Legal uncertainty in ecology: Businesses hampered by delayed and unclear rules

While European environmental legislation is developing rapidly and its requirements are gradually becoming stricter, the implementation of these rules in the Czech Republic is often delayed. There is a lack of sufficiently rapid and comprehensible adaptation of national legislation and practice to EU regulations, which often creates confusion and uncertainty among entrepreneurs, experts, and the general public.

Companies thus find themselves in a situation where they must adapt to changing rules without clear methodologies or predictable deadlines, and at high costs that can subsequently negatively affect their competitiveness. In this context, it is important to remember that the purpose of law should not only be to regulate, but above all to create a stable and supportive environment for sustainable development and innovation. The legal framework should function as a tool that helps to strike a balance between nature conservation, economic growth, and social needs—not as an obstacle that slows down and complicates everything.

Growing demands in the field of environmental protection place high demands on businesses, not only in terms of technology and economics, but increasingly also in terms of law. Although the basis should be a stable, predictable, and comprehensible legal environment, the reality is often different. The Czech legal framework suffers from fragmentation and a lack of methodological support in the field of ecology. The result is legal uncertainty, which delays investment, complicates project preparation, and may discourage otherwise motivated companies from implementing their projects.

In recent years, the European Union has significantly strengthened its environmental policy legal framework – whether in the form of the Green Deal, new emission targets, or the CBAM (Carbon Border Adjustment Mechanism). However, the Czech Republic often implements EU rules at the last minute or seeks its own path, which often goes beyond what is required. The result is, in some respects, stricter rules and conditions than those required by the European Union.

The practical problem is not only the strictness of the regulations themselves, but also the uncertainty and unpredictability of their final content. Companies thus find themselves in a situation where they have to plan investments in equipment or process changes without knowing what the final Czech regulations will look like. In many cases, implementing regulations are also adopted with a time lag, their interpretation is often ambiguous, and accompanying methodologies are generally lacking. An example of this is the situation in the area of waste management or emission limits, where practical application is hampered by insufficiently specific legislation.

Complex compliance and prevention implementation

In an environment of legal uncertainty, it is difficult to build effective internal systems for managing environmental risks. Nevertheless, these systems (compliance programs) will be essential in the future for demonstrating that companies have acted in accordance with the duty of care. However, the lack of methodological support from the state, the absence of model tools, and the unclear relationship to the liability of members of statutory bodies make it difficult for companies to implement such programs in practice.

Special attention should be paid to the legal regulation of environmental damage under Act No. 167/2008 Coll. The Act is based on the principle of strict liability of operators of risky activities for damage to the environment. In practice, however, it is hardly ever used. Even the large-scale accidents of recent years have not met the conditions of the Act, partly due to the narrow and ambiguous definition of environmental damage.

The amendment, which is being prepared by the Czech Ministry of the Environment, aims to provide a more precise definition and clearer criteria for its assessment. Its main objective is to strengthen the preventive responsibility of companies and enable timely intervention in the event of a threat of damage – not after irreversible damage to the ecosystem has already occurred. Ideally, the amendment should also define the relationship to other component regulations and strengthen the link to internal compliance systems. However, with the upcoming autumn elections, it is almost certain that the amendment will not be discussed and adopted in time, and it is therefore questionable whether the legislative process will be resumed.

Based on the new European Directive 2024/1203 on the criminal protection of the environment, it will be necessary to introduce remedial measures as part of sanctions into Czech law. These measures will make it possible to impose, in addition to fines, an obligation to restore the damaged environment or pay compensation if restoration is not possible.

The criminal liability of legal entities for environmental offenses is thus taking on a new dimension. Given that harmful conduct by companies can have a widespread and lasting impact, it is important that companies have effective preventive mechanisms in place—not only to minimize risk, but also to potentially avoid liability under the law on criminal liability of legal entities.

Costs and uncertainty

CBAM is a new European Union tool for eliminating carbon leakage and leveling the playing field in the internal market. However, its implementation is accompanied by high administrative costs and uncertainty regarding its practical application. Importers of goods into the EU must document their carbon footprint, obtain data from foreign suppliers, and purchase certificates corresponding to their emissions.

