Environmental protection in the Constitution of the Republic of Poland and global environmental problems

Environmental regulations are relatively new as around fifty Years ago. Their specificity is that they develop directly in proportion to the pace of economic and civilizational development of the world, being a specific response to any threat to the environment of human life on Earth. It is important that regulations address or eliminate global environmental problems and potential threats and their sources.

In the development of environmental regulations we can distinguish two stages. To first, The earliest should be recognised as having different environmental regulations. An example is the numerous powers assigned to public administration to ensure the rational use of water, energy, air, land and natural objects.

Many civil law institutions dealing with property or liability for damage have applied to legal forms of nature conservation or liability for environmental damage.

In criminal law, environmental protection has been served by provisions laying down criminal liability for exposure to public danger or by provisions establishing professional responsibility.

second The development of environmental law involves the emergence of new legal institutions, e.g. a protection area, environmental offences, environmental liability, environmental impact assessments, environmental information indicating that they have only the right characteristics. In addition, these institutions work together and connect into a larger whole, which has been isolated for teaching or research purposes as environmental law.

A special feature of this second The development stage of environmental law is its internationalisation to address global environmental problems. Poland signed and ratified more than 100 international agreements and conventions regulating the protection of the environment as a whole or its selected elements.

In order to fulfil the obligations there, it is necessary to implement them into Polish legislation and to introduce internal protection measures. There is no doubt now that environmental law is under increasing influence of international environmental law and European environmental law.

An example of this is the fight against global environmental problems at national level using world-renowned legal instruments such as integrated permit, environmental impact assessment, environmental report, environmental information, environmental plans and action programmes.

Many representatives of the doctrine regard environmental law as a separate branch of law.

The most important reason for recognising environmental law as a separate legal branch is that it is clearly defined in this respect and included In one, a leading legal act – an environmental law (often referred to as a code), and follows the provisions of the Constitution.

Before that, it was Act dated 31 January 1980 on the protection and shaping of the environment and the provisions of the Constitution of the Polish People's Republic of 1952 (revised In 1976). It is currently Act dated 27 April 2001 – Environmental law (one: Journal of Laws of 2020, item 1219, as amended) – Further: p.o.s.

– and provisions of the Constitution of the Republic of Poland dated 2 April 1997 (Journal of Laws, item 483, as amended) – Further: Constitution of the Republic of Poland.

In fact, the obligation to protect the environment or the right to a healthy and environmentally sustainable environment is becoming more and more recognised, because now more than 100 the constitution in the world contains provisions on this subject.

Practically no constitution established or corrected after 1970 does not ignore environmental issues. The criterion of environmental law in question has, unlike other legal disciplines, a deep foundation in natural and biological sciences.

Current environmental problems related to economic activity in the light of sustainable development

The main problem of environmental law is the scope of economic activity which the law considers to be safe for the environment, to maintain its good quality and natural balance, and for the health of present and future generations. It is generally designated by the Constitution of Poland under Article 5, which reads: "Poland protects the independence and integrity of its territory, ensures the freedom and rights of man and of the citizen and the security of citizens, protects national heritage and protects the environment, guided by the principle of sustainable development"[1].

In order to define a safe range of business activities, account should be taken of the characteristics that are closely linked to the environment.

This will primarily be the fact that the environment is at the same time a source of raw materials for production processes and waste dump sites and defines economic and spatial investment activities[2].

It seems reasonable to argue that, by taking up and carrying out economic activities, the various operators, for reasons of environmental safety, may be limited by law in this activity.[3]. Such restrictions are intended, among others, to be met by an integrated environmental permit institution introduced in environmental law.

The need to submit the activities of individual entrepreneurs to the opportunities of the environment has led the legislator to take into account material considerations, such as the limited resources and spaces in which they exist, and as important intangible considerations as the right to live in a quality environment or the right of future generations to use the environment.[4].

All these issues were raised in the Constitution of Poland.

