Not easy to ‘green’ old ways: National courts and rights-based smog cases in Poland

Abstract

The topic of environmental rights has been intensely debated at the international and European levels. It is closely connected to another important issue, namely, the role of rights-based litigation in the enforcement of environmental law. In Poland, members of the public have tried to use the strategy of environmental rights-based litigation to target ineffective air quality plans. However, existing barriers in access to justice impelled the public concerned to resort to civil lawsuits as another form of private enforcement of ambient air protection measures. The infringement of the right to a clean environment was among the legal arguments presented for the purpose of establishing Poland's liability for smog. The 2021 landmark rulings in the so-called ‘smog cases’ exemplify how the judiciary's willingness to embrace the concept of environmental rights in its current form can be limited by concerns about the coherence of the national legal system.