Shortly before this edition of SHE Matters went to press, the latest developments occurred in the long-running litigation between Client Earth and Government over air quality in the UK, excessive ambient levels of nitrogen oxides in certain areas, and the Government's failure to implement the EU Air Quality Directive.
After Theresa May called a snap general election for 8 June, the Government applied to the High Court for an extension of the deadline for the publication of a revised new UK air quality plan, ordered by the Court in November 2016, so that the plan and any consultation in it, would not have to be published during the period of "Purdah". This is the term used to refer to the period in which restrictions are placed on the civil service and Government Departments as regards public communications on matters of public policy. The restrictions are intended to prevent allegations being raised that public resources are being used to further party political goals during an election period. However their scope has recently been expanded to cover a wider range of public sector bodies, and it has been alleged that it is being used to prevent matters being aired which would be inconvenient for Government press management.
The High Court rejected the application, and ordered the Government to publish the consultation draft of the plan.
To its credit, the Government announced that it would not appeal against the ruling (an appeal might well have had the practical result that the Government would have got its own way in any event). A consultation draft of the plan was published on 5 May.
The proposals in the consultation include:
- clear legal duties on local authorities to develop and implement clean air zones in the towns and cities in England where action is needed;
- further support for retrofitting measures to reduce pollution from local bus, taxi and HGV fleets;
- possible targeted scrappage schemes for vans and cars, if shown to be cost effective;
- (subject to further consultation) a revision of the tax treatment of diesel vehicles;
- a clean Vehicle Retrofit Accreditation Scheme to determine which technologies are effective, and suitable for particular vehicles.
As regards clean air zones, it is envisaged that the emphasis would be on local authorities adopting measures such as buying ultralow emission vehicles ("ULEVs") themselves and encouraging local transport operators to change their own fleets (there is some evidence to suggest that this latter measure would help provide a "quick fix" for many of the problems) as well as providing battery charging points for ULEVs and also improving road layouts and junctions.
Congestion charging zones are seen as a last resort, applying to older more polluting vehicles only, where equally effective alternatives have not proved to be available. Charges would be subject to prior local consultation, and provisions would have to be earmarked to support local transport, planning or public health projects.
The relative lack of controversial content in these polices suggests that the Government's Purdah-based application was not in fact primarily driven by political concerns. Environmentalist groups have indeed criticised it on the grounds of the lack of concrete proposals, probably meaning thereby a lack of proposals which would have courted political unpopularity. There is a strong undercurrent of belief in some quarters in the environmentalist movement that suffering is good for the soul.
Many have expressed concerns or fears that environmental protection will be diluted post-Brexit (see the article below on the House of Lords Committee report on the subject). However, the Government has promised, in its White Paper on the "Great Repeal Bill", that existing EU environmental law will continue to have effect in UK law post-Brexit. Furthermore, it says that subsequent legislation will follow the commitment to improve the environment within a generation, and changes to the regulatory framework will be subject to consultation and parliamentary scrutiny. How credible is this reassurance?
Considering the fundamentals, the UK is a relatively affluent country which, like other such countries, sets a relatively high store on environmental protection. This is reflected in the move to higher fines for regulatory offences also reported on in this issue. Moreover, the history of the litigation over the EU Air Quality Directive suggests that the oversight of environmental performance resulting from NGOs going to court may prove as effective as that of the EU Commission or other EU institutions. A further pointer to the importance of such oversight is recent news that the Government may face a group action by asthma sufferers in respect of their delays in implementing the Air Quality Directive. That will remind the Government that failure to comply with environmental legislation has its costs.