Maurer School of Law: Indiana University Digital Repository @ Maurer Law Books by Maurer Faculty Faculty Scholarship 1998 Instituting Environmental Protection: From Red to Green in Poland Daniel H. Cole Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facbooks Part of the Comparative and Foreign Law Commons, and the Environmental Law Commons Recommended Citation Cole, Daniel H., "Instituting Environmental Protection: From Red to Green in Poland" (1998). Books by Maurer Faculty. 153. https://www.repository.law.indiana.edu/facbooks/153 This Book is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Books by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. INSTITUTING ENVIRONMENTAL PROTECTION From Red to Green in Poland Daniel H. Cole Instituting Environmental Protection Instituting Environmental Protection From Red to Green in Poland Daniel H. Cole Originally published, 1998, Macmillan and St. Martin’s Press. Republished, 2015, under Creative Commons License. Creative Commons License For my family and in memory of my grandfather, Harry D. Pierce Contents List of Tables, Figures and Boxes xi Preface to the 2016 Creative Commons Edition xiii Acknowledgments xv Introduction 1 A Failed Promise: Socialist Environmental Protection 1 Subject and Object 2 Marxist Ideology and the Socialist System 3 Socialist Legal Analysis 5 The Parameters 6 A Road Map to the Analysis 7 1 Poland’s Ecological Crisis 11 1.1 Pollution and Communism in Poland 11 1.2 Poland’s Geography, Climate and Resource Base 12 1.3 Ecological Danger Zones 13 1.4 Sources of Pollution in Poland 14 1.5 The Environmental Consequences 16 2 A History of Environmental Law in Poland 25 2.1 Pre-Socialism 25 2.2 1945–1960 28 2.3 The 1960s 34 2.4 The 1970s 37 2.5 The 1980 Environmental Protection and Development Act 41 2.6 The Administration of Environmental Protection in Poland: 1980–8 51 2.7 Conclusion 57 3 The ‘Enforceability’ of Poland’s Environmental Laws 61 3.1 Law Enforcement and Enforceability 61 3.2 Legal Ambiguities 62 vii viii Contents 3.3 Lax Environmental Standards in Polish Law 66 3.4 Weak Penalties 71 3.5 Limited Citizens’ Participation Rights 73 3.6 Exceptions that Swallowed the Rules 76 3.7 Conclusion 80 4 Enforcement Problems I: Party Politics 85 4.1 The Underenforcement of Environmental Law in People’s Poland 85 4.2 Absolute Power, Environmental Corruption 86 4.3 Industrial Interests versus Environmental Protection in the Party/State’s Administrative Hierarchy 94 4.4 Environmental Law Enforcement and the Judicial System 96 4.5 Environmental Information, State Secrets and Censorship 101 4.6 Summary and Conclusion 106 5 Enforcement Problems II: Socialist Economics 109 5.1 An Introduction to Poland’s Socialist Economic System 109 5.2 Economic Stagnation and the Underenforcement of Environmental Law in People’s Poland 121 5.3 The Extensive Nature of Economic Production under Socialism 125 5.4 Systemic Impediments to Resource Conservation 133 5.5 Socialist Property Relations, Regulatory Confl icts of Interest and Soft Budget Constraints 139 5.6 Conclusion 145 6 The Ideological Dimension: Marxism and the Environment 149 6.1 Introduction 150 6.2 Marx, Engels and Lenin on the Relationship between Humans and Nature 150 6.3 Property Relations in Natural Resources and the Means of Production 153 6.4 Marx’s Labor Theory of Value 157 6.5 Marxist–Leninist Theories of Law and the State 159 6.6 Conclusion: From Marxism to Eco-Socialism 170 7 Environmental Protection in Transition 175 7.1 Introduction 175 7.2 Poland’s Political-Economic Transformation 176 7.3 Systemic Transformation, Economic Recession and Environmental Protection in Post-Communist Poland 182 7.4 Environmental Policies, Systemic Reforms and Pollution Reductions 185 Contents ix 7.5 The Fragmentation and Maturation of Poland’s Independent Environmental Movement 203 7.6 The Future of Environmental Protection in Poland 208 8 Institutional Implications 215 8.1 Introduction 215 8.2 Extrapolating from the Polish Case 216 8.3 The Ambiguous Goal of ‘Effective’ Environmental Protection 216 8.4 Property Rights and Regulatory Confl icts of Interest 217 8.5 Valuing Scarcity 227 8.6 The Rule of (Environmental) Law 229 8.7 Is There a “Capitalist Imperative” for Environmental Protection? 