The UK has until mid-April 2017 to take action to improve its air quality. Simon Tilling and Sarah Raby discuss the problems facing and options available to the government.

This article was first published on Lexis®PSL Environment on 7 March 2017.

What is the regulatory framework that regulates air quality in the EU and in the UK?

It is difficult to reduce the air quality regulatory framework to a brief explanation as it is a complex and diverse area. In broad terms, there are two main types of EU legislation in this area. On the one hand, you have regulation of point source pollution which seeks to target emissions of certain pollutants from particular sources (such as combustion plants). On the other hand, there is regulation of ambient air quality – that is, controls on the levels of pollutants present in the air, regardless of where they have come from. It is this latter type of regulation which is the subject of the European Commission’s recent press release on UK air quality breaches, so we'll focus on that.

Key examples of EU measures aimed at regulating ambient air quality include the recent National Emissions Ceiling Directive (EU) 2016/2284 which imposes revised national caps on emissions of certain air pollutants and the Air Quality Directive 2008/50/EC (AQD) which prescribes mandatory quality objectives for ambient air.

The Commission’s press release reports on the UK’s continued breach of its obligations under the AQD. The AQD, implemented in the UK through the Air Quality Standards Regulations 2010, SI 2010/1001, sets maximum limits for a range of air pollutants, including nitrogen dioxide, present in ambient air at ground level and requires Member States which exceed these limits to adopt and implement air quality plans that detail the measures they will take to bring the pollution levels back within the limits as soon as possible.

At UK level, there is also national legislation which is independent of and supplementary to the EU imposed framework. For example, Part IV of the Environment Act 1995 establishes local authority duties and air quality management areas and plans.

What are the penalties in the case of non-compliance with the AQD standards?

As with any EU Directive, non-compliance by a Member State can result in the European Commission initiating infringement proceedings against that state. This is a protracted process which the Commission must go through before it can start litigation in the Court of Justice of the European Union against the Member State. The final step in this process is the issuing of a reasoned opinion to the state. It is this step which the Commission has just taken against the UK in respect of the UK’s non-compliance with the AQD.

The reasoned opinion is a formal request to comply with EU law – the ‘final warning’. If the UK does not take action within two months of the reasoned opinion being issued (ie by mid-April 2017) the Commission may decide to refer the matter to the Court of Justice for a ruling. Ultimately, if the Court of Justice were to rule against the UK and the UK then failed to take measures to comply with the ruling, a fine may be imposed. In practice, the Court of Justice fines are not common because Member States tend to comply with any ruling.

What are the legal rights of subjects living in areas with high air pollution rates?

There is often talk of EU citizens’ ‘right to clean air’. This is a ‘right’ in the sense that the Court of Justice has held that natural or legal persons who are directly concerned by a risk that the emissions limits set by the AQD (or wider EU legislation) will not be met by their state must be able to require the relevant national authorities to draw up an action plan to address this risk. Concerned persons have to take up the matter with national authorities in the first instance with the possibility then of reference to the European courts if the breach in question relates to the actions of state authorities.

The concept of a ‘right to clean air’ has been at the heart of recent challenges to the UK government’s approach to air quality by the non-governmental organisation (NGO), ClientEarth. ClientEarth has brought two judicial reviews of the UK’s air quality plans and implementation of the AQD, the most recent challenge culminating in a victory for ClientEarth in November 2016 (see ClientEarth (No 2) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin), [2016] All ER (D) 53 (Nov)). As already mentioned, the AQD requires the UK government to take steps to mitigate the harmful effects of air pollution by setting standards for, and taking steps to assess and manage air quality.

The government consulted on and published plans to meet its obligations but ClientEarth has successfully argued through litigation that these plans are inadequate. This was the second time in 18 months that a UK court has agreed with the NGO. The government has until 31 July 2017 to submit a revised plan to the European Commission. This judgment will have immediate and far-reaching implications for UK government policy on emissions and air quality. The likelihood is tighter controls on emissions in a shorter period and over a greater geographical range than the government’s plans to date. The judgment is also interesting because it signals a willingness by the courts to hold government to account over whether its policies go far enough.

What is being done in London and other UK cities to solve the problem?

A top source of ambient air pollution in the UK is road transport so this is the focus of much of the efforts to improve air quality in London and other UK cities. In London, the low emissions zone and congestion charge have been in place for a number of years but there are now plans for a new ‘ultra low emissions zone’ (ULEZ) which maps the areas where emissions levels are currently worst. In ULEZ areas, there will be a charge on vehicles which do not meet the Euro 4 standard (petrol) or Euro 6 standard (diesel). The ULEZ scheme is expected to come in from 2019. In the meantime, for the interim period before the ULEZ comes into force, from October 2017 a new ‘toxicity charge’ will apply to vehicles that do not meet the Euro 4 emissions standard. This will be a £10 vehicle pollution tax, imposed in addition to the existing congestion charge in the same areas at the same times.

It isn’t just London which is in focus. In late 2016 the government consulted on proposals for a framework for clean air zones for other UK cities – Birmingham, Derby, Leeds, Nottingham and Southampton. Although the clean air zone proposals were part of the air quality plans which the government is having to revise following the court’s ruling in the ClientEarth case, the new plans will only be strengthened so we can perhaps expect to see clean air zones rolled out more widely across the UK.

Are there any interesting wider European trends relating to air pollution and climate change?

It is by no means just the UK which is struggling to meet its AQD objectives. The Commission’s recent ‘final warning’ on non-compliance with the AQD was issued not only to the UK but also to Germany, France, Spain and Italy. It’s interesting to look at how air quality issues are being tackled in other EU states.

Challenges similar to those brought by ClientEarth against the UK government’s air quality plans have been brought in Germany. The German courts took a very robust approach, giving a strong steer to local authorities about what should be going into the air quality plans and stipulating that the German Government must achieve compliance with the AQD in the shortest possible time. A particularly stark example of what Germany is doing to achieve this is the introduction, by 2018, of an absolute ban on diesel vehicles on the most polluted streets of Düsseldorf.

What happens with the air quality assurance frameworks in the UK after Brexit?

Much of the UK’s legal framework post-Brexit remains unclear. When the UK leaves the EU it will no longer be bound by the AQD and other aspects of the EU’s air quality regulatory framework. However, key items of EU legislation such as the National Emissions Ceiling Directive 2001/81/EC and the AQD are either already implemented in UK law or are likely to have been before Brexit. The UK government’s Great Repeal Bill is intended to incorporate EU legislation into UK law, wherever practicable, and so EU air quality measures which have been incorporated in UK law at the point of Brexit should continue to apply, at least on day one. It is also worth noting that EU legislation implements international obligations that will still bind the UK after its withdrawal from the EU, such as the Gothenburg Protocol to the Convention on Long Range Transboundary Air Pollution.

That said, the UK government has a record of reluctance on air quality measures and so, following Brexit, might seek amendments to the existing framework to give itself more flexibility. There is also a question of how the UK’s obligations under such legislation are to be policed and enforced given that the European Commission and Court of Justice will no longer have jurisdiction.

A coalition of NGOs (including ClientEarth) is campaigning for a new UK Clean Air Act which would retain the AQD standards post-Brexit as a minimum but which would also incorporate stricter measures based on World Health Organization objectives. Watch this space.