Coal Energy Environment 13 July, 2021 12:00 pm   
COMMENTS: Marcin Koczan

The Czechs know they can win the dispute over Turów


The so-called “Turów issue” has been dragging for a few years now. The Czechs have complained numerous times about feeling ignored and their postulates not being considered with enough attention. The interim measures imposed by the CJEU forced high-ranking officials from the Polish government to engage in the talks with Prague, inlcuding the Minister of State Assets, the Climate Minister, the Foreign Relations Minister and the Minister for European Affairs. The Prime Minister was engaged in many talks as well. It has been a long time since so many high-ranking officials were involved in negotiations with our southern neighbor. The Czechs notice and appreciate this, but they also know that they have a window of opportunity to win this dispute – Marcin Koczan, PhD, from the Institute of International Studies at the Wrocław University, writes.

The Polish-Czech dispute over Turów

Even though Prime Minister Morawiecki announced (only a few days after the CJEU order) he was close to securing an agreement, which would result in the suit being withdrawn and Poles agreeing to co-finance [sic!] investments to minimize the impact of the Turów mine on Czechia, the Polish-Czech negotiations have been going on for weeks.

It is very apparent that Poland could have started the negotiations with Czechia a lot earlier. In September 2020 Prague lodged a complaint against Poland with the European Commission claiming that EU regulations were breached in the process of extending the license for the open-pit mine in Turów. In December the EC confirmed a lion’s share of the Czech arguments. It was an important message to Warsaw indicating that the case was heading in the wrong direction. Poland’s had its last chance to avoid a battle in court when the Czech Minister of Foreign Affairs visited Warsaw in February 2021, which the Czechs labelled as the last gesture of good will. It seems that that nothing or little has been done to find a compromise and avoid a risky suit. Certainly the intergovernmental talks were undermined by the fact that after the Polish ambassador to Czechia, Barbara Ćwioro, was removed from her post, noone has been appointed since. The nonchalance of our officials has forced us to negotiate with a gun to our head.

Minister Artur Soboń who has been taking part in the talks has stressed numerous times that the Czechs have a strong negotiation position. New issues that haven’t been previously talked about are being added to the list. Time is on the Czech side. The concessions that could have been made by Poland a year or half a year ago are no longer the subject of negotiation, but the starting point. According to the declarations made by the Czech Minister of the Environment Richard Brabec the talks are about covering the past, present and future losses with regard to water access in the Frydlant and Hrádek regions, and about improving the hydrological situation of the Uhelna water source. Poland should pay for the necessary investments (not co-pay, as Prime Minister Morawiecki previously declared), including an anti-filtration screen, anti-dust wall and constant monitoring of the open pit mine impact on the environment. As long as an international agreement on these issues is not signed, the Czechs will not withdraw their suit at the CJEU. In order to further reinforce their negotiation position, Prague submitted with the Court a motion to impose penalties on Poland to the tune of EUR 5 million for every day when it does not adhere to the interim measure.

After the court order was announced both sides of the Polish political dispute resorted to irrational arguments. One group claimed that Poland should implement the interim measure as quickly as possible and shut down the Turów mine immediately. While the other talked about the issue being a German-Czech conspiracy, and in the more radical version of that said that Prague’s decision was inspired by Berlin to sell us coal. However, in reality the dispute is not about the open pit mine itself, and the argument that the Czechs are only concerned about the Polish mine and not their own is missing the point. In fact the issue is about extending the license for coal extraction at the Turów mine, which minister Kurtyka did in March 2020. On the basis of article 72, paragraph 2, point k of the Act on the information about the environment, the minister made that decision without conducing an environmental impact assessment. The Czechs want the EU Court to rule that this infringed on the EU law. This is the essence of the dispute.

Until this issue is settled, the Czechs asked for introducing an interim measure, which entails the immediate shut down of lignite extraction at the Turów mine. After considering the arguments of both parties, the Court decided to support the Czech motion. Judge Silva de Lapuerta had to decide about two issues. First, whether the mine could cause irreversible changes before the case as such is solved. Second, she had to weigh the interests of both sides with regard to the motion for the interim measure. When it comes to the first issue, the Court ruled that the claimant presented enough evidence that it was highly probable that a serious and irreversible damage could be caused. Specifically this pertains to the underground water levels and to the risk of potable water shortages affecting the residents of the areas impacted by the mine. Since such changes are serious and pertain to the natural environment and public health they are always considered irreversible. So the conclusion is that the extraction of lignite at the Turów mine could do a serious and irreversible damage to the environment and human health.

