On 12 September 2015 the Government launched a consultation to seek views from local and transport authorities, businesses and members of the public on what local action can be taken to improve air quality in England, Wales and Northern Ireland. A separate consultation was launched by the Scottish Government on 14 September 2015. Even before the issues that currently surround the diesel emissions monitoring hit the press, the impact of air quality on public health was a topic that was attracting a growing amount of media and policy attention. There is increasing medical commentary to the effect that unacceptably high pollution concentrations could give rise to increased risk to, for instance, cardiovascular and respiratory disease, cancer and adverse birth outcomes. There is an often quoted statistic originating from a 2010 report by the Committee on the Medical Effects of Air Pollutants that air pollution gave rise to 29,000 premature deaths in the UK in 2008. If this is right, a question arises whether public and private sector entities are exposing themselves to the risk of significant legal actions. Such actions could take many forms.

This article was prepared before the recent disclosures relating to the current investigations into particular vehicles’ diesel emissions. This article concentrates on the role of public authorities rather than private sector companies such as the manufacturers of road vehicles. The exposure of the private sector to legal action may be the subject of a subsequent LawNow article. Leaving aside the particular facts arising from the current investigations there has been a fairly long held criticism that the emissions testing regime for new vehicles in the EU did not capture real world emissions (it being said that real world emissions are higher). We can imagine that the current investigations will spawn satellite scrutiny of emissions testing regimes. If the emissions testing regimes are held to be wanting, it may be that such findings could be called upon as evidence against public authorities in terms of whether they are meeting their duties and responsibilities.

Air pollution

In large urban areas concern relating to emissions from transport appears to centre around elevated concentrations of tailpipe pollutants particularly particulates (PM10 and PM2.5) and NOx. Figures from "Transport Emissions Roadmap" (2014) suggest that transport in Greater London is said to have accounted for 63% of NOx and 52% of PM10 emissions in 2010. In terms of climate change, the European Commission data suggests that road transport contributes about one-fifth of the EU's total emissions of carbon dioxide.

Public health

The link between transport emissions and health has been the subject of many studies. In a report entitled “Health in the Green Economy. Health co-benefits of climate change mitigation”published in 2011, the World Health Organisation (WHO) estimated that urban air pollution causes around 1.3 million premature deaths per year on a global scale and the European Environment Agency estimates in its 2014 Air Quality Report that urban air pollution causes approximately 400,000 premature deaths in Europe. With regard to the UK, there was a study entitled “Outdoor Air Pollution and Asthma” published in May 2014 in the Lancet Journal in which the authors comment that harmful traffic emissions have been found to cause new-onset asthma as well as exacerbate existing asthma in adults and children.

Careful consideration of statistics

In legal proceedings care needs to be taken concerning the role and evidential integrity of such statistics.  In actions against public authorities high level statistics such as these may be supportive of a case but may not necessarily be central to the case (it depends on the nature of the alleged breach by the public authority). What may be central are the actual statistics for emissions measured against legal emission limit values, or in an individual case the actual exposure of the individual.

In terms of a civil case say against an auto manufacturer for personal injury then a whole host of factors could come to bear, such as other sources of pollutants, pre-existing illness, lifestyle (such as smoker/non-smoker), perhaps genetic predispositions, and the like. This may seem like a daunting task for claimants. Defendants likewise have to also be aware. The courts have been here before and have held in favour of claimants in disputes of this nature. For instance in tobacco, asbestos and contaminated land litigation, claimants were able to recover compensation.

Air quality laws

On 29 April 2015, in R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28, the Supreme Court (UK) ordered that new UK air quality plans be delivered to the European Commission for approval by 31 December 2015 (it being accepted by the UK Government that the UK was in breach of EU air quality laws) (see our previous article on this judgement here). Following this, on 12 September 2015 the Government launched a consultation to seek views from local authorities and transport authorities, businesses and members of the public on what local action can be taken to improve air quality in England, Wales and Northern Ireland. A separate consultation was launched by the Scottish Government on 14 September 2015. The consultations close on 6 November 2015 and 9 November 2015 respectively.

In addition to the UK, the EU Commission has taken legal action against 17 other Member States in relation to air quality infringements.

European caselaw

The European Court of Justice (ECJ) has made a number of important rulings on the legal meaning and effect of emission limit values. The ECJ has held that limit values confer certain rights on EU citizens which are enforceable before national courts.

The first case was Commission v Germany [1991] which concerned failure to comply in Germany with one of the first EU air quality directives (in this instance emission limit values for lead in ambient air). The ECJ held that because the emission limit values were imposed specifically to protect human health, it meant that whenever they are exceeded, “persons concerned must be in a position to rely on mandatory rules in order to be able to assert their rights”.

In 2007, in the case of Janecek v Freistaat Bayern [2008], a German national who was resident in a street in Munich which had high levels of air pollution, took legal action in relation to breaches of the emission limit values for PM10. The case was eventually referred by a German domestic court to the ECJ, and the ECJ held that citizens have the right in law to enforce emission limit values.

