Case Comment: ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs  UKSC 28
03 Monday Aug 2015
They say timing is everything and it certainly was when the Supreme Court handed down its judgment in ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs  UKSC 28 on 29 April 2015.
Coming much quicker than anyone had imagined, just 13 days after the hearing and one week before the General Election, the Supreme Court held accountable the government against which the case had been launched in 2011 and put beyond doubt, if such could exist, that the Supreme Court’s judgment is in any way politically influenced by election results.
ClientEarth had launched its case in 2011 after the then government had failed to apply for time extensions under Directive 2008/50/EC on ambient air quality and cleaner air for Europe to comply with the annual mean limit value for nitrogen dioxide (NO2) in 16 of the UK’s 43 zones or agglomerations. The government had claimed that these limit values would be met in all other zones or agglomerations by 1 January 2015. In late 2014, Defra admitted in a consultation document about Local Air Quality Management that it expected NO2 limit values still to be exceeded in 38 of these 43 zones or agglomerations in 2015. Worse, the NO2 limit value would not be met in London until some unspecified date beyond 2030, particularly near Heathrow airport. These limit values have been in legislation since 1999 to be met by 1 January 2010 or 1 January 2015 (if strict conditions for a time extension were met).
Key elements of this case include:
- a reminder that the absolute terms of the obligation under article 13 may be contrasted, for example, with article 16 which requires “all necessary measures not entailing disproportionate costs” to achieve the “target value” set for concentrations of PM5;
- that the CJEU judgment leaves no doubt as to the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility of the national court to secure compliance;
- that the national court must take “any necessary measure” so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter;
- that the new government should be left in no doubt as to the need for immediate action to remedy the danger to public health as soon as possible;
- a mandatory order that the government must submit new air quality plans under Article 23(1) to the European Commission no later than 31 December 2015; and
- that the court added a further provision for liberty to apply to the Administrative Court for variation of the proposed timetable, or for determination of any other legal issues which may arise between the present parties in the course of preparation of the plans.
Together they make clear that this was undoubtedly the most important environmental or public health case in our generation and perhaps ever in the UK.
During the appeal, counsel for the government admitted that 80% of breaches of the NO2 limit values are caused by road transport. The finger was pointed quickly at diesel vehicles which are responsible for some 90-95% of exhaust emissions of NO2. Separate investigations by Clean Air in London found that the incentivisation of diesel over petrol by successive governments since the early 1990s has been more than twice as much responsible for the increase in NO2 emissions as any alleged failure of European engine emission standards which never anyway set specific limits for NO2. Please do not have any sympathy for diesel vehicle manufacturers – their vehicles have consistently emitted much more than the factory test suggested they should emit. Extraordinarily, up to four times worse with the latest Euro 6 engine emission standards that are entering into force now.
We should be in doubt about the seriousness of the breaches of NO2 or that the UK is probably the worst in the world for this form of air pollution. First, let’s remember that there are two forms of air pollution – particles and gases. Particles are regulated in a lump whereas NO2 is the only ‘modern’ gas regulated for health and legal purposes. Second, scientists at King’s College London have said that many roads in central London will tend to have the highest concentrations of NO2 in the world due to the large number of diesel vehicles and narrow streets with tall buildings.
Third, as if that weren’t enough, the Mayor of London published a report by King’s College London in July with the world’s first estimates for the number of deaths attributable to long-term exposure to NO2. They estimated 5,900 such deaths in London in 2010 giving a total, after deducting some overlap, of 9,400 such deaths from fine particles and NO2 in London in 2010. That makes air pollution worse than smoking for the first time. Nationally, the figure may rise from 29,000 to 70,000 to 80,000 when the Committee on the Medical Effects of Air Pollutants publishes its estimates which are expected by the end of the year (coinciding with the Supreme Court’s deadline).
All these developments pile pressure on Rory Stewart, the new Air Quality Minister, in Defra. He must launch his consultation on new air quality plans by September at the latest if he is to hold the eight week consultation agreed with ClientEarth and leave time to consider responses and lodge final plans with the European Commission by 31 December 2015 as the Supreme Court has ordered.
They also pile pressure, rightly, on the European Commission to send the UK a ‘Reasoned opinion’ (a.k.a. final written warning) in February 2016 or thereabouts for failing to comply with the NO2 limit values since 2010 and on local authorities and other planning authorities to reduce diesel emissions and get tough on developments that would cause new breaches of limit values or worsen NO2 where breaches occur.
Clean Air in London believes that the Supreme Court’s judgment has provided a timely reminder that we need to ban diesel from the most polluted places as we banned coal burning so successfully with the Clean Air Act almost exactly 60 years ago. Let’s repeat that clean air revolution that made us a world leader for 15 years.
Simon Birkett is the founder and director of Clean Air in London. More information about the organisation can be found here.