The polluted air that we breathe: Supreme Court to hear case

15 January 2013 by David Hart KC

R (Clientearth) v Secretary of State for Environment, Food &  Rural Affairs, forthcoming Supreme Court appeal against Court of Appeal 30 May 2012 read CA judgment Updated

Back in the late spring, it seemed as if ClientEarth’s claim against Defra in respect of air pollution had run into the buffers. It had been refused by the Court of Appeal, in reasons given extempore: see my earlier post before Bailii received the judgment. Not many such refused cases make it to the Supreme Court, but this one has.

The Supreme Court lets appeals within its doors or denies them in an inscrutable way – it says yea, or, more commonly, nay, with no reasons. But the Justices thought that there was more to this case than had met the eye of the Court of Appeal. Anyway, hearing on March 7 2013, as the excellent Supreme Court website tells us. I am also told that the Court granted ClientEarth a Protective Costs Order.

So what is the case about? The UK has been in breach of EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in air: date for compliance 1 January 2010. ClientEarth sought to enforce the Directive. Defra admitted breach but the Court of Appeal said that that was enough – the courts should do nothing more.

The UK does not cover itself with glory in respect of air pollution, ironically as the successor Olympic state to Beijing – but at least you cannot readily perceive excess nitrogen dioxide, unlike good old-fashioned Chinese/1950s London smog. For an unimpressive 3 out of 43 areas in the UK met the Directive’s nitrogen dioxide target. You can extend the time for compliance with the limits by a maximum of five years, in which case you should publish an air quality plan indicating how you intend to comply.

In court, the Secretary of State conceded that by January 1, 2015 only a further 23 (not 43) areas were likely to achieve compliance. ClientEarth said that the CA should grant a declaration that the UK was in breach, and a mandatory order that it should produce an air quality plan demonstrating compliance by 2015, as it would have to do if it was seeking a formal extension of time for compliance.

But the courts said that the UK did not have to seek an extension for compliance; it could simply accept, as the UK did, that it was in breach. Accordingly the UK was not required to publish a plan which would achieve compliance by 2015. No declaration was necessary. It was for the European Commission to decide upon enforcement action – if it wanted to.

As I observed before, 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. And the odd thing, if Defra is right, is that the domestic courts (despite being supposed guardians of EU law enforcement) have nothing to add.

So, when you look at it from that perspective, not all that odd that the Supreme Court want to give it the once-over.

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