Ecological NGOs are capable of more and should do more
Imposing remedial measures requires a finding of environmental harm, including determination of a reference point for assessment of the damage. If an ecological NGO claims environmental harm, it must be properly documented.
The Province Administrative Court in Warsaw has denied challenges to decisions by Poland’s General Director for Environmental Protection upholding decisions by the Regional Directorate for Environmental Protection refusing to impose preventive and remedial measures on a property owner conducting renovation of a building (judgments dated 11 January 2012, Case No. IV SA/Wa 1760/11, and 24 May 2012, Case No. IV SA/Wa 503/12).
In the two cases, under Art. 24 of the Act on Prevention and Remediation of Environmental Harm, a foundation involved in protection of birds filed notifications of environmental harm with the Regional Directorate for Environmental Protection with respect to protected species and habitats, specifically the common swift (Apus apus) and its summer nesting areas.
The alleged harm consisted of installation of screens on ventilation openings of the renovated buildings, which prevented the swifts from returning to their nesting area. Swifts often choose to nest in ventilation openings and other openings of buildings. It is a particular problem in the case of buildings constructed using prefabricated panels (referred to in Polish as wielka płyta), a common construction technique during the communist era in Poland and neighbouring countries. In such buildings, swifts sometimes even manage to build their nests in the cracks between the panels.
In both proceedings, the regional environmental authority found that there was no environmental harm in the form of a reduction in the swift headcount, because prior to renovation the ventilation openings were already closed, and the renovation would involve only replacement of existing closures with new closures, and thus refused to order remedial measures. These decisions were upheld by the General Director for Environmental Protection. The foundation then filed challenges with the province administrative court.
Definition of environmental harm and reference point
Under Art. 6(11)(a) of the Act on Prevention and Remediation of Environmental Harm, “environmental harm” is defined as “a negative, measurable change in the condition or function of natural elements compared to the original condition, caused directly or indirectly by activity conducted by an entity exploiting the environment” (in this case, the entity conducting the renovation of the building), including here, more specifically, to “protected species or protected natural habitats with a significant negative impact on achieving or maintaining a proper state of protection of such species or habitats”.
Under Art. 6(1) of the act, the “original state” is defined as the “the state and functions of the environment and specific natural elements prior to occurrence of environmental harm, assessed on the basis of available information.”
No harm, no foul
In order to determine whether there was harm, it was necessary to show that the swift had its nesting areas in the building undergoing renovation. It was found, however, contrary to the arguments raised by the ecological group, that the screens in the ventilation openings were installed prior to the renovation. In seeking to set aside the decisions, the foundation argued before the province administrative court that the authorities had uncritically accepted as reliable the claims by the entity carrying out the renovation of the building and failed to admit the expert opinion of an ornithologist in order to determine the true harm to the nesting areas.
If, however, as the court assumed, the screens were installed prior to the renovation, the birds could not have entered the ventilation openings and established their nesting areas there, which means that their nesting areas could not have been damaged. As there could be no harm, the court held, determining the original state was moot.
In the court’s view, the authorities issuing the decision had no reason not to give credence to the evidence before them, or to doubt the explanation given by the entity renovating the building, and the petitioner did not present any evidence to undermine it. Thus there was no need to seek an expert opinion from an ornithologist.
Ecological organisation should exercise greater care
The court held that a party asserting environmental harm must document “as far as possible” the occurrence of the harm. What “as far as possible” means should be determined individually, on a case-by-case basis. The possibilities available to ordinary private individuals differ from those available to specialists, not to mention ecological organisations. It thus appears that a higher standard of care may be imposed on ecological organisations when it comes to documenting harm and providing evidence to the administrative authorities.
The foundation alleged as the petitioner in this case that it had conducted observations which it used as the basis for providing notification of the harm, but in the court’s view such measures should have been documented by the organisation. Moreover, as mentioned, the petitioner did not present evidence to dispute the explanations filed by the other party. The court thus held that it was impermissible to allege environmental harm based only on the assumption that any ventilation opening or crack in the wall is or could be a potential nesting area for the swift.
This approach with respect to NGOs specialising in a given field appears reasonable and justified under the circumstances of the case. It must not be assumed, however, that an entity alleging environmental harm is required to conduct an exhaustive investigation of the matter. It would be hard to find that the burden of proof of the occurrence of environmental harm is borne by the party submitting the notification. Documenting the notification (“as far as possible”) should be distinguished from the duty to prove the harm. Nonetheless, the court appeared to require more from ecological organisations both with respect to active participation in the proceeding and with respect to coming forward with evidence to prove that the harm occurred.
Administrative authority compiles and assesses the evidence
It should be mentioned in this context that the courts have clearly held in other cases that the burden of proof in an administrative proceeding rests on the administrative authority conducting the proceeding. It is the authority, applying the evidentiary rules, that should determine, after gathering all of the evidence, whether a specific fact has been proved.
It does not appear justified to require an entity providing notification of environmental harm under Art. 24 of the act to supply the evidence necessary for a final resolution of the case. In practice, however, ecological NGOs do pursue cases in this way, within the limits of their capabilities. This means that investors and entities carrying out building renovations should be prepared to supply counter-evidence. Even though the administrative authorities are supposed to present evidence, they sometimes take a passive approach. And if in the given case the evidence presented by the ecological group is stronger, the environmental authority may issue a decision unfavourable to the investor.
Bartosz Kuraś, Environmental Law Practice, Wardyński & Partners