25 March 2021 – by Robert Los
Introduction
In February 2021, the Czech Foreign Minister Thomas Petricek announced a lawsuit against the Polish Republic at the ECJ over the controversial extension of the concession for open-pit coal mining in the Turów tri-border area. What makes this fact pattern stand out amongst other lawsuits between member states is unique to this case only: For the first time in the history of the European Union, two member states are suing each other on the grounds of environmental misconduct.[1]
This article is intended to be the first in a series of accompanied reports on what may become a landmark legal battle and will therefore focus primarily on the political and factual background of the lawsuit. It will conclude with a brief outlook.
Political and factual background
Coal in Europe
For several years now, Europe has been haunted by the question of energy transition and the right way to implement it. A hot debate at the moment is the meaningfulness and safety of nuclear energy as a supporting force and/or as the foundation of a successful shift toward renewable energy. Another form of historically important and wide-spread energy production is considered to be unsustainable in view of the climatic consequences it entails. While a large number of European countries have relied or still rely on coal-fired power generation, there is a clear movement in many member states from the 2010s onwards to phase out of “coal”.[2]
In this context, special attention is given to three countries in the center of Europe: Germany, Poland and the Czech Republic. These three countries not only had the most coal-fired power plants in 2017,[3] – together they had around 50 more than all other European member states (including Great Britain)[4] – but these countries also mine the most coal, by far. In 2017, the three of them were the top producers of soft lignite in Europe with 171.3 (Germany), 61.2 (Poland) and 39.3 (Czech Republic) megatons each. Poland alone stands out in hard coal production with 65.8 megatons per anno.[5]
Despite these similarities, the three coal heavyweights differ in one crucial feature in the run-up to the lawsuit: while Germany, after a long domestic political struggle, adopted a still much-criticized coal phase-out in July 2020 for 2038 with an early option in 2035,[6] and in the Czech Republic an expert commission has been preparing a coal phase-out since 2019 and in December 2020 recommend a phase out in line with the German plans for the year 2038,[7] a different, more resistant wind has been blowing in Poland, and not only since the conservative PiS government took office.
Coal discussion in Poland
When taking office in 2017, Poland’s Prime Minister Mateusz Morawiecki emphasized in his inaugural speech that his country would not abandon coal as a “central form of energy production”. Despite the European Union’s efforts to lower its climate targets, this may not come as a surprise , given that coal accounts for about 80% of Polish energy production (the Czech Republic, in second place, only has 50%), several hundred thousand jobs are linked to the coal industry, and Poland’s enormous coal resources.[8] Undeterred by the certainty that the EU would miss its climate targets, both liberal and conservative predecessor governments continue to put brakes on European coal reduction efforts in their country.[9] In this sense, the new government, in which the Energy and Environment Ministries announced that a coal phase-out before 2050 was not an option at all, and if so then only a reduction to 50% in energy production was possible, merely perpetuated and enforced the already existing foreign policies of previous Polish governments.[10]
This puts the government in line with what is probably the most important domestic political player in the coal sector: the Solidarność trade union. Originally known for its historic struggle for freedom in communist Poland in the 1980s, the union now aggressively promotes the interests of its members in the coal industry. In addition to saying that Poland should mine God-given coal as long as it is possible and economical, domestic political campaigns have been threatened against politicians who represent otherwise.[11]
But it is precisely this condition of economic viability that opens up a second unintended, domestic political area of tension for the government, in addition to the foreign policy pressure caused by the European climate targets. Poland’s self-imposed focus on coal is costing it dearly in multiple ways. Indirectly, the health damage caused by air pollution from coal-fired power plants and coal-fired furnaces – 33 of the 50 cities with the dirtiest air within the EU are in Poland[12] – is estimated to cost up to 26 billion euros more in the health sector.[13] In addition, since a 2018 ECJ ruling on the failure to comply with the relevant limits and several ignored reminders from the Commission, further fines of 4 to 50 billion euros are threatened if the government does not adopt effective measures as soon as possible.[14] But even directly, the economic viability is questionable. The increasingly expensive emissions trading certificates and the falling price of coal are making coal-fired power plants and extraction sites less and less profitable. Hard coal mining in particular has been running at a loss for years.[15] These operations are kept alive mainly by government subsidies.[16] The question of economic viability finally came to a head in 2018 when the financing question was raised for the planned Ostrołęka C coal-fired power plant. Banks refused to finance the 1.5 billion project because a profit margin could not be expected over the lifetime of the plant.[17] Two years later, the project was actually scrapped at the financing stage by the two state-owned energy companies Energa and Enea.[18]
All this actually led to a rethinking in government circles, where for the first time rumors of a coal phase-out even as early as 2036 occurred. However, Solidarność immediately intervened with its demand for a phase-out in 2060 at the earliest. Due to the fact that workers from the coal sector are among the core of its own electorate, the government accommodated the union and – which somewhatresembles a small revolution – decided in the summer of 2020 to phase out at least hard coal by 2049.[19] This is a result that both the trade unionists and the government can live with. But not the EU’s climate targets and the health of many people in the area. Because until then, the many sites will continue to be subsidized and operated.
