The challenge of challenging air quality programs in Poland – The Silesian air quality program and the issue of standing

In February 2016, a resident of the town of Rybnik located in the region of Silesia, Poland, demanded that the Silesian Regional Assembly amend the air quality program it had adopted in 2014 for the region of Silesia (hereinafter referred to as the program). The adoption of this air quality program was required by law due to illegal levels of PM2.5, PM10 and B(a)P in ambient air in Silesia.

Citizen's demand to amend air quality programs

The demand made by the local resident centered on the allegation that the program adopted for the period of 2014 – 2017 did not include adequate measures allowing for the reduction of levels of pollutants to the limit levels allowed under EU and Polish law in the shortest possible time, as required by the directive on Ambient Air Quality and Cleaner Air for Europe. Instead, according to the program, these levels would be reached by 2023 at the earliest, and assuming that all of the measures adopted in the program were fully implemented. Additionally, the demand stated that no real analysis was conducted by the regional assembly as to whether measures to reduce levels of B(a)P in ambient air were financially feasible and should be implemented through the program. The demand for the amendment of the air quality program was a prerequisite to commence judicial proceedings before the Polish administrative courts. Under Polish law, such a demand must first be made, and, if the demand is not satisfied within 60 days of its receipt, the aggrieved party may then bring a case against the program before the competent regional administrative court. In the instant case, the Silesian Regional Assembly elected not to respond to the demand at all. As a result, the local resident brought a challenge against the program. This challenge repeated the substance of the demand made previously.

Unfortunately, in order for a challenge to be successful, it must be brought by a person whose legal interest is not only potentially affected, but has actually already been infringed by the law or act against which the challenge is made. It is for this reason that an environmental NGO cannot bring a successful challenge by itself against an air quality program – its legal interest is not actually affected by the measures introduced therein; it is, moreover, for this reason that ClientEarth joined the proceedings alongside the local resident of Rybnik, instead of bringing a challenge itself against the program.

Court's rejection of the local resident's challenge

In its judgment rendered on 15 September 2017, the Regional Administrative Court in Gliwice – as expected – followed established case-law and rejected the local resident’s challenge on the grounds that the program did not infringe his legal interest. The court noted that the fact that the local resident lived in an area where legally-permissible pollution levels were exceeded and were harming his health did not mean that he had a legal interest to challenge the program itself. In other words, the substance of the program and its effect on matters related to pollution and health does not, according to the Regional Administrative Court, infringe the legal interest of the claimant. Additionally, the court noted that the program is directed at the administrative authorities responsible for its implementation and does not impose any obligations or grant any rights to individuals, therefore no private legal interest is affected by the program. The local resident’s challenge was rejected.

This ruling, which closely follows established case-law governing the criteria for challenging local laws by private citizens, confirms that it is practically impossible to successfully challenge air quality programs in Poland, especially on the grounds that a given program does not contain measures adequate to achieve the goals set by European and Polish law.
This ruling was appealed against both by the local resident and ClientEarth. Owing to the obvious contradiction between the Polish court’s ruling and the established case-law of the Court of Justice of the EU governing the legal standing of individuals to challenge air quality programs, both appeals contain a request for the Supreme Administrative Court to ask the CJEU for a preliminary ruling on the following question: “Should art. 23 cl. 1 par. 2 of the CAFE directive be understood to mean that an individual, residing in an area where an air quality program was adopted due to a breach of limit values whose date of attainment expired, may request that a domestic court review the air quality program, in particular as regards whether it contains actions ensuring that the breach of limit values will be as short as possible, even if said program is addressed only to administrative authorities charged with implementing the program and the program does not impose any obligations on or grant any rights to said individual?”

Should there be a hearing in the matter, a judgment is expected sometime in 2019, due to the long waiting period for hearings before the Supreme Administrative Court. Should there not be a hearing – and this is solely at the Supreme Administrative Court’s discretion – a judgment may be expected by the summer of 2018.

The Regional Administrative Court’s ruling (case no. II SA/Gl 639/17) can be found here in Polish language.