On 2 November, the High Court in London ruled in favour of activist legal group Client Earth in its challenge to the UK Government’s Air Quality Plan. The Court ruled that the Plan did not meet a requirement in the EU Clean Air Directive as transposed into UK law. This requires that the Government ensures the UK complies with air quality limit values “as soon as possible” after the original compliance date. Central to the plan is the need to meet the annual average limit value for NO2 whose original compliance date was 2010. The plan as it stands wouldn’t see compliance in London until 2025, with other zones reaching the target by 2020.
This is the second time Client Earth has successfully challenged the ambition of the UK Air Quality Plan, winning in April 2015 in the Supreme Court a case that had been referred back from the European Court of Justice. While the Government could appeal the latest ruling to the Supreme Court, the indications are that is will accept the judgement and re-draw its plans.
While the broad facts of the case probably won’t surprise anyone who has been involved in the UK air quality scene, the Government’s case was severely undermined by emails, released under disclosure of evidence rules, which showed opposition from HM Treasury to some of the key measures. Those measures could have significantly strengthened the plan, such as the inclusion of private cars in low emissions zones and changes to the tax treatment of diesel vehicles. Other communications appeared to show that the modelling parameters used in the impacts assessment were focussed more on the European legal process than on achieving shorter compliance dates.
So where now for UK air quality policy? Central to the issue is the performance of diesel vehicles in the real world, although they aren’t solely responsible for NO2 exceedances. Whichever sources are targeted, it’s clear from that case that, while Defra is the lead Government Department for air quality, agreement from the Treasury and Cabinet Office will be key to any strengthened measures which could be proposed. Increasing the number of Clean Air Zones is likely given the need to re-run the models with less optimistic assumptions. But this won’t address the timescales for compliance in London and the other Zones. There may need to be a serious discussion about the application of LEZs to private vehicles. This is commonplace in Germany and elsewhere but up to now considered out of the question in the UK. However, calls to ban diesel from city centres are likely to fall on deaf ears, especially as, according to Emissions Analytics and others, there are Euro 6 diesels on the market which are performing in the real world close to their emission limits while still providing a CO2 benefit.
The question of how and when Brexit will impact on the case is also important and unresolved. If the UK does leave the EU in a little over two years’ time, will the Government still feel bound by a ruling based on EU legislation, potentially prompting further legal action? In addition, Defra’s resources are likely to be severely stretched disentangling UK and EU legislation, a quarter of which lies within its remit. Resolving issues around the common agricultural policy alone will be difficult and time consuming. Given that the main air quality impacts are on human health, accepting that acidification and eutrophication are still important issues, should Department of Health take a more prominent role? Whatever happens, Defra’s next move is keenly awaited.