Factoring and plant site in Turów
One of these sites is Turów, which is located in the Tri-State-area between Germany and the Czech Republic. Coal has been mined in the region since the early 18th century, initially underground and then as an open pit mine from 1904. Since 1962, the power plant of the same name has also been located in the immediate vicinity to the north. The resources of the 26 km2 mining area – already one of the 4 largest mining areas in Poland and is expected to be expanded to 30 km2 in the future – would allow coal to be mined there until 2044.[20]
And this is the crux of why the Czech Republic and Poland are now at odds over the project. Due to its location and size, the plant also radiates into neighboring countries and impacts both German and Czech environments. The concession originally allowed PGE, an energy company in which the state holds a majority stake, to operate the plant only until April 2020, but the Polish government not only extended it, but also allowed the aforementioned expansion of the production area both in width to 30km2 and in depth by another 330 meters. This expansion would see the polish production site touching the Czech border.[21]
Concerns of Activists and Plaintiffs
When criticizing the project, a distinction can be made between actual environmental impacts caused by the facilities and procedural errors in the extension and amendment of the concession. This distinction is necessary in particular with regard to the decision of the EU Commission from December 2020, which is a necessary prerequisite for a lawsuit between member states under Art. 259 TFEU, because the weight of the case for future treatment of transboundary environmental impacts will also be decided on this distinction.
Environmental impacts
1. Air pollution
The most obvious impact at coal-fired power plants, air pollution, is also a problem at the site in Turów. The ranking of the European Environmental Agency shows the coal-fired power plant in Turów not only as the second most polluting industrial facility in Poland, but also as the 7th in the entire European Union.[22] A study by the Center for Energy and Clean Air from 2020 shows that the pollution is by no means limited to Polish territory, but also affects German and Czech territory, in line with the phrase “emissions do not stop at borders”. Rather, of the 120 premature deaths in 2017 that could be attributed to emissions from the power plant and open pit mine, 80 occurred in Germany and the Czech Republic and only 40 in Poland. In addition, according to the study, approximately 290,000 people in the German regions of Zittau and Görlitz as well as the Czech region of Liberec are exposed to the maximum tolerable or even higher concentrations of PM2.5 around the clock. The commonly occurring risk increases with respect to diseases such as stroke, lung cancer, heart and respiratory diseases in adults, as well as respiratory infections and harm to cognitive development in children are felt particularly intensively here but extend far beyond this (cf. table 2).[23]
2. Impacts on groundwater and pollution of surface waters
But it does not stop at air pollution. Studies also show that open-pit excavations are affecting groundwater supplies on both German and Czech soil. In the Czech region of Liberec, for example, there is a threat of a significant drop in the groundwater level and, as a consequence, up to 30,000 people could lose access to drinkable water.[24] According to geologist Krupp, significant groundwater drawdown is also expected on German soil, particularly in the region around Zittau. However, this will primarily affect the deeper Tertiary aquifers, which have not yet been used for drinking water production.[25]
However, in addition to subsidence, there is another threat to near-surface groundwater that has contact points with surface waters. As a consequence of the acidic mine waters, significantly higher sulfate concentrations are found in the surface waters near the Turów plant. A similar trend is emerging for cadmium, uranium, and nickel. These pressures have led to waters being classified as “not good” under the Water Framework Directive (2000/60/EC). Presumably, this effect also spreads to the groundwater in contact, but a conclusive determination could not be made due to the lack of measuring points.[26]
3. Ground subsidence
