The air that we breathe: NGO’s appeal dismissed

5 June 2012 by David Hart KC

R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD &  RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011, 

A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto  the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.

The United Kingdom is in breach of EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these amounts was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce obligations under this Directive. Defra put their hands up to the breach in terms of excess nitrogen dioxide, but (because of that) ClientEarth failed in its claim to make them do something about it, and this was confirmed on appeal. Bit odd?

Only 3 out of 43 areas in the UK met the nitrogen dioxide target in Article 13. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. 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, so still nowhere the 43 required. ClientEarth argued that it was appropriate to grant a declaration that the UK was in breach of Article 13, and a mandatory order that it should produce an air quality plan demonstrating the steps it was going to take to remedy the breach.

Mitting J, and now the Court of Appeal, dismissed the claim. Mitting J said that the UK did not have to seek an extension to the period of compliance for the reduction of nitrogen dioxide omissions. Article 22(1) simply provided the mechanism whereby a Member State 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 of Article 13. Accordingly the UK was not required to publish a plan for the reduction of emissions by January 1, 2015 as contended for by ClientEarth. Given the concession, it was inappropriate to make any declaration about Article 13. 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 22, because it was only permissive, and in any event, as Mitting J put it, would raise

serious political and economic questions which are not for this Court.

So, on this ruling, a member state, 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 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.

The Court disagreed. A member state does not have to write an air quality plan nor does it have to make an application for an extension to the Commission. Once it puts its hands up to the breach of Article 13, it  can resist all domestic remedies – saying, only the EU Commission can enforce against us.

Unsurprisingly, ClientEarth are not going to stop there. They will be applying for permission to appeal to the Supreme Court, and asking them to refer the case to the European Court in Luxembourg (the CJEU).

Judging from ClientEarth’s website, the argument in the Court of Appeal seems to have run along the lines of Mitting J’s judgment.

However, the UK has chosen not to apply for a time extension, claiming that they can’t possibly achieve compliance by 2015, so any such application would be futile. The Court of Appeal agreed with the government that the directive does not require them to apply for a time extension: they can side-step the whole time extension process, with all its tedious safeguards and annoying 2015 deadline, and instead rely on article 23, which merely requires that they produce a plan which achieves compliance in the “shortest time possible.” Unfortunately, the directive does not define what “shortest time possible” means. We argued that it could not sensibly be any later than 2015 – the maximum deadline allowed when applying for a time extension. Not so, said the Court of Appeal:  the Government can decide for itself when compliance is possible. So it is ok for Defra to cobble together a list of half-baked policies and flimsy excuses which shows that legal limits will not be met in many of our towns and cities until 2020, or in the case of London, 2025. If the Commission doesn’t think these plans are good enough, it has the power to take enforcement action, which could ultimately result in the UK being slapped with a huge fine.

So, according to Defra, the decision is now for the Commission. Not necessarily an easy road ahead for Defra, even if they are right and this is not a matter for the courts.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

• UK’s failure on air pollution: who enforces?
• EU Court upholds greenhouse gas scheme against US airlines challenge
• Greenhouse gases 1, US airlines 0: but only half-time in Europe
• No right to enforce EU air pollution – just a Crackerjack pencil