Memorandum submitted by ClientEarth (AQ 21) Summary · Concentrations of PM10
and NO2 in · While PM10
is a problem in · At present there is no credible strategy in place which will ensure that limit values for PM10 and NO2 are attained within an acceptable timeframe. · The air quality delivery
chain in the · The system needs to be rationalised and simplified, with one organisation being given strategic responsibility, appropriate powers and adequate funding for ensuring compliance with EU air quality law. · There needs to be dissuasive penalties and legal sanctions for failure to attain EU air quality limits. · Air quality limits are in place to protect human health and as such should be enforceable in the courts by concerned individuals. Background
1. Directive 2008/50/EC[1] (the '2008 Directive') imposes standards for ambient levels of certain air pollutants including particulates (PM10) and nitrogen dioxide (NO2). These standards are known as 'limit values'.
2. The limit values for PM10 became
legally binding in 2005 as a result of an earlier directive (the '1999
Directive').[2]
Since then the annual average and daily limit values in
3. The Commission began infringement proceedings
against the 4. The limit values for NO2 will come
into force on 1 January 2010. Government forecasts predict that the limit
values for NO2 will be breached throughout the UK until at least
2015 (see in particular paragraphs 55 to 59 of the draft Defra document dated
February 2009, extract attached as Annex 1).[3]
Unlike the problems with PM10, which is principally a 5. It is therefore clear that neither central
government nor the Mayor is developing an effective strategy for meeting the The air quality delivery chain in Greater London 6. There are two legal frameworks relating to ambient air quality; one implementing the 1999 Directive, and a separate framework derived from the Environment Act 1995. The two frameworks are technically separate but in practice operate in tandem. 7. The EU framework has its legal basis in the 1999 Directive, as the 2008 Directive has not yet been transposed into UK law (however, the limit values under the two directives are identical). The 2008 Directive will be transposed by the Air Quality Standards Regulations 2010, which were published in draft form for consultation in November 2009 (the 'Draft Regulations'). The deadline for transposition of the 2008 Directive is 11 June 2010. 8. The limit values under the 1999 Directive are transposed by the 2007 Air Quality Standards Regulations (the '2007 Regulations'), which impose a duty on the Secretary of State (the 'SoS') to take appropriate measures to attain the limit values and give him powers to give directions to the Mayor of London and Local Authorities in Greater London. 9. The Draft Regulations, once adopted, will also require the SoS to produce an Air Quality Plan for any zone where limit values are in exceedence, and a Short-Term Action Plan in zones where higher 'alert thresholds' are breached. These plans must demonstrate how compliance with the limit values and alert thresholds will be achieved in the shortest period possible. 10. The framework established by the Environment
Act 1995 imposes a duty on the SoS to prepare a National Air Quality Strategy
setting out aims and objectives for the achievement of national air quality standards.
These national standards are set out in the Air Quality ( 11. However, the National Air Quality Strategy does not have statutory force and imposes no direct obligations upon any regulatory body (although the Environment Agency is under a duty to have regard to it when discharging its general pollution control functions under the Environment Act 1995). 12. The National Air Quality Strategy is therefore implemented through a system of local air quality management that obliges Local Authorities to undertake an assessment of air quality in their areas and where the standards under the 2000 Regulations are not being met, produce action plans aimed at achieving the national standards. 13. In a) implement the National Air Quality Strategy; and b) achieve the national standards set out in the 2000 Regulations. 14. The SoS can give directions to the Mayor of the
15. The Environment Agency has no duties or powers directly relating to the attainment of air quality limit values under either the EU or domestic framework. However it is responsible for regulating emissions of air pollutants from large stationary sources, principally through the allocation of permits under the Environmental Permitting Regulations 2008. However, under EU law, all public bodies are under a duty to take all measures to ensure and fulfil obligations of EU law. Summary of duties and powers 16. Secretary of State (currently the Secretary of State for Environment, Food and Rural Affairs) · Duty to attain EU limit values under 2007 Regulations and endeavour to maintain the best ambient air quality compatible with sustainable development. · Power to give directions to Mayor of London and local authorities within Greater London to attain EU limit values under the 2007 Regulations. · Duty to produce National Air Quality Strategy which achieves national air quality standards. · Produced the 2000 Regulations, that imposed national air quality standards (which are identical to EU limit values). · Proposed duty to draw up and implement air quality plans for zones where limit values are exceeded and Short-term Action Plans where alert thresholds exceeded (under the Draft Regulations). · Duty to assess and monitor air quality. Mayor of · Duty to produce London Air Quality Strategy which implements National Air Quality Strategy and achieves national standards set by the 2000 Regulations. · Power to give directions to local authorities within Greater London. Local Authorities · Duty to assess air quality and prepare action plans aimed at achieving limit values under 2000 Regulations. · Duty to have regard to the London Air Quality Strategy in carrying out these duties. · Duty to assist the Mayor in preparing the London Air Quality Strategy. · Power over industrial emissions from smaller industrial installations. Environment Agency · Power over industrial emissions through issue of pollution permits to large industrial installations. · Administers National Emission Reduction Plans under the Large Combustion Plant Regulations. · Duty to have regard to the National Air Quality Strategy in carrying out these functions. Access to the courts
17. In a landmark decision in 1991, the European
Court of Justice held that because air quality standards were adopted in the
interests of protecting human health, EU citizens must be entitled to ensure in
court that air quality standards are actually complied with.[5]
The Aarhus Convention,[6]
which has been ratified by both the EU and the
18. However, it is very difficult for citizens in
19. First, the jurisprudence of the courts in relation to judicial review does not in practice allow courts to review the substantive legality of a case. The courts will therefore only overturn an administrative decision where it has been made as a result of procedural irregularity, and will not look into whether the decision itself is lawful. This is in contravention of Article 9(2) of the Aarhus Convention, which gives an express right to the review of the 'substantive', as well as the 'procedural' legality of a public authority's decision, act or omission.
