I. Introduction
The dispute regarding the PGE Turów lignite mine, which ended with the signature of an agreement between Poland and the Czech Republic, is the best example of the turbulent energy and climate transformation process on our continent, the course of which demonstrated numerous rationalisations and conflicts of interest arising between players at European, national, regional, local and, finally, civil levels. In the first place, this dispute should be considered from the point of view of bilateral, good-neighbourly relations with our southern neighbour, and of national energy security, not forgetting the European perspective. After all, it was the applicability of the EU legal regulations, the ordering of interim measures in the proceedings before the Court of Justice of the EU, and the real prospect of an unfavourable ruling that incited Poland to take active steps to bring the dispute to a fast conclusion. The view taken of the discourse often obscures the perspective of the interests of the local communities located in the immediate vicinity of the mine, which, after all, are the areas that are first and most severely affected by the decisions made at central level. This, in turn, once again makes it clear that the interest of the local community is pursued to an extent that extends far beyond the geographic boundaries of the given municipality, region or country. In the case in question, the local interest also applies to universal issues of humanity, such as climate protection, as well as guarantees of energy security. The Turów case is noteworthy because of its geographical location and traditions of international local government cooperation pursued at the point of interconnect of three countries, which in turn requires that the transboundary dimension of the local community’s interest is taken into consideration. Without ruling out the convergence, separateness and opposing interests of the local communities located in close geographic proximity and at the point of interconnect of the three borders, in each case, the same interest requires the search for ways of conducting a dialogue and agreement in the pursuit of the common good. The objective of these considerations is to look for the answer to the question of whether the current legal regulations contain adequate mechanisms to enable the realisation of the interests of local communities in the transboundary dimension. The background to the considerations of the research objective will be an analysis of the land use planning procedures in connection with the planned expansion of the area of the open cast Turów lignite mine.
II. The interests of local communities and their transboundary dimension
The literature on the subject distinguishes between national interest and local interest; according to Polish law, the latter arises from the Act on Municipal Government, 1 according to which municipal matters are of a public nature and of local significance (Articles 6 and 7). The interpretation of these provisions unambiguously indicates that the legislator accepts that the existence of a local interest is separate from the national interest. 2 Simultaneously, there is a consensus in the legal doctrine that the two categories of local and national interest should not be compared on a hierarchical principle, but in order to identify their separate scope regarding subject matter and entities. 3 This approach is best suited to an interpretation of local interest from the point of view of the statutory tasks of the local government unit and the competences of its governing bodies, although specific and separate solutions in this respect are observed in practically every European country. 4
Attention should be drawn to the fact that the interest of the local community interpreted in the context of the statutory tasks of the municipality may be somewhat problematic if the transboundary dimension is taken into consideration. This is because the Polish legislator has not only stipulated that local and regional government units have the constitutional right to join international associations of local and regional communities and to cooperate with local and regional communities of other states (Article 172, para. 2 of the Polish Constitution 5), but the legislator also qualified such cooperation as the municipality’s own task. In addition to matters of spatial order, municipal roads, water supply and sewage systems, as well as local public transport, the example list of a municipality’s own tasks specified in Article 7, para. 1 AMG also includes cooperation with local and regional communities of other states. While interpreting local interest from the point of view of the tasks listed in Article 7, para. 1 AMG, it should be acknowledged that one form of local interest will be cooperation with the local and regional communities of other countries. When analysing this provision exclusively on the basis of the linguistic interpretation, it seems inevitable that is should be treated as cooperation across state borders as an intrinsic task of the municipality, as a state of affairs to be maintained or achieved, whereby the traditional meaning of a task (objective) is referred to the category of value (a state of affairs fulfilling some value). 6 In the light of such an interpretation, the—one way or another inevitable—appearance of divergent local interests between municipalities cooperating across borders appears problematic.
Therefore, the systemic interpretation needs to be applied, taking into account the wording of Article 172, para. 2 of the Polish Constitution, which provides for the ‘right’ of local and regional government units to cooperate with local and regional communities of other countries. Then, cross-border cooperation is one of the factors determining the legal structure of the independence of local government units. Just as in the case of other rights of local government units contained in the Constitution, the right to cooperate with local and regional communities of other countries was also laid down in order to realise the basic function of local government, which is the performance of public tasks (Article 163 of the Polish Constitution). Therefore, the systemic and purposive interpretation requires transboundary cooperation to be treated as an instrument or a means of realising this appropriate interest, namely satisfying the collective needs of the local community. 7
Anticipating somewhat the considerations about the dispute regarding the Turów mine, it should be emphasised that, in this case, local interest should be viewed in the context of the comprehensive challenges of the current times of an environmental (climatic) or economic and social nature, which often require diverse actions to be taken on many levels of the administration of public space. In this sense, in terms of type, the subject of local government administration does not differ from the subject matter of state administration, 8 while the realisation of local interest is interdependent on the activities of other public entities targeted at realising national, European or global objectives.
