UK in breach of EU air quality laws

The UK Supreme Court has ruled that the UK government is in breach of European Union (EU) regulations on air quality and must now answer to the European Court of Justice (CJEU).

It marks the first time a UK court has recognised that the government has failed in efforts to meet European air pollution limits.

The verdict was welcomed by environmental lawyers group Client Earth, who had taken the case to Supreme Court after having their application for a judicial review into government’s plans to improve air quality refused by the Court of Appeal.

Case background

Under the EU’s 2008 Air Quality Directive, member states are required to regulate the levels pollution in the air, particularly in relation to nitrogen dioxide (NO2) and small particulate matter with a diameter of ten microns and smaller  (PM10) and 2.5 microns and smaller (PM2.5), which can have harmful health impacts.

Particulate pollution can harm the human respiratory and cardiovascular systems, and is linked to asthma and mortality, while high concentrations of NO2 can cause inflammation of the airways and, after long-term exposure can affect lung function and respiratory systems.

Under the directive, member states had to be in compliance with the regulations by 1 January 2010. Where this was not possible, member states could postpone this deadline by a maximum of five years (article 22 of the directive).

Where pollutant levels were expected to exceed EU regulations at the time of the deadline, member states had to produce an ‘air quality plan’, outlining how they would reduce pollutant levels in as short a time as possible (article 23).

Almost all UK zones in breach of regulations

For the purposes of assessing and managing air quality, the UK is divided into 43 ‘zones and agglomerations’, but in 2010, 40 of these were found to be in breach of one or more of the limit values for nitrogen dioxide.

The Greater London Authority estimated that in the capital alone there were 4,267 deaths in 2008 caused by particulate matter.

In response to these figures, Client Earth sent a letter to the Secretary of State regarding what was being done about the issue, who responded by stating that air quality plans were being drawn up for all non-compliant areas, in order to ensure that they were compliant by 2015.

However, when this plan was published on 9 June 2011, it showed that 17 of the 43 zones and agglomerations, including Greater London, were not expected to be compliant until after 2015.

Indeed, Greater London is not expected to become compliant ‘before 2025’, 10 years beyond the 2015 extended deadline.

Judgement referred to CJEU

Handing down his judgement yesterday (1 May), Lord Carnwath JSC upheld the Client Earth appeal, stating that the government had breached article 13 of the Air Quality Directive, which reads in part: ‘Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.’

Carnwath concluded: “The fact that the breach has been conceded [by government] is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief…”

He further added that: “the way is open to immediate enforcement action at national or European level.”

However, he stated that the case raised “difficult issues of European law” which “require the guidance of the CJEU”. He then recommended that the case be referred to the CJEU.

He specifically raised four questions requiring CJEU guidance:

  • In any given zone or agglomeration, if conformity for levels of nitrogen dioxide could not be achieved by the 1 January 2010 deadline, is a member state required to seek postponement of the deadline?;
  • If so, in what circumstances (if any) may a member state be relieved of that obligation?;
  • If a member state is not required to seek postponement, to what extent is a member state that is in breach of article 13, and has not applied for a postponement, affected by the requirement to produce an air quality plan?; and
  • In the event of non-compliance with article 13, and in the absence of an application under article 22, what (if any) remedies must a national court provide as a matter of European law in order to comply with article 30 of the Directive? (Article 30 tasks member states with creating and enforcing penalties for unacceptable air quality)

‘Historic ruling’

Commenting on the judgement, James Thornton, ClientEarth CEO, said: “This historic ruling marks a turning point in the fight for clean air and will pile the pressure on [Environment Minister] Owen Paterson. Faced with court action on two fronts, he must now come up with an ambitious plan to protect people from carcinogenic diesel fumes. Until now, his only policy has been lobbying in Europe to try and weaken air pollution laws.

“The Supreme Court recognised that this case has broader implications for EU environmental law: The government can’t flout environmental law with impunity. If the government breaks the law, citizens can demand justice and the courts must act.”

The government and Client Earth have been invited to submit any revisions of these questions within four weeks of the judgement, before they are submitted to the CJEU.

Breathe Clean Air Group

In light of the Supreme Court judgement, Trafford’s Breathe Clean Air Group (BCAG) has written to Minister of State for Communities and Local Government Eric Pickles, requesting that he refuse planning permission for the proposed Barton Renewable Energy Plant in Davyhulme, Manchester.

Pete Kilvert, BCAG Chairman, said: “This historic ruling by the Supreme Court marks a turning point in the campaign for clean air and puts pressure on the government to take steps to clean the air we breathe. We will take full advantage of this to protect the people of Trafford, Salford and Manchester.

“Of crucial importance is the irritant and toxic gas, nitrogen dioxide. This is a product of combustion and is emitted from motor vehicles as well as the proposed incinerator. As the incinerator is to be located next to the M60 motorway, where the nitrogen dioxide levels are already well above the safety limit, it is vital for the health of local residents that the incinerator is not built.”

BCAG wrote to Mr Pickles in March 2013, claiming that the Environment Agency had ‘failed to take notice of crucial information’ when granting the site an environmental permit.

It states that it has been campaigning to stop the plant for ‘nearly three years’

Read the Supreme Court judgement.