3Clean air in law
Legal non-compliance
20.EU legislation sets limits on the levels of permissible outdoor air pollution.33 The UK is in breach of the EU 2008 Directive on Ambient Air Quality for nitrogen dioxide (NO2) concentrations ,34 which had a compliance deadline of 2010.35 In February 2014, the European Commission initiated an infringement case against the UK for its failure to cut ‘excessive’ levels of NO2. In February 2017, the UK received a Reasoned Opinion (RO), a final written warning before a case is referred to the Court of Justice of the European Union (CJEU). The RO required the UK to show how it will comply with legal limits within the European Commission’s timeline. Failure to do so could lead to proceedings being escalated further.36 The UK submitted its response in April 2017. This response is currently under consideration. Officials from nine EU countries, including the UK, attended a meeting in Brussels in January 2018 to present their proposed air quality mitigation measures. Following the meeting, infringement measures were said to be continuing, and ClientEarth said it was possible that the UK will be referred to the CJEU.37 Other EU countries regularly breaching NO2 limits include Germany, France, Italy and Spain.38
21.The Government does not appear to have an estimate of how large a financial penalty could be imposed by the CJEU, as it is unclear how many air quality zone breaches would be taken into account, nor is it clear whether any such penalties could be imposed before or after EU-exit.39 If the EU were to impose fines, the UK Government could ask local authorities to pay some or all of the fines under the Localism Act 2011.
22.The Government’s plans to bring NO2 emissions to within legal limits were struck down by legal action in 2015 and again in November 2016. In the 2016 case, brought by ClientEarth, the High Court found that the Secretary of State must “aim to achieve compliance by the soonest date possible” via a method that “reduces exposure as quickly as possible”, and which ensured that compliance with limit values was not just possible but also likely.40 The Government subsequently published its finalised 2017 plan for tackling roadside NO2 concentrations on 26 July 2017, saying it was “focused on delivering nitrogen dioxide (NO2) compliance at the roadside in the shortest amount of time”.41 ClientEarth launched legal proceedings over the plan in November 2017, arguing it failed to adequately address the magnitude of the problem.42 The High Court subsequently ruled in February 2018 that the 2017 plan was “unlawful” as, amongst other deficiencies, “in its application to the 45 local authority areas, it does not contain measures sufficient to ensure substantive compliance with the 2008 Directive and the English Regulations”.43 In response, the Government said it would issue legally binding directions to the 45 local authorities instructing them to examine “additional actions they can take to accelerate achieving compliance”. The Government confirmed it would publish a supplement to the 2017 plan by 5 October 2018, and said it would be releasing a “comprehensive Clean Air Strategy which will set out further steps to tackle air pollution” later this year.44
Enforcing air quality after leaving the European Union
23.A substantial proportion of the current regulation and enforcement mechanisms relating to air quality has previously been established at EU level. There are concerns that EU-exit will negatively affect environmental protection and enforcement in the UK. In a House of Lords oral evidence session, Lord Rooker highlighted to Secretary of State Michael Gove that “there have been 34 cases where DG Environment has taken the UK Government … to court, and it won 30 of them … we had to be forced to operate environmental policies under threat of legal action. That will be removed following Brexit”.45 ClientEarth likewise stressed the key role played by the European Commission and European Court of Justice (ECJ) in driving progress on targets and enforcing legal obligations on air quality.46 It is currently unclear what enforcement mechanisms will be implemented after EU-exit.
