Defra defends air quality plan in High Court

Defra defended the latest version of its air quality plan in the High Court yesterday (25 January), after the environmental law charity ClientEarth argued that the proposals put forward by government are ‘unlawful’.

This comes as the Welsh Government admitted in court that its failure to bring forward firm proposals to address air pollution exceedances did fall short of its legal requirements – and that it would seek to bring forward an air quality plan within the coming months.

ClientEarth has called on the government for a more comprehensive plan on air pollution

At the start of the case in the High Court in London yesterday morning, the barrister for the Welsh Government, Jonathan Moffett QC, said ministers would work with ClientEarth to agree a legally-binding ‘consent order’ to bring the country into compliance with legal NO2 limits.

This left ClientEarth to present its case against the air quality plan for England, brought forward by the Department for Environment, Food and Rural Affairs in July 2017. The campaign group has argued this plan does not go far enough to address illegal levels of air pollution.

The case hinges on whether the government’s NO2 plan meets the requirements of the EU’s Ambient Air Quality Directive to bring nitrogen dioxide concentrations into compliance with legal limits within the shortest timeframe possible.

Currently, around 37 of the UK’s 43 monitoring zones (some of which straddle a number of local authority areas) fail to comply with the 40µg/m3 annual mean limit for nitrogen dioxide. Government projections suggest that for many sites this will continue into the next decade.

Continued failure to meet the target – which the UK has been breached since 2010 – leaves the UK at risk of enforcement action and potential financial sanctions from the European Union – while campaigners have also highlighted the toll that continued exposure to high levels of air pollution has on public health.

NO2 Plan

The government’s July plan, drawn up after the High Court ruled that its last set of proposals were not sufficient to meet the requirements of the Directive, identifies 23 local authority areas where breaches of the legal limits are expected beyond 2021 – in addition to five cities already tasked with bringing in clean air zones before the end of 2019.

The 23 affected authorities have been directed to produce local plans to address the exceedances, which are due to be agreed with the government by the end of 2018. Councils named in the plan have access to up to £255 million in funding to support this work.

These authorities must carry out a feasibility study to assess whether a clean air zone is necessary to bring down emissions, or whether other measures could be implemented that would have a similar impact. Defra’s plan identifies clean air zones as the most effective measure to reduce emissions in the shortest timeframe, and could include charges for the use of some vehicles in polluted areas.

But, ClientEarth argued yesterday that the plan falls short of what is required as it does not force any action in 45 additional local authority areas in England which are acknowledged as having illegal NO2 levels according to Defra’s own modelling.

These include towns and cities such as Portsmouth, Leicester, Bradford, Bournemouth, Plymouth and Liverpool all of which have exceeded the 40µg/m3 limit value to date.

Government projections suggest that 12 of these authorities will come into compliance by the end of this year, followed by a further 10 by the end of 2019, 13 by the end of 2020, and a further 10 reaching compliance by 2021.

Feasibility study

Due to the length of time that a clean air zone feasibility study is forecast to take and the additional time it would take to implement a clean air zone, Defra has claimed that instructing the councils to adopt the measure would not speed up compliance with the Directive.

Additionally, Defra has claimed that for some local authorities, exceedances have only been recorded on a single stretch of road – a so-called ‘straight-line exceedance’ – and therefore measures other than a clean air zone are likely to be appropriate to meet the 40µg/m3 annual mean limit.

Nathalie Lieven QC, representing ClientEarth, told the High Court yesterday that the July plan offers ‘no mandated measures’ the 45 councils should take to address NO2 exceedances, and that this limited the amount of funding and support available to those to bring forward compliance.

The latest version of the plan names 45 local authorities – including Liverpool (pictured) currently exceeding EU NO2 limit values, but where additional measures have not been mandated

She said: “The Secretary of State [Michael Gove] has taken the stance that because clean air zones can’t be implemented in the 45 before they come into compliance, he does not need to have to take any steps to implement them.”

Ms Lieven described this as a ‘fundamental fallacy’, arguing: “It doesn’t mean that you can’t have other local measures in less than three years that will bring forward compliance.”

ClientEarth has argued that this approach is contrary to the Directive’s requirement to achieve NO2 limits within the shortest time possible, and suggested that the 45 councils should be required to examine whether any further steps could be taken to speed up compliance.

Ms Lieven added further: “In respect of the 23 [councils mandated within the July NO2 plan] they are required to bring forward feasibility studies and business plans. That process will identify whether there are other measures, which presumably if one of the 23 says ‘we can bring forward compliance before the introduction of a clean air zone’ that is a measure that should be adopted.

“The critical point is, in respect of the 45, that exercise is not being brought forward.”

Modelling

ClientEarth also challenged the air quality modelling used by the government which has projected that compliance will be achieved in a number of zones across the country without any additional steps being brought in.

Ms Lieven claimed that the government’s model involved a ‘high degree of uncertainty’, and argued that projected compliance without further measures is ‘possible without any degree of confidence’. Further representations were made that the government had rowed back on its commitment to establish clean air zones in five cities by the end of 2019.

Responding on behalf of the government Kassie Smith QC argued that the July 2017 plan had to take into account that there is not a ‘one-size-fits-all approach’ and that it has to deal with “different degrees” of non-compliance across the country.

She also challenged ClientEarth’s assertion that the government’s forecast was ‘over-optimistic’. She said that the projections were based upon the Pollution Climate Mapping (PCM) model – using methodology which meets the requirements of the EU Directive.

Ms Smith added that the approach taken by the government towards the projections is ‘inherently conservative’ and that it is more likely to ‘underestimate’ the speed of reductions in NO2 concentrations within the 45 council areas.

Defence

She added that these 45 councils had not been left without support from Defra, arguing: “They can’t realistically be required to carry out the same sort of feasibility study that is required by the other local authorities. That would divert resources away from what they are doing today to tackle air quality.”

The latest hearing against the government’s air quality plan took place in the High Court yesterday (25 January)

Ms Smith also claimed that Defra minister Therese Coffey had written to the 45 councils in November 2017 to encourage them to take advantage of some of the funding available to address air pollution, and to set out what steps they are taking locally.

She told the court: “It shows that government is in contact with those local authorities. It is aware of what is being done in those local authorities and that funding is available to those local authorities.”

After a full day of submissions from each side, Mr Justice Garnham, the High Court Judge who quashed a previous version of the government’s air quality plan, has retired to consider the outcome of the case. A judgement is expected to take several weeks to be produced.