Closely related to groundwater subsidence are future soil subsidence in general. Krupp states in his study that the areas affected by subsidence are largely on Czech and German territory, with the German part in particular comprising mainly built-up areas of the city of Zittau. This largely irreversible subsidence, which could already be as much as 1 m near the state border and gradually decreases to zero toward the west toward the Zittau basin rim, will continue to increase in the coming years due to groundwater subsidence, and according to the study’s assessment, building damage in the Zittau area cannot be excluded.[27]
Krupp further states in his report that PGE’s preferred modeling of the open pit could potentially trigger further soil mechanical instabilities during the flooding phases, which could adversely affect the German areas in particular. This is because the flooding could lead to a reactivation of the latent sliding surfaces of the slope failure from past years that runs under the Neisse River. In a resulting chain reaction, devastating consequences for people, material assets and the environment cannot be ruled out. Krupp for example, warns of the drying up of the Neisse River due to the overfilling of the open pit mine. Although PGE mentions the dangers of such slope failures in its application, it does not present any countermeasures. Krupp sees all these consequences as preventable, or at least mitigable, through more careful and environmentally friendly modeling of the pit.[28]
Procedural errors as a ground for the lawsuit
In addition to the actual impacts, several areas of concern have been identified by activists and critics at the procedural level of the mine’s extension and expansion.
On the one hand, it was criticized that sufficient public and intergovernmental participation had not taken place. Although there were consultations between the three member states, other concerns regarding the Turów plant are said to have been discussed there. Public participation, meanwhile, was almost completely absent. At least in the case of the short-term extension of the concession by 6 years. The situation is different for the extension of the concession to 2044, which is also being sought. Here, the public will be involved and consulted. Activists and experts hope that this inclusive process has the capacity to prevent an extension.[29]
On the other hand, experts have diagnosed a flawed environmental impact assessment as the basis for the extension decision of the Polish government. For example, Krupp criticizes a faulty determination of the status quo, so that the preparation of forecasts regarding the impact of different variants on the environment actually seemed impossible. Furthermore, although the report of PGE contains all the required chapter headings, several of them are missing not only the signatures but also the entire substantive explanations. Additionally, Krupp criticizes the fact that either further research was completely waived in the case of missing data or, in some cases, unsuitable sources of information were used.[30]
With such serious deficiencies, the legality of the extension is indeed more than just questionable.
Decision of the EU-Commission
And it was precisely on these actual impacts of the plant and procedural errors that the Czech complaint to the European Commission of September 30, 2020 was based. According to Art. 259 TFEU, member states taking legal action against another member state must file a complaint with the Commission. This is intended as a more or less last resort to achieve a pre-court clarification of internal disputes under Union law, since the Commission in effect makes a non-binding preliminary decision. In the process of this preliminary decision, the Commission deals with the written requests of the two parties.
In its complaint, the Czech government alleged infringements in relation to the Strategic Environmental Assessment Directive (2001/42/EC), the Water Framework Directive (2000/60/EC), the Environmental Impact Assessment Directive (2011/92/EU) and access to information Directive (2003/4/EC) as well as the principle of loyal cooperation enshrined in Article 4(3) TEU.
After hearing from the two states involved, the European Commission courtly announced in a press statement on December 17, 2020 that they agree with the Czech government on certain issues of the complaint. First and foremost, these were the procedural errors that had been criticized.
