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Changes in the procedure for implementing strategic investments: an acceleration or a restriction of the rights of the parties to the procedure

20 February 2024 | Knowledge, News

Prior to the introduction of the so-called package of amendments to the Act on the Provision of Information on the Environment and its Protection, Public Participation in Environmental Protection and Environmental Impact Assessment, the implementation of strategic investments, including road, rail, water and fuel and energy infrastructure, was subject to a multi-stage administrative procedure.

In fact, prior to the entry into force of the package of amendments, the Act provided for a number of obligations in relation to, for example:

  • Carrying out a comprehensive strategic environmental impact assessment procedure
  • Ensuring public participation in procedures related to the implementation of strategic investments
  • Ensuring that investments comply with planning documents

As a result of the amendment, for strategic investments the legislator has:

  • Replaced the environmental impact assessment procedure with a simplified procedure
  • Excluded public participation in the procedures
  • Eliminated the obligation to ensure that the planned investment complies with planning documents (local zoning plan, master plan)

A simplification and acceleration or a restriction of the rights of the parties to the procedure

An investment is classified as strategic by a Council of Ministers ordinance based on discretionary criteria. These criteria should, but do not have to, be based on long-term sectoral policy assumptions (e.g. PEP2040 assumptions for energy investments).

The package of amendments introduces changes to the Geological and Mining Law Act, adding the concept of a ‘strategic deposit’ and giving the minister responsible for the environment the power to issue a decision recognising a mineral deposit as strategic, thereby interfering with the rights of property owners. In fact, if strategic deposits are found on a property, its owner will be prohibited from developing the property.

Strategic investments and environmental protection

The amendment to the Act appears to have left in place the existing rules on the participation of environmental organisations as parties in decision-making procedures concerning, among other things:

  • Construction permits
  • Water permits
  • Decisions on licences to carry out strategic investments

However, as the right of these organisations to submit comments, opinions or appeals has been excluded, when issuing a construction permit – as far as environmental issues are concerned – the authority will only confirm that the application (concerning strategic investments) complies with the act.

Are the new rules compatible with EU law and will they be upheld

It is expected that environmental organisations will appeal to the European Commission to determine whether, in the EC’s view, the new regulations are compatible with EU law.

Source: BiznesAlert

Date: January 2024

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Contact us:

Lukasz Mlynarkiewicz, PhD

Lukasz Mlynarkiewicz, PhD

Attorney-at-law / Partner / Head of the Infrastructure, Energy, Environment and ESG Practice Group / Nuclear Energy

+48 788 260 125

l.mlynarkiewicz@kochanski.pl