More detailed restrictions on the principle of economic freedom, including environmental protection, have been introduced by a specific "business constitution", i.e. Act dated 6 March 2018 – Business law (one: Journal of Laws of 2019, item 1292)[5].

All legal regulations, regardless of the degree of abstractity, are intended to serve the broadly understood protection of the environment, the elements of which are: water, air, climate, earth surface and minerals, animal, plant and associated aesthetic qualities.

The law also protects the environment from such phenomena as noise, waste, vibration, harmful radiation, and many pollutants. In particular, in the legal areas of nature conservation and investment, in the construction and operation of machinery and equipment, entrepreneurs are subject to many restrictions[6].

In order to effectively protect the environment from the various risks posed by economic activities, green technologies and innovation should be implemented to this end.

For example: comprehensive processing of resources and raw materials taken from the environment, production in a material and energy-efficient way, disposal of pollutants in the form of the simplest and fastest assimilation in quantities not exceeding the capacity of the environment, deconcentration of production plants[7].

Another restriction on the principle of economic freedom is the regulation of certain economic activities.

Economic activities related to the use of environmental resources, such as the exploitation of natural resources, marine fishing, the operation of municipal and radioactive waste landfills, and the economic use of water, require authorisation.

Concession requires exploration, recognition and extraction of hydrocarbons and trading of fuels and energy. It should be pointed out that conducting an economic activity with environmental requirements not always exhaustive comply with even the best legal regulation.

Corporate social responsibility (CSR) should be introduced more broadly, which includes its standards of environmental protection. The individual's attitude to the problem and education and environmental awareness are important.

After all, the effect and conduct of economic activity are not always converging temporally and spatially, and sometimes the accumulation of effects in the environment occurs longer after the end of economic activity.

In order to prevent this, regulations in Polish, European and international law introduced principles of caution, prevention, "polluter pays" and the principle of sustainable development (as a mega principle). This latter principle operates on several levels: economic development, social policy and environmental protection.

The principle of sustainable development also means social and economic development in which the use of non-renewable environmental resources will show a decreasing trend. The use of renewable resources should, on the other hand, be carried out with the lowest possible environmental burden, e.g. by reducing the energy consumption of the product unit. This, after use (use), should be suitable for further use (recovery), thus reducing the environmental burden by the mass of waste to be stored[8].

It is clear from the Polish Constitution and the provisions of the law of entrepreneurs that it is possible to introduce restrictions on the principle of economic freedom due to environmental protection. Businesses can face such “green” constraints both at the time and during the course of their activities.[9].

The restriction on the principle of economic freedom is the authorisation of individual activities which combine directly with the use of the environment.

They concern: the exploitation of mineral resources, trade and manufacture of poisonous substances, marine fisheries, activities based on the use of renewable energy sources, the operation of landfills of municipal and radioactive waste and the economic use of water, the protection of arable crops, hunting laws, atomic law, waste, ozone depleting substances, genetically modified organisms, food and nutrition health conditions[10].

The requirements laid down to obtain a permit to take up and pursue a business activity, as well as to determine the conditions associated with that activity, are combined with criminal liability for the conduct of that activity without the required authorisation or contrary to its conditions or provisions.

Therefore, most often laws introducing and standardising permits also contain criminal sanctions, under non-code criminal law.

Constitutional grounds for environmental protection in Poland

A constitution in every legal system plays a particular role. It sets out the basic principles of the system and the rights, freedoms and universal and civic obligations. The Constitution also includes provisions relating to environmental protection directly and indirectly[11].

Constitution of the Polish Republic passed In 1997 contains five environmental legislation. These are: Article 5 (Proclamating the principle of sustainable development, already discussed), Article 31(3), Article 68(4), Article 74 and Article 86.

The inclusion of environmental protection based on the principle of sustainable development among the basic constitutional principles should determine the specific competences and tasks of state authorities, regardless of ad hoc political trends.

The implementation of environmental protection has thus become the subject of political responsibility of every government.

