Considering the recent development of situation related to the highly probable sabotage of the Nord Stream 2 pipeline, which took place on 27 September 2022, and specifically to ‘one of two sections of the Nord Stream 2 pipeline’, a very important issue has to be recalled, namely the RES infrastructure that will be a part of the critical infrastructure of our state.

This problem needs brushing up, because even though the war in Ukraine has continued for more than 7 months and the geopolitical situation is getting more tense, one can hardly find any determined actual or legislative actions in Poland with respect to the security of RES critical offshore infrastructure.

What is more, bizarre ideas keep coming back, namely that operators of RES infrastructure should provide private security of such facilities. Last months have brutally revealed the absurdity of such ideas, which seem to be completely detached from the current reality.

Another issue that should be emphasized is the fact that there is no marine service in Poland that could fulfil the security function for the critical RES offshore infrastructure. This problem has been signalled many a time since April 2021, when the question of offshore wind farms became very trendy and hot.

Unfortunately, it seems that neither this nor numerous other problems within the security of RES offshore infrastructure have been noticed and are being marginalised by policymakers.

Squaring the circle

On the one hand, skyrocketing prices of energy and gas make RES solutions more and more attractive in providing Poland’s security. On the other hand, if such installations are created, they will not be adequately protected and… ‘it’ll work out somehow’. The year of 2022 clearly showed that we live in much more dangerous world than we had thought before. Nevertheless, Polish policymakers continue to behave as if they failed to notice that there is no coastal guard service in Poland, and maritime services are highly fragmented, underequipped and with competences allocated improperly.

An argument is often quoted that questions of RES offshore installations are a new subject matter, and law usually does not keep up with new solutions. Such arguments are surprising, because we are talking about securing Poland from the sea in the peacetime. It is puzzling because more than 102 years have passed since the return of Poland to the seacoast (under the Treaty of Versailles of 28 June 1919). Therefore, this does not seem to be a new problem. Moreover, it is becoming more and more important, considering doubtful attractions offered to us by the year of 2022. Most civilised states, but also those less civilised, have coastal guards. Surprisingly, Poland does not have such a service… and it is hard to find any motivation in government circles to establish one.

While assessing the situation as of today, we will base our energy security to a large extent on offshore RES installations, which will be completely unprotected.

Installation for hydrogen production as critical infrastructure

Ideas have recently emerged to use offshore platforms for the installation of systems for hydrogen production. If we take such a solution into consideration, regardless if such stations will be created on designed offshore wind farms located on Polish sea areas or installed on existing decommissioned production platforms, one should keep in mind that according to art. 3(2) of the Act on emergency management of 26 April 2007, installations for hydrogen production will belong to critical infrastructure as equipment and systems that are a part of the system of supplying fuels.

Such services, in line with the above-mentioned Act, are recognised as essential for the security of state and its citizens and used to ensure the effective operation of public administration authorities as well as institutions and entrepreneurs.

Hydrogen production stations as critical infrastructure should be included in the National Programme of Protecting Critical Infrastructure to be adopted by the Cabinet. The purpose of the document is to create conditions for enhancing the security of such infrastructure. According to the National Programme of Protecting Critical Infrastructure, the minister competent for state assets together the minister competent for energy issues and the minister competent for mineral deposit management are responsible for the system of energy supplies, fuels and fuel resources.

Actions taken in the area of this responsibility include, among other, conducting risk assessments of potential disruptions to the system operation and regular analyses of its protection, cooperation with other authorities, which under the Act have competences in a given fragment of the system, supporting the organization of exercises and systemic trainings that raise the efficiency of the system security in terms of organization, techniques and formal-legal requirements as well as consulting system security plans, which results from §4(1)(2) of the Regulation of the Cabinet of 30 April 2010 on critical infrastructure security plans.

As it has been mentioned above, this secondary legislation details the method of creating, updating and formulating critical infrastructure security plans.

