What does the ClientEarth case mean for UK air quality?

Editor’s Blog: Amid the complicated legal wrangling over often convoluted wording in EU legislation, it was a little harder to unpick more precisely what the case might mean for the air we breathe…

After a fortnight which saw high air pollution levels, a Defra website hacked by an Islamist group and political party manifestos launched, the UK government was once again in the dock over its failure to meet nitrogen dioxide limits. It’s hard to think of a more high profile period for the Supreme Court to hear a case about our air quality.

london fog

A Judgement will be handed down by the Supreme Court in the ClientEarth case “in due course”

But amid the complicated legal wrangling over often convoluted wording in EU legislation — namely the Ambient Air Quality Directive — it was a little harder to unpick more precisely what the case is about, and most importantly, what it might mean for the air we breathe.

We know that the UK has been in breach of EU nitrogen dioxide limit values in 16 areas — the Supreme Court said so in 2013.

But while Defra drafted its current air quality plan aimed at meeting these limit values in 2011, it then conceded last year that this plan will not see legal air quality until sometime after 2030 in several UK zones.

So, as it stands, it is unclear when people in several densely populated parts of the country will be able to breathe lawful air, but we are told that it will be at least another 15 years in the likes of London, the West Midlands and West Yorkshire, and more than 20 years after the original EU deadline.

To its credit, Defra has more recently announced that it would be revising its air quality plan “to reflect recent action so we can be compliant as soon as possible”, and indeed Kassie Smith QC made regular reference to this revision process in the Department’s defence to the Supreme Court on Thursday (April 16).

But while the QC suggested the plan would be likely to surface before the end of 2015, there was no indication as to when the plan would aim to have all UK zones compliant with the EU Directive beyond ‘as soon as possible’.

And this issue is at the crux of the matter, as while Defra is drafting a new plan on its own timescale, ClientEarth demands that the Supreme Court order Defra to produce a new plan “within three months” that is as detailed and rigorous as possible.

So a major question is whether the Supreme Court deems it necessary to give a mandatory order for Defra to produce a new air quality plan.

And, if the Court does order a new plan, what kind of detail must such a plan contain? A low emission zone framework perhaps? And how tough or ambitious must the plan be in seeking to meet the EU limit values?

It is now four years since ClientEarth first launched legal action against Defra over the NO2 breaches, and it will be hoping for answers to these questions.

As one of the five Supreme Court justices, Lord Carnwath, commented during last week’s hearing: “Here we are four years on without any idea when the Secretary of State thinks it will achieve compliance.”


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