Under Article 31(3) The Constitution of the Republic of Poland refers to restrictions on the exercise of constitutional freedoms and rights which can only be established in the Act and only if they are necessary in a democratic state for its security or public order or for the protection of the environment.

These restrictions must not detract from the essence of freedom and rights. Admissibility of restrictions depends on compliance with the conditions referred to in that provision, but it states that any constitutional freedom and law may be restricted in the name of, inter alia, environmental protection.

For example, various solutions that shape the content of property rights, in particular land properties, mainly in a way that reduces the existing rights of the owner, or requires the exercise of personal rights in compliance with environmental protection requirements.

They often assume regulation of certain activities, primarily economic ones, affecting the environment, e.g. by licensing in geology and mining. However, such restrictions must not affect the essence of constitutional freedoms and rights.

In Content Article 68(4) The Constitution of the Republic of Poland has been obliged by the public authorities to take action to combat epidemic diseases and to prevent adverse health effects of environmental degradation.

In the light of this provision, health protection appears to be one from the guarantee of the right to health protection. The obligation to prevent adverse health effects of environmental degradation should be implemented by public authorities at both central and local level.

According to Boguslaw Banazak, no subject rights can be derived from these obligations, but they certainly involve health protection by taking action to combat diseases and preventing them by reducing certain environmental pathogens in order to protect the constitutional value of individual health[12].

The environment undoubtedly affects human health. Constitutional Court in judgment dated 13 May 2009[13] constructs the concept of a healthy environment as a constitutional value, whose implementation must be subject to the process of interpreting the constitution.

In the Court's view, this issue should be considered in the context of related provisions of the Polish Constitution: Article 68(4), Article 74(86), and Article 31(3).

Environmental protection is devoted to the whole Article 74 Constitution of the Republic of Poland. According to its content, it is the responsibility of the public authorities to pursue a policy that must ensure environmental safety for both the current generation and the future generation. Interesting.

section 3 This article: "Everybody has the right to state and environmental information". This provision creates a subjective right to the environment. In Content Article 74(4) an obligation has been imposed to support public authorities' efforts to protect and improve the environment.

The legislator pointed out here that the public authorities, both government and self-government, had an obligation to protect the environment, with a specific obligation to ensure environmental security for current and future generations and an obligation to support citizens' efforts to protect and improve the environment.

In the same provision, the subject law was formulated but not to benefit from the value of the environment, as it was during the period of application of the Constitution of the Polish People's Republic of 1952 (in the wording of the Amending Act from 1976), but only for state and environmental information.

Therefore, I believe that there is no longer a subjective right to the environment at the constitutional level, which I consider negative. The right to the environment can only be considered as reflections of public authorities' responsibilities.

According to Article 81 Constitution of the Republic of Poland of the rights listed under Article 74 can be achieved within the limits laid down in the Act.

But in content Article 86 The Polish Constitution treats environmental protection in terms of civic duty: “Everyone is obliged to care for the state of the environment and is responsible for the deterioration caused by it.

The principles of this responsibility are laid down in the Act.’ It's about Act dated 27 April 2001 – Environmental law (one: Journal of Laws of 2020, item 1219, as amended). The legislator wanted to regulate the obligation to protect the environment and the responsibility for its condition, especially its deterioration.

It establishes the principle of responsibility of everyone, not only the natural person, but also the legal person, and the organisational unit, regardless of whether they carry out business activities and what they are, for the deterioration of the environment.

However, the lack of precise rules for its application, meaning that liability in terms of Article 86 The Constitution of Poland cannot be understood as autonomous responsibility.

The literature finds that the content of this provision is not only an order to refrain from actions that may harm the environment, but also an order to prevent or prevent harmful impacts and an order to take action to restore the quality of the damaged environment. In addition, it cannot be exempted.

Thus, the Constitution of the Republic of Poland allows a wide range of responsibility due to its generality and its basic character.

