Andrew Wiseman on the Supreme court's demand that the government urgently prepare new plans to tackle air pollution
The EU Directive on ambient air quality and cleaner air for Europe (2008/50/EC) sets limits and target values for a number of pollutants, including nitrogen dioxide (NO2), to protect human health. Under the directive, member states were:
- required to meet limit values for NO2 by 1 January 2010 – although they could apply to postpone meeting the deadline in a particular area by up to five years (to 1 January 2015) as long as they provided an air quality plan setting how compliance would be achieved; and
- in areas where limit values were exceeded, member states were required to draw up air quality plans setting out measures for meeting limit values or target values as soon as possible.
The UK failed to meet limit values for NO2 by the January 2010 deadline in a number of areas. In September 2011, Defra submitted air quality plans for some areas and applied to the European commission for time extensions for others. However, in June 2012 the commission partly rejected the UK’s air quality plans and application for postponement.
The environmental NGO, ClientEarth, then challenged the environment department’s failure to comply with the directive by seeking judicial review.
Supreme court’s initial decision
The Supreme court gave its initial decision in the judicial review proceedings concerning the UK’s compliance with the Directive in May 2013. It found that the UK was in breach, with the court stating that its declaration was necessary in order to make it clear that national or EU enforcement action could be taken immediately. The judges also referred four questions on the interpretation of the directive to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The CJEU issued its opinion in November 2014 and decided that:
- if a member state fails to meet air emission limits by the relevant deadline, it is mandatory to apply for the five-year extension. Merely submitting an air quality plan is not sufficient to ensure compliance; and
- it is up to the domestic courts to make an order, requiring the national authority to draw up the necessary air quality plans; and member states should ensure that compliance with air quality limits is achieved as soon as possible.
The court’s final judgment
On 29 April 2015, the Supreme court delivered its final judgment and unanimously ordered the government to prepare new air quality plans to bring the UK into compliance with limit values for NO2 immediately. The court ordered UK authorities to deliver the plans to the European commission for approval by 31 December 2015. The court said that the secretary of state for the environment had accepted that new plans had to be prepared, but warned that the new government should be left in no doubt as to the need for immediate action. It also said the court is prepared to impose appropriate measures to secure effective compliance with its decision at the earliest possible opportunity.
Revised plans
The Supreme court’s decision quashes the UK government’s existing air quality plans to cut excessive levels of air pollution and requires it to deliver compliant plans by the end of 2015. It means that up to 30 areas could require revised plans, including Greater London and Birmingham where Defra’s existing plans would not have achieved the NO2 limits until after 2030.
The plans are likely to include a crackdown on the most polluting diesel vehicles as a key source of NO2 emissions. The measures put forward by the government could include the creation of more low-emission zones (LEZs) and an increase in excise duty on diesel. All of this will involve considerable and urgent work for the new government.
In February 2014, the commission launched separate infringement proceedings against the UK for failure to comply with the Directive. It is likely to await the submission of the UK government’s new plans before progressing the infringement proceedings further.
Air quality in the UK
In October 2011, the environmental audit committee (EAC) published damning criticism of successive governments’ inaction on improving air quality in the UK. The committee noted that, in 2008, some 29,000 people in the UK died from the long-term affects of air pollution, 4,000 of whom were in London. The EAC also reported that 40 of the UK’s 43 assessment zones were failing to meet EU targets and poor air quality was found to be shortening the lives of up to 200,000 people in 2008 by two years on average.
Aside from the human cost, the financial cost of failing to improve air quality is staggering. Defra estimates this costs the UK up to £20 billion a year, while the European Environment Agency reveals that industrial air pollution recorded by the European pollutant release and transfer register in 2009 cost the UK between £3.5 billion and £9.5 billion.
Industry and road transport are the main sources of air pollution, with the former a major source of emissions of NOx (46%) and PM10 (36%) and the latter contributing to significant emissions of NO2 (30%) and PM10 (18%).
Andrew Wiseman is a partner in the specialist environmental and planning law firm Harrison Grant; [email protected].
