In September 2019, environmental law organization ClientEarth brought a civil action against Polska Grupa Energetyczna Górnictwo i Energetyka Konwencjonalna S.A. (PGE GiEK S.A.). In the civil action, ClientEarth is requesting that the Regional Court for the city of Łódź order PGE GiEK S.A. to cease the use of lignite as a fuel for the production of energy at the Bełchatów Power Plant. According to ClientEarth’s petition, of the 12 units currently in operation at the Bełchatów Power Plant, 11 should be closed by 2030, with one being closed no later than by 2035.
ClientEarth’s claim is based on art. 323 cl. 1 and 2 of the Polish Environmental Protection Act, which grants standing to environmental NGOs to file civil lawsuits against entities whose illegal actions either damage or threaten to damage the environment as a public good.
ClientEarth alleges, inter alia, that in view of the fact that the Bełchatów Power Plant is the single largest emitter of carbon dioxide in the European Union and has materially contributed to climate change, the alleged damage caused to the environment by this power station is of a scale which transcends any private interest and negatively impacts the general environment. ClientEarth also contends that this power plant has had a negative impact on other aspects of the environment, including the water and soil in the surrounding region. This environmental damage is directly linked to the use by the power station of lignite as a fuel and, therefore, in order to redress damage that has already occurred and prevent damage which will occur in the future if nothing changes, the use of lignite at this power station must cease as soon as possible.
While art. 323 of the Polish Environmental Protection Act has on occasion provided the legal basis for rare interventions, ClientEarth’s intervention (as far as ClientEarth is aware) is the first in Poland launched by an NGO for the protection of the environment as a public good in the context of climate change, and the first to use art. 323 as a basis for a court in Poland to order a change in a company’s behavior. Owing to this, the case presents numerous novel legal issues, not least of which include:
a) the definition of “illegal activity” as understood in art. 323 of the Polish Environmental Protection Act, particularly in the context of art. 325 of said act, which does not preclude permitted activity (i.e., conducted on the basis and within the parameters of an administrative permit) from being considered “illegal” under art. 323;
b) the bounds of permissible demands under art. 323 of the Polish Environmental Protection Act, and – related thereto – the issues of separation of powers under the Polish constitution, freedom of economic activity, and proportionality (i.e., whether a court can order the operator of a power plant to change the manner of operating the power plant, or whether this can only be done through a legislative process).
On September 22, 2020, the judge in the case ruled that PGE must negotiate with ClientEarth to attempt to reach a settlement within three months to swiftly reduce Belchatow’s climate impacts. According to ClientEarth, this marks the first time a Polish Court has required a coal plant to engage in such negotiations to reduce climate emissions. Negotiations between the parties, conducted as part of the court proceedings, did not bring any resolution. The case is pending, with the parties exchanging legal briefs and awaiting further developments.
No case documents are available.