Supreme Court urged to quash UK air quality plan

ClientEarth calls for Defra to draft new air quality plan “within three months” to meet EU nitrogen dioxide limits

ClientEarth yesterday (April 16) called for the government to produce a new air quality plan “within three months” that would end the UK’s ongoing breach of EU nitrogen dioxide limit values in several areas.

ClientEarth’s barrister Ben Jaffey addresses the Court (screen shot taken from the Supreme Court website live stream of yesterday’s hearing)

In the final hearing of a four-year legal battle against the Department for the Environment, Food and Rural Affairs (Defra), environmental lawyer group ClientEarth set out its case at the Supreme Court in Westminster yesterday.

The hearing was overseen by five Supreme Court justices led by Lord Neuberger.

It follows the European Court of Justice (CJEU) ruling last year that the UK government can be ordered by national courts to draw up a plan to meet the NO2 legal limits in the ‘shortest possible time’ (see AirQualityNews.com story).

However, the Supreme Court said Defra and ClientEarth “take different views as the interpretation of the November 2014 judgment of the CJEU”.

As such, the Supreme Court is to consider the ruling of the CJEU and decide whether Defra should be forced to produce a new air quality plan and, if so, with what stipulations.

Under current government plans, the UK is not expected to meet EU legal limit values for nitrogen dioxide in three zones — Greater London, West Midlands and West Yorkshire urban areas — until after 2030. This is 20 years later than the original EU legal deadline.

ClientEarth’s barrister Ben Jaffey told the Court that the EU’s ambient air quality Directive (2008/50/EC) made it mandatory for the UK government to apply for a time extension of up to five years if it could not meet the original nitrogen dioxide limits by January 2010.

He said the government had contravened this part of the Directive as it did not apply for a time extension in respect of 16 UK areas which did not meet the deadline — including London, Manchester, Birmingham and Glasgow — adding: “The UK has now been continuously in breach of those limits since January 2010.”

Mr Jaffey therefore argued that the Court should order Defra’s existing air quality plan for reaching compliance to be quashed as it was prepared in 2011 “under a fundamental error as to the law”.

And, he told the Court that Defra should be made to produce a new air quality plan “within three months” that is more rigorous than the existing plan, and that the plan should be publically consulted on before being sent to the European Commission.

He said a new plan must address how the ongoing breach of the NO2 limit values should be kept “as short as possible”.

However, arguing Defra’s case, Kassie Smith QC said that the CJEU’s judgement did not rule it was mandatory for the UK to apply for a time extension to meet the original 2010 deadline, as set out in article 22 of the EU ambient air quality Directive.

She said: “When you look at the whole of the Court’s judgment it did not decide that the article 22 procedure was mandatory.”

The QC also argued against a mandatory order for Defra to produce a new plan within three months, and explained that Defra was already currently revising its air quality plan which would be “extensive” and cover national and local measures.

She said declarations and quashing orders made by the Court would be “sufficient” and that “the Court has the discretion in this case not to make a mandatory order” to produce a new air quality plan.

She explained that 80% of the NO2 emissions in the areas which breach EU limit values come from traffic sources and that as a result “measures to reduce traffic emissions will reduce nitrogen dioxide emissions”

But, she said: “It will take a long time to change emissions. Reducing nitrogen dioxide concentrations is not easy or quick.”

The hearing took place at the Supreme Court in Westminster (Photo – UK Supreme Court)

The QC added: “The air quality plans are going to be complex and detailed but these are also issues that take a long time to address.”

However, she said that producing a new plan within three months following yesterday’s hearing “is not possible” due to the upcoming General Election and because purdah prevents government bodies from launching public consultations.

The QC said: “During that period the government cannot do anything that would in effect tie the hands of the new government — that would include new air quality plans.”

Bringing the hearing to an end, Lord Neuberger said that a final judgement would be made by the Court “in due course”.

A judgement from the Supreme Court is not expected until after the General Election and could be handed down in July 2015.