The NGO ClientEarth describes itself as “a group of activist lawyers committed to securing a healthy planet”, using the law as a tool.  It has Zac Goldsmith and Coldplay as its patrons.  Now it has scored a hit in the Supreme Court.  In a judgment given on 1 May 2013, the Court in R (ClientEarth) v. Secretary of State for Environment, Food and Rural Affairs [2013] UKSC 25 made a declaration that the UK is in breach of its obligations to comply with limits for nitrogen dioxide provided for in Article 13 of Directive 2008/50/EC, the Air Quality Directive.  The main sources of nitrogen dioxide are road traffic and domestic heating.  At levels exceeding the relevant limit values, it poses risks to human health, such as respiratory effects and irritation of eyes, nose, throat and lungs.  Article 13 of the Directive requires member states to ensure that specified hourly and annual limit values for levels of nitrogen dioxide set out in Annex XI are not exceeded after a specified date (1 January 2010).  Plainly those limits have not been complied with in some important areas of the UK, including Greater London.  This led to multiple complaints to the Commission.  The Secretary of State accepted that there was a breach of Article 13, but that compliance was not realistically possible, for reasons out of his control and unforeseen in 2008.

Article 22 says that where conformity cannot be achieved by the deadline, the member state may seek to postpone the deadline by a maximum of five years, on condition that an air quality plan is established in accordance with Article 23.  Such a plan must set out appropriate measures so that the exceedance period can be kept as short as possible and may additionally include specific measures aimed at the protection of sensitive population groups, including children.  The limited postponement under Article 22 was intended, according to recital (16) to deal with cases where “notwithstanding the implementation of appropriate pollution control measures, acute compliance problems exist in particular zones and agglomerations.”

In a number of cases the UK submitted applications for extensions under Article 22, some of which were objected to by the Commission.  In other cases it made no application, but prepared air quality plans projecting compliance between 2015 and 2025.  

Both at first instance and in the Court of Appeal, ClientEarth’s case was dismissed, on the basis that Article 22 was discretionary and did not require the member state to follow the formal process for postponement.  Further, a declaration as to breach of Article 13 was refused, on the basis that this would serve no purpose other than making clear what had already been conceded, and that the enforcement of Article 13 lay in the hands of the Commission.

The Supreme Court, contrary to Mitting J and the Court of Appeal, took the view that it should grant the declaration sought – the order was regarded as appropriate both as a formal statement of the legal position and also to make clear that “the way is open to immediate enforcement actions at national or European level.”

The issues of interpretation of Articles 22 and 23 were thought to be more difficult, and the Supreme Court will make a reference to the European Court on a series of questions, related to the central issue of whether in the event of non-compliance with Article 13, a member state is obliged to seek formal postponement under Article 22, and if there is non-compliance and no Article 22 application, what (if any) remedies is a national court to provide.

There can be little doubt, at least in my view, as to which way the ECJ will decide these questions.  It will not allow a member state to circumvent the procedure for seeking a limited extension under Article 22, with the safeguards of scrutiny and possible objection by the Commission, despite the use of the word “may” in Article 22.   It is really rather surprising that Mitting J in the Administrative Court and Laws LJ in the Court of Appeal could have decided otherwise, when one reads the Directive purposively and as a whole.  The supplementary question will probably be dodged by the ECJ, who will say it is a matter for the domestic court what remedies it gives but that it should bear in mind its obligations of co-operation to ensure compliance with EU law under the Treaty.  Therein lies the rub.  If the courts in London had made a mandatory order for compliance, that would raise serious political and economic questions which make judges generally run a mile.  They see it as a political question which involves political debate and significant economic impact.

The importance of the issue is that it raises constitutional questions of central importance to Britain’s relationship with Europe and of the courts with the executive.  Making a declaration is an easy option – a mandatory order is another thing entirely.   One course is to leave the matter for the European Court to make a ruling, probably in a few years’ time, and then for further enforcement proceedings to follow, possibly leading to a massive fine being imposed on the UK.  The other course is for the UK courts to get stuck in.  If an arm of the executive was failing to comply with a duty enshrined in an Act of Parliament, a mandatory order would clearly be on the cards – the rule of law requires no less.  So why should the courts shy away because the duty emanates from EU law?