynia: the area of the open cast Turów lignite mine in the region of Opolno–Zdrój.

Resolution no. XIII/83/19 of the Bogatynia Town Council of 28 May 2019 on the adoption of the amendment to the land use plan for the town and municipality of Bogatynia – the area of the open cast Turów lignite mine in the region of Opolno–Zdrój, Official Journal of the Lower Silesian Voivodship, item 3649 of 07/06/2019.

It is worth noting that the Czech Municipality G. (H.) subsequently filed an appeal against the adopted resolution with the administrative court. Municipality G. indicated in the appeal that its legal interest had been breached in the resolution that was adopted on the basis of Article 101 of the Act on Municipal Government. While dismissing the appeal, the Voivodship Administrative Court pointed out that Municipality G. does not have the legal capacity to contest the resolution because it has not demonstrated a breach of a provision of substantive law that would qualify as the basis for an effective appeal against a resolution on the amendment of the land use plan.

See Decision of the Voivodship Administrative Court in Wrocław of 20 July 2020, case ref. II SA/Wr 101/20 dismissing the appeal in the case filed by Municipality G. against the resolution of the Town Council in Bogatynia of 28 May 2019 no. XIII/83/19 regarding the adoption of the amendment to the land use plan for the town and municipality of Bogatynia – area of the open cast Turów lignite mine in the region of Opolno–Zdrój.

According to the first-instance court, merely having an ownership right is insufficient for an effective action to be brought, while the applicant had not proved beyond doubt that the implementation of the provisions of the plan will prevent or restrict the possibility of developing property not encompassed by the plan in its current form. While dismissing the cassation appeal filed by the Czech Municipality G., the Supreme Administrative Court upheld the arguments cited by the first-instance court, and furthermore pointed out that ‘guarantees for the defence of the applicant’s legal interest are provided by the provisions of Section VI. Transboundary environmental impact proceedings contained in the Act on the provision of information and the protection of the environment, public participation in environmental protection, and environmental impact assessments of 3 October 2008.’

See order of the Supreme Administrative Court of 27 November 2020 ref. I OSK 2739/20.

Similarly, the court took the view that the protection of the interests of a foreign municipality, even one located in the immediate vicinity, can be effectively pursued in the procedure of the AEIA and not the Act on Planning and Spatial Development.

Application to the Court of Justice of the EU and the conclusion of a bilateral agreement

The adoption of the amendment to the land use plan in 2019 became the basis for the authorities of the Turów mine to apply to the minister responsible for environmental protection for the extension of the concession for mining lignite until 2026.

The minister responsible for the environment grants the concession on the basis of Article 22, para. 1, item 1 of the Geological and Mining Law of 9 June 2011, Journal of Laws of 2021, item 1420. For more on this case, see the decision of the Minister of Climate of 20 March 2020 ending the proceedings on the amendment of concession no. 65/94 issued by the Minister of the Environment, Natural Resources and Forestry on 27 April 1994 to Kopalnia Węgla Brunatnego ‘Turów’ [the Turów Lignite Mine] in Bogatynia and transferred to PGE Elektrownia Bełchatów S.A, for mining lignite and accompanying minerals from the ‘Turów’ lignite deposit located in the town and municipality of Bogatynia, County of Zgorzelec, Lower Silesia Voivodship – see the announcement of the Minister of Climate of 20 March 2020 providing notice of a decision being issued ending the proceedings on the amendment of concession no. 65/94 for mining lignite from the Turów deposit <https://bip.mos.gov.pl/koncesje-geologiczne/postepowania-koncesyjne-i-inne/szczegoly/news/obwieszczenie-ministra-klimatu-z-20-marca-2020-r-informujace-o-wydaniu-decyzji-konczacej-postep/> accessed on 22 January 2022.

