Dominik Wałkowski

Surcharge for emission of gas and particles into the atmosphere may be disputed

Additional fees are charged for failure to hold a required permit to emit gas or particles into the atmosphere, intake water, or discharge wastewater. May such fees be challenged?

The regulations provide for strict liability. Sanction fees for environmental discharges without a permit must be paid regardless of the reasons for the violation. The simple rule of strict liability makes it easier for the public authorities to enforce sanctions. But in some situations it is unfair to impose surcharges when the party is not at fault for failure to hold a permit, for example in a case where an administrative decision granting the permit was issued but is later set aside on procedural grounds, or where the permit is not issued because of inaction by the administrative authority.

As a result, cases involving challenges to environmental surcharges often wind up in administrative court. The courts sometimes find that the administrative liability in the form of the duty to pay surcharges is unconditional and arises directly from violation of environmental law by exploiting the environment without a required permit. Then a party that is required to pay surcharges because of unlawful action by the administrative authority may at best seek civil damages from the authority.

But sometimes the administrative courts recognise the arguments raised by businesses, holding that the administrative authority is always required to examine the reasons why the environment was exploited without a required permit. Then surcharges could be imposed in appropriate cases, for example where the business failed to make a timely application for a permit.

Under this approach, sanctions in the form of increased fees may be avoided in a given case, depending on the specific state of facts and skilful argumentation, which may persuade the administrative court to apply a broad, systemic interpretation of the regulations, under which failure to hold a required permit should not automatically result in imposition of increased fees.

Dominik Wałkowski, Environmental Law practice, Wardyński & Partners

This text was published on 3 November 2011 in the “Commercial Law Academy” series in Dziennik Gazeta Prawna daily