The Court also tried to balance the interests of both countries. In the end it decided that protecting the environment and health of the residents of the affected areas, which could deteriorate in result of mining at the Turów mine, were more important than the social, economic and energy-related arguments made by Poland. Some of the arguments made by Poland included the claims that:

– The impact of the mine on the underground water levels was temporary and reversible due to the construction of the anti-filtration screen. However, the Court rejected this argument reminding that according to Poland the investment is to be ready as late as in 2023;
– The Court also disagreed with Poland that the damages described by Czechia had been done before the license was prolonged. The Court argued that even if the mine’s negative impact on the underground water level had started before the license was extended, the constant drain of underground waters caused by the continuation of the extraction may lower the underground water levels in Czechia even further and thus cause irreversible damage to the environment and human health;
– The Court also rejected the Polish argument that even an interim shut down of the mine would cause damage to the “environmental balance” of the mine. The Court decided that suspending the extraction did not mean the works on securing the mine would be stopped;
– According to the Court, Poland failed to prove that the interim ban on extraction would cause a shut down of the Turów mine with all of its consequences;
– Poland also maintained that halting the operation of the Turów power plant could increase the risk of a system-wide breakdown, which could cause a blackout affecting a large portion of Poland’s territory. The Court pointed to the fact that the operator of the grid was responsible for balancing the network in case of capacity shortages, and that Poland failed to prove that putting a halt to coal mining would cause a real threat to energy security, access to electricity for consumers or cross-border power transfers;
– According to the Court, the possible loss of jobs at the mine, the power plant or any related businesses is financial in nature, which means it cannot be deemed an irreversible damage. Apart from that, Poland did not demonstrate that the interim clousure of the mine would irreversibly shut down the mine and the power plant.

In result of the above, the CJEU decided to implement an interim measure until the final ruling is made. Of course we can discuss whose arguments were better, whose lawyers had superior skills and more detailed and more convincing analyses. Conclusions from this discussion will undoubtedly teach us a lot, but for the cases that have been already ruled on (even if the sentence is temporary) it doesn’t really matter. One thing is obvious though. We need to quickly cut the losses and sign a deal with the Czechs (irregardless of how difficult it is). Why? Because the CJEU order from the 21st of May that caused a media storm in Poland is only the beginning. The Czechs want the Court to rule that by extending in March 2020 the license for coal extraction in the Turów mine Poland infringed on EU regulations. What could be the consequences of such a ruling? Poland is maintaining that it would only force it to remove the defects and deficiencies when it comes to the environmental impact decisions, and that it would not cause a suspension of extraction activities at the mine. However, the Court did not preclude that if the Czech complaint was confirmed, the implementing measure would entail the suspension of extraction at the mine until the defects were removed. Every court proceeding involves risks for both parties. It seems that the CJEU will agree that the license extension was issued in a way that infringed on EU regulations. In December 2020 the European Commission, which partially supported the Czech complaint, stated that Poland did not correctly apply the regulations of the directive (2011/92/UE) on the assessment of the effects of certain public and private projects on the environment and of the directive (2003/4/WE) on public access to environmental information and the principle of sincere cooperation included in article 4, point 3 of the Treaty on European Union (TEU).

It looks like both parties want to reach an agreement. Both need to end the negotiations with a success (of course understood differently). It seems that both governments want to handle the case in a bilateral way, during confidential negotiations. They realize that allowing representatives of the European Commission, local communities, employee organizations or environmental organizations from both sides of the border to participate in the talks would only prolong the process and complicate it even more instead of speeding it up. The upcoming parliamentary elections in Czechia are definitely not helpful. Of course this is not an important topic in the public debate in Czechia as naturally from Prague’s point of view it is a local issue, but a victory or failure in the negotiations will undoubtedly be used during the election campaign. Still, the problem carries a lot more gravity for Warsaw than Prague.