3 November 2022 – Online conversation
The event promoting the Central European Professors’ Network coordinated by the University of Miskolc – Central European Academy was a roundtable discussion conducted by one of the members of the above Network – Professor Bartosz Majchrzak (the Cardinal Stefan Wyszyński University in Warsaw, Poland; hereinafter: the CSWU) with the participation of: Professor Agata Kosieradzka-Federczyk (Department of Science, Administration and Environmental Protection at the Institute of Legal Sciences, Center for Ecology and Ecophilosophy, CSWU, attorney-at-law), Kinga Makuch-Łyczkowska, PhD (Department of Science, Administration and Environmental Protection, CSWU, Center for Ecology and Ecophilosophy, attorney specializing in environmental matters) and Michał Latawiec, PhD (Department of Philosophy of Nature and Natural Sciences, Faculty of Christian Philosophy, Institute of Philosophy, CSWU, supervisor of the CSWU’s Naturalists Science Club). Among the discussion’s participants there were also students – members of the CSWU’s Naturalists Science Club and attendees of the master’s seminar at the CSWU’s Faculty of Law and Administration.
The subject of the considerations was an attempt to evaluate the 1997 Constitution of the Republic of Poland in the field of environmental protection regulations and to formulate proposals for its amendment. This intention was realized following the prior presentation of the constitutional regulations in force in Poland, as well as the regulations contained in the constitutions of other European countries, that pertained in an outstanding way to the issue in question. Referring to them, the following specific foreign solutions were highlighted that:
1) expressly establish everyone’s right to live in a healthy (environmentally friendly, sustainable) natural environment;
2) introduce special protection of all natural resources or specified resources (e.g. waters, minerals, forests), making them the exclusive object of state ownership or public property (the draft amendment to the Polish Constitution of 2014 on special protection of forests was also indicated, regarding forests owned by the State
Treasury and not being subject to ownership transformations. The amendment was drafted to ensure proper management of forests, as well as their accessibility to the population on an equal basis. The bill was not approved by the majority of MPs in the parliament);
3) establish, at the constitutional level, specific environmental protection authorities;
4) promote environmental education;
5) provide for very detailed prohibitions, such as import into the territory of the country and storage of polluting waste.
In the context of the evaluation of the Polish Constitution, the opinion was expressed that the this act does not fully protect the environment. This may result from the fact that is was created in specific conditions, after the experiences of the communist regime and, above all, in the pursuit of a kind of ‘reconstruction of the state’. It is certainly positive that environmental issues appear in the Constitution, for example a strong reference to the principle of sustainable development. Moreover, it was assessed that the environment (its appropriate condition), at least at the level of declarations, was quite ‘appreciated’ and exposed among constitutional values. Comparing them with other values, such as freedom of economic activity, freedom of religion or assembly, reference to the environment and its protection appears in many regulations of the Constitution. This proves the special importance of this value for the constitutional legislator.
Nevertheless, the debaters pointed to the meaning of the constitutional provisions which makes them difficult to apply and obey by the society. This is especially true of concepts such as environmental protection or sustainable development. There was also a question about the content of the constitutional value related to the environment. In the opinion of naturalists, it is a ‘stable environment’, including the stability of natural systems, built of native, interrelated species, as well as a ‘healthy environment’ in which we can realize ourselves.
Another problem is related to the gap between the letter of the law and the practice of the law’s application. While the Constitution protects the environment quite comprehensively, there are many cases, especially of the so-called special acts of law, which at the expense of the environment give priority to investment activities. This is accepted by the Constitutional Court and common courts’ decisions protecting the environment are scarce. In this context, Art. 31 sec. 3 of the Constitution, which
allows for restrictions on the exercise of constitutional rights and freedoms (especially property rights) if they are established by a statute and are necessary in a democratic state, e.g. for environmental protection, is underestimated. Unfortunately, this approach seems to prevail from the perspective of civil law for which property is a special right that is reluctantly restricted. Therefore, in the event of any interference with this right, doubts and objections are raised, if only just in case. Therefore, there is no proper balance and consensus between the right to property or other constitutional rights and the need to limit them due to environmental protection.