The Commission found that Poland continued to fail to adequately transpose the Environmental Impact Assessment Directive (2011/92/EU) into national law. Thus, even if under Polish law the environmental impact assessment had been carried out fully and in accordance with the requirements, this would not have met European standards. This is also the subject of another pending infringement proceeding under Art. 258 TFEU against the Polish government.
However, the Commission assumes that the requirements of the Environmental Impact Assessment Directive (2011/92/EU) and access to information Directive (2003/4/EC) were disregarded in any case, as there was no sufficient public participation and consultation between the respective member states concerned. As already mentioned by the critics of the project, consultations between Poland and the neighboring countries did take place, but these were related to the environmental permit and the change of the land-use plan, and not to the extension of the concession.
The other allegations, in particular those against the Strategic Environmental Assessment Directive (2001/42/EC) and the Water Framework Directive (2000/60/EC), were rejected by the Commission as unfounded after hearing evidence and arguments from both sides.[31]
The European Commission will now have to look into the present matter again, because the wind of the Commission’s positive partial decision and the new expert opinion by Krupp on behalf of Greenpeace have also persuaded the city of Zittau to lodge a complaint with the EU.[32]
Outlook
In the meantime, the Czech Republic has also taken action, first issuing an ultimatum to the Polish government. This stipulated that an earth wall be built on the Polish side of the border to protect citizens in the Czech Republic from the dust pollution produced by the open pit mine and that the Polish state pay compensation of 40 million euros for endangering the drinking water supply and for the financing of new wells. In addition, an expert commission with specialists from the affected countries should also accompany the project in the future.[33] However, this ultimatum expired without a response, compelling the Czech government to finally file a lawsuit with the ECJ. Urgent legal protection was also applied for with the intention to bring the mine to a standstill for the time being.
Both decisions are still pending. The same applies to the decision by the German government as to whether it will join the lawsuit. A preliminary verdict on the urgent legal protection is expected in the next few weeks. These proceedings have the potential to lead to a landmark decision that could determine future environmental issues and the handling of emissions in the EU. In particular, the question of the responsibility of emitting states could be taken up in a specific case, which in turn could open the door for other constellations. Furthermore, questions of habitat destruction by emissions may also be raised
It will be interesting to observe whether the ECJ adopts the easier option by way of the Commission and refers purely to the procedural errors, so that the substantive issues are decided in the respective national proceedings, including public participation and proper EIA; or whether the judges are tempted to intervene more substantially due to the urgency (and gravity) of this matter. The legal proceedings are therefore eagerly awaited.
Robert Los is a state exam candidate at Bucerius Law School in Hamburg with a completed specialization in corporate and capital markets law. He has dealt with the topics of migration and climate mainly in the context of voluntary work.
References
[1] https://www.energiezukunft.eu/politik/tschechien-zieht-gegen-polen-vor-gericht/ (Last Access: 12.03.2021; 10:17)
[2] Cf. the phase out map of “Europe Beyond Coal” – https://beyond-coal.eu/coal-exit-tracker/?type=maps&layer=4 (Last Access: 12.03.2021, 11:25)
[3] Germany: 77; Poland: 44; Czech Republic: 39 – next in the list would be Spain with 15. Cf. https://www.dw.com/de/kohleausstieg-in-eu-cop23-energiewende-klimaschutz-luftverschmutzung-kosten/a-41222994 (Last Access: 12.03.2021; 11:27)
[4] Cf. https://www.dw.com/de/kohleausstieg-in-eu-cop23-energiewende-klimaschutz-luftverschmutzung-kosten/a-41222994 (Last Access: 12.03.2021; 11:27)
[5] BGR Energy study: Data and developments in German and global energy development p. 128 et. seqq. – https://www.bgr.bund.de/DE/Themen/Energie/Downloads/energiestudie_2018.pdf;jsessionid=BF449658E24705A0E6200A12B4410B9D.2_cid284?__blob=publicationFile&v=10 (Last access: 12.03.2021, 11:44)
[6] https://www.bmu.de/themen/klima-energie/klimaschutz/nationale-klimapolitik/fragen-und-antworten-zum-kohleausstieg-in-deutschland/ (Last Access: 12.03.2021; 11:53)
[7] https://deutsch.radio.cz/fach-kommission-empfiehlt-tschechischen-kohleausstieg-bis-2038-8701984 (Last Access: 12.03.2021, 11:54)
[8] https://www.mdr.de/nachrichten/osteuropa/politik/kohle-polen-tschechien-klimagipfel-katowice-112.html (Last Access: 12.03.2021; 13:17)
[9] https://www.zeit.de/2020/32/polen-klimaziele-eu-kohleausstieg-erneuerbare-energien-klimaschutz/seite-2 (Last Access: 12.03.2021; 12:35)
[10] https://www.mdr.de/nachrichten/osteuropa/politik/kohle-polen-tschechien-klimagipfel-katowice-112.html (Last Access: 12.03.2021; 14:25)
[11] Ibid.