Provision Article 86 The Polish Constitution refers to the Act, which in practice means that this responsibility includes both liability on the principles of civil code, environmental law, penal code and code of offences, as well as employee, administrative and liability provided for in other laws, e.g. nature protection law, water law.

When assessing the Polish constitutional regulation in terms of environmental protection, it should be stated that it is more extensive than the previous regulations. It is definitely dominated by this view of environmental protection as a common good which is to be guarded by the public authorities[14].

In the preamble to the Constitution of the Republic of Poland, which states: "In the interests of the existence and future of our Homeland ... obliged to pass on to the next generations all that is valuable from more than a thousand years of achievements", there is a so-called intergenerational deposit.

The benefits are material and intangible elements, the natural environment and the environment transformed by man, the territory, also in spatial terms as a landscape. So in the light of the preamble to

The Constitution has also given rise to the need to protect the environment. This idea was developed in several articles of the Constitution of Poland, presented above[15].

In the light of the above information on the shape of environmental legislation in Poland, it should be added that the main reason for their implementation was the transformation of the Polish economy after a year 1990, implementing the social market economy as well as the need to address the challenges of the 21st century, including global environmental threats. However, the main driver of changes in the area of environmental protection was Polish aspirations for membership of the European Union.

General principles of environmental use derived from the Constitution of the Republic of Poland

Environmental law clarifies the provisions of the Polish Constitution on environmental protection and maintenance of environmental safety. It introduces as a general principle the widespread use of the environment (Article 4 p.o.s.).

It benefits everyone under the law and includes the use of the environment, without the use of special installations, to meet personal needs and household needs, including leisure and sports. Other use is subject to authorisation.

That authorisation shall specify in particular the scope and conditions of use and must be issued by the competent authority as an administrative decision.

The widespread use of the environment is the right of everyone, not necessarily a Polish citizen, but also a foreigner, resulting from the power of the law itself and not requiring any administrative decision to use the advantages of the Polish environment.

In the light of the above, it should be noted that the legislator introduced as a principle three types of environmental use: common, ordinary and specific after authorisation.

The latter is addressed primarily to entrepreneurs active in economic activity, which creates and creates global environmental problems related to pollution, waste and raw materials management. Another principle is the protection of the environment as a whole, integrated and comprehensive.

Under Article 5 Security is established one or several natural elements should be implemented taking into account the protection of other elements.

The principle of prevention is expressed under Article 6 p.o.s., where it is mentioned that anyone who undertakes activities that may adversely affect the environment is obliged to prevent this impact.

The precautionary principle correlates with the precautionary principle, as anyone who undertakes an activity whose negative impact is not yet recognised is obliged to take all possible preventive measures based on caution (Article 6 p.o.s.). In fact, caution is about increased prevention.

It is difficult to establish the lower limit of this foresight, because all dangers cannot be eliminated because they are difficult to predict in a given state of knowledge. The principles of prevention and foresight are universal.

They are primarily important for formulating environmental policy and as interpretative directives in the application of law. They are in international environmental law and European environmental law.

An important principle is the “polluter pays” principle, which states that whoever causes pollution bears the costs of removing the effects of this pollution. It is also the cost of preventing pollution, i.e. the cost of preventive measures, that can cause pollution.

The new important principles derived from European law include the principle of socialising environmental decision-making.

Anyone, of course, in the cases set out in the Act, has the right to participate in the procedure for the adoption of environmental decisions or the adoption of a draft policy, a plan or programme for development and restructuring, and a study and planning project.

This principle involves the right to environmental information and its protection. The principles presented, derived from the Constitution of the Republic of Poland, are treated as a set of directives of conduct aimed at protecting the environment and apply to all users of the environment, including, of course, business operators[16].

They have a statutory right to use the environment. If the law introduced the right to use a healthy environment, there would be a problem with who is the addressee of the obligation resulting from it. From whom can a citizen demand that the environment be healthy?

The rules do not provide that the State is the addressee of this potential law and that it is his responsibility to ensure that the environment is human-friendly so that it can benefit from its advantages.

