Air quality plan ruling leaves door open for further action

Today’s High Court judgement could speed-up future legal proceedings over the government’s air quality plan, after ClientEarth was granted the ‘continuing liberty to apply’ for further action.

In a judgement issued before the court this morning, Mr Justice Garnham concluded that the government’s July 2017 plan is insufficient to bring the UK into compliance with EU air quality objectives within the ‘soonest timeframe possible’, as required by law (see airqualitynews.com story).

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

The UK has been in breach of the 40 µg/m3 annual mean concentration for nitrogen dioxide – which is largely produced by emissions from road transport – since the limit came into effect in 2010.

The 2017 plan called for action in 23 local authority areas where breaches of the legal limit are expected beyond 2021, on top of five cities mandated to establish clean air zones within a previous version of the plan.

In particular this set a requirement for the 23 councils to carry out feasibility studies to assess whether introducing additional clean air zone would achieve compliance, or if other measures could have a similar impact in reducing emissions.

However, ClientEarth, which has now led successful challenges of government air quality policy through the courts three times in eight years, argued that the government’s own modelling suggested there were a further 45 areas throughout the country where action was required, but were not compelled to do so.

Defra had argued that due to the length of time it would take for these councils to identify and implement suitable measures to comply with the air quality limits, and that they are forecast to fall below the legal limits within a number of years, additional measures would not speed-up compliance.

In the ruling the court agreed that the 2017 plan “does not contain sufficient measures to ensure substantive compliance” with the EU air quality Directive.

The judgement stated that the government must produce a supplementary plan, setting out requirements for feasibility studies to be undertaken in 33 of the 45 areas. An October 2018 deadline has been set for Defra to comply with the order.

*See below for a full list of the 33 councils

Liberty to apply

Crucially, due to the ‘exceptional’ nature of the case ClientEarth was also granted the ‘continuing liberty to apply’ meaning that it can bring the government back before the court, without having to commence fresh judicial review proceedings, if there is evidence of the government ‘falling short’ in its compliance with the order.

Defra was refused leave to appeal on both counts, although the court did rule that the government had met its legal requirements in respect of the air quality modelling used in the drafting of the plan.

In his judgement, Mr Justice Garnham concluded: “It is now eight years since compliance with the 2008 [EU Air Quality] Directive should have been achieved. This is the third, unsuccessful, attempt the government has made at devising an AQP which complies with the Directive and the domestic regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.”

Reaction

Reacting to the judgement outside of the Court, ClientEarth’s clean air lawyer Anna Heslop said that the charity was ‘delighted’ that action will now be required in further areas where illegal levels of air pollution have been recorded.

She said: “We are delighted that the court has agreed with us that the government needed to do something in respect of these areas that were frankly being left out of the previous plan. They will now have to go away and find measures that they can take to fix air quality and make sure that people up and down the country can breathe clean air, and the same applies for Wales, which effectively did not have a plan before.”

On being granted the continuing liberty to apply, Ms Heslop, said that the order would likely save valuable time if future legal proceedings are required, as well as keeping pressure on government to ensure compliance with the order.

She added: “We always hope not to have to come back to litigation, but we have been litigating this case for almost eight years and each time it gets very expensive and it is more time. If the government had spent the money that it has spent on litigation actually fixing the problem, we could actually have done this a little earlier.”

Government

Responding to the judgement, a spokesperson for the government said that ministers would be ‘happy’ to take ‘a more formal’ approach to tackling air quality in areas not previously mandated within the plan.

Michael Gove, Secretary of State for the Environment. (Picture: Shutterstock)

The government also claimed that it had asked these authorities to provide details of measures they are taking to improve air quality by next Wednesday (28 February) as well as inviting them to Westminster to discuss the proposals in detail.

“We are pleased that the judge dismissed two of the three complaints. The judge found that our modelling is compliant and that our approach to areas with major air quality problems is ‘sensible, rational and lawful’,” the spokesperson stated.

“The Court has also asked us to go further in areas with less severe air quality problems. We had previously considered that it was sufficient to take a pragmatic, less formal approach to such areas. However, in view of the Court’s judgment, we are happy to take a more formal line with them.

“We have already delivered significant improvements in air quality since 2010 and we will continue to implement our £3.5 billion air quality plan.”

Councils expected to be non-compliant with EU annual mean NO2 beyond 2018:

Portsmouth City Council

Wakefield Metropolitan District Council

Bournemouth Borough Council

Bradford City Council

Plymouth City Council

Solihull Metropolitan Borough Council

Wolverhampton City Council

Bolsover District Council

Leicester City Council

Liverpool City Council

Newcastle-under-Lyme Borough Council

Oldham Metropolitan Borough Council

Sandwell Metropolitan Borough Council

Stoke-on-Trent City Council

Walsall Metropolitan Borough Council

Poole Borough Council

Burnley Borough Council

Peterborough Council

Reading Borough Council

Sefton Metropolitan Borough Council

South Gloucestershire District Council

Basingstoke and Deane Borough Council

Blaby District Council

Calderdale Metropolitan Borough Council

Cheltenham Borough Council

Dudley Metropolitan Borough Council

Kirklees Metropolitan Council

South Tyneside Metropolitan Borough Council

Southend Borough Council

Ashfield District Council

Broxbourne Borough Council

Sunderland City Council

Oxford City Council