The ECJ has addressed the question whether a legislative emission limit value imposes a duty on Member States to comply regardless of whether the emission limit value is breached because of technical, financial or administrative difficulties. This was recently addressed again in the specific context of air quality in the case of Commission v Italy [2011]. Italian authorities argued that Italy could not possibly have achieved the PM10 limit values because of various technical difficulties, including unfavourable weather conditions and the fact that EU policies had failed to deliver the expected reductions in PM10 precursors. This was not accepted by the ECJ, which stated that “it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it.”

In terms of climate change emissions, on 24 June 2015 a Dutch domestic court ruled that the Dutch government must cut the country’s greenhouse gas emissions by at least 25% by 2020. This appears to be the first time that a government has been ordered by one of its national courts to step up its climate change ambition. The Dutch case was brought by the NGO Urgenda.  It is understood that the Dutch government is intending to appeal and that a similar case may be pending in a national court in Belgium.

Public authorities

Arguably there are a number of routes for action against public authorities in terms of poor air quality (the above case of R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 demonstrates one avenue).

Human rights?

Arguably a right to clean air is contained in the 1950 European Convention on Human Rights and Fundamental Freedoms as inherent in the right to life. In the UK, Article 2 (1) of Schedule 1 of the Human Rights Act 1998 provides that “Everyone’s right to life shall be protected by law” and section 6 of the Human Rights Act 1998 makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right”. It remains to be seen whether the Government and public authorities could be pursued in this regard in terms of urban air quality.

Air quality strategies

The EU requirements on air quality are implemented in the UK through a combination of statutory air quality standards and the air quality management provisions of the Environment Act 1995.  Central policy for maintaining and improving air quality is laid down in National Air Quality Strategy. Under section 80 of the Environment Act 1995 (the “Act”) the Secretary of State is under a duty to prepare a strategy which will enable the UK to meet international and EU obligations and agreements. The Act provides for the creation of a system of local air quality management which obliges local authorities to undertake an assessment of air quality in their areas and to take action where statutory objectives are not being met. Where any of the statutory objectives are unlikely to be met during the specified period the relevant local authority must designate the area as an Air Quality Management Area (AQMA) and prepare an action plan indicating how the objectives are intended to be met.

Transport Act 2000

Under the Transport Act 2000 each local transport authority must produce a Local Transport Plan (LTP) which should set out policies for promoting public transport and charging for road users and parking. In addition to the strategic management of traffic through LTPs there are statutory powers available to control traffic under a number of different statutes. The Road Traffic Reduction Act 1997 places a duty upon local authorities to review the levels of traffic on local roads and to produce targets for reducing numbers. Pursuant to the Road Traffic Regulation Act 1984 highways authorities have wide powers to regulate traffic under Traffic Regulation Orders (TROs) which can be used to restrict traffic in certain areas specifically for the purposes of improving air quality as specified in section 1(1) (g) of the 1984 Act .

The Health and Social Care Act 2012

The Health and Social Care Act 2012 transferred responsibility for public health from the National Health Service to local government. Under this act Local authorities have a statutory responsibility to use their powers and resources across all sectors to improve the health of their populations. Following changes to local government responsibilities and resources that came into place in March 2013 local authorities are also responsible for demonstrating improvements in 68 indicators of the health of their residents. Many of these indicators relate to streets and transport, including air quality.

Greater London Authority Act 1999

Greater London reportedly has the highest current NOx exceedances in the UK. The Mayor of London is required under the Greater London Authority Act 1999 to produce a London Environment Strategy which must contain provisions dealing with air quality. Under the Environment Act 1995 the Mayor also has powers to direct the London boroughs in the performance of their AQMA functions which may be used to require action to be taken for the purposes of meeting the UK’s obligations under the European Air Quality Directive 2008 (2008/50/EC) particularly as regards any current breach of NOx emission limit values. The Mayor may also give London boroughs guidance as to how they are expected to discharge their AQMA functions. In 2010 the Mayor of London published his Air Quality Strategy which is a statutory document which commits the Greater London Authority and Transport for London to implement certain measures including an Ultra-Low Emission Zone to be implemented in the years up to 2020 (Click here to view our recent lawnow on this).

Well-being of Future Generations (Wales) Act 2015

The above Act places a “sustainable development” and “well-being” duty on public bodies and makes the achievement of “a healthier Wales” one of its well-being goals by obliging public authorities to set and publish well-being objectives that are designed to maximise its contribution to achieving each of the well-being goals, and by requiring public authorities to take all reasonable steps (in exercising its functions) to meet those objectives. It could be argued that having regard to the effects of poor air quality, including from transport emissions, on public health is inherent in the above duties and objectives.

Commentary

There is a growing sense that more attention is required from public authorities in terms of emissions from road traffic both with respect to public health and climate change. There is also a sense that if public authorities do not act to address the concerns, then we could see more legal challenges. The current investigation into diesel emissions has probably focused more scrutiny on emissions than a whole host of earlier health and policy reports. Ironically this may lead to greater tightening of scrutiny of the actions and inactions of public authorities but also may lend support to public authorities taking tougher actions than they may have previously been inclined to do.