Clean Air In Laws

Lawful Non-Compliance

EU law sets limits on permissible outdoor air pollution levels. The UK is in breach of the EU 2008 Directive on ambient air quality for nitrogen dioxide (NO2) concentrations, which had a compliance deadline of 2010. In February 2014, the European Commission initiated an infringement case against the UK for failure to cut ‘excessive’ levels of NO2. In February 2017, the UK received a Reasoned Opinion (RO), a final written warning before a case is sent to the Court of Justice of the European Union (CJEU). The RO required the UK to show how it would comply with the legal limits within the European Commission’s timeline. Failure to do so could result in proceedings going further. The UK submitted its response in April 2017. This response is currently under consideration. Officials from nine Europena Union (EU) countries, including the United Kingdom(UK), attended a meeting in Brussels in January 2018 to present their proposed air quality mitigation measures. Following the meeting, breaching measures were said to continue, and the client said it was possible the UK would be referred to the CJEU. Other EU countries regularly breaching NO2 limits include Germany, France, Italy and Spain.

The government has no estimate of how large a financial penalty could be imposed by the CJEU, as it is unclear how many air quality sector breaches will be taken into account, nor is it clear whether any such penalties could be imposed before or after the EU passes a law.

The government’s plans to bring NO2 emissions within legal limits were scaled back in 2015 and again in November 2016. In the 2016 case, brought by ClientEarth, the High Court found that the Secretary of State “should aim to achieve compliance for the earliest date possible” through a method that “minimises the risk as quickly as possible”, but was not sure even this was feasible. The government later published its finalised 2017 plan to tackle roadside NO2 concentrations on 26 July 2017, saying it was “focused on delivering roadside nitrogen dioxide (NO2) compliance in the shortest possible time”. ClientEarth began legal proceedings over the plan in November 2017, arguing that it failed to adequately address the magnitude of the problem. The High Court subsequently ruled in February 2018 that the 2017 plan was “unlawful” as, amongst other deficiencies, “in its application to the 45 local authority areas, it does not contain adequate measures to ensure key compliance with the 2008 Directive and English regulations”. In response, the government said it would issue legally binding guidelines to the 45 local authorities, directing them to “examine additional actions they could take to accelerate achieving compliance”. The government confirmed it would publish a supplement to the 2017 plan by 5 October 2018, and said it would release a “comprehensive Clean Air Strategy setting out further steps to tackle air pollution” later this year.

Enforcing air quality after leaving the EU

A substantial proportion of current regulation and enforcement mechanisms relating to air quality have previously been established at EU level. There are concerns that EU-exit would negatively impact environmental protection and enforcement in the UK. In a House of Lords oral evidence session, Lord Rooker highlighted to Secretary of State Michael Gove that “there have been cases where DG Environment has taken the UK government to court, and it has won most of them… we were forced to operate environmental policies under the threat of legal action. This would be removed after Brexit”. Similarly Clientrierth emphasised the key role played by the European Commission and the European Court of Justice (ECJ) in monitoring progress on targets and enforcing legal obligations on air quality. It is currently unclear what enforcement mechanisms will be implemented post-EU-exit.

The Secretary of State has admitted there will be a “governance gap”, and has said an independent body will be created to hold the post-EU-exit Government to account. Mr Gove said Defra would consult on the establishment of a body that is “independent of government… [and] placed on a statutory footing, ensuring it has clear authority. Its ambition will be to champion and uphold environmental standards”.

We asked ministers for their views on the proposed establishment of an Environmental Protection Agency that would hold government to account. This was not welcomed in the departments on offer. Jesse Norman, Parliamentary Under-Secretary of State for the Department for Transport, told us that “Parliament is the right body to hold government to account”. The then Fiscal Secretary to HM Treasury Andrew Jones said that “the best way to hold government to account is through Parliament”. Marcus Jones, then Minister for Local Government, did not answer directly, saying “I don’t want to get into a debate about who should be the arbiter in these situations”.