Another aspect, which is almost directly related to the above-mentioned topic, is the necessity to include such a station as a component of a wind farm, if it is to be installed on a new wind farm, in line with the Act of 17 December 2020 on the promotion of power production in offshore wind farms (Journal of Laws from 2021, Item 234, as amended).

In addition, hydrogen production stations should be taken into account in the Act of 18 August 2011 on sea security (the harmonised text in the Journal of Laws from 2020, Item 680, as amended) as systems that affect the security of navigation on Polish sea areas.

Offshore wind farms as critical infrastructure

Once again, it should be indicated that according to art. 22(1) of the Act on sea areas of the Republic of Poland and maritime administration, any equipment designated for commercial operation of an exclusive economic zone for the power use of water, sea currents and wind, is subject to Polish law. Analysing this regulation and considering the provisions of the Montego Bay UN Convention on the Laws of the Sea, we come to the conclusion that Poland has exclusive jurisdiction over offshore wind farms on Polish sea areas, including jurisdiction within the issue of laws and other regulations for customs, treasury, sanitary and immigration purposes as well as in security matters. However, one should keep in mind that according to the Convention, such installations do not have the status of islands. They do not have their own territorial sea, and their presence does not affect the delimitation of territorial sea or the exclusive economic zone of the Republic of Poland.

However, a competent director of the maritime authority may establish a security zone around offshore wind farms, in accordance with art. 24 of the Act on sea areas of the Republic of Poland and maritime administration. The width of such a zone has been stipulated in the above-mentioned regulation, which is the implementation into the Polish legal system of provisions that concern security zones, among other around offshore wind farms covered by the Montego Bay Convention.

According to such standards, the width of a security zone around groups of offshore turbines that form a wind farm is 500 m from every point of their external edge. It is a necessary condition that the distance between individual towers that form an offshore wind farm should not exceed 100 m. In line with applicable standards, such distances, in case of Polish OWFs, will be between 400 and 640 m. Considering such conditions, the whole area included inside an offshore wind farm and within 500 m from external edges of extreme wind turbines may be recognised as a security zone. In this area the director of the maritime authority sets forth conditions for traffic and may in particular introduce limitations to navigation, fishing, water or diving sports and submarine works.

Considering the above-mentioned regulations, an obvious conclusion can be drawn that the Republic of Poland will apply jurisdiction immunity with respect to offshore wind farms, and regulations applicable in the area of such installations will be Polish laws.

Provisions of art. 24 of the Act on sea areas of the Republic of Poland and maritime administration mention the optional authorization of the director of the maritime authority to establish security zones around offshore wind farms on Polish sea areas. The word ‘may’ used in this regulation obviously does not impose a duty to create such a security zone. However, considering the characteristics of OWFs, there is a real need to issue a regulation in the future that will establish zones around offshore wind farms with a limited right to navigate and carry out other activities related to either commercial or recreational use of such marine areas.

An argument in favour of this position is the fact that according to art. 3(2) of the Act on emergency management of 26 April 2007, OWFs will belong to critical infrastructure as equipment and installations that are a part of the system of electricity supply. Such services, in line with the above-mentioned Act, are recognised as essential for the security of state and its citizens and used to ensure the efficient operation of public administration authorities as well as institutions and entrepreneurs.

Consequences of including OWFs in critical infrastructure

Consequences of including offshore wind farms on Polish sea areas in the state’s critical infrastructure are two-fold.

