Defra defends Air Quality Plan in High Court

The government’s Air Quality Plan is ‘not static’ and quashing it in favour of new measures would do ‘more harm than good’.

This was the defence laid out by lawyers acting on behalf of the Department for Environment, Food & Rural Affairs (Defra) on the second day of the High Court hearing into its proposals to meet nitrogen dioxide limits by 2020.

Defra defended its Air Quality Plan on the second day of the High Court case

Defra defended its Air Quality Plan on the second day of the High Court case

The case has been brought by NGO ClientEarth, which claims Defra has taken ‘minimum’ steps in order to comply with the EU Directive on NO2 emissions without incurring penalties.


But putting forward its own case yesterday (19 October), Defra argued the Air Quality Plan was the product of ‘a complex and thorough decision-making process’ which used ‘proportionate and feasible’ measures to achieve air quality compliance across the UK.

Defra’s skeleton argument notes: “In short the Plan is not static. It could be sealed up through, for example, extending the scope or number of Clean Air Zones (CAZs) required or introducing other measures if the evidence showed that this was necessary.”

It added that ClientEarth ‘would cause more harm than good’ by quashing the existing plan, as this would mean further delays to meeting EU NO2 limits.

However, Defra also argued that the timetable set by the Supreme Court in April 2015 to renew the Air Quality Plan was ‘not an easy task’ — adding that in 2013 the UK was one of 17 Member States failing to meet NO2 limits as set out by the EU.


In its argument put to the High Court on Tuesday, ClientEarth referred to documents appearing to indicate some of Defra’s original recommendations for the Air Quality Plan — including diesel scrappage schemes and reform of the Vehicle Excise Duty — had been ‘rejected’ by the Treasury following its Spending Review (see story).

The NGO also claimed that Defra had originally planned to roll out low-emission zones for 16 cities around London.

Responding, Defra’s representatives noted that the EU Directive does not prescribe ‘the type of measures to be included’ in the Air Quaity Plan and therefore ‘not necessary for measures to be mandatory or implemented nationally as opposed to a local or regional scale’.

It added that while it requires Member States to meet the NO2 limits, ‘all necessary measures should not entail disproportionate costs’ and be ‘scientifically feasible’.


Scrappage schemes were, it added, ‘carefully considered’ but would not assist in achieving compliance with the 2020 Directive ‘more quickly’. On VED reforms, it argued the Treasury had ‘substantive reasons’ for rejecting the proposal.

Defra's recommendation to reform the Vehicle Excise Duty was rejected by the Treasury

Defra’s recommendation to reform the Vehicle Excise Duty was rejected by the Treasury

Defra also claimed that it is engaging with other cities aside from Birmingham, Derby, Leeds, Nottingham and Southampton — which are the focus of its Plan — by ensuring local authorities with areas exceeding legal NO2 levels consider putting in place a Low Emission Strategy ‘as a minimum’.

It pointed to the launch this month of the government’s latest air quality consultation and an £3 million Air Quality Grant to assist councils in developing clean air measures, as evidence of the Plan’s flexibility (see story).

Defending Defra, Kassie Smith QC insisted the clean air zones were ‘adaptable’. “The current position is they can be mandated”, she said. “If necessary that can be mandated in other cities. If the evidence basis develops that they are needed elsewhere then the framework in place for that to happen.”


Speaking at the end of the two day trial, Mr Justice Garnham added that he would likely rule on the case in a matter of weeks.


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