New Judgment: ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs  UKSC 28
29 Wednesday Apr 2015
On appeal from:  UKSC 25
The Supreme Court unanimously ordered that the government must submit new air quality plans to the European Commission no later than 31 December 2015, following an appeal regarding the interpretation of the Air Quality Directive 2008/50/EC. The Court had to decide if the Air Quality Directive requires the respondent to have prepared an air quality plan which demonstrates compliance by 1 January 2015 and what remedies it should provide where the respondent has not prepared a plan.
The issue arose out of the admitted and continuing failure of the UK since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by EU law, under the Air Quality Directive. The appellant argued that the UK was required by art 22 of the Directive to apply for postponement in respect of all zones where compliance of the air quality limits could not be met by the original deadline. The Secretary of State had not applied for postponement in some zones and instead produced plans under art 13 of the Directive predicting compliance would not be achieved until 2025. At its previous Supreme Court hearing a question was referred to the CJEU regarding the proper interpretation of arts 13, 22 and 23 of the Air Quality Directive. Following the answering of these questions the case returned to the Court to decide was further orders should be made.
Lord Carnwath stated that the CJEU said producing a plan complying with art 23(1) did not itself mean the member state had met its obligations under art 13, and it was for the national court to take “any necessary measure” so that the authority establishes a plan required by the Directive when there had been a failure to comply with art 13 and lack of application to postpone the deadline under art 22. Lord Carnwath reasoned that no doubt had been left as to the seriousness of the breach or the responsibility of the national court to secure compliance. This therefore led him to conclude that the new government should be left in no doubt as to the need for immediate action, which was achieved by an order that new plans must be delivered to the Commission by 31 December 2015.