20. Second, the costs system in 21. ClientEarth has submitted a communication to
the Aarhus Convention's Compliance Committee regarding the 22. Finally, injunctive relief is rarely available
in the courts of
Problems with the current system 23. There is no clear delivery chain for air
quality in the 24. Having two separate legal frameworks governing delivery of air quality
causes further confusion, leading to a lack of understanding of roles and
responsibilities, both within the various tiers of government with
responsibilities for delivering air quality and among individuals and bodies
trying to hold them to account. ClientEarth recently wrote to the Mayor and the
Environment Committee of the Greater London Authority (the body responsible for
holding the Mayor to account) to explain the Mayor's legal duties in producing
the 25. Neither framework establishes clear and legally enforceable duties. Only the SoS is under any legal duty to attain the EU limit values under the EU framework. The Environment Act framework does not impose any meaningful legal duties on the SoS, the Mayor or Local Authorities, merely requiring the production of plans which work towards achieving air quality standards but which are not legally binding.
26. Neither framework establishes dissuasive penalties
for non-compliance. While the
27. The lack of clear and legally enforceable
duties, coupled with the significant barriers to access to the courts (as
outlined in paragraphs 17-22 above) means that it is very difficult for
concerned individuals or groups to obtain judicial remedies where government
fails to meet the limit values. 28. The only likely legal sanction for a failure by the SoS to comply
with the limit values is therefore the threat of infringement action by the
Commission, which is an uncertain, lengthy and politically driven process. In
2005, the average time taken from the Commission issuing a letter of formal
notice to the ECJ giving judgment was 47 months. Consequently, sanctions
imposed by the ECJ are out of step with the political cycle in the
29. The consequences of such a system are perfectly illustrated by the
current impasse over NO2 in
Recommendations
Recommendation 1
30. Streamline the existing legal framework so that there is only one air quality regime incorporating the requirements of the 2008 Directive. This would require the National Air Quality Strategy and the Mayor's Air Quality Strategy to achieve the EU limits rather than the national standards. The consultation document accompanying the Draft Regulations states that Defra is already considering this as an option (extract attached as Annex 4).[8] This would be an ideal opportunity to introduce more far-reaching reform of the system.
Recommendation 2
31. Impose a statutory duty on one agency for ensuring compliance with EU air quality limit values.
32. To carry out this function, this body would need to be independent from government, and granted wide statutory powers, including the power to give directions to the Government, and where these directions are not followed, enforce them through the courts.
33. To order to enforce directions through the
courts, this body would need to be able to seek a number of remedies which at
the moment are rarely available in the courts of
34. This body would also need considerable additional funding to enable it to carry out these additional functions.
35. Responsibility for monitoring air quality may need to be passed from Defra to this body in order to avoid any possibility of the monitoring process becoming politicised.
36. The Environment Agency would be the obvious
choice for this role. There are already proposals for the Environment Agency to
be given such responsibility and powers for ensuring compliance with air
quality laws at
37. Similarly the Flooding and Water Management
Bill gives the Environment Agency overall strategic responsibility for flood
management. The air quality crisis is a problem of similar magnitude to
flooding and requires a similar restructuring of the institutional framework. Recommendation 3
38. Make:
· The National Air Quality Strategy (currently
produced by the SoS under the Environment Act 1995); · Air Quality Plans (to be made by the SoS under the
draft Air Quality Standards Regulations 2010); and · The London Air Quality Strategy (made by the Mayor of London under the Greater London Authority Act 1999)
subject to the approval of the Environment Agency, to ensure that the measures set out in them deliver compliance with the EU air quality directives.
39. Once approved, these documents should become
legally binding on all levels of government and enforceable through the courts by
both the Environment Agency and citizens. This is similar to the
Recommendation 4 40. Give citizens a central role in enforcing air quality laws. Citizens should therefore be given identical enforcement powers to the Environment Agency.
41. First, this would require civil procedures rules to be reformed to allow citizens to bring legal challenges for failure to comply with air quality law (and environmental law more generally) without the risk of incurring huge legal costs.
42. Second, courts must have the authority to review both procedural and substantive aspects of air quality (and other environmental) cases.
43. Third, courts must have the authority to grant a variety of remedies, including injunctive relief as well as financial penalties.
44. This would improve the efficiency of enforcement and ensure compliance with EU and international law under the Aarhus Convention. This is an area in which ClientEarth has considerable in-house expertise and experience.
45. Adopting our second, third and fourth recommendations would satisfy the requirement under the 2008 Directive that Member States must lay down penalties for infringement of the limit values which are effective, proportionate and dissuasive.
Recommendation 5
46. Any fines received by the courts should be paid into a hypothecated air quality fund.
14 December 2009 [1] Directive 2008/50/EC of the European Parliament and of the Council
of [2] Directive 1999/30/EC of the European Parliament and of the Council of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matters and lead in ambient air. [3] The Defra document is available in full at: [4] The Mayor's draft air quality strategy is available in full at: [5] Case C-361/88 Commission v [6] United Nations Economic Commission for [7] The full communication is available at: http://www.unece.org/env/pp/compliance/Compliance%20Committee/33TableUK.htm [8] The consultation document is available in full at: [9] The DfT document is available in full at: |