First, according to the Act on emergency management, an owner and an autonomous and dependent possessor are obliged to provide the adequate security of critical infrastructure systems. This duty is fulfilled primarily by preparing and implementing, according to anticipated hazards, security plans of critical infrastructure and maintaining own back-up systems that ensure security and maintain the operation of such infrastructure until its complete replacement. As critical infrastructure, offshore wind farms should be included in the National Programme of Protecting Critical Infrastructure adopted by the Cabinet, aimed at creating conditions for the improved security of such infrastructure. In accordance with the National Programme of Protecting Critical Infrastructure, a person responsible for the system of energy supplies, energy resources and fuels is the minister competent for state assets together with the minister competent for energy issues and the minister competent for mineral deposit management. Actions taken in the area of this responsibility include, among other, conducting risk assessments of potential disruptions to the system operation and regular analyses of their protection, cooperation with other authorities, which under the Act have competences in a given fragment of the system, supporting the organization of exercises and systemic trainings that raise the efficiency of the system security in terms of organization, techniques and formal-legal requirements as well as consulting system security plans, which results from §4(1)(2) of the Regulation of the Cabinet of 30 April 2010 on critical infrastructure security plans. This secondary legislation details the method of creating, updating and formulating security plans of critical infrastructure developed by owners and autonomous and dependent possessors of facilities, installations and equipment of critical infrastructure as well as terms and conditions and mode of recognising the fulfilment of the duty to have a plan that fulfils the requirements of the security plan of critical infrastructure. Simultaneously, the scope of ministerial responsibilities for specific systems of critical infrastructure is covered by activities of their subordinated or reporting agencies.

The second legal act that requires the recognition of OWFs as an element of state’s critical infrastructure is the Act on anti-terrorist activities of 10 June 2016. It regulates, among other, issues of protecting critical infrastructure in the context of preparing for assuming control over terrorist events.

According to the Act, if at least a second alert state is ordered, which is a situation of increased and predictable hazard of a terrorist event, without identifying a specific target of attack, the police becomes responsible for verifying protections of critical infrastructure facilities. Moreover, with respect to selected facilities and taking into account a type of hazard, it enables the chief of the Internal Security Agency to issue detailed recommendations to secure them by the police, in consultation with the minister competent for internal affairs.

The Regulation of the President of the Cabinet on the scope of activities carried out at specific alert states and CRP alert states of 25 July 2016, which is secondary legislation to the Act, issued under the statutory power included in art. 16(5) of the Act on anti-terrorist activities, includes the regulation that authorizes the Chief Officer of Police, the Chief Officer of Border Guards or the Chief Officer of the Military Police to introduce the duty to carry long arms and bulletproof vests by uniformed officers and soldiers who are involved directly in tasks of securing sites and facilities that may potentially become a target of a terrorist event, if minimum a second alert state is announced.

Therefore, this is no secrete that due to the purpose of offshore wind farms combined with the extended reaction period of competent authorities responsible for state security, which is affected by the location of OWFs on Polish sea areas, such projects may become, after their connection to the Polish energy network, a target of terrorist or sabotage attacks.

Summary

While analysing issues presented in this article, it needs to be emphasized that in the present legal status and considering equipment used by specific administration authorities responsible for supervising and enforcing regulations that affect directly the marine security of our country, neither offshore wind farms nor stations for hydrogen production will be protected adequately as elements of critical infrastructure on Polish sea areas.

For more than a year, nothing has actually changed in Poland and there are no legislative changes as regards enhancing the security of OWFs.

Urgent legislative actions are necessary to provide authorities that create the security chain of Polish sea areas with adequate tools, so that regulations on the security of OWFs are not only a dead letter, impossible to enforce in numerous aspects. Creating one system of supervising the Polish sea areas, with headquarters located in a newly established coordination centre, would be a good starting point and perhaps a trigger to establishing a single service that would gather in its tasks the highly fragmented maritime administration of our country.

Only providing competent services that are responsible for state security with adequate systemic tools will guarantee the effective and safe operation of such projects, which are certainly beneficial for diversifying energy sources of Poland, which should be a priority in the present geopolitical situation.

In present realities it is not difficult to consider a scenario in which the Polish critical infrastructure may become a target of an attack by a hostile state.

Regrettably, we are not sufficiently ready for such an attack, which is unfortunately not as unrealistic as it might seem.

Mateusz Romowicz – Legal Advisor
mgr Przemysław Niewiński – Lawyer, Consultant of the Law Firm