The fact that the concession was granted on the basis of the regime of the so-called fast-track procedure contained in Article 72, para. 2, item 2k AEIA, which was no longer in force, but which enabled the extension of the validity of the lignite mining concession once up to six years without conducting any environmental impact assessment provided that the extension was ‘justified by the rational management of the deposit and is not related to the extension of the scope of the concession’

Points j–l of Article 72, para. 2, item 2 AEIA were introduced into the AEIA by the Act amending the Geological and Mining Law and certain other acts of 15 June 2018 (Journal of Laws, item 1563, as amended) and were subsequently removed on the basis of the amendment introduced by the Act amending the Act on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments of 24 June 2021 (Journal of Laws 2021, item 1211). Between 2018 and 2021, the Polish AEIA created the legal framework for conducting the so-called fast-track procedure, which was used not only in the case of Turów, but also with respect to concessions for a dozen or so other Polish mines.

is particularly noteworthy. This provision gave rise to doubts as to its compliance with the provisions of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, as already mentioned above. This is important because, the following year, the same minister again granted this concession, this time until 2044, after an environmental impact assessment of the planned project was prepared, but it was the procedure for granting the first of these concessions that became the subject of the complaint filed with the Court of Justice of the European Union by the Czech Republic because of the conflict of this fast-track procedure with EU law.

Pursuant to Article 259 TFEU (Treaty on the Functioning of the European Union),

‘A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.’ See Article 259 of the Treaty on the Functioning of the European Union – consolidated text including the amendments introduced by the Treaty of Lisbon, OJ 2004, no. 90, item 864. As Stanislaw Biernat notes, applications filed by a State against another Member State under Article 259 TFEU are extremely rare, because two judgments have been issued to date after the Lisbon Treaty entered into force, in cases C-364/10 and C-591/17, see Stanislaw Biernat, ‘Zarządzenie tymczasowe w sprawie kopalni Turów’ [Interim measures ordered in the Turów mine case] (2021) 6 Europejski Przegląd Sądowy 1.

the Czech Republic brought an action before the Court of Justice, accusing Poland of breaching the European Union’s primary

According to the Czech Republic, the breach applies to Article 4(3) of the Treaty on European Union – consolidated version OJ EU C 326, 26/10/2012.

and secondary law.

According to the Czech Republic, the breach applies to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197, 21/07/2001, p. 30), Directive of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000, L 327, p. 1), Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003, L 41, p. 26).

In this sense, it should be emphatically highlighted that neither the Polish local authority units where the Turów mine is located, nor the Czech local authorities, whose inhabitants are directly affected by the negative impact of the mine’s activities, are parties to the dispute before the Court. Even so, it should be noted that the further course of the dispute, especially the application of interim measures by the Court of Justice of the EU in the form of the obligation for Poland to immediately stop mining lignite at the Turów mine,

The obligation to immediately stop mining lignite at the Turów mine was imposed by the Order of the Vice-President of the Court of Justice of the European Union on 21 May 2021 in case C-121/21 Czech Republic v Poland, see Press Release no. 89/21 <https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-05/cp210089pl.pdf> accessed on 12 February 2023.

ultimately led to the signature of an appropriate agreement between Poland and the Czech Republic

See Agreement between the Government of the Republic of Poland and the Government of the Czech Republic on Cooperation to Address the Impacts of Exploitation at the Turów Open-Pit Lignite Mine in the Republic of Poland on the Territory of the Czech Republic, signed in Prague on 3 February 2022, official journal Monitor Polski 2022, item 276.

and consequently the removal of the case from the register of disputes before the Court.

After the conclusion of the settlement between Poland and the Czech Republic, pursuant to Article 147 of the Rules of the Court of Justice of the EU (Official Journal of the EU of 29/09/2012, No. L 265/1), the President of the Court makes the decision to remove the case from the register.

It is worth mentioning that the conclusion of the bilateral agreement does not end the dispute regarding the Turów mine. First, in late April 2022, the inhabitants of a Czech village on the border between the Czech Republic and Poland, who are associated with the Uhelna Neighbourhood Association, accepted that the agreement which was signed between the Czech and Polish governments insufficiently protects their rights, so they filed an application with the Czech Constitutional Court.

