NGOs will be able to challenge local air quality programmes
On 25 August 2025 a bill to amend the Environmental Protection Law was posted on the Government Legislation Centre website. The proposal awards ecological organisations, among others, the right to challenge air protection programmes, revisions to such programmes, and sort-term action plans in this area.
The planned changes are designed to harmonise Polish law with EU requirements, including the standard set forth in Art. 9(3) of the Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
According to the stated justification for the bill, the immediate reason for the changes was the European Commission’s filing of a complaint against Poland with the Court of Justice on 18 June 2025 over the inability of interested communities to challenge air quality schemes.
Existing rulings by Poland’s administrative courts
Under current practice, the administrative courts consistently deny individuals and ecological organisations the right to file challenges against local air quality programmes. While the cases find that natural persons and social organisations do have a factual or societal interest in challenging such acts of local law, for the challenge to be considered they first must show a legal interest in the case, not merely a factual interest (e.g. Supreme Administrative Court order of 16 January 2024, case no. III OSK 3283/23).
The reasoning of the administrative courts in these cases boils down to the view that such schemes are addressed solely to the public administrative bodies obliged to implement them. Consequently, an air quality programme adopted in the form of a resolution by the province assembly (sejmik) does not vest any rights in, or impose any obligations on, natural persons or ecological organisations, and thus they lack a legal interest in such cases (e.g. Supreme Administrative Court order of 21 July 2022, case no. III OSK 1510/22).
In the cited cases, the court found that this interpretation does not violate the Aarhus Convention, because the scope of rights to file legal challenges is a matter left to national law. The Polish legal system permits a complaint to be filed only if the challenger can show a narrowly-defined legal interest, and neither the inhabitants of the area in question nor ecological organisations can meet this requirement.
This has led to a situation where challenges to air quality programmes are filed with the courts, but the courts reject them. This is a purely procedural move, which means that the merits of the arguments raised in the complaints are not examined. Thus in practice neither ecological organisations nor the inhabitants of the areas covered by a given air quality programme can effectively pursue their rights.
It is not just the European Commission that has drawn attention to this state of affairs. In 2016 the ClientEarth Lawyers for Earth Foundation filed a complaint with the Aarhus Compliance Committee over the inability to challenge air quality programmes. This proceeding concluded on 25 August 2025 with a finding that Poland is in violation of Art. 9(3) of the convention, which provides that each country that is a party to the convention “shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”
What’s in the amendment?
The proposal would add a new Art. 96b to the Environmental Protection Law. It provides that a complaint against a resolution on an air quality programme or a revision to such a programme (Art. 91), or a resolution on a short-term action plan in this area (Art. 92), may also be filed by:
- A natural person residing in the area covered by the air quality programme, revision, or short-term action plan
- An organisational unit conducting economic activity in the area covered by the air quality programme, revision, or short-term action plan, or
- An ecological organisation relying on its statutory purposes, conducting statutory activity involving environmental protection or protection of human health for at least 12 months before publication of the resolution.
There is a time limit for filing a complaint of six months after the adoption of the resolution in question.
The new provisions are to go into effect 14 days after publication of the amending act. The bill is currently at the stage of social consultations. This means that it still has to be approved by the parliament and signed by the President.
Summary
The proposed changes should generally be regarded as a positive development. The current state of Polish law clearly infringes the Aarhus Convention, and the reasoning followed by the administrative courts on this issue is unpersuasive. It has been criticised not only by NGOs, but also by legal scholars (see e.g. K. Łuczak, “Standing of the individual to file a complaint with the province administrative court against a resolution by the province assembly on air protection programmes: Commentary on Supreme Administrative Court order of 21 July 2022, case no. III OSK 1510/22,” OSP 2023 no. 11, p. 93).
Hopefully, the planned changes will have a positive impact on the quality of the resolutions adopted by province assemblies. Currently, the public administrative bodies have no obligation to take into account the remarks submitted in the consultations leading up to adoption of the given scheme or plan. In practice, the authorities have been able to freely ignore these comments, because neither individual residents nor ecological organisations could challenge the resolution itself. The care taken in drafting such acts of local law would undoubtedly increase if the provisions were subject to review by the administrative courts.
Karol Maćkowiak, Environment practice, Wardyński & Partners
