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.
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. Jerzy Regulski, Michał Kulesza (eds), Lech Żukowski, ‘Wspólnota samorządowa a źródła prawa samorządu terytorialnego – problemy wybrane’ in Bogdan Dolnicki (ed), 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,
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. Magdalena Tabernacka, ‘Konstrukcja prawna zadania publicznego’ in Adam Błaś, Konrad Nowacki (eds),
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,
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,
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. An illustration of these cases is, for example, the adoption of so-called Journal of Laws of 1992, No. 14, item 56. A bilingual (Polish/German) version of the appeal is available at: <
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.
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, 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. See, e.g.,
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’ < For more on this see Renata Kusiak-Winter,
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,
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 < Journal of Laws of 2022, item 503. Journal of Laws of 2021, item 2373, as amended.
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 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.
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. Cited in:
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’.
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. 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 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. 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. See order of the Supreme Administrative Court of 27 November 2020 ref. I OSK 2739/20.
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 < 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.
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. 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. 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). 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 < 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. 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 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 < See 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.
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, 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 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: The strategy is available at <
While formulating
While formulating 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. 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.