A method of interpreting the interest of the local community that acknowledges the interdependence of the objectives and functions pursued at various levels of administration should therefore be admitted. The adoption of various declarations, resolutions, positions or appeals by local authorities, 9 the nature of which refers to the centuries-old tradition of the right of petition and are therefore a special way of articulating local interest, is an example of activities that are closely related to the tasks of the municipality, albeit sometimes extending beyond their statutory scope. The condition of admissibility of such resolutions is the lack of the element of authority in them, which means that they should not in any way limit, restrict or increase an individual’s personal rights, which are guaranteed in other sources of the generally applicable law. 10 In transboundary terms, an example that can be distinguished is the joint open appeal of mayors of Polish and German towns and presidents of Euroregions in the Polish-German border area to Poland’s and Germany’s central and federal authorities, adopted on the 30th anniversary of the signature of the Treaty between the Republic of Poland and the Federal Republic of Germany on good neighbourliness and friendly cooperation, signed in Bonn on 17 June 1991. 11 In it, the signatories expressed their concern about the situation on the border in connection with the outbreak of the Covid pandemic and appealed that, in future, despite crisis situations, the central authorities should enable continuity of cooperation in healthcare, crisis management and communication—for the good of the residents of the border areas. 12
In the light of this initiative, it should be argued that the interests of local communities viewed in a transboundary dimension can and even should be articulated with account taken of a broader perspective than the statutory scope of tasks and competences of local authorities according to the current challenges of modern times, the effects of which are especially felt at the point of interconnect of national borders. Therefore, the further considerations will attempt to answer the question of whether, in the light of the dispute regarding the Turów mine, local transboundary initiatives have been taken up that emphasise the will to maintain good neighbourly relations, despite the emergence of a line of conflict at the central level.
III. The dispute regarding the Turów mine from the point of view of municipal land use planning and the environmental impact assessment procedure
1. Interest of local communities
As mentioned in the introduction, most of the discussions on the dispute regarding the Turów mine are handled from a European perspective, a national perspective, or in the context of good neighbourly relations with the Czech Republic. However, less attention is paid to the local perspective, namely, the communities living in the immediate vicinity of the Turów mine and power station. However, it is worth remembering that it is the voice of the inhabitants of the nearby Czech villages regarding the problems of the falling levels of groundwater, as well as the stability of the geological subsoil and air pollution from the mine, that is the primary and fundamental subject of the dispute. Two opposing positions are therefore emerging in this light. While the interests of local communities in the Czech Republic have been interpreted with particular attention paid to environmental issues, 13 the Polish local government units have made economic interests, especially the need to maintain jobs at the nearby mine, a priority. This method of interpreting local interest in Poland clearly arises from the analysis of older and more recent strategic documents adopted by the authorities of the Municipality of Bogatynia, 14 and is also indicated by the joint initiatives of Polish municipalities taken up to maintain the Turów mine. 15
In view of the earlier arrangements, according to which transboundary cooperation should be treated as an instrument for pursuing local interests, it is worth asking why the dispute was not resolved at its very source, namely, at the local level, taking advantage of the experience and proven mechanisms of longterm transboundary cooperation. In view of the location of the mine within the Municipality of Bogatynia, a fundamental role should be attributed to this municipality’s planning authority, which decides on the intended purpose of the land with a guarantee for all interested parties to be able to participate in the planning process. The question is reasonable because Bogatynia is not only a member of Euroregion Neisse–Nisa–Nysa, but has also been cooperating for years within the so-called Small Triangle, namely the Union of Towns of the ‘Small triangle near Hradek nad Nisou, Bogatynia and Zittau’. According to the agreement, the Union of Towns was established indefinitely and its main objective was specified as the representation of transboundary common interests, whereby the most important objective is to develop mutual relations between the citizens of the three towns and to gain benefits from economic contacts and the development of infrastructure. 16 It is symptomatic that the objective of the cooperation involving the representation of common interests forms a typical and recurring element of the content of the town twinning contracts. 17 It therefore seems more than desirable to seek dialogue and constructive solutions to conflicts which arise, even in the face of the diverging interests of the municipalities on both sides of the border.