In countries with a market economy, environmental legislation is highly placed in the hierarchy of regulations governing socio-economic life, and its source is the constitutional basis for environmental protection. The market economy does not provide environmental protection based on its own mechanisms. This protection is enforced by the law and the activity of citizens. Environmental protection In the first the order is the subject of public law and only Next, private law.

This is due to the importance and scope of environmental, sociological and environmental issues which can be divided into local, regional and international issues.

Local problems are mainly related to the functioning of human settlements, e.g. municipal waste, legal forms of site conservation. Regional issues, sometimes called territorial ones, include land areas along with seawaters under the jurisdiction of a coastal State. For example, biodiversity protection, Natura areas 200017.

The international problem, which focuses on global environmental issues, is currently mainly about protecting biodiversity, climate, landscape, desertification, marine protection against pollution, renewable energy production and the fight against waste.

Local and regional issues covering: water, land, forests, living and inanimate nature are addressed by individual countries and their internal legislation, which is mainly governed by administrative law. It is based on two criteria: public interest and hierarchically subordinate relations.

On the other hand, the global issue, which is also governed by public law, is addressed through international agreements between states and resolutions of international organisations. The above division, however clear from the point of view of the regulatory criterion, is in fact not so obvious[18].

As the nuclear disaster in Chernobyl and recently in Fukushima has shown, local problems in one country can, due to various environmental interactions, turn into regional or international problems.

It turns out that actions one States, even if they are carried out within their national jurisdiction, may have harmful consequences in the territories of other countries or international areas.

The resulting, seemingly, individual and limited environmental damage[19], for example, combustion or emissions of gases, accumulate over time, leading to global effects in the form of a greenhouse effect that the whole world is fighting. Environmental issues are ubiquitous in the modern world.

They concern not only the seas and oceans, but also air protection, ozone layer, landscape, forests and climate. The list of these issues is widened and the number of regulations is increasing.

The Constitution of the Republic of Poland creates the basis and legal framework for effective environmental protection in Poland, which is consistent with trends in the world.

The attempt to address global environmental problems was to adopt 72. UN General Assembly session In 2017 the Global Environment Pact, which has already been proposed, 21 environmental rules.

Many of these principles are already present in the Polish Constitution: the principle of sustainable development, the principle of widespread use of the environment, the principle of integrated environmental protection, the principle of prevention, the principle of caution, the principle of "polluter pays", the principle of public participation in environmental protection, the right to environmental information.

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1 see B. Banashak, Constitution of the Republic of Poland. Commentary, Warsaw 2012, p. 74–75; K. Shuma, Environmental Law. The outline of the lecture. Selection of materials, decisions of courts, cases and texts, Warsaw 2013; Selected legal issues of environmental protection, ed. J. Boć, Warsaw 2013. 2 D. Trzcińska, J.

Kierzkowska, Environmental safety in the performance of public tasks, Warsaw 2020. see also the country's raw material policy. Project, Ministry of Environment, Warsaw 2018, p. 61; J. Machowski, Legal problems of environmental protection, Warsaw 2000, p. 141; Legal aspects of interventionism in the economy and environment, ed. J.

Ciechanowicz-McLean, „Gdanski Studia Prawnicze” 2009, t. 22, p. 97–110; Business activity and environmental protection. Between theory and practice, ed. J. Ciechanowicz-McLean, J. Olszewski, Rzeszów 2017; C. Kosikowski, Contemporary Interventionism, Warsaw 2018, p. 371–409.

3 see Mr Korzenowski, Environmental safety as a legal institution for environmental protection, Łódź 2012; J. Ciechanovich-McLean, Environmental Protection... 4 A. Dobachewska, A. Powałowski, H. Wolska, New law for entrepreneurs, Warsaw 2018; M. King, Environmental Protection... p. 451–469. 5 see M.

