Poland: Winds of Change in the Act on Windfarms

• Jurisdiction: European Union
• Citation: Vol. 47 No. 2
• Publication year: 2019

POLAND: WINDS OF CHANGE IN THE ACT ON WINDFARMS

Jacob T. McCkndon^*

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TABLE OF CONTENTS

I. THE POLISH PIVOT...................................................................................592

II. THE ACT ON WINDFARMS AND ITS IMPLICATIONS................................594

III. THE RENEWABLE ENERGY DIRECTIVE.................................................594

A. Reasons for the Renewable Energy Directive...................594
B. Effect and Obligations Under the Renewable Energy Directive............................................................................596
C. Barriers to Enforcement of the Renewable Energy Directive 597

IV. INTERPRETATIONS OF THE RENEWABLE ENERGY DIRECTIVE..............598

A. European Case Law..........................................................598
B. European Commission Interpretation...............................600

V. TILTING AT WINDMILLS?.......................................................................600

A. Potential Polish Penalties.................................................601

1. Analysis of the First Inquiry.......................................601
2. Analysis of the Second Inquiry...................................603

VI. CONCLUSION........................................................................................605

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I. THE POLISH PIVOT

Renewable energy continues to gain market share and represents an increasing percentage of the world's energy supply. In 2016, the world added enough renewable energy with the capacity to power every house in the United Kingdom, Germany, France, and Italy.¹ Wind farms produce a substantial 34% of this additional renewable energy.² Moreover, the energy produced by wind in the European Union (EU) doubled from 2010 to 2015³ and is the strongest performer in terms of growth.⁴ However, wind energy development is in danger of disappearing in Poland.⁵

The Polish wind market was one of the strongest performers in 2016, second only to Germany's performance.⁶ However, this trend of growth will almost inevitably reverse with the passage of the Act on Windfarms. The Act on Windfarms sets the minimum distance required between a wind power plant and residential buildings, forests, or national parks at ten times the height of a wind power plant,⁷ which in effect amounts to two kilometers.⁸ Critics of this "anti-windfarm" law say the statute excludes 99% of Polish land from wind farm development.⁹ Moreover, the Act on Windfarms redefined "wind power plant" such that the owners of existing plants will be subject to an increased real estate tax.¹⁰ Clearly, the Act on Windfarms discourages development of windfarms. The Act on Windfarms will do this by geographically restricting areas in which wind farms can be built. The remaining sites for wind farms will not be ideal and the cost of maintaining and operating the existing wind farms with increase.

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Despite ongoing climate change, Poland's national government prioritizes coal production. Energy Minister Krysztof Tchorzewski stated that the government wants "energy security in Poland to be guaranteed by Polish coal production."¹¹ However, this prioritization of coal often conflicts with EU energy laws and the general EU policy favoring renewable, sustainable, and secure energy sources.¹² The Act on Windfarms was supported by the Polish government as part of its pivot to prioritize coal production rather than expanding renewable energy sources.

Principally, the Act on Windfarms may conflict with the Directive on the Promotion of the use of Energy from Renewable Sources (Renewable Energy Directive). The Renewable Energy Directive established an overall EU policy promoting the use of renewable sources for energy production.¹³ The Renewable Energy Directive requires the EU, as a bloc, to fulfill at least 20% of its total energy needs with renewables by 2020 and all EU countries to use renewable sources for at least 10% of their transportation fuels.¹⁴ Poland must produce 15% of its energy needs from renewable sources by the 2020 target year under the Renewable Energy Directive.¹⁵

In 2016, Poland produced 11% of its energy from renewable sources.¹⁶ There is now increased doubt as to whether Poland will be able to meet this fifteen percent obligation in light of the Act on Windfarms passage and other factors,¹⁷ and whether the Act on Windfarms conflicts with the framework established by the Renewable Energy Directive.

This Note will determine whether the Act on Windfarms violates the Renewable Energy Directive, and in particular Article 13 of the Renewable Energy Directive. In so doing, this Note will outline the procedures and methods the Commission uses to ensure member countries are conforming to the Renewable Energy Directive, analyze interpretations of the Renewable Energy Directive, and determine what, if any, defenses Poland would have to uphold its Act on Windfarms.

