Procedural Rights in Wind Energy Investments: Challenges and Solutions

1. Kamila Sobieraj, PhD, legal adviser, an assistant professor at the Environmental Management Law Department, the Faculty of Law and Administration, The John Paul II Catholic University of Lublin in Poland Environmental Impact Assessments of Wind Energy Investments. Procedural rights of the public

2. EU Increasing Demands regarding Renewable EnergySources Currently binding Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from renewable resources, amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC national overall target for the share of energy from renewable sources in its gross final energy consumption to be achieved by the year 2020 for Poland is 15% A policy framework for climate and energy in the period from 2020 to 2030 the indirect target is to achievethe share of energy from renewable sources in its gross final energy consumption in EU at the level of at least 27%

3. Problems with Renewable Energy Directive Implementation in Poland • The absence of sustainable and comprehensive legal regulations governing the financial assistance scheme for producers of electric energy from renewable energy sources, even the absence of any foreseeable provisions governing the new support scheme, caused by continually changing conceptual frameworks for this scheme resulted in chaos and turmoil in the market, which hampered entrepreneurs from taking decisions on projects regarding renewable energy sources • A few years old delays in implementation of the Renewable Energy Directive into the Polish legal framework causedthat it is likely that Poland may not achieve the national target for share of energy from renewable sources by the year 2020 (however it is not impossible yet) • Overall share rate of energy from renewable sources in its gross final energy consumption in theyear2014 in Poland equaled 11.47% and it increased about 4.25 percentage points in comparison to the year 2005 • Currently there is an urgent need of a new investments in renewable energy sources implementation and wind energy investments arethosewhich will have significant influence on the possibility of achieving of the national target for share of energy from renewable sources (in 2013 - 32%, significant increase in 2014, wind is supposed to be in further years the first renewable energy source in Poland) .....but • Currently investments in wind powerplants (particularly their location) became the subject of many public conflicts in Poland; 20% of all public protests regarding investments implementation in Poland concerns wind powerplants • Improper providing of public participation by local authorities at the initial stage of investment process (location) result often in escalation of the conflict atthe further stages of the process and consequently - wind energy investments impeding

4. Public rights protection in wind power plant location process (state as before the act from 2016 on investments within wind power plants became binding) Public authorities sluggishness regarding the local plan of spatial planning adopting (state as on 31 December 2013 - the local plans of spatial planning were adopted only for about 30% of Poland territory) has caused that principle has becomes exception and exception has become a principle

5. Formal and legal correctness, but local authorities activities ineffectiveness • The local authorities has completed required by law regulations formal obligations regarding public participation providing at each stages of proceeding within wind power plants location, but in many cases required informational effect has not been achieved by the authorities; they has acted without due diligence to identify properly and eliminate potential conflicts sources • Far-reaching and deliberate information campaign is necessary to let the majority of citizens get interest within planned investments, e.g. by multidimensional information giving about scheduled meetings, independent experts inviting to let the citizens know better about the investments impact on human health and environment • Conflicts regarding wind power plants location which are not settled as a result of negotiations between the investors and the public and local authorities, are settled by higher level local authorities by way of processing appeals against decisions and by administrative courts by way of complains processing against decisions and resolutions

6. Legal loopholes, ambiguities and inconsistencies of law regulations, which has had many times impact on an appeals refusing • The only parameter having influence on establishing of the distance from wind power plant to buildings inhabited by people has been permissible noise level; regulations governing the methodology of noise measurement has not ensured reliable assessment of such type of installation nuisance, because they do not concern directly noise emissions causing by wind turbine (noise measurements are to be done while wind average speed is 5 m/s, whereasin case of wind power plants the highest noise emissions levels/parameters are reached whenthe wind speed during the installations work is about 10-12 m/s) • Claims regarding problems concern wind turbine syndrome or wind turbine flicker effect can not be also a basis of refusing of decision on the conditions of developmentissuing (or abolishing of the decision or abolishing of resolution regarding local plan of spatial planning), because they has not been legally governed; the same situation has been in case of aesthetic and landscapes values (apart from statutory protected areas) • In 80% of cases, local authorities approvals for wind power plant location have been conditioned by bearing of planning documents elaborating costs by investors or giving a donations by the investors on behalf of the local authorities at the amount of the planning documents elaborating costs; consequently, provisions proposed by the investors have been included while planning documents elaborating process (often, in practice, public rights have not been taken under consideration); covering of the planning documents elaborating costs by the investors is not against Polish law

7. Impact of the law on investments within wind power plants on public rights boosting • The location of the wind power plants with power over of 40 kW is allowed only on the grounds of the local plan of spatial planning • Minimum distance defining (distance between the wind power plant and building inhabited by people or building with habitable function), which must be obligatory respected by the authorities taking spatial planning decisions; way of counting of the distance was also defined; the distance can be extended on the basis of the results of environmental impact assessment procedure carrying out in a particular case • Local plan of spatial planning covering wind power plant location must define i.a. total maximum height of the wind power plant • So called landscape law from 2015 covers regulations regarding landscape audit carrying out – conclusions and comments formulated after such audit can cover directives regarding height parameters of building objects; those conclusions and comments should be respected while the local plan of spatial planning and study of conditions and directions of spatial development elaborating; such audit may have direct impact on wind power plant location • Owners and perpetual usufructuaries of the real estate located in the area covering the minimum required distance are entitled to submit claims against local plans of spatial planning to administrative court

8. Conclusions • Formal ensuring of the public rights while wind power plants location proceedings (wind power plant location on the grounds of thelocal plan of spatial planning is a principle) favorable for environmental security ensuring and nuisances restricting for people inhabited nearby wind power plants, particularly by obligatory environmental impact assessment procedure introducing (wide public participation) is often not enough •  Main reasons of public conflicts: public authorities sluggishness regarding local plans of spatial planning adopting; lack of public authorities due diligences in real the public procedural rights ensuring; legal loopholes, ambiguities and inconsistencies of law regulations, which has had many times impact on an appeals refusing; escalation of the conflict at the further stages of the process has resulted often in wind investments impeding •   Adopting the law on investments within wind power plants will boost public rights but also it may cause that Poland may not achieve the national target share of energy from renewable sources by the year 2020 •  Local plans of spatial planning have not been elaborated for huge majority of Poland territory. If there are no local plans of special planning, renewable energy installation (with power over 40 kW) cannot be implemented; local plans of spatial planning are mainly elaborated for areas inhabited by people, where location of wind power plants will be also restricted by minimum distance requirement • Lack of honest and open dialogue between all interested parties, which could result in agreements reaching and receiving proper compensations for losses incurred by wind power plants neighbours (and consequently no public conflicts)

9. THANK YOU FOR YOUR ATTENTION Kamila Sobieraj, PhD, legal adviser, an assistant professor at the Environmental Management Law Department, the Faculty of Law and Administration, The John Paul II Catholic University of Lublin in Poland