The neighbouring Czech municipalities have been indicating problems with the Turów mine for years, referring to the negative impact on the drainage of drinking water uptakes constituting a threat to the stability of the geological substructure, as well as increased air pollution, which was confirmed by independent expert studies. 18 However, it was only the planned expansion of the land of the open cast Turów lignite mine that created the opportunity to articulate these interests in the planning procedure.
2. Amendment of the local land use plan
After the Bogatynia Town Council adopted the relevant resolution of 26 February 2016 on the preparation of the amendment to the land use plan of the Town and Municipality of Bogatynia—the area of the open cast Turów lignite mine in the region of Opolno–Zdrój, 19 a call was made to submit applications to change this plan in the procedure of Article 17, para. 1 of the Act on spatial planning and development of 27 March 2003 20 (hereinafter referred to as ASPD) and in the procedure of Article 39, para. 1, items 1, 3 and 4 of the Act on the provision of information on the environment and its protection, public participation in environmental protection and environmental impact assessments of 3 October 2008 21 (hereinafter referred to as ‘AEIA’). Furthermore, with respect to, inter alia, local land use plans or their amendments, the implementation of which can result in a significant environmental impact, the AEIA stipulates that a so-called strategic environmental impact assessment (Article 46, para. 1, item 1 and Article 50), hereinafter referred to as ‘strategic EIA’ must be prepared. A forecast of the environmental impact is prepared within the strategic EIA, an obligatory element of which is the inclusion of information on the possible transboundary environmental impact (Article 51, para. 2, item d AEIA).
The interpretation of these provisions indicates that the legislator provides for two separate and obligatory modes of participation, one based on the Public Procurement Law (PPL) and the other based on the AEIA. However, only the provisions of the latter of these Acts envisage a special procedure regarding the transboundary impact originating in Poland in the case of land use plans (Article 113 in connection with Article 46, para. 1, item 1 AEIA). Therefore, the question should be asked about the possibility of foreign municipalities taking part in such a procedure. In this respect, the AEIA envisages the involvement of the ‘state’ as a participant in the procedure, which could suggest the adoption by the legislator of a large-scale perspective, which does not differentiate between representation of national interest and representation of local interest in pending proceedings. However, Article 114 in fine AEIA directly stipulates ‘the need to ensure that the competent authorities and the public of this State are able to take part in the proceedings’. Therefore, it should be accepted that a foreign municipality will be able to participate through the involvement of a ‘competent authority’ representing the specific interests of the local community.
In the case in question, namely the planned amendment to the land use plan of the Town and Municipality of Bogatynia—the area of the open cast Turów lignite mine in the region of Opolno–Zdrój—it is the mayor, as the body preparing the draft, 22 who also conducts the strategic environmental impact assessment (Article 46, para. 1, item 1 AEIA) and holds consultations through the General Director of Environmental Protection with the Czech party (Article 115, para. 1 AEIA). Pursuant to Article 115, para. 1 in fine AEIA, the consultations are about the measures for eliminating or reducing the transboundary environmental impacts.
3. Czech participation in the procedure on the amendment of the land use plan
As for the procedure regarding the transboundary environmental impact, Germany did not express its intention to participate, while the Czech Republic reported its participation by explicitly invoking the provisions of Article 7 of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment. 23 The fact that regional (Liberecký kraj) and local authorities, namely the two municipalities of Heřmanice and Kunratice, also submitted their comments, in addition to numerous central and local government authorities of the Czech Republic (e.g. the minister responsible for the environment, the Czech geological services, the local mining authority), is extremely important to the further considerations. 24 In their comments, the local authorities highlighted the threat of a total loss of sources of drinking water, the threat of a landslide, and the instability of the rock bed on the side edges of the mine, as well as the noise, increased ignition, the movement of heaps of coal, the creation of new heaps and a change in the landscape. 25 It should be stated that the comments formulated by the above local authorities of the Czech Republic are fully consistent with the comments and demands formulated by the central and local government authorities of the Czech Republic, as well as the regional government administration (Liberecký kraj). 26 In this sense, the subject matter of the interests of the local communities, as well as the regional and national interests of the Czech Republic, is identical.
