The government is failing in its legal duty to protect people from the harmful effects of air pollution and leaving itself open to legal action, according to senior judges
In a case, brought by the lawyer activist group Client Earth, over the Defra’s plans to belatedly meet the requirements of the EU Directive on air quality (2008/50/EC) the Supreme Court has confirmed that “the way is open to immediate enforcement action at national or European level”.
The Air Quality Directive, which came into force on 1 January 2010, sets daily and annual limits on the amount of air pollutants allowed in populated areas.
The UK, however, failed to meet these limits in 43 cities and regions, including London and Glasgow, and the government admits that 16 areas will continue to suffer levels of nitrogen dioxide (NO2) exceeding EU rules until at least 2020.
While agreeing that the government is in breach of the Directive, the five judges of the Supreme Court referred a number of legal questions to the Court of Justice of the European Union, which will delay any enforcement action against the government.
James Thornton, CEO at Client Earth, described the court ruling as “historic” and said it “marks a turning point in the fight for clean air and will pile the pressure on [environment secretary] Owen Paterson.”
The Supreme Court decision is the first time a UK court has admitted that the country is in breach of the EU Directive. Previous rulings by the Court of Appeal and the High Court stated that it was the European Commission’s responsibility to take action against the UK for breaching the Directive.
Lawyers acting for Defra acknowledged in the High Court in December 2011 that the UK would be unable to meet the limits set for NO2, effectively breaching the safer limits imposed by the Directive for a decade.
In October 2010, the environmental audit committee published damning criticism of successive governments’ inaction on improving air quality in the UK. Defra’s response to the committee, which was published in February 2012, argued that the potential benefits of meeting the 2015 target date for safer levels of NO2 were outweighed by the expense.