According to the applicants, since Prague signed the agreement on the Turów mine with Warsaw, access to information on the environmental impact of the open pit in Turów has become severely limited. Experts point out that the agreement with Poland does not protect the Czech population against a loss of water, but only provides funds for emergency infrastructure and water supply pipelines so that people in the damaged area at least have something to drink. Therefore, in their opinion, the waters in the Czech Republic need to be protected by the conclusion of a qualitative agreement which not only provides temporary compensation, but actually prevents the run-off of water. For more on this case, see Myśleliście, że sprawa Turowa już za nami? Błąd. Rządy i Polski, i Czech czeka niemiła niespodzianka <https://spidersweb.pl/bizblog/kopalnia-turow-umowa-czechy-trybunal/> accessed on 29/04/2022.

Next, an appeal against the concession extending the operation of the mine until 2044 is pending before the Polish administrative court, because the Greenpeace Foundation appealed against this decision of the Minister of Climate and Environment in June 2021. The competent minister then refused to allow this organisation to participate in the proceedings as a party,

See Announcement of the Minister of Climate and Environment of 11 May 2021 announcing that an order was issued upholding the refusal to allow the Greenpeace Poland Foundation to take part in the proceedings to amend the concession regarding the Turów deposit <https://bip.mos.gov.pl/koncesje-geologiczne/postepowania-koncesyjne-i-inne/szczegoly/news/obwieszczenie-ministra-klimatu-i-srodowiska-z-11-maja-2021-r-informujace-o-wydaniu-postanowienia> accessed on 22/01/2022.

but, in parallel proceedings, the Voivodship Administrative Court ordered that Greenpeace be allowed to participate in the concession proceedings.

See Decyzja o działaniu Turowa do 2044 r. może zostać uchylona <https://www.greenpeace.org/poland/aktualnosci/31198/decyzja-o-dzialaniu-turowa-do-2044-r-moze-zostac-uchylona/> accessed on 12/01/2022.

From the point of view of the interest of the local community, we see an important role for environmental organisations, to which the law awards the ability to effectively challenge the concession that was issued.

Environmental organizations may file applications in connection with the adoption of the amendment of the AEIA; see Act amending the Act on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments and certain other acts of 30 March 2021, Journal of Laws of 2021, item 784.

IV.

Conclusion

The dispute regarding the Turów mine is of fundamental significance in European, national and local dimensions, including at the axiological level. For some, it has become the manifestation of the need to protect the basis of existence in connection with the progressive degradation of the natural environment and the interests of future generations, but also the need to build harmonious good-neighbourly relations in Europe through the use of conciliatory methods of settling disputes. For others, it means the need to take effective action to guarantee existing jobs on the local market and energy security on a national scale.

In light of the polarisation and opposing interests of the municipalities located on either side of the border, it should be stated that the conflict over Turów has put the longstanding transboundary cooperation of local entities, conducted, among other things, within the framework of the oldest of the Euroregions established along Poland’s borders, Euroregion Neisse–Nisa–Nysa, to a serious test. The open letter of 30 March 2021 from the local government units belonging exclusively to the Polish part of Euroregion Neisse–Nisa–Nysa containing support for the actions of the Board of the Zgorzelec County in favour of the continued operation of the Turów Lignite Mine in Bogatynia, as well as support for the local governments of the Turów Basin applying for funding under the Just Transition Fund, is an illustration of the impasse.

Support of Euroregion Nysa for the activities of the Management Board regarding KWB Turów and FST, https://powiatzgorzelecki.pl/poparcie-euroregionu-nysa-dla-dzialan-wsk-wb-turow-i-fst/> accessed on 11 February 2023.

The mere inclusion of support for the continued operation of the mine and the need to obtain financing from this fund in a single postulate illustrates the dilemma in which the Polish local authorities have found themselves. This is because, according to the EU financial policy, funds from the Just Transition Fund (JTF) are available to mining regions which accept a cut-off date for coal mining in line with EU climate objectives,

Regulation (EU) 2021/1056 of the European Parliament and of the Council of 24 June 2021 establishing the Just Transition Fund OJ L.2021.231.1

which is in gross conflict with the extension of the concession for the Turów mine until 2044.

