Not easy to ‘green’ old ways: National courts and rights‐based smog cases in Poland

• Published date: 01 April 2023
• Author: Karolina Karpus
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12495

ORIGINAL ARTICLE

Not easy to ‘green’old ways: National courts and rights-based

smog cases in Poland

Karolina Karpus

Department of Environmental Law and Public

Economic Law, Faculty of Law and

Administration, Nicolaus Copernicus

University, Toru

n, Poland

Correspondence

Karolina Karpus, Department of Environmental

Law and Public Economic Law, Faculty of Law

and Administration, Nicolaus Copernicus

University, Toru

n, Poland.

Email: kkarpus@umk.pl

Abstract

The topic of environmental rights has been intensely debated at the international and

European levels. It is closely connected to another important issue, namely, the role

of rights-based litigation in the enforcement of environmental law. In Poland, mem-

bers of the public have tried to use the strategy of environmental rights-based litiga-

tion to target ineffective air quality plans. However, existing barriers in access to

justice impelled the public concerned to resort to civil lawsuits as another form of pri-

vate enforcement of ambient air protection measures. The infringement of the right

to a clean environment was among the legal arguments presented for the purpose of

establishing Poland's liability for smog. The 2021 landmark rulings in the so-called

‘smog cases’exemplify how the judiciary's willingness to embrace the concept of

environmental rights in its current form can be limited by concerns about the coher-

ence of the national legal system.

1|INTRODUCTION

In the last decade, the exposure to smog has increasingly attracted

attention in Polish society. According to statistical data, difficulties in

fighting smog in Poland are connected, above all, with emissions from

households.

1

Altogether, in the years 1990–2019, there was a notice-

able trend reflecting a progressive reduction of emissions of gases and

particulates into the air.

2

Despite the improvement of air quality

observed in the last three decades, the problem of household air pol-

lution still remains unsolved in Poland. In light of these circumstances,

it is understandable why smog resulting from such emissions has led

to social anxiety.

3

In the eyes of Polish people, the failure in the fight against smog

has its origins mainly in the negligent inaction of both legislative and

executive powers. This bureaucratic inertia was perceived by the

public as being in contravention with Poland's constitutional duty to

protect the environment

4

(Article 5 in conjunction with Article

74(1) of the Constitution of 2 April 1997

5

) and European Union

(EU) law, notably the Clean Air for Europe (CAFE) Directive.

6

In 2018,

the public's conviction about the correlation between prolonged

exposure to smog and the inaction of the state was substantiated by

the Court of Justice of the EU (CJEU).

7

As to particulate matter

(PM

10

) exceedance periods, the court agreed with the commission

that the absence of appropriate measures in the Polish Air Quality

Plans (AQPs) should be considered a breach of Poland's obligations

under the CAFE Directive.

8

In an attempt to correct this unsatisfactory situation, members of

the public have resorted to private enforcement of environmental

law.

9

The subsequent legal disputes (hereinafter referred to as ‘smog

1

Commonly referred to as ‘low emission’; see J Adamczyk, A Piwowar and M Dziku

c, ‘Air

Protection Programmes in Poland in the Context of the Low Emission’(2017)

24 Environmental Science and Pollution Research 16316, 16317.

2

Ministry of Climate and Environment, ‘Poland's Informative Inventory Report 2021’(2021)

<https://cdr.eionet.europa.eu/pl/eu/nec_revised/iir/envyei5sq/IIR_2021_Poland.pdf>

24, 28, 30, 34, 40.

3

A Citkowska-Kimla, ‘Poland and the Problem of Smog—Political Action Versus Social

Expectations’(2019) 26 Annales Universitatis Mariae Curie-Skłodowska—Sectio K 127, 130–

132.

4

A Jaworowicz-Rudolf, ‘Public authorities' commitment to follow a policy providing

ecological safety understood as a synonym of appropriate quality of the environment’

[PL] (2019) 87 Acta Universitatis Lodziensis—Folia Iuridica 9, 14–19.

5

Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r., Dz. U. Nr 78, poz. 483 ze

zmianami (Polish Constitution).

6

Directive 2008/50/EC of 21 May 2008 on ambient air quality and cleaner air for Europe

[2008] OJ L152/1 (CAFE Directive).

7

CJEU, Case C-336/16, Commission v Poland, ECLI:EU:C:2018:94.

8

ibid paras 101–103.

9

A Sikora, Constitutionalisation of Environmental Protection in EU Law (Europa Law Publishing

2020) 213–214.

Received: 6 June 2022 Accepted: 8 March 2023

DOI: 10.1111/reel.12495

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