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Probably every investor wonders how the amendment to the Act of October 3, 2008 on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments, which came into force on May 13, 2021 (“the Amendment of the EIA Act”), will affect their investments.

The analysis of the new regulations leads to the conclusion that they may have a significant impact on blocking investments or delaying their realization.

Especially two issues are worth noting: the suspension of enforceability of environmental decisions and the new powers of environmental organizations. In the series of articles, we will discuss both areas in detail.

Suspension of enforceability of environmental decisions

So far, the case law has not been consistent as to whether the enforcement of an environmental decision can be suspended at all, and the provisions of law have remained silent on this subject. In the Amendment of the EIA Act, such a possibility was explicitly stated. Moreover, the environmental decision may be suspended even twice, as it may be done first by the second instance authority examining the appeal, and then by the court examining the complaint against the environmental decision.

In the judgements of the courts supporting the inability to suspend the enforceability of an environmental decision, it was argued that an environmental decision is not an investment decision, and consequently, even when it becomes final, the rights and obligations arising therefrom will not be enforceable until the investor obtains, for example, a construction permit.

Is the above position no longer valid and cannot be a line of defense for the investor? Are there any other universal arguments for not suspending the enforceability of environmental decisions? These and other questions will soon be answered in an article on how the Amendment of the EIA Act affects environmental decisions.

New powers for environmental organizations

Granting new powers to environmental organizations is the result of the transposition of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011.

As a result of the Amendment of the EIA Act coming into force, environmental organisations may file an appeal against the investment permit which was preceded by the issuance of the environmental decision. Moreover, the organization may file such an appeal even if it did not participate in the first instance proceedings. Another novelty is the fact that the appeal is limited, i.e. it may only concern matters in which the authority issuing the investment permit is bound by the environmental decision.

Environmental organizations also have the right to file a complaint to the court against an investment permit preceded by an environmental decision. In this case – similarly to filing an appeal - the organization does not have to participate in the administrative proceedings to effectively file a complaint, and the allegations of the complaint are limited to inconsistencies between the environmental decision and the investment permit.

However, in the Amendment of the EIA Act, there are no provisions addressed the second instance authorities that would clarify, whether the basic principles concerning full retrial of the case on appeal are changing. There are also no regulations that would restrict the administrative courts from going beyond the allegations of the environmental organization's complaint.

Whether the lack of the aforementioned provisions may pose a threat to investors and lead to an inconsistent approach by authorities and courts, you will learn from subsequent publications of the Dentons’ Environmental Practice.