[12] https://www.energiezukunft.eu/politik/polen-beschliesst-verspaeteten-kohleausstieg/ (Last Access: 12.03.2021, 14:16)
[13] https://www.mdr.de/nachrichten/osteuropa/ostblogger/eugh-urteil-zu-smog-in-polen-100.html (Last Access: 12.03.2021; 13:00)
[14] EuGH, 22.02.2018 – C-336/16; cf. https://www.mdr.de/nachrichten/osteuropa/ostblogger/eugh-urteil-zu-smog-in-polen-100.html (Last Access: 12.03.2021, 13:12)
[15] https://www.energiezukunft.eu/politik/polen-beschliesst-verspaeteten-kohleausstieg/ (Last Access: 12.03.2021, 14:16)
[16] https://www.mdr.de/nachrichten/osteuropa/politik/kohle-polen-tschechien-klimagipfel-katowice-112.html (Last Access: 12.03.2021; 14:25)
[17] Ibid.
[18] https://www.energate-messenger.de/news/200338/aus-fuer-steinkohle-kraftwerksblock-ostroleka-c- (Last Access: 12.03.2021, 14:30)
[19] https://www.energiezukunft.eu/politik/polen-beschliesst-verspaeteten-kohleausstieg/ (Last Access: 12.03.2021, 14:16)
[20] Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.16
[21] https://www.dw.com/de/braunkohleabbau-im-dreil%C3%A4ndereck-tschechien-stellt-polen-ultimatum/a-56629291 (Last Access: 12.03.2021, 14:59)
[22] EEA Technical Report No. 20/2014 – Costs of air pollution from European industrial facilities 2008–2012, p.36.
[23] Center for Research on Energy and Clean Air, Air quality, toxic and health impacts of the Turow power plant ,Abstract, p.1 – https://energyandcleanair.org/wp/wp-content/uploads/2020/03/Air-quality-toxic-and-health-impacts-of-the-Turow-power-plant_publication.pdf (Last Access: 12.03.2021, 15:54)
[24] https://english.radio.cz/czech-republic-sue-poland-over-turow-coal-mine-expansion-8710176 (Last Access: 12.03.2021, 16:27)
[25] Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.16
[26] Ibid, p.
[27] Ibid, p. 59 et. seqq.
[28] Ibid, p. 54 et. seqq.
[29] https://www.energiezukunft.eu/politik/verstoesst-die-fortfuehrung-des-tagebaus-turow-gegen-eu-recht/ (Last Access: 14.03.2021, 11:46)
[30] Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.
[31] European Commission, Environmental Impact Assessment: Commission adopts reasoned opinion in case brought by Czechia against Poland, 17. December 2020.
[32] https://www.mdr.de/sachsen/bautzen/goerlitz-weisswasser-zittau/tagebau-turow-zittau-beschwerde-eu-kommission-100.html (Last Access: 14.03.2021, 13:00)
[33] https://www.dw.com/de/braunkohleabbau-im-dreil%C3%A4ndereck-tschechien-stellt-polen-ultimatum/a-56629291 (Last Access: 14.03.2021, 13:08)