24.The Secretary of State acknowledged there would be a “governance gap”,47 and has said that an independent body would be created to hold Government to account after EU-exit. Mr Gove said Defra will consult on establishing a body that is “independent of Government … [and] placed on a statutory footing, ensuring it has clear authority. Its ambition will be to champion and uphold environmental standards”.48
25.We asked Ministers for their views on the proposed establishment of an Environmental Protection Agency which would hold the Government to account. The proposal did not appear welcome across the Departments. Parliamentary Under-Secretary of State for the Department for Transport Jesse Norman told us that “Parliament is the correct body to hold Government to account”.49 The then Exchequer Secretary to HM Treasury Andrew Jones likewise stated that “the best way to hold Government to account is through Parliament”.50 The then Minister for Local Government Marcus Jones did not answer directly, saying “I do not want to get into the debate over who should be the arbiter in these situations”.51
26.Successive governments have been slow to take the necessary action on air pollution even when confronted with legal proceedings at the UK and EU level. We therefore welcome Defra’s suggestion that a new Environmental Protection Agency be established to hold Government to account after EU-exit, and recommend that provision for such an agency be written into legislation, specifying equivalent powers, standards and enforcement mechanisms as the equivalent enforcement agencies in the EU. Given the tight timescales surrounding EU-exit, we recommend that Defra publishes its consultation response on the proposed Environmental Protection Agency and the extent of its powers as soon as possible. The new watchdog must have powers equivalent to those of the European Commission to force the Government to act, otherwise action on air quality will be further weakened.
27.The European Union (Withdrawal) Bill does not make provision for post-Brexit institutional and governance arrangements for air quality. The Government should establish appropriate institutions and agencies to independently enforce air quality requirements. Furthermore, the Government should establish in primary legislation a requirement that UK air pollution standards are at least as high as equivalent standards in the EU, and that the relevant enforcement agency must have equivalent powers, standards and enforcement mechanisms as the equivalent agencies in the EU.
New clean air legislation
28.Existing legislation requires local authorities to monitor local air quality. This is largely carried out through the Local Air Quality Management system. If an area is identified as requiring improvements to pollution levels, the local authority must declare an Air Quality Management Area (AQMA) and “produce an air quality Action Plan describing the pollution reduction measures it will put in place”.52 A recent report from Defra showed that almost 600 active AQMAs had been established across the UK, mostly for NO2.53
29.ClientEarth believed the current system is not doing enough to reduce pollution levels, and has highlighted that the number of local authorities declaring AQMAs is rising rather than falling.54 Some observers argued that the current air quality legislative framework needs consolidating and updating in order to achieve sustained future benefits.55 It was suggested that the legislative changes required by the UK’s departure from the EU presented the Government with a window of opportunity which could be used to introduce more innovative and joined-up legislation that would stimulate more efficient action.56 Environmental Protection UK said that a new Clean Air Act should be introduced to consolidate existing legislation, and argued that the “the ‘Polluter Pays Principle’57 and the ‘Precautionary Principle’58 should be enshrined in UK law”.59 This call was echoed by Clean Air in London.60
30.We were further told that current legislation does not adequately protect public health,61 and that the new legislation should adopt World Health Organization (WHO) guideline limits on air pollution.62 The UK’s limit for particulate matter, for example, is currently significantly higher than the targets recommended by the WHO.63 Scotland has set lower limits for PM10 and PM2.5,64 and the Mayor of London declared that London would aim to meet WHO targets by 2030.65 ClientEarth told us that “England needs to raise the bar and join Scotland in imposing a higher health standard in line with World Health Organisation guidelines”.66 Local authority bodies criticised the Government for failing to recognise in its action plans that there are no ‘safe’ limits for NO2 or particulates.67 In March 2017, Dr Thérèse Coffey MP, Parliamentary Under-Secretary of State for the Department for Environment, Food and Rural Affairs, said that “there are no plans to change the limit values and target values in the Regulations” once the UK leaves the EU.68
31.We asked witnesses if additional legislation would help drive air quality improvements. The Mayor of London told us that “we need a new Clean Air Act fit for purpose for the 21st century” to enshrine in legislation “a right to clean air for people across the country”.69 He argued that new powers were needed to improve the air quality impacts of existing and future developments and construction sites, and that these should be conferred through this new legislation.70 The Local Government Association (LGA) agreed that local authorities required greater powers to tackle air quality, for example over lane rental schemes71 and enforcing moving traffic regulations.72 The Department for Transport recently highlighted the positive impact of lane rental schemes on reducing congestion.73 The LGA believed local authorities would “broadly support” the proposal that new powers be granted through a new Clean Air Act.74
32.ClientEarth advocated a new Clean Air Act “to ensure and preserve our rights in law to breathe clean air”.75 They further believed there currently was confusion among local authorities over the urgency of required action, and that there was insufficient appreciation that health had to take “absolute priority”.76 The European Environmental Agency did not comment directly, but told us that “it is important to have very clear, focused legislation” to achieve improvements in air quality.77 A Clean Air Act should be introduced by the Government in primary legislation.
