Memorandum submitted by ClientEarth (AQ 21)

Summary

Concentrations of PM10 and NO2 in London are far in excess of EU limits, which are set at levels designed to protect human health.

While PM10 is a problem in London and several other large conurbations, NO2 is a national problem.

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 UK is incoherent and ineffective and prevents effective strategies from being developed and implemented.

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 London have been breached in 2005, 2006, 2007 and 2008 (finalised figures for 2009 are not yet available). On 11 December 2009, the European Commission rejected an application by the UK Government to utilise a provision in the 2008 Directive to postpone the deadline for compliance with the limit values in London until 2011. The Commission held that the UK was not eligible for a time extension because it had failed to implement all appropriate measures to achieve compliance by the 2005 deadline and did not have a credible strategy in place for achieving compliance by the postponed 2011 deadline.

 

3. The Commission began infringement proceedings against the UK in January 2009 for failure to attain the limit values for PM10. Because the Commission rejected the time extension application it is expected that it will escalate these proceedings in early 2010.

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 London issue, NO2 limits are likely to be exceeded in urban areas throughout the UK. The 2008 Directive allows a Member State to postpone compliance with the NO2 limit values until 2015, with the approval of the Commission, if it demonstrates that it has taken all appropriate measures to achieve compliance by the initial 2010 deadline and produces a credible strategy which demonstrates that compliance will be achieved by the extended 2015 deadline. However, the Mayor of London's draft air quality strategy (relevant extracts attached as Annex 2),[4] which was published for preliminary consultation in October 2009, fails to demonstrate how compliance will be achieved by 2015, and does not even attempt to achieve compliance by the original deadline of 1 January 2010.

5. It is therefore clear that neither central government nor the Mayor is developing an effective strategy for meeting the UK's obligations under the EU air quality directives. In ClientEarth's opinion, this failure is in a large part attributable to the inadequate institutional and procedural structures currently in place in the UK. This submission focuses on the delivery chain in Greater London, as this is where the country's air quality problems are most acute and where there is least clarity in the air quality delivery chain. However, this analysis has nationwide relevance.

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 (England) Regulations 2000 (the '2000 Regulations'), and are identical to the EU limit values laid down in the 2007 Regulations.

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 London, the system is further complicated by an additional layer of government: the Mayor of London, who sits between central government and the Local Authorities. The Mayor is required by the Greater London Authority Act 1999 to produce an air quality strategy for London, which must:

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 London if his strategy does not meet these requirements. Local Authorities are required to have regard to the London Air Quality Strategy in fulfilling their local air quality management duties, and to provide the Mayor with information, advice and assistance in preparing his strategy.

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 London

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 UK, also gives citizens rights to access the courts to enforce environmental law.

 

18. However, it is very difficult for citizens in England and Wales to obtain judicial remedies where EU air quality law is breached as a result of the following features of the legal system.

 

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 England and Wales means that an unsuccessful claimant has to pay the costs of the respondent, in addition to their own, means that bringing a legal challenge is prohibitively expensive. This is in contravention of Article 9(4) of the Aarhus Convention, which obliges parties to make sure that access to justice is not 'prohibitively expensive' or unfair.

21. ClientEarth has submitted a communication to the Aarhus Convention's Compliance Committee regarding the UK's non-compliance which highlights these issues (see extract attached as
Annex 3).[7]

22. Finally, injunctive relief is rarely available in the courts of England and Wales, which is in contravention of Article 9(4) of the Aarhus Convention which requires that adequate and effective remedies are available, including injunctive relief.

 

Problems with the current system

23. There is no clear delivery chain for air quality in the UK, and particularly in London. Powers and duties for compliance with air quality law in London are divided between three tiers of government: central government, the Mayor of London and Local Authorities. In addition, the Environment Agency, which is an 'Executive Non-departmental Public Body,' has some limited air quality duties and powers. Further, while Defra has principal responsibility for air quality within central government, it is reliant on cooperation from other departments, particularly the Department for Transport and the Department for Energy and Climate Change, as the transport and energy sectors are together responsible for the majority of emissions of the relevant air pollutants.

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 London air quality strategy. Feedback from members of the Environment Committee suggested that prior to our intervention understanding of the legal framework had been low.

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
2007 Regulations and the Draft Regulations place a legal duty on the SoS to take measures to meet the EU limit values, they do not impose any penalties on him for failing to do so. This is in breach of Article 30 of the 2008 Directive and therefore leaves the UK open to enforcement action from the EU Commission for failure to transpose the 2008 Directive correctly.

 

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 UK, with the result that penalties are often imposed against an administration with little responsibility for the breach because those responsible will have left office.

 

29. The consequences of such a system are perfectly illustrated by the current impasse over NO2 in London. The Mayor's draft London Air Quality Strategy does not contain adequate measures to deliver compliance with the national air quality standards for NO2. The Mayor claims that 70-100 million of central government funding, together with action at the national level, is required to tackle the NO2 problem. However, the Mayor has no power to demand funding from the SoS and is under no firm legal duty to achieve the limit values. The Mayor can therefore simply produce a final Air Quality Strategy which does not achieve the limits, claiming that he cannot achieve the limit values without adequate funding from central government. The SoS could make directions requiring him to revise the strategy, but this would be pointless unless backed with the requisite funding. A more likely scenario is that the Mayor will produce an Air Quality Strategy which does demonstrate compliance with the limit values, but then fail to implement the measures that are contained in it. The SoS can then blame the Mayor for failing to meet the NO2 limit values in the knowledge that the only probable consequence will be an enforcement action by the Commission at some point in the distant future.

 

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 England and Wales. In addition to financial penalties, courts would need to have the authority to grant injunctive relief, such as making declarations of non-compliance and issuing directions ordering the SoS to take specific measures.

 

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 Heathrow Airport (see DfT decisions following consultation, January 2009, attached as Annex 5).[9]

 

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 US system, where the Environmental Protection Agency ('EPA') is responsible for approving state air quality plans, which then become federal law, enforceable by both the EPA and citizens. The US, and particularly California, has had considerable success in tackling air quality problems.

 

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 21 May 2008 on ambient air quality and cleaner air for Europe.

[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:
http://www.defra.gov.uk/environment/quality/air/airquality/panels/forum/documents/aq-forum-draft-no2-approach-paper0902.pdf

[4] The Mayor's draft air quality strategy is available in full at:
http://www.london.gov.uk/mayor/environment/air_quality/docs/AQS09.pdf

[5] Case C-361/88 Commission v Germany [1991] E.C.R I-2567.

[6] United Nations Economic Commission for Europe, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, Denmark, 25 June 1998.

[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:
http://www.defra.gov.uk/corporate/consult/airquality-transposition/consultation.pdf

[9] The DfT document is available in full at:
http://www.dft.gov.uk/pgr/aviation/heathrowconsultations/heathrowdecision/decisiondocument/
decisiondoc.pdf