Leave the dead (trees) alone? Revisiting the ongoing controversy over the Białowieża forest

Cover photo credits: Bialowieża National Park. Mariusz Cieszewski 2019.

In March 2021, the Polish government announced an update of the logging quotas contained in the management plan for the Białowieża forest in eastern Poland, parts of which are variably protected as a UNESCO World Heritage Site, a Natura 2000 site, and a national park by virtue of the area hosting one of the last primeval lowland forests in the European continent, as well as Europe’s largest free-roaming population of the European bison (Bison bonasus).

While popular with some economic sectors and the government, logging in and around the Białowieża national park has been hugely controversial in recent years, particularly as the area has benefited from a growing influx of tourists and researchers which is threatened by the expansion of forestry activities. In 2016, despite increasing local and international pressure, the Ministry of the Environment of Poland adopted an Appendix to its 2012-2021 forest management plan for the three districts of Białowieża, Browsk and Hajnówka, tripling the harvesting volume authorised in the Białowieża district. At the same time, a decision by the State Forest Office (so-called Decision No 51) urgently requested the competent local authorities to begin logging operations in all three districts to protect public safety from the risk of falling trees and ensure the ecological integrity of the site, in the light of an “extraordinary and catastrophic situation caused by the spread of the spruce bark beetle.”

The rationale underpinning the Appendix and the Decision was immediately disputed by some experts, advocacy groups and the European Commission, especially since the new harvesting volume had been raised precisely as the original quotas set in the 2012-2021 plan had nearly been exhausted (within just four years). Moreover, the fact itself that the Białowieża ecosystem relies on the presence of large amount of dead wood and decaying trees, which provide a key habitat to several species of insects and birds, suggested that a spruce bark beetle outbreak should not have been considered a risk to the integrity of the primeval areas of the forest, but rather as a critical part of their natural cycle. 

Following the opening of an infringement procedure against the country, and an unfruitful pre-litigation procedure, the Commission brought an action before the Court of Justice of the EU (CJEU). In 2018, the Court held that by increasing logging quotas in the Białowieża district, the 2016 Appendix and Decision No 51 had violated several articles of the Habitats and Birds Directives, which form the core of the EU’s nature conservation legislation. More specifically, the ruling (Commission v Poland, C-441/17) found that Poland had infringed Art.6(3) of the Habitats Directive, by failing to appropriately ascertain whether the logging operations resulting from the 2016 Appendix would negatively affect the ecological integrity of the Natura 2000 site ‘Puszcza Białowieska’. Secondly, the Court found that Poland had violated Art.6(1) of the Habitats Directive and Art.4(1)-(2) of the Birds Directive, by failing to implement the conservation measures that are required to protect the habitat types and species covered by those instruments. In particular, not only did the Court recognize that the 2016 Appendix could not constitute a form of implementation of the conservation measures that had been established by a 2015 management plan adopted by the regional authorities, it also made clear that the Appendix had made that plan fundamentally redundant. Thirdly, the CJEU held that Poland had infringed Art. 12(1)(a) and (d) of the Habitats Directive, because the authorised active forest management operations had resulted in the deterioration or destruction of breeding sites or resting places of several species of beetles protected under Annex IV(a) to that directive. Finally, Poland was found in breach of Art. 5(b) and (d) of the Birds Directive, in that the removal of dead or dying trees, as well as of old trees colonised by the spruce bark beetle, had violated the country’s obligation to ensure a general system of protection of bird species (in this case, the pygmy owl, the boreal owl, the white-backed woodpecker and the three-toed woodpecker). According to the breached provisions, this system should have included a prohibition on the deliberate destruction of, or damage to, the nests and eggs of protected birds, the removal of their nests, as well as their deliberate disturbance – all actions that had in fact been a likely result of the logging operations.

Unfortunately, details about the new announcement are still scant in international media, thus preventing a more detailed analysis of its relationship with the 2015 management plan, the Birds and Habitats Directives, and the CJEU ruling. However, on the basis of certain statements attributed to the Polish Ministry of Climate and Environment, it is already possible to see how the updated logging quotas might also run afoul of the complaints raised by the European Commission and endorsed by the CJEU with respect to the 2016 Appendix and Decision No 51.