When the Polish government extended the concession for mining lignite at the Turów mine until 2044 in April 2021, the European Commission refused to support the region with the Fund, see: Terytorialne plany sprawiedliwej transformacji polskich regionów węglowych [Territorial Just Transition Plans for Polish coal regions and their brief analysis (June 2021) The Polish Green Network and the Bankwatch Network 6 <https://bankwatch.org/wp-content/uploads/2021/09/2021_09_02_Terytorialne_Plany_Sprawiedliwej_Transformacji.pdf> accessed on 11 February 2023.

Furthermore, experience shows that the effective use of EU aid funds in border regions is most often achieved through close cross-border cooperation between local authorities and business entities, not forgetting the support of the local communities. In this sense, the ‘Transition’ project initiated by ZKlaster (Zgorzelec Renewable Energy Development and Energy Efficiency Cluster), which developed a ‘Management Strategy for the Transition of the Coal Area in the Polish-Saxony Borderland’ in 2021, should be assessed as positive.

The strategy is available at <https://zklaster.pl/wp-content/uploads/2020/10/Strategia-rozwoju-ZG-wer-21-pazdziernika.pdf> accessed on 12February 2023.

Structural changes need effective cooperation between Poland, the Czech Republic and Germany, while the extensive experience of managing and implementing EU projects within the activities of Euroregion Neisse–Nisa–Nysa shows the value of proven structures of tripartite cooperation at the local level. Therefore, a joint open letter to the central authorities signed by all local authorities in Poland, the Czech Republic and Germany on the need for a constructive end to the conflict regarding the Turów mine should be postulated. This would be a welcome gesture in the spirit of the continuation of the good traditions of transboundary cooperation in the region and the search for a common denominator for opposing local interests.

While formulating de lege lata comments, it should be stated that the model of consultations provided for in the proceedings on transboundary impacts originating from the Republic of Poland in the case of draft policies, strategies, plans and programmes (Article 113 et seq. AEIA), account is not taken of the specificity of direct cooperation at the level of the local authorities located close to the national border. In particular, the ‘large-scale’ method of communication adopted in Article 115 AEIA, which envisages consultations held by the body conducting the strategic environmental impact assessment—in this case the Mayor of the Town and Municipality of Bogatynia—‘with the State’, namely, with bodies located at the central level, as well as the obligatory intermediation of the General Director for Environmental Protection, who can additionally take over the handling of the consultations, does not promote direct communication between local authorities located in close geographical proximity to the border, on both sides of it.

While formulating de lege ferenda comments, it should be postulated that, in accordance with the Espoo Convention,

Convention on Environmental Impact Assessment in a Transboundary Context, adopted in Espoo on 25 February 1991, Journal of Laws of 1999 no. 96, item 1110.

in particular the above Kiev Protocol to the above Convention, Poland and the Czech Republic should conclude an appropriate bilateral agreement, the subject matter of which would be the simplification and, in particular, the socialisation of transboundary consultation procedures. An example of such an agreement can be the Polish–German agreement signed in 2018 in Neuhardenberg,

See Agreement between the Government of the Republic of Poland and the Government of the Federal Republic of Germany on the environmental impact assessments and strategic environmental assessments in a transboundary context, signed at Neuhardenberg on 10 October 2018; the agreement was ratified in 2020 see Journal of Laws of 2021, item 330.

which, among other things, envisages the direct involvement of the public and the interested local authorities before a foreign body handling the proceedings.

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The Interests of Local Communities in the Transboundary Dimension: Considerations on the Dispute Regarding the Turów Lignite Mine

Online veröffentlicht: 22. Feb. 2024

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DOI: https://doi.org/10.2478/wrlae-2023-0015

SchlüsselwörterInterest of local communities, transboundary cooperation of municipalities, environmental impact assessment, spatial planning

© 2023 Renata Kusiak-Winter, published by Sciendo

This work is licensed under the Creative Commons Attribution 4.0 International License.

Schlüsselwörter
Interest of local communities, transboundary cooperation of municipalities, environmental impact assessment, spatial planning