The last two weeks have seen two landmark court decisions on air quality in the UK and Germany. Our environmental law experts discuss these decisions and what they might mean for businesses.

ClientEarth: the power of three

On 21 February 2018, environmental NGO ClientEarth defeated the UK government for a third time in its ongoing battle against the legality of the government’s air quality plans. This third success comes after ClientEarth’s first victory against the government in April 2015 and the second in November 2016. On each occasion, the court has held that the government has failed to produce an adequate plan to tackle illegal levels of air pollution which, according to experts, contribute to some 40,000 deaths per year in the UK. The government’s air quality plans have failed to bring the UK into compliance with EU air quality standards, thereby rendering them unlawful.

The latest challenge centred on the government’s failure to require action from 45 local authorities whose levels of air pollution continue to be illegal. The High Court held the government’s inaction to be unlawful and ordered that government ministers require local authorities to investigate and identify measures to tackle illegal levels of pollution in 33 towns and cities as soon as possible. It is anticipated that 12 of the 45 local authorities concerned will have legal air quality levels by the end of 2018.

Increasing urbanisation and diesel vehicles are being blamed in part for the increasing air quality issues in the UK. Whilst government response has included promises of ‘clean air zones’, they are not being implemented quickly or widely enough to keep pace with the government’s promised timescales. At the top of the priority list is reducing levels of nitrogen dioxide – much of which is emitted from vehicles.

The landmark judgment, given by Mr Justice Garnham, empowers ClientEarth to monitor the government’s actions and hold it to account, by allowing ClientEarth to bring the government back to court without having to apply for judicial review – a ‘wholly exceptional’ form of relief. Mr Justice Graham justified the fact-track approach by reference to the government’s repeated failure to deliver a legal air quality plan and insisted that ‘it seems the court must keep the pressure on to ensure compliance is actually achieved.’ The government was ordered to produce a compliant supplement to the Air Quality Plan 2017 for the 45 areas in England by 5 October 2018.

The judge also found that Welsh ministers had failed to produce a compliant Air Quality Plan for Wales, and accepted an undertaking from the ministers to produce a draft compliant Plan by April 2018. The final Welsh Air Quality Plan is to be produced by the end of July 2018.

What does this mean for businesses?

We anticipate that a greater number of local authorities can expect to see more stringent controls on air pollution being introduced, which could include vehicle charges for the worst offending vehicles. Other changes are likely to include increased pressure on business (and individuals) to move towards cleaner transport options, which is likely to affect entire business fleets, and increased awareness of air quality issues in urban planning and construction. Recent cases such Gladman Developments Ltd v Secretary of State for Communities and Local Government and others [2017] EWHC 2768 (Admin) have already showcased the importantance of environmental considerations at the planning stages of large residential developments. Air quality in the working environment is also increasingly being scrutinised, putting employers under pressure to introduce more sophisticated technology. Air quality is being forced onto the corporate agenda and is only set to become more important across a number of sectors and business types.

Germany: the beginning of the end for diesel?

Diesel continues to dominate headlines as a major air pollutant, not only in the UK but Germany too. The Federal Administrative Court in Leipzig last week ruled that German cities have a legal right to ban diesel engines in order to tackle poor air quality levels. The decision is another landmark success for ClientEarth (represented alongside Deutsche Umwelthilfe (DUH)), whose lawyer Ugo Taddei said ‘This ruling gives long-awaited legal clarity that diesel restrictions are legally permissable and will unavoidably start a domino effect across the country…’ Taddei commented further that ‘Putting traffic restrictions on the most polluting vehicles is the quickest and most effective way to protect people from harmful air pollution.

UK environmental commentators are hopeful that the decision will influence the UK’s strategy in reducing vehicle emissions whilst concerns are being raised over the value of diesel vehicles and the lack of any binding commitment to a government scrappage scheme. The cases were brought following news that around 70 German cities exceeded EU limits for nitrogen oxides last year.

Nitrogen oxides are said to be responsible for 13,000 premature deaths every year in Germany and as most of these harmful gasses come from transport, especially diesel engines, the ruling in Leipzig has understandably left both diesel car manufacturers and car owners in the UK and Germany in a state of uncertainty. Despite the German government’s statement that bans are not inevitable and the fact that German municipal authorities have been urged to ‘exercise proportionality’ by granting exemptions for vehicles such as ambulances and police cars, German car manufacturers Volkswagen, BMW and Daimler all saw share prices suffer moderate declines following the ruling.

Representatives of industry in Germany have also expressed concern that any ban on heavy goods vehicles, busses and lorries would undoubtedly have a profound impact on business costs and, more broadly, the economy. For UK businesses with supply/customer chains in Germany, the consequences of any bans could add considerably to their logistics costs.

The shape of things to come?

Many will see the decision in Germany as setting a precedent for the rest of Europe. Whilst city-wide bans may not be immediate in Germany, DUH is hopeful that the mounting pressure on diesel vehicle maufacturers will put an end to the industry’s ‘resistance’ to retrofitting older, more polluting vehicles with technology capable of bringing their emissions within the latest EU limits.

While the decision in Germany is focussed on local air quality and the fact that diesel engines produce relatively high levels of nitrogen oxides, they also produce relatively low levels of the greenhouse gas carbon dioxide. Controlling one environmental concern, therefore, may have actually ended up undermining efforts to combat another. It could also provide a boost for electric vehicles (EVs), which produce low or zero direct emissions of both nitrogen oxides and carbon dioxide.