In short, it seems that the plan, which essentially replaces the 2016 Appendix and adopts two new Appendices for the Białowieża and Browsk districts, tries to find a way around the CJEU ruling by, among other things, reducing the volume of wood planned to be harvested by 60 percent, excluding areas of forest that are over 100 years old from active forest management operations, postponing the start of logging activities until the wild bird breeding season has ended, and framing half of those activities as part of an ecological restoration scheme. In Polish media, the announcement has indeed been portrayed as proof that the national government is implementing that ruling in earnest – with added emphasis on the fact that the European Commission has allegedly not raised objections to the new plans as they relate to the Białowieża and Browsk districts (it apparently has with respect to the Hajnówka district, which is why a third Appendix has not been adopted for the latter yet).

At the outset, it should be noted that the timing of the announcement is problematic for a number of reasons. The new Appendices were adopted just a few weeks after the Commission had sent a formal letter of notice to the Polish authorities, arguing that the 2018 ruling has largely not been implemented and that “actions envisaged by Poland are not in line with the Directives nor with the Court ruling.” Moreover, the 2012-2021 forest management plan for the Białowieża forest is expected to expire anyway at the end of this year, and it has not been replaced yet (according to the Ministry of Climate and Environment, it is unclear if a 2022-2031 plan will be ready by then). In other words, it may be the case that the new Appendices are simply an attempt to buy some time and authorise logging activities for a few extra months, evading further proceedings before the CJEU for possible financial sanctions under Art. 260 of the Treaty on the Functioning of the EU.

In any event, the statements used to justify the updated logging quotas also appear very weak if compared with the findings of the 2018 ruling. Revisiting such findings may thus be important to understand the current situation of stalemate and prepare for potential new developments, particularly if the European Commission takes issue with the recent Appendices and decides not to close its infringement procedure against Poland.

The press conference during which the new Appendices to the 2012-2021 forest management plan were announced by the Polish authorities. Cover photo credit: Government of Poland.

First of all, the claim of a 60 percent reduction in the volume of wood planned to be harvested, compared with the 2016 Appendix, clashes with the aforementioned consideration that the original quotas for the Białowieża district for the period 2012-2021 had already been exhausted by 2016, and that extensive logging continued until the 2018 ruling. Consistent with the Court’s reasoning with respect to the 2016 Appendix, any expansion of those quotas through the forest management plan must be considered as a ‘plan or project not directly connected with or necessary to the management of the site’ under the Habitats Directive (paras 122-127 of the CJEU judgment), and therefore needs to be evaluated against the conditions set by Art. 6(3) of that Directive, which requires an appropriate assessment to be carried out in order to ascertain that the activities will not ‘adversely affect the integrity of the site’. This is all the more important because in 2018 the CJEU found that no such assessment had been conducted for the Browsk and Hajnówka districts, and that the one conducted for the Białowieża presented a series of substantial lacunae. The Polish authorities have claimed that the adoption of the new Appendices indeed meets the requirements of Art. 6(3), in that new impact assessments and even stakeholder consultations have been carried out – however it is unclear whether these documents (and the Appendices themselves) have been publicly shared at this stage.

Secondly, the CJEU ruling noted that the 2015 management plan does not consider the felling of pines and spruces that are over a century old as the sole threat to the integrity of the Natura 2000 site. Other types of active forest management operations, including the removal of other species of dead or dying trees, are also mentioned in that plan as potential threats to the protected habitats and species of Białowieża (paragraphs 166-168 of that ruling). This means that even if logging activities did indeed exclude areas of the forest in which at least 10 percent of tree specimens are over 100 years old, this by itself would not make such activities compliant with the conservation measures set in the 2015 management plan (and, by extension, with Art. 6(1) of the Habitats Directive and Art. 4 of the Birds Directive). Now, it is true that the Polish government has framed most of the new interventions as necessary to improve the conservation status of the Natura 2000 site (this time including ecological restoration efforts aimed at replacing coniferous species with deciduous species), but it is equally true that this same argument was also used (and rejected) during the procedure before the CJEU.

