UK’s EU failure on air pollution: who enforces?

22 December 2011 by David Hart KC

R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD &  RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.

For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?

ClientEarth  sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.

The Secretary of State conceded that by January 1, 2015 only a further 23 areas were likely to achieve compliance with nitrogen dioxide emissions levels. ClientEarth argued that (1) the UK Government was, and continued to be, obliged by the 2008 Directive to put to the Commission a plan for reducing its nitrous dioxide omissions by January 1, 2015; (2) it was appropriate to grant a declaration that the UK was in breach of Article 13.
Mitting J dismissed the claim. He said that it was clear from the use of the word “may” in Article 22(1) and “peut” in the French language version that the UK was not required to seek an extension to the period of compliance for the reduction of nitrous dioxide omissions. Article 22(1) simply provided the mechanism whereby a Member State, which would otherwise be in breach of Article 13, could, if it wished, seek a further period for compliance. However, it was not obliged to use it; it could simply accept, as the UK did, that it was in breach. Accordingly the UK was not required to publish a plan for the reduction of nitrous dioxide omissions by January 1, 2015 as contended for by ClientEarth. He also held that given the concession made by the secretary of state that the UK was in breach, it was inappropriate to make any declaration to that effect. It was for the European Commission to take whatever enforcement action it thought appropriate. It was inappropriate for the court to make a mandatory order to ensure compliance with Article 13 as to do so would raise serious political and economic questions, which were simply not for a judge.

From the limited details currently available, this seems a surprising conclusion. A member state, on the judge’s ruling, has a choice. It can either sit back in breach and await action by the European Commission, or it can come forward with proposals to remedy that breach. ClientEarth were not, apparently, seeking to write the UK’s plan to remedy the breach; they were just asking the court to compel the UK to write some sort of plan. They pointed to recital 9) of the Directive:

Air quality status should be maintained where it is already good, or improved. Where the objectives for ambient air quality laid down in this Directive are not met, Member States should take action in order to comply with the limit values and critical levels, and where possible, to attain the target values and long-term objectives.

So they were saying that there was this obligation to remedy the breach.

As noted above, Article 22 provides for “Postponement of attainment deadlines and exemption from the obligation to apply certain limit values”, in the following terms:

1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply…

But it is an odd conclusion that a member state may neither establish an air quality plan nor make an application for an extension to the Commission, but then can resist all domestic remedies – saying, only the EU Commission can enforce against us. Perhaps more will emerge from the judgment when the transcript becomes available, but at the moment it seems to have wide implications for the role of domestic courts in enforcing breaches of EU law – which, one was always told, was part of their function.

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