In practice, collecting this data is often problematic. Moreover, companies do not yet know how the new rules will be enforced and whether there will be further changes. If uncertainty persists until the CBAM comes into force in 2026, circumvention of the rules and disputes with supervisory authorities can be expected.

Companies often cannot avoid problems even with existing permits and rules, which applies, among other things, to obtaining an integrated permit (IPPC) and ensuring compliance with BAT – i.e., the most effective and technically and economically available techniques, including technologies, procedures, and operating methods that serve to prevent or minimize emissions and negative environmental impacts. It is not just a matter of the technical equipment itself, but also of the organization of operations, maintenance, employee training, etc., which is becoming increasingly difficult for many companies to provide. Smaller companies in particular feel an increased administrative burden when obtaining an IPPC, consisting of the obligation to provide a large amount of documentation, expert opinions, and other supporting materials.

Furthermore, emission limit requirements in relation to BAT are regularly updated, requiring companies to respond with technical modifications to their operations, sometimes with a significant impact on their functioning. This involves not only requirements for the purchase of new equipment, but also changes to work processes and impacts on production capacities.

Improvement is possible

Experience from everyday legal practice, both on the part of business entities and in relation to state administration, shows that the current legal environment in the field of environmental protection is unclear, inconsistent, and difficult to apply for many of those affected. This situation slows down investment, complicates project preparation, and ultimately undermines confidence in the meaningfulness of environmental legislation as a whole. It is therefore appropriate to formulate specific and systematic recommendations that would help to make the legal environment more comprehensible, stable, and truly functional—that is, one that not only sets out obligations but also supports their effective fulfillment and motivates businesses and individuals to take a responsible approach.

First and foremost, it is necessary to clarify and standardize the definition of environmental damage, which is currently formulated in a relatively ambiguous manner in the legislation, significantly complicating its practical application. Experience to date shows that administrative authorities and affected entities often struggle to determine what kind of environmental impact meets the legal criteria for environmental damage and when it is merely another form of disturbance to protected components of the environment. In addition, it is necessary to clearly define the relationship between the general legal regulation of environmental damage under Act No. 167/2008 Coll. and individual component laws (e.g., the Nature and Landscape Protection Act, the Water Act, or the Waste Act), which themselves contain their own definitions of the terms damage or harm. Without such clarification, there is a risk of duplicate or, conversely, uncoordinated enforcement of liability for harm, which not only weakens the effectiveness of these mechanisms but also increases legal uncertainty for regulated entities. The unification and clarification of these concepts and relationships would thus contribute significantly to the comprehensibility and predictability of the legal framework in the field of environmental protection.

It is also necessary to ensure the timely issuance of implementing regulations, methodologies, and interpretative opinions on new legislation, which will enable businesses to better plan and prevent risks. An important step would be to support the introduction of internal compliance programs through available templates and practical recommendations, as well as the introduction of positive incentives—such as preferential licensing regimes for companies that actively prevent environmental risks. Last but not least, it is important to prevent amendments and unsystematic legislative changes that undermine confidence in legal stability and hinder long-term planning.

Changes in environmental protection are necessary, but in many cases they come too late. That is why it is essential that new rules are clear, timely, and methodically supported. Laws should primarily be a tool for development and protection, not an obstacle and complication. Figuratively speaking, legal uncertainty in the environmental field is just as harmful as technical negligence. If we want companies to invest in sustainability, the state must offer them more than just sanctions—the minimum requirement in this regard is clear rules, stability, and expert dialogue.

It is necessary to refine and standardize the definition of environmental damage itself. PROFILE Milan Kučera joined PORTOS while studying at the Faculty of Law of Charles University. He has been a lawyer since 2018, served as head of the legal team since 2020, and became a partner in 2023. He specializes in petrochemicals and energy, as well as strategic management of investment projects. He also deals with public procurement and FIDIC contract conditions, among other things. At the academic level, he focuses on decision-making processes in the private and public sectors and the principles of due diligence.

Author: Milan Kučera
Source: Odpadové fórum