The documentation on the consultation procedure indicates that its most important part was the exchange of positions, which were presented in writing and communicated through the General Directorate for Environmental Protection. One meeting of the Polish-Czech working party on environmental impact assessments was held at that time. During the consultations, the Czech Republic repeatedly emphasised that it disagreed with Poland’s position on the pending procedure and demanded that all the comments it had sent were to be accepted. The Czech position was particularly emphatically stated in para. 10.1 of the documentation, which reads: ‘the Czech Republic does not agree with the ending of the transboundary consultations’. 27 In these circumstances, it is surprising that the proceedings were completed in early 2019 with the statement that the Czech Republic ‘did not raise any further reservations’ and that its participation in the transboundary consultations had therefore ended. 28 The closure of the transboundary consultations at this stage is in conflict with the provisions of international law, 29 EU law, 30 as well as Polish law (Article 116 AEIA), which provides that the document referred to in Article 46 or Article 47, para. 1 (in this case, it is the adoption of the amendment to the land use plan) should not be accepted before the end of the proceedings on the transboundary environmental impact.
As a result of the acceptance of the assumption regarding the completion of the transboundary environmental impact proceedings, in a resolution of 28 May 2019, the Bogatynia Town Council accepted the amendment to the land use plan of the Town and Municipality of Bogatynia: the area of the open cast Turów lignite mine in the region of Opolno–Zdrój. 31 It is worth noting that the Czech Municipality G. (H.) subsequently filed an appeal against the adopted resolution with the administrative court. Municipality G. indicated in the appeal that its legal interest had been breached in the resolution that was adopted on the basis of Article 101 of the Act on Municipal Government. While dismissing the appeal, the Voivodship Administrative Court pointed out that Municipality G. does not have the legal capacity to contest the resolution because it has not demonstrated a breach of a provision of substantive law that would qualify as the basis for an effective appeal against a resolution on the amendment of the land use plan. 32 According to the first-instance court, merely having an ownership right is insufficient for an effective action to be brought, while the applicant had not proved beyond doubt that the implementation of the provisions of the plan will prevent or restrict the possibility of developing property not encompassed by the plan in its current form. While dismissing the cassation appeal filed by the Czech Municipality G., the Supreme Administrative Court upheld the arguments cited by the first-instance court, and furthermore pointed out that ‘guarantees for the defence of the applicant’s legal interest are provided by the provisions of Section VI. Transboundary environmental impact proceedings contained in the Act on the provision of information and the protection of the environment, public participation in environmental protection, and environmental impact assessments of 3 October 2008.’ 33 Similarly, the court took the view that the protection of the interests of a foreign municipality, even one located in the immediate vicinity, can be effectively pursued in the procedure of the AEIA and not the Act on Planning and Spatial Development.
4. Application to the Court of Justice of the EU and the conclusion of a bilateral agreement
The adoption of the amendment to the land use plan in 2019 became the basis for the authorities of the Turów mine to apply to the minister responsible for environmental protection for the extension of the concession for mining lignite until 2026. 34 The fact that the concession was granted on the basis of the regime of the so-called fast-track procedure contained in Article 72, para. 2, item 2k AEIA, which was no longer in force, but which enabled the extension of the validity of the lignite mining concession once up to six years without conducting any environmental impact assessment provided that the extension was ‘justified by the rational management of the deposit and is not related to the extension of the scope of the concession’ 35 is particularly noteworthy. This provision gave rise to doubts as to its compliance with the provisions of Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, as already mentioned above. This is important because, the following year, the same minister again granted this concession, this time until 2044, after an environmental impact assessment of the planned project was prepared, but it was the procedure for granting the first of these concessions that became the subject of the complaint filed with the Court of Justice of the European Union by the Czech Republic because of the conflict of this fast-track procedure with EU law.