Szydło, Freedom of establishment as a fundamental right, Bydgoszcz-Wroclaw 2011, p. 74–92. 6 D. Trzcińska, Law of Planning...; Off-code crimes against natural resources and the environment. Commentary, ed. M. Mozgawa, Warsaw 2017, p. 363–373. 7 B. Poskrobko, T. Poskrobko, Environmental management in Poland, Warsaw 2012. 8 see A.

Lipiński, Legal basis for environmental protection, Kraków 2002, p. 32; H. Lisick's concept of sustainable development is the basis of industrial and environmental policy, "Environmental protection. Law and Policy’ 1998, No 1; Z.

Bukowski, Principle of Sustainable Development in the Law System, Toruń 2010; idem, Waste Management Law, Poznań 2014; K. Rowny, Towards an international and comparative law on sustainable development in environmental protection (choice of studies), Warsaw 2010. 9 W.J. Katner, Law of Business. Comment. Case law.

Literature, Warsaw 2003, p.

67: „Appeal under Article 9 Laws to comply with environmental regulations by an entrepreneur performing an economic activity are intended to make it aware of the importance of environmental protection when implementing the principle of economic freedom even where there are no regulations regulating specific business activities (see Act dated 27 April 2001 environmental law)’.

10 see M.A. Waligorski, Concessions. Licences and licences in Polish administrative economic law, Poznań 2012; M. Richert, Environment in the Investment Process and Business. Requirements, procedures, implementation, Gdansk 2002, p. 7; C. Kosikowski, Concessions and business permits, Warsaw 2002, p. 138–143. 11 Z.

Bukowski, Constitutional basis for the responsibilities of the State in the field of environmental protection, Law and Environment 2002, No 4, p. 63; T. Hayward, Constitutional Environmental Rights... – see Introduction. 12 B. Banashak, Constitution of the Republic of Poland...

13 Judgment of the Constitutional Tribunal dated 13 May 2009, Kp 2/09, OTK ZU 2009, No 5A, item 66. 14 see J. Ciechanowicz, L. Mering, Environmental Protection in the Constitution of Poland [in:] Constitution of the Republic of Poland of 1997 a Polish membership of the European Union, ed. C. Mik, Toruń 1999; M.

Mazurkiewicz, Constitutional Regulation of Environmental Protection in Poland, "Environmental Protection. Law and Policy’ 1997, No 2; J. Ciechanovich-McLean, P. Dembicki [in:] Constitutional survey 2017 written by the Law and Justice in the 20th anniversary of the passing of the Constitution of Poland, edited by A. Labno, B. Banashak, B.

Szmulik, Warsaw 2018, p. 69–89. 15 see J. Sommer, Environmental Protection Law in the Polish Law System, “Legal Studies” 2001, No 3–4, p. 283–307; Constitution of the Republic of Poland. Comment, t. 2, ed. L. Garlicki, M. Zubik, Warsaw 2016; W. Radecki, Legal Responsibility in Environmental Protection, Warsaw 2002.

16 see Mr Korzenowski, Legal principles for environmental protection, Łódź 2010, p. 48–116; N.

Lesniak, State obligations in the field of environmental protection and environmental safety, https://repozytorium.uni.wroc.pl/dlibra/publication/53072/edition/53685?language=pl [access: 16 November 17 see Biological Diversity Protection Law, ed. M. Górski, J.

Miłkowska-Rębowska, Warsaw 2013; The role of the courts and tribunals in environmental protection, ed. J. Rotko, Warsaw 2016, p. 337–813; A. Habuda, Nature Areas 2000 in Polish, Czech and Slovak law, Warsaw 2017. 18 see J. Ciechanowicz-McLean, Climate Protection Law, General Legal Publishing, 2017. 19 see B.

Rakoczy, Commentary on the Act on the Prevention and Repair of Environmental Damage, Warsaw 2008; R. Mikosz, Liability for damage caused by the movement of the mining plant, Warsaw 2006.

This text comes from the monograph by Janina Ciechanowicz-McLean, Global Environmental Law. Basic issues, University of Gdańsk 2021