Government sees off challenge against draft Air Quality plan

The High Court has found that the government’s draft Air Quality Plan is not ‘unlawful’ — following a legal challenge by the environmental campaign group ClientEarth today (5 July).

But, in his ruling, Mr Justice Garnham suggested that the final version of the plan could be open to legal challenge if it does not address some of the concerns raised in the Court.

The High Court has ordered Defra to produce a final Air Quality Plan by July 2017

The draft version of the government’s plan to reduce nitrogen dioxide in towns and cities was launched for consultation on 5 May, after the Department for Environment, Food and Rural Affairs (Defra) had been unsuccessful in postponing publication until after the General Election (see airqualitynews.com story).

This is the third draft of the plan prepared by government after it had lost challenges by ClientEarth in the courts over previous versions in 2015 and 2016.

Within the latest draft plan — which has a final deadline of 31 July — the government has identified the establishment of ‘Clean Air Zones’ (CAZs) by local authorities as a measure to limit nitrogen dioxide emissions.

Charging

However, the plan suggests that local authorities should look to implement ‘charging’ CAZs, where drivers pay to operate more polluting vehicles, only where other measures are found to be less effective.

This is despite a technical document which accompanied the plan suggesting that charging CAZs are the measure most likely to bring compliance with legal nitrogen dioxide limits at the soonest possible date.

In the High Court in London this morning, ClientEarth outlined its challenge against the draft version of the plan, which it claimed ‘does not reflect the government’s own findings’ on charging CAZs, and therefore made it ‘incapable of resulting in a legally compliant final plan’.

Nathalie Lieven QC, acting on behalf of the campaign group, said: “What the Secretary of State has done is say that local authorities must consider all other measures that could be in a Clean Air Zone, and only if they can show that no other measure is as effective will the Secretary of State approve the Charging CAZ.”

ClientEarth had also argued that the draft plan had failed to identify measures to tackle air pollution in the devolved administrations of Scotland, Wales and Northern Ireland.

Consultation

Responding to the submission by ClientEarth, Kassie Smith QC, on behalf of Defra, claimed that the challenge had been ‘premature’ and that the concerns “could and should have been made in the consultation process.”

She also said that the final version of the plan “may well not reflect what is in the draft.”

On Charging CAZs she said that there are a ‘variety of methods’ open to local authorities in tackling air pollution, and said that councils are given the opportunity to assess which measures apply best in their locality.

She added: “In some areas it might be only one or two roads that are in breach. If they can see measures that will achieve compliance in the same time frame, that is all we are seeking to do.”

Defra also argued that the devolved governments were fully engaged in the consultation process.

Ruling

After hearing representations from both sides Mr Justice Garnham delivered his verdict this lunchtime, following a short period of consideration, and ruled that the proposals set out for consultation were not unlawful.

“Voicing opposition to proposals is what consultations are about,” he said, adding: “I see no evidence that the Secretary of State has a closed mind.”

However, he noted that the proposals could be open to challenge, if the final version of the plan is deemed not to be sufficient to bring air pollutant emissions into compliance with legal limits.

Speaking outside the courtroom, ClientEarth chief executive James Thornton dismissed the suggestion that the ruling was a defeat, and said it would serve as a “shot across the bows” for the government as it prepares the final version of the air quality plan.

He said: “The way I read the judgement is that unless the government produces a much stronger plan on 31 July then when we return to court we will have a strong case.

“If the government is listening and wants to act in good faith they will read the judgement carefully and follow the instructions and come out with a much better plan.”

Following the hearing, a spokesman for Defra said: “Improving the UK’s air quality and cutting harmful emissions is a priority for this government and we will continue to work towards publishing our final plan before 31 July.”