Pursuant to Article 259 TFEU (Treaty on the Functioning of the European Union), 36 the Czech Republic brought an action before the Court of Justice, accusing Poland of breaching the European Union’s primary 37 and secondary law. 38 In this sense, it should be emphatically highlighted that neither the Polish local authority units where the Turów mine is located, nor the Czech local authorities, whose inhabitants are directly affected by the negative impact of the mine’s activities, are parties to the dispute before the Court. Even so, it should be noted that the further course of the dispute, especially the application of interim measures by the Court of Justice of the EU in the form of the obligation for Poland to immediately stop mining lignite at the Turów mine, 39 ultimately led to the signature of an appropriate agreement between Poland and the Czech Republic 40 and consequently the removal of the case from the register of disputes before the Court. 41
It is worth mentioning that the conclusion of the bilateral agreement does not end the dispute regarding the Turów mine. First, in late April 2022, the inhabitants of a Czech village on the border between the Czech Republic and Poland, who are associated with the Uhelna Neighbourhood Association, accepted that the agreement which was signed between the Czech and Polish governments insufficiently protects their rights, so they filed an application with the Czech Constitutional Court. 42 Next, an appeal against the concession extending the operation of the mine until 2044 is pending before the Polish administrative court, because the Greenpeace Foundation appealed against this decision of the Minister of Climate and Environment in June 2021. The competent minister then refused to allow this organisation to participate in the proceedings as a party, 43 but, in parallel proceedings, the Voivodship Administrative Court ordered that Greenpeace be allowed to participate in the concession proceedings. 44 From the point of view of the interest of the local community, we see an important role for environmental organisations, to which the law awards the ability to effectively challenge the concession that was issued. 45
IV. Conclusion
The dispute regarding the Turów mine is of fundamental significance in European, national and local dimensions, including at the axiological level. For some, it has become the manifestation of the need to protect the basis of existence in connection with the progressive degradation of the natural environment and the interests of future generations, but also the need to build harmonious good-neighbourly relations in Europe through the use of conciliatory methods of settling disputes. For others, it means the need to take effective action to guarantee existing jobs on the local market and energy security on a national scale.
In light of the polarisation and opposing interests of the municipalities located on either side of the border, it should be stated that the conflict over Turów has put the longstanding transboundary cooperation of local entities, conducted, among other things, within the framework of the oldest of the Euroregions established along Poland’s borders, Euroregion Neisse–Nisa–Nysa, to a serious test. The open letter of 30 March 2021 from the local government units belonging exclusively to the Polish part of Euroregion Neisse–Nisa–Nysa containing support for the actions of the Board of the Zgorzelec County in favour of the continued operation of the Turów Lignite Mine in Bogatynia, as well as support for the local governments of the Turów Basin applying for funding under the Just Transition Fund, is an illustration of the impasse. 46 The mere inclusion of support for the continued operation of the mine and the need to obtain financing from this fund in a single postulate illustrates the dilemma in which the Polish local authorities have found themselves. This is because, according to the EU financial policy, funds from the Just Transition Fund (JTF) are available to mining regions which accept a cut-off date for coal mining in line with EU climate objectives, 47 which is in gross conflict with the extension of the concession for the Turów mine until 2044. 48 Furthermore, experience shows that the effective use of EU aid funds in border regions is most often achieved through close cross-border cooperation between local authorities and business entities, not forgetting the support of the local communities. In this sense, the ‘Transition’ project initiated by ZKlaster (Zgorzelec Renewable Energy Development and Energy Efficiency Cluster), which developed a ‘Management Strategy for the Transition of the Coal Area in the Polish-Saxony Borderland’ in 2021, should be assessed as positive. 49 Structural changes need effective cooperation between Poland, the Czech Republic and Germany, while the extensive experience of managing and implementing EU projects within the activities of Euroregion Neisse–Nisa–Nysa shows the value of proven structures of tripartite cooperation at the local level. Therefore, a joint open letter to the central authorities signed by all local authorities in Poland, the Czech Republic and Germany on the need for a constructive end to the conflict regarding the Turów mine should be postulated. This would be a welcome gesture in the spirit of the continuation of the good traditions of transboundary cooperation in the region and the search for a common denominator for opposing local interests.
While formulating de lege lata comments, it should be stated that the model of consultations provided for in the proceedings on transboundary impacts originating from the Republic of Poland in the case of draft policies, strategies, plans and programmes (Article 113 et seq. AEIA), account is not taken of the specificity of direct cooperation at the level of the local authorities located close to the national border. In particular, the ‘large-scale’ method of communication adopted in Article 115 AEIA, which envisages consultations held by the body conducting the strategic environmental impact assessment—in this case the Mayor of the Town and Municipality of Bogatynia—‘with the State’, namely, with bodies located at the central level, as well as the obligatory intermediation of the General Director for Environmental Protection, who can additionally take over the handling of the consultations, does not promote direct communication between local authorities located in close geographical proximity to the border, on both sides of it.
While formulating de lege ferenda comments, it should be postulated that, in accordance with the Espoo Convention, 50 in particular the above Kiev Protocol to the above Convention, Poland and the Czech Republic should conclude an appropriate bilateral agreement, the subject matter of which would be the simplification and, in particular, the socialisation of transboundary consultation procedures. An example of such an agreement can be the Polish–German agreement signed in 2018 in Neuhardenberg, 51 which, among other things, envisages the direct involvement of the public and the interested local authorities before a foreign body handling the proceedings.