{"id":11445,"date":"2022-08-11T09:27:00","date_gmt":"2022-08-11T14:27:00","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=11445"},"modified":"2022-10-25T12:38:58","modified_gmt":"2022-10-25T17:38:58","slug":"guest-commentary-czech-republic-polands-dispute-over-the-turow-mine","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2022\/08\/11\/guest-commentary-czech-republic-polands-dispute-over-the-turow-mine\/","title":{"rendered":"Guest Commentary: Czech Republic-Poland\u2019s dispute over the Tur\u00f3w mine"},"content":{"rendered":"
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Czech Republic-Poland\u2019s dispute over the Tur\u00f3w mine: Financial implications and lost opportunities for just transition in Poland<\/strong><\/p>\n

By Marcin Stoczkiewicz*<\/em><\/p>\n

\u00a0<\/strong>One of the most interesting environmental legal disputes in the European Union was recently settled between the Czech Republic and Poland before the Court of Justice of the European Union (CJEU) (Case C-121\/21)<\/a>. Czech Republic v Poland<\/em><\/a> (Mine de Tur\u00f3w, <\/em>ECLI:EU:C:2021:420, ECLI:EU:C:2021:752, ECLI:EU:C:2022:74<\/em>) concerned the operation of a lignite mine in Poland. Because of its location on the border between the Czech Republic and Germany, the Tur\u00f3w mine negatively impacts the environment of both countries. The catalyst for the dispute was the Polish authorities\u2019 concession extension to operate the mine until 2026 without carrying out an environmental impact assessment (EIA) as required by European Union (EU) law. Owned by the Polish Energy Group (PGE), the Tur\u00f3w mine supplies lignite to the 1984 MW Tur\u00f3w power plant. The plant generates electricity for about three million Polish households, which amounts to around 7% of the country\u2019s output. Emitting almost 10 million tonnes of CO2<\/sub> each year, the plant has been on the EU\u2019s list of power plants with the highest negative impact on climate for years. In February 2022, the parties announced a settlement<\/a> for Poland to pay EUR 45 million in damages to the Czech Republic.<\/p>\n

The dispute\u2019s main focus was the negative impact on groundwater in the Czech Republic. However, the case also holds climate aspects. Firstly, Directive 2011\/92 EU of the <\/a>European Parliament and the Council on the environmental impact assessment of projects<\/a> requires a mandatory environment (including climate) impact assessment for certain public and private projects (e.g., thermal power stations, motorways, pipelines, opencast mines). As such, the Polish authorities have breached important provisions on preventive climate protection by granting the concession without requiring one. Secondly, this case contributed to the rejection of the Polish authorities\u2019 application for funding from the Just Transition Fund<\/a>. The fund supports coal-dependent regions in the EU that have committed to reducing coal mining and burning due to the need for climate protection. This blog post analyzes the climate implications of the case.<\/p>\n

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  1. Course of the case<\/strong><\/li>\n<\/ol>\n

    In 1994, the mine obtained a concession to extract lignite until 2020. In 2015, it requested an extension of the concession for six years. Poland has enacted national legislation under which it was possible to extend by six years the concession for extraction without an EIA and under which the procedure for granting the concession was, in most cases, not public. In March 2020, the mine received the requested extension until 2026. In September 2020, the Czech Republic took Poland to the CJEU under Article 259 of the Treaty on the Functioning of the European Union (TFEU), arguing that Poland\u2019s concession extension was unlawful because no EIA had been conducted, as required by EU Directive 2011\/92. In February 2021, the Czech Republic asked the CJEU for interim measures, requesting the immediate closure of the lignite mine. The CJEU granted the interim measures by Order of the Vice-President of the Court of 21 May 2021<\/a>. However, Poland did not comply with that order. In September 2021, the CJEU ordered Poland to pay<\/a> the European Commission a penalty of EUR 500,000 per day from the date of notification until Poland complied with the order.<\/p>\n

    In February 2022, the Court of Justice\u2019s Advocate General (AG) Prita Pikam\u00e4e stated in his opinion<\/a> that Poland had violated the EIA Directive (ECLI:EU:C:2022:74, p. 261<\/em>), which made it likely that Poland would lose the case. In the system of EU law, the AGs perform the function of a public presentation, with complete impartiality and independence, of reasoned opinions for the needs of the CJEU. Although the opinion of AG does not bind the CJEU, legal practice shows that, in the vast majority of cases, the Court takes into account the AG\u2019s opinion. Therefore, the opinion may have likely influenced a settlement between the litigants the next day.<\/p>\n

    In February 2022, the Czech Republic informed the CJEU that as a result of the settlement reached with Poland on the dispute, it waived all claims. Consequently, the Court struck the case from the register by an order of<\/a> the same date. This case was of public interest<\/a> not only in the Czech Republic and Poland but throughout Europe<\/a>, as the dispute was part of the conflict between the Polish authorities and the EU institutions on the issue of the rule of law and due to the lack of support by the Polish authorities for the EU\u2019s climate policy<\/a>.<\/p>\n

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    1. The cross-border aspect of the Tur\u00f3w mine dispute<\/strong><\/li>\n<\/ol>\n

      Disputes between states over environmental protection are rare, particularly among EU Member States. In environmental protection, disputes between states may originate from a violation of the \u201cno harm principle\u201d <\/em>as a generally recognized principle of international law<\/a>, in which no state may cause damage to another state<\/a>. Czech Republic v Poland<\/em><\/a> was the first environmental dispute<\/a> between the EU Member States before the CJEU was initiated based on Article 259 of the TFEU. This Treaty\u2019s provision provides that a Member State which considers that another Member State has failed to fulfill an obligation under the Treaties may bring the matter before the CJEU. Treaty obligations are also understood as obligations arising from EU secondary law, including obligations in EU regulations, directives, and decisions. Czech Republic v Poland<\/em><\/a> was also the first case in which the CJEU decided to impose interim measures.<\/p>\n

      The dispute essentially concerned the transboundary impact of an opencast mine in Poland on the Czech Republic\u2019s environment. The State argued that:<\/p>\n