Third, the position that logging will not violate EU law because felling will not start during breeding season of wild birds has two main flaws. On the one hand, it is immaterial to Poland’s obligation to take positive measures to protect bird habitats under Art. 4 of the Birds Directive, which does not merely impose the avoidance of external anthropogenic interference or disturbance but also requires a duty to preserve or improve the state of these sites. Incidentally, this point was also touched upon in the CJEU ruling (paras 215-218), which recognised that the conservation measures adopted in the 2015 management plan had never been applied, and they had been in fact rendered meaningless by the same logging operations that are being once again proposed through the new announcement. On the other hand, the decision to postpone felling remains contrary to the formulation of both Art. 4(2) and Art. 5(b) and (d) of the Birds Directive: these obligations – more specifically, the obligation to take special conservation measures to protect breeding areas of migratory species, the obligation to prohibit the deliberate destruction or damage of nests of all species of birds, and the obligation to prohibit the deliberate disturbance of birds – do not only apply to the breeding season of protected wild birds. This point was also reiterated by the CJEU in its 2018 ruling, which recalled a 1988 judgment in which the Court had stated that to suspend protection “throughout a particular period of the year cannot be considered […] compatible” with Art.5 of the Birds Directive (Commission v France, C-252/85, para 9).

Lastly, the use of the spruce bark beetle infestation as a justification for logging operations, together with the argument that the removal of dead or dying trees is necessary to protect public safety along forest paths, already lay at the core of the 2018 ruling. There, both justifications were repeatedly dismissed by the CJEU. According to the Court, the 2016 Appendix and Decision No 51 had not provided any specific conditions under which logging would be justified on grounds of public safety, and had actually authorised the removal of all species of trees, not only those colonised by the spruce bark beetle (paras 160-163). Perhaps most importantly, the Court also noted that until the adoption of the 2016 Appendix, the beetle outbreak had never been flagged as a threat to the integrity of the Natura 2000 site, including in the 2015 management plan – which had instead considered forest management operations as an expression of such a threat (para 173). To these two justifications, the Polish government has now added the need to reduce the fire risk posed by the accumulation of dead (dry) wood in the forest  – an issue that was already mentioned in the 2016 Appendix but not addressed in the CJEU ruling. Increased fire risk due to climate change has indeed been flagged as a potential future threat to Białowieża in the most recent IUCN World Heritage Outlook. However, at present the risk is considered relatively low. In addition, some of the studies cited in the Outlook have actually pointed to anthropogenic changes in hydrology, as well to the logging activities themselves, as contributing factors to fire hazard.

By means of conclusion, the recent announcement seemingly represents the new chapter of a decade-long effort by the Polish government to muddle the waters and avoid international scrutiny over the conservation of the invaluable ecosystem of Białowieża, rather than a serious attempt at resolving the dispute with the European institutions. Now, is such a stance worth it? While some of the cultural and socio-economic motivations for continuing to exploit the forest have been discussed in the past, some researchers have also pointed out that the revenues from birdwatching and other forms of tourism by now eclipse the unprofitable forestry sector. Similarly, it has been emphasised that the dependence of local communities on the ecosystem services offered by the Białowieża forest is vast and goes beyond timber extraction, which is often distributed outside the region anyway, as well as the provision of firewood for fuel, which is only important because (and as long as) the area remains one of the least developed in the EU. As a matter of fact, such dependence may well include a strong regulating function on air quality, local climate, and water; the support provided to ecosystem processes and biodiversity conservation; a range of cultural services and opportunities for recreation; and a significant provision of locally-consumed goods such as mushrooms, berries, game, and herbs. As hinted at by the European Commission in its recent letter of notice to the Polish authorities, there is ample scope to put this array of ecosystem services at the centre of the sustainable development of the region and of the implementation of the EU Biodiversity Strategy in Poland. It is unclear how a continued confrontation over logging in Białowieża helps this cause, and local communities as a result.

Dario Piselli is the Programme Manager of the Jean Monnet Module in European and International Environmental Law. He is a Ph.D. candidate in International Law at the Graduate Institute of Geneva (IHEID), an affiliated researcher at its Centre for International Environmental Studies, and an independent sustainability consultant.