33.Dr Coffey disagreed new legislation was necessary. She argued that “We are clear on what we have to try to do, we know that councils have the powers to do that and we need to press on with it together”.78 The Minister rejected the Mayor’s calls for further powers, saying he could achieve air quality benefits by working with councils under the existing framework.79 She further denied that new legislation was needed to support legal redress on air quality,80 and insisted that “there is absolutely no diminution in any sense of any target or of our ambition” in light of EU-exit.81
34.The current legislative framework for air quality is not doing enough to protect public and environmental health. Improvements to air quality legislation should feature prominently in Defra’s commitment to delivering a ‘Green Brexit’. The Government must bring forward legislative proposals on clean air that unify and update existing laws in a new Clean Air Act. The Government must set out its regulatory course, including whether to adopt World Health Organization air quality guidelines for all air pollutants, including sulphur dioxide, particulate matter and ozone, and not just nitrogen dioxide. This legislation should aim to achieve the widest possible health benefits by adopting World Health Organization targets into UK statute.
33 European Commission, Air Quality - Existing Legislation
34 DIR2008/50/EC in Official Journal 152 of 11 June 2008
35 European Commission, Press release, 15 February 2017. The UK has applied for an adjustment to the national emissions inventory for NOx emissions. For details and information on air pollution trends see Defra, Statistical Release 15 February 2018, Emissions of air pollutants in the UK, 1970 to 2016
36 NAO, Air quality, 2017, para 1.13
37 ClientEarth, EU Commission must exert pressure on countries failing to tackle harmful air pollution, 30 January 2018
38 Q129
39 NAO, Air quality, 2017, para 1.14
40 High Court of Justice, ClientEarth v Secretary of State for the Environment Food and Rural Affairs, EWHC 2740 (Admin), 2016, para 95.i
41 Department for Environment, Food and Rural Affairs and Department for Transport, Plan for roadside NO2 concentrations published, July 2017
42 Q22
43 High Court of Justice, ClientEarth No.3 v Secretary of State for Environment, Food and Rural Affairs & Ors [2018] EWHC 315 (Admin), 21 February 2018, Para 104
44 Defra, Written Ministerial Statement, Outcome of the judicial review of the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations, 22 February 2018
45 Select Committee on the European Union, Energy and Environment Sub-Committee, oral evidence, Q8
46 Q35
47 Select Committee on the European Union, Energy and Environment Sub-Committee, oral evidence, Q2
48 Defra, Environment Secretary sets out plans to enhance environmental standards, 13 November 2017
49 Q295
50 Q296
51 Q298
54 ClientEarth, Missed air quality targets hits new high, ClientEarth mulls fresh legal action, 18 October 2017
57 The notion that those contributing most to pollution levels should pay to mitigate the impacts.
58 The notion that actions should strive to avoid risk or harm, where the risk of damage is plausible but as yet uncertain.
63 World Health Organization, Ambient (outdoor) air quality and health, September 2016
64 Scottish Government, Cleaner Air for Scotland - The Road to a Healthier Future’, 2017
65 Mayor of London, London Environment Strategy Draft for Consultation August 2017, p.39
66 Q42
69 Q56
70 Q56
71 These involve charging the organisations carrying out road works for the time they are working on the highway. The aim is to incentivise the swift completion of roadworks and reduce congestion.
72 For example regulations on bus lanes, yellow boxes, and traffic prohibitions.
73 Department for Transport, Congestion busting scheme rolled out to benefit drivers, 16 February 2018
74 Q58
76 Q30
77 Q59
78 Q292
79 Q292
80 Q293
81 Q291
Published: 15 March 2018