The discrepancy between the ‘letter of the Constitution’ and the practice of applying the law also concerns the issue of conducting an appropriate environmental protection policy. The provisions of the constitution clearly capture the objective of public authorities’ policy, which is environmental safety (Article 74 (1) of the Constitution). For this reason, environmental considerations should be a subject of the priorities of the state’s administrative policy. The reality seems to differ from this assumption.
The debaters also noticed a certain dissonance. The environment is a common good, the good of all citizens, the protection of which is required of public authorities, but these authorities (as found in particular by the Supreme Court in the resolution of 2021) refuse us this right and the mechanism of its protection under the Civil Code. This is closely related to the doubts as to whether the Constitution gives an individual a real opportunity to seek protection of their rights in the field of the environment. Penal law is also a weak link. Analyzing the statistics of convictions and discontinuations of penal proceedings in relation to environmental crimes, we can conclude that the relatively high level of environmental protection at the constitutional level is not confirmed in penal law practice.
With regard to the proposed changes to the Constitution of the Republic of Poland, the debaters emphasized in particular the need for ecological education of the society, supported precisely by the introduction of such an obligation on the basis of the provisions of the above normative act. That much as it seems simple and obvious, it appears that the society’s awareness about the direct impact of the environment’s quality on people’s health needs to be continuously raised. Moreover, society often forgets about the constitutional obligation of everyone to care for the environment. This provision being placed at the end of the constitutional regulation referring to the environment, seems to be only ‘thrown in” as an addition to the
essential duty of public authorities. As a result, the Constitution recognizes the possibility of requiring of public authorities to protect the environment more clearly than the obligation of every human being to care for it.
In particular, this issue can be looked at through the prism of the source of the pollution i.e. the behavior of people – including entrepreneurs – living in Poland. Therefore, emphasis should be put on responsibility for our own actions and their influence on the environment. Therefore, it is not primarily about legal liability, i.e. the ability to bring someone to the legal consequences of their negative behavior towards the environment, but about everyone’s focus on their role in caring for the environment. Therefore, the most important thing seems to be the need to change the way citizens think about the environment and their obligations related to its protection. Environmental education should be the first step in this direction. Stipulating in the Constitution the need for it could result in the intensification of education in this field not only at the level of primary schools, but also, and perhaps in particular, at higher education levels. Unfortunately, issues related to environmental protection do not fall within the field of studies that are not strictly related to environmental protection or renewable energy sources. In other specializations, they are often completely ignored.
There was also a postulate in the discussion to include in the Constitution everyone’s right to a ‘stable environment’, which – at least in the postulative dimension – could give an impulse to an increased effort to protect the environment. No doubt, a lot would still depend on the operationalization of this regulation in the provisions of statutes, especially in administrative law. Nevertheless, such a regulation would also provide a chance to change the practice of making and applying law in terms of intensifying the ‘pro-ecological’ activity of public authorities in the field of civil and criminal law.
While analyzing the possible proposal to establish special protection of natural resources by giving them a qualification of having a ‘public’ nature, a doubt was raised that this ‘public’ nature might entail difficulties in jointly caring for those resources. If something is ‘public’ and for free, it has no value. Additionally, doubts in the context of this postulate appeared owing to the systemic nature of the environment and the requirement to protect it comprehensively and not only emphasize some of its elements.
The panelists also agreed that the mere discussion on the need to amend the
Constitution with regard to environmental protection may have positive effects for the
improvement of the practice of applying statutory provisions. The presence itself of
this topic in the public space may lead to expanding the group of people who will
understand the arguments why caring for the environment is important, not only from
the government administration and local government’s perspective but also for each
of us. During the discussion it was also clear that the activities of the Central
European Professors’ Network fit into the above assumptions. Moreover, an
important aspect resulting from research conducted within this Network was
emphasized, which should be highlighted in the context of discussions about the
need for pro-ecological activities. The environment is not only for us living here and
now. We are also obliged to think about future generations and remember about the
requirements related to the so-called intergenerational justice.
I hereby confirm that the report has been proof-read by Magdalena Porembska, PhD, linguist
and translator.
Bartosz Majchrzak, Associate Professor, author of the report
I hereby confirm that I have proof-read and linguistically revised the report. I declare that the
translation has been verified for grammatical correctness and use of scientific English.
Magdalena Porembska, PhD, linguist and translator
