Supreme Court orders new UK air quality plan

The UK government must prepare and consult with the public on a new air quality plan aimed at meeting EU nitrogen dioxide limits by the end of 2015, the Supreme Court ruled this morning (April 29).

Handing down the unanimous judgement in a case brought against Defra by environmental lawyer organisation ClientEarth, the Supreme Court ordered the UK’s currents air quality plans, prepared in 2011, to be quashed.

TV camera crews and air quality campaigners gathered outside the Supreme Court in Westminster this morning

Defra’s current 2011 plans would see the UK achieve compliance with the NO2 limit values in the EU ambient Air Quality Directive by 2030 in several zones, including London, West Midlands and West Yorkshire. This is 20 years after the original EU legal deadline of January 2010.

Furthermore, the Supreme Court has also made a mandatory order for Defra to prepare new air quality plans by no later than 31 December 2015 aimed at meeting the NO2 objectives.

Judgement

In its application to the Court, ClientEarth had called for defra to prepare a new air quality plan “within three months”.

However, Lord Carnwath said today: “…the Supreme Court by a unanimous judgment orders that the government must prepare and consult on new air quality plans under article 23(1) for submission to the European Commission no later an 31 December 2015.”

Defra had already accepted that new plans needed to be prepared and said it intended to consult and produce new plans by the end of the year. But, it had said that due to restrictions on government policy during the General Election period, it was unable to undertake a binding order to do so for definite by this date.

For this reason, however, Lord Carnwath said it was necessary for the court to make mandatory order for the new plans to be prepared by the December 31 deadline.

As the Supreme Court is the UK’s highest court, there is no right of appeal, but today’s judgement does allow Defra to apply for an extension to the December 31 deadline in the administrative court.

Lord Carnwath said: “There will be provision for application to the administrative court if necessary to vary the time limit or for determination of other legal issues which may arise in the course of preparation of the new plans.”

Air quality plans

Today’s judgement explains that the new plans to be formulated should consider a “checklist” of air pollution mitigation measures set out in paragraph 3 section B of annex XV of the Ambient Air Quality Directive, as ClientEarth’s lawyer Ben Jaffey had called for during the April 16 hearing.

Lord Carnwath said today: “I agree with that approach, but do not regard it as necessary to spell it out in an order of the court.”

Breach

In its application to the Supreme Court at the final hearing in the case on April 16 (see AirQualityNews.com story), ClientEarth had also argued that Defra was in breach of Article 22 of the EU Directive by failing to apply for an extension to the January 2010 deadline for meeting the NO2 limits.

However, today’s ruling does not support ClientEarth’s argument that Defra is in breach of the EU Directive for not applying for an extension to the deadline, although it does reiterate Defra’s breach of NO2 limit values in several areas as set out in article 13 of the Directive.

Lord Carnwath said today: “The critical breach is of article 13, not of articles 22 or 23. The CJEU [the Court of Justice of the European Union] judgement leaves no doubt as the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility of the national court to secure compliance. Further, during those five years the prospects of compliance have become worse. The most recent projections predict non-compliance in some zones even beyond 2030.”

The case came back to the UK Supreme Court this year after the Court of Justice of the European Union (CJEU) ruled in November 2014 that it was up to UK national courts to decide what action was necessary to take on ensuring compliance with the EU Directive ‘as soon as possible’ (see AirQualityNews.com story).

Defra

Responding to the Supreme Court’s verdict today, Defra said it was working with the European Commission and local authorities to “ensure compliance with the limit values in the shortest possible time”.

A spokeswoman for Defra said: “Air quality has improved significantly in recent years and as this judgement recognises, work is already underway on revised plans (since February 2014) to meet EU targets on NO2 as soon as possible. It has always been the government’s position to submit these plans before the end of this year. Meeting NO2 limits is a common challenge across Europe with 17 member states exceeding limits.”

Defra said that the “main reason” NO2 breaches are so high across Europe is because the Euro emission standards for diesel cars “failed to deliver expected reductions in NO2 in real life situations” adding that “the UK is pushing for action to address this as early as possible”.

ClientEarth

ClientEarth hailed today’s “historic ruling” which it said would force the government to “urgently clean up pollution from diesel vehicles, the main source of the illegal levels of nitrogen dioxide found in many of the UK’s towns and cities”.

It also said Defra would have to consider the likes of low emission zones, congestion charging and other economic incentives in preparation of the new air quality plans.

Alan Andrews, ClientEarth lawyer, said: “We brought our case because we have a right to breathe clean air and today the Supreme Court has upheld that right. This ruling will benefit everyone’s health but particularly children, older people and those with existing health conditions like asthma and heart and lung conditions.

“The next government, regardless of the political party or parties which take power, is now legally bound to take urgent action on this public health crisis. Before next week’s election all political parties need to make a clear commitment to policies which will deliver clean air and protect our health.”

Related Links:

–Supreme Court judgement: ClientEarth v Secretary of State for the Environment, Food and Rural Affairs