Poland before the ECJ: Environmental Commissions and Harmful Emissions

The Polish Supreme Audit Office has estimated a potential penalty of more than 4 billion PLN (approximately 1.5 billion AUD), pending a decision of the European Court of Justice on whether Poland has broken pollution laws by having illegal amounts of PM10 emissions.

There has been a growing concern for the cleanliness of air in Poland, which is a matter partly governed by the directives of the European Union.
 
Poland is a Member State of the European Union and, therefore, a ‘directive shall be binding … upon' it (art 288 of the Treaty on the Functioning of the European Union). Directives, as opposed to regulations, do not govern the way that a member state is to act, rather they dictate a desired result and ‘leave to the national authorities the choice of form and methods.’
 
The Cleaner Air for Europe Directive, 2008/50/EC (‘CAFE’) requires that member states develop their own standards and objectives in regards to those states’ own concentration of air pollutants. One particular air pollutant — the one which the case of Poland before the ECJ currently concerns — is PM10.
 
CAFE describes PM10 emissions as being ‘particulate matter which passes through a size-selective inlet … with a 50 % efficiency cut-off at 10 µm aerodynamic diameter’. In other words, PM10 is a form of airborne particle emission that has an aerodynamic diameter of less than 10 microns (for a sense of perspective, the average thickness of a strand of human hair is around 70 microns). These emissions generally consist of a mixture of very small liquid and solid particles such as dust, smoke, soot, salt, acids and metals. The PM10 pollution in Poland is predominantly caused by low-stack emissions (emissions from sources with a height lower than 40m) from household heating. This 'makes Poland’s air the most polluted in Europe, according to local government data.'
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PM10 environmental pollution is among the most harmful of all air pollutants and is capable of having negative consequences on health as well as damaging the environment.

Pollutants with larger particulate matter tend to get trapped in the nose, mouth or throat. However, PM10 — as a ‘respirable particle’ — is small enough to evade the respiratory system’s natural defences and become lodged in the deepest part of the lungs. PM10 can have particular negative repercussions on persons suffering from asthma, cause various lung diseases such as bronchitis and render the body’s immune system more vulnerable to infections.

PM10 pollution is also capable of causing local environmental damage, including damage to plants, materials and buildings. Research also suggests that PM10 can have adverse effects at the global level by contributing to global warming due to a decrease the capacity for atmospheric solar reflection. PM10 can also cause much of the haze that obscures natural landscapes, such as national parks and forests.
 
The European Commission filed a complaint against Poland in 2016, asserting that Poland had failed to comply with the daily limits for PM10 emissions outlined in CAFE. The commission submitted that the legislative and administrative measures taken so far to limit this persisting non-compliance with its air quality standards under the Directive have not been sufficient.

Małgorzata Smolak, an expert on European environmental law, has stated that 'this is ultimately down to an inadequate air quality plan that doesn’t put effective limits on emissions.'

If the European Court of Justice determines that Poland has not complied with its obligations under CAFE regarding PM10 emissions and that Poland has not taken adequate measures to address this issue, the Polish Supreme Audit Office has estimated that the Member State might be liable to pay more than 4 billion PLN (approximately 1.5 billion AUD).

Although not a member of the EU, America has implemented policy initiatives to reduce PM10 emissions by reducing windblown dust particles into the atmosphere at construction sites by creating barriers and creating programs to reduce emission from wood stoves and fireplaces.

PM10 pollution is also a large issue in Australia, with a lot of the emissions being contributed to by particulate matter in the form of woodsmoke from woodheaters. To combat this and to comply with the Australian Standard for woodheater particle emissions, Australia has made efforts to work with State governments and the woodheater industry to improve woodheater technology. This is accompanied by promotion of alternative fuels, travel by public transport and the development of pollution forecasting systems.

There is still much that needs to be done in both EU and non-EU countries. Hopefully the ECJ’s decision will direct countries to the importance of reducing particulate emissions and promoting better air quality. VELSN will be sure to provide an update on the outcome of the case, the decision of which is due to be released in February.

Ken Kiat and Jake Herd

Ken and Jake are JD students at the University of Melbourne.