Successive governments have been slow to take the necessary action on air pollution, even when faced with legal proceedings at UK and EU level. So we welcome Defra’s suggestion that the EU-exit government should take action to ensure that the government is protected. A new Environmental Protection Agency should be established to hold the Government to account, and provision for such an agency should be written into legislation specifying equivalent powers, standards and enforcement mechanisms as equivalent enforcement agencies in the EU. Given the tight timeline surrounding EU-exit, we recommend that DefRA publishes its consultation response on the proposed Environmental Protection Agency and the extent of its powers as soon as possible. The new watchdog should have powers equivalent to those of the European Commission to compel the Government to act, otherwise action on air quality will be further weakened.

New Clean Air Legislation

Existing legislation requires local authorities to monitor local air quality. This is largely done through a local air quality management system. If an area is identified as needing improvement in pollution levels, the local authority must declare an Air Quality Management Area (AQMA) and “produce an Air Quality Action Plan describing pollution reduction measures.” A recent report from Defra showed that there were around 600 active AQMAS installed in the UK, mostly for NO2.

ClientEarth believed that the current system was not doing enough to reduce pollution levels, and highlighted that the number of local authorities declaring AQMAs is rising rather than falling. Some observers argued that the current air quality legislative framework needed to be consolidated and updated to achieve continued future benefits. It was suggested that the legislative changes required by the UK’s departure from the EU presented the government with a window of opportunity, which could be used to introduce more innovative and joined-up legislation that would stimulate more efficient action. Environment Protection UK said that a new Clean Air Act should be introduced to strengthen existing legislation, and argued that “the Polluter Pays Polloter principle and the ‘precautionary principle’ should be enshrined in UK law”. This call was echoed by Clean Air in London.

We were further told that current legislation does not adequately protect public health,61 and that new legislation should adopt World Health Organisation (WHO) guideline limits on air pollution. The UK limit for particulate matter, for example, is currently significantly higher than the targets recommended by the WHO. Scotland has set lower limits for PM10 and PM2.5, and the Mayor of London announced that London aimed to meet the target by 2030. Clientyearth said that “England needs to join Scotland in raising the bar and implementing a higher health standard in line with World Health Organisation guidelines. In March 2017, Dr Therese Coffey MP, Parliamentary Under-Secretary of State for the Department for Environment, Food and Rural Affairs, said that there were “no plans to change the limit values ​​and target values ​​in the regulations” after the UK leaves the EU.

We asked witnesses whether additional legislation would help to scale up improvements in air quality. The Mayor of London told us that “we need a new Clean Air Act for the 21st century purpose” to enshrine in law “the right to clean air for people across the country”. They argued that new powers were needed to improve the air quality impacts of existing and future developments and building sites, and that these should be provided through new legislation. The Local Government Association (LGA) agreed that local authorities needed greater powers to tackle air quality, for example over lane rental schemes and to enforce moving traffic rules. The Department for Transport recently highlighted the positive impact of lane rental schemes on reducing congestion. The LGA believed that local authorities would “broadly support” the proposal that new powers be provided through a new Clean Air Act.

Clientyearth advocated a new Clean Air Act, “to ensure and protect our rights in law to breathe clean air”. They further believed that there was confusion amongst local authorities over the urgency of action currently needed, and that there was insufficient appreciation that health had to take “absolute priority”. The European Environment Agency did not comment directly, but told us it was important to have “very clear, focused legislation to achieve improvements in air quality”. A Clean Air Act should be introduced by the Government in primary legislation. Dr Coffey disagreed that it was necessary. He argued that “we are clear on what we need to try to do, we know councils have the powers to do it and we need to press on with this together”.

The Minister rejected the Mayor’s call for further powers, saying he could achieve air quality gains by working with councils under the existing framework. He further denied that new legislation was needed to support legal redress on air quality, and insisted that “there is no dilution of any target or any sense of our ambition in the light of EU-exit”.

The current legislative framework for air quality is not sufficient to protect public and environmental health. Reform of air quality legislation must feature prominently in Defra’s commitment to delivering a ‘green Brexit’. The government must bring forward legislative proposals on clean air that unify and update existing laws in a new Clean Air Act. The government must set out its regulatory course, including whether to adopt the World Health Organisation air quality guidelines for all air pollutants, including sulphur dioxide, particulate matter and ozone, not just nitrogen dioxide. This legislation should aim to achieve the widest possible health benefits by adopting the World Health Organisation targets into UK law.

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