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II. THE ACT ON WINDFARMS AND ITS IMPLICATIONS

As previously discussed, the Act on Windfarms sets the minimum distance between forests, national parks, and residential districts and new wind-farms that can be built at ten times the distance of the height of the wind turbines.¹⁸ Denmark is the only other EU country that uses an offset distance in its regulatory scheme, but Poland's is the largest offset distance required in the EU.¹⁹ The Act on Windfarms also increases the tax burden for wind farm generators starting from 2017 onward. This tax increase is expected to weaken the growth and profitability of the wind energy sector by making operation costlier.²⁰ The Polish government has taken a prohibitive stance toward wind farms to the point of excluding further development in the country by requiring what amounts to an almost impractical offset distance from common zones.

The Polish government points to concerns for the noise caused by the turbines, the shadow flicker effect, the probability of sleep disruption, and a myriad of other health factors as the rationale for its restrictive regulation on windfarms.²¹ However, the underlying policy is likely that the Polish government wishes to favor the development of biofuels and continue to rely on its existing coal-firing plants for its electricity needs.²²

Should this law continue to go unchallenged, as it has for over a year, it will be an example to other like-minded countries who wish to exclude an entire industry to prioritize existing sources of energy. Therefore, the Act on Windfarms could undermine the EU's energy policy, interests, and existing legal framework on energy.

III. THE RENEWABLE ENERGY DIRECTIVE

A. Reasons for the Renewable Energy Directive

The Renewable Energy Directive was a response to both practical and aspirational concerns that confront the EU. Both the practical and aspirational

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goals of the Renewable Energy Directive are extremely important to the EU and explain the Commission's consistent enforcement of the Directive.

Essentially, the EU is extremely dependent on imported energy to satisfy its demands, especially with the downturn of domestic production of hard coal, crude oil, natural gas, and nuclear energy.²³ This trend generally predominates among the most populous member states.²⁴ The one exception to this trend being Poland, whose domestic coal reserves are still substantial.²⁵ This Polish exception likely explains Poland's slow transposing of the Renewable Energy Directive into national law.²⁶ The Renewable Energy Directive was a response to this increased reliance on imported energy, especially from Russia.²⁷ Moreover, this emphasis on renewable energy would allow the EU to become a global player in the industry, spur job growth, and achieve energy security.²⁸

The Renewable Energy Directive also reflected EU concern over climate change and greenhouse gas emissions reaching perilous levels.²⁹ The Renewable Energy Directive was part of the EU's effort to comply with international emission agreements, including the Kyoto Protocol.³⁰ Thus, the Renewable Energy Directive allowed the EU to take the initiative on climate change.

The Act on Windfarms serves to undermine both of the EU's asserted purposes for the Renewable Energy Directive. Practically speaking, the EU commitment is undermined by Poland's de facto illegalization of a renewable energy source and the Act on Windfarms weakens the EU's potential global leadership in the development and implementation of renewable energy sources. Moreover, EU leadership on climate change is also undermined. Poland, the bloc's sixth-largest country in terms of population,³¹ refocused its interest on coal without care for reducing its emissions in the short or long term.

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B. Effect and Obligations Under the Renewable Energy Directive

The Renewable Energy Directive sets out the percentage of energy that must come from renewable sources by 2020.³² Article 22 of the Renewable Energy Directive also stipulates that each member of the EU must submit a report to the European Commission (the Commission) every two years detailing the progress its country has made and how renewable energy is being promoted in the country.³³ In addition, the Commission is empowered to propose a "corrective action"³⁴ and refer the case to the European Court of Justice (ECJ) ifnecessary.³⁵ Thus, the Commission is empowered to closely monitor Polish law and ensure that it conforms with the Renewable Energy Directive and to ensure that Poland is on track to attain its 2020 goals. However, member states are only bound to achieving the results required by the renewable Energy Directive and are left to decide the means of achieving these goals.³⁶

In order to ensure the member states incorporate the Renewable Energy Directive into national law, the Renewable Energy Directive requires the member states to formulate a "national action plan" detailing how the member state plans to meet its binding renewable energy target under the Renewable Energy Directive.³⁷ Moreover, each...