Easier to amend environmental decisions

It often happens that the plans for a project are modified after a decision on environmental conditions is issued but before issuance of a permit for the project itself (e.g. the building permit). Is it necessary to amend the environmental decision?

Sometimes it is sufficient to reflect the specific modification during a reassessment of the environmental impact. Most often, however, it is necessary to go through the procedure of amending the environmental decision.

It has been easier to amend an environmental decision since July 2010, as it is no longer necessary for all of the parties to the proceeding to consent to the amendment. The consent of the party that filed the application or to whom the decision was transferred is now sufficient. This is a significant change, because in cases where there were numerous parties, obtaining consent of all of them could prove impossible in practice, and the previous rule did not permit implied consent.

It should be borne in mind, however, that notwithstanding this relaxation of the rules, in order to obtain an amendment of a decision on environmental conditions is still generally necessary to pass through the specific steps required to obtain a new decision, including most notably the public participation procedure. This also means that even though there is no longer a formal requirement for consent, the parties cannot be denied the right to participate in the proceeding.

However, in the case of a change in the entity that intends to carry out the project, it is sufficient to transfer the rights and obligations under the environmental decision that was already received. The issuing authority will assign the decision to a new investor upon consent of the previous recipient of the decision. Only the entities between whom the decision will be assigned are parties, which significantly expedites the procedure.

Sometimes changes in the project are so extensive that it is insufficient to assign or amend the decision, and a completely new decision must be obtained. This will be the case primarily when there is a substantial change in the location of the project.

Dominik Wałkowski, Environmental Law practice, Wardyński & Partners

This text was published on 11 January 2012 in the “Commercial Law Academy” series in Dziennik Gazeta Prawna daily