236 Bibliography 241 I Statutes and Regulations 241 II Polish Government and Communist Party Publications 248 III Books and Articles 249 IV Newspapers and Popular Magazines 284 Subject Index 295 Author Index 307 About the Author 313 Tables, Figures and Boxes Table 1.1 Percentage share of environmental costs by sector 21 Table 3.1 Comparison of selected ambient air quality standards in People’s Poland and the United States in 1980 67 Table 5.1 Average and annual rates of GNP growth in People’s Poland, 1965–88 122 Table 5.2 Rates of economic growth, environmental investments and sulphur dioxide air pollution emissions in People’s Poland, 1976–88 123 Table 5.3 Average percentage of gross national product invested in environmental protection in Poland and other selected countries, 1971–85 125 Figure 5.1 Environmental stress at different levels of economic development 128 Table 5.4 Natural resources invested per unit of national product in socialist Europe and the European Community in the 1980s 131 Table 5.5 Share of factor productivity in the growth of output: international comparison 131 Table 5.6 Percentage losses of natural resources in the extraction process in the USSR 133 Table 5.7 The pollution intensity of GDP in socialist European countries and the EC in the 1980s 133 Table 7.1 Percentage change in GDP, industrial production and air pollution emissions in Poland, 1990–5 184 Table 7.2 General structure of expenses for environmental protection in nine sectors of the Polish economy, 1900 and 1991 189 Table 7.3 Percentage cost increases for environmental protection in nine Polish industries from 1990 (mean values) to the fi rst term of 1991 189 Table 7.4 Pollution intensity of electricity generation in Poland, 1989–91 190 Table 7.5 Changes in emissions fees for selected air pollutants 191 Table 7.6 Environmental fi nes, 1990–3 192 xi xii Tables, Figures and Boxes Table 7.7 Economic growth and environmental investments in Poland, 1976–93 198 Box 7.1 The Story of Poland’s Żarnowiec Nuclear Power Plant 206 Preface to the 2016 Creative Commons Edition This book initially was published by Macmillan and St. Martin’s Press in 1998. In 2014, at my request, the publisher returned to me all publication rights. Not sur- prisingly, Palgrave Macmillan concluded that the book no longer had any profi t potential. Given that, why would I want to recover publication rights? Well, cer- tainly not for economic profi t (after all, I’ve placed the book into the Creative Commons). But I do believe the book can still profi tably be read by environmental policy makers in China and other countries for whom this book’s lessons remain relevant. Ostensibly, it is a book about the failure of environmental protection in Com- munist Poland. But it was never just a book about Poland. Poland was merely the object case to illustrate more general, systemic impediments to pollution control in single-party states with socialist economic systems. Those impediments include, most prominently, endemic soft budget constraints of state-owned enterprises, con- fl icts of interest faced by environmental regulators attempting to control emissions from enterprises in which the state has a direct fi nancial stake, and bureaucratic career incentives that always seem to favor economic production over environ- mental protection in single-party states. Consider China. For decades now, China has proclaimed improved environ- mental protection as a high-level national goal. New policies are announced, which receive widespread media attention. And it is taken as an article of faith that Chi- na’s Communist Party can more or less easily accomplish whatever policy goals it enunciates. That is simply not the case. This seventeen-year-old book about Poland provides an ongoing cautionary tale for China. It shows that even well-intentioned environmental policies of totali- tarian states are likely to face substantial, systemic impediments. The combination of soft budget constraints and regulatory confl icts of interest presents a formidable obstacle that Communist Poland was unable to overcome, and so far has stymied China’s Communist Party/state. Of course, China in 2016 is not Poland in 1985. The differences are too numerous to mention, ranging from the cultural to the structural. For instance, most sectors of China’s economy have been opened to competition among private producers—something that did not happen in Poland before the fall of the Com- munist Party. To the extent China’s markets are subject to market competition, the xiii xiv Preface to the 2015 Creative Commons Edition problems identifi ed in this book have little relevance. But, and this is the crucial point, several of the most heavily polluting sectors of the Chinese economy, includ- ing for example energy production and steel manufacturing, remain dominated by state-owned enterprises, which are not subject to competitive pressures. With respect to those sectors—the last vestiges of China’s socialist economic system— there is every reason to believe that the experiences of Communist Poland have at least some relevance. The Chinese Communist Party has, in fact, found it dif- fi cult to make environmental penalties stick against its biggest polluters and to create career incentives for the bureaucrats that manage big polluters (China’s ver- sion of Poland’s nomenklatura) to implement offi cial state environmental policy.