Supreme Court: no excuses, UK must comply with EU air pollution law

30 April 2015 by David Hart QC


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

The first two questions concerned two provisions in the Directive, Article 22 (concerning the postponement of deadlines) and Article 23 which provided for the provision of air quality plans. Unfortunately, the CJEU merged the questions, and gave one answer, thus leading to, as Lord Carnwath explained, an important ambiguity in both question and answer, not elucidated in

its characteristically sparse reasoning

ClientEarth and Defra battled it out over the ambiguity, but the current Supreme Court thought that the answer was still not clear. It proceeded not to answer the question, saying that it had become academic because the final deadline (1 January 2015) imposed by Article 22 had in any event expired by the time the matter came before the Supreme Court.  More on this gripping issue in my last post, though as will be apparent I had there somewhat overstated the clarity of the CJEU’s response. The furthest that Lord Carnwath was inclined to go (though not reaching a concluded view) was that he saw considerable force in the Commission’s reasoning that Article 22 was an optional derogation, but in the event that the state did not apply for such a derogation, it was under an

essential obligation to act urgently under article 23(1), in order to remedy a real and continuing danger to public health as soon as possible

The CJEU had dispensed with an Advocate-General’s opinion in this case, and in its absence, Lord Carnwath found a good deal of assistance in the Commission’s detailed observations – a helpful hint to those engaged in construing the more Delphic of the CJEU’s pronouncements.

The point of wider interest arose under the third and fourth questions, namely the obligations under Article 13, and the Court’s duty to enforce breaches of EU environmental law. On the third question, the Supreme Court (in line with the CJEU) emphasised that Article 13 (not to exceed pollution limits) was the primary obligation, to which Articles 22 (derogation) and 23 (plans) were supplementary. About the fourth question, the CJEU had been unequivocal that this was not just a matter for the Commission, but also a matter for domestic courts. Despite that, Defra argued that the existing air quality plans should not be quashed, and in any event Defra were going to replace the existing plans with new ones. The Supreme Court thought that this indication of intent was not enough:

Further, without doubting the good faith of the Secretary of State’s intentions, we would in my view be failing in out duty if we simply accepted her assurances without any legal underpinning.

No undertakings were forthcoming from Defra, because of the restrictions imposed by “purdah”, the constitutional convention that pending an election campaign one government does not do anything to commit its successor. Interestingly, the court also thought it could take notice of the fact that

the formation of a new Government may take a little time.

Upshot: the Supreme Court made a mandatory order requiring new air quality plans complying with the precise terms required by Article 23 within a defined timetable. Article 23 requires such plans to set out measures so that the period for which the UK was in breach of its obligations should be kept “as short as possible”. EU case law (including C-68/11 Commission v. Italyhas previously shown that the scope for arguing that it was impossible to meet its obligations was very limited, and Lord Carnwath foresaw this argument surfacing in the UK’s plans. All the more reason, he thought why the plans should be produced under order of a court, with liberty to determine such issues as and when they arose (without entirely fresh proceedings).

So the order to be made is far from a simple declaration of breach by the UK. Our courts will now have to roll up their sleeves and keep Defra up to the mark.

The judgment gives some of the background to this issue. The UK is one of 17 member states in breach, though the only one against whom the Commission has launched infringement proceedings. Why? We do not know, because the Commission’s correspondence is confidential. Lord Carnwath thinks that the Supreme Court’s previous declaration may have been a trigger (as I suppose may also have been the rather provocative assertion by Defra in the domestic courts that the only enforcer should be the Commission). According to a Defra witness, the main reason is that diesel vehicles emit more NOx than the regulatory test cycle reveals, and Defra cannot do anything about that without an EU-wide measure on diesel engines.  Well, up to a point; the sorts of measures which the Directive envisages as being contained in a member state’s plan under Article 23 include traffic planning, congestion pricing, differentiated parking fees or other incentives establishing low emission zones.

Conclusion

In my post on the CJEU judgment, I mused

….it is now all to play for.  Will the Supreme Court order something with more “teeth” than the existing declaration of breach? If so, what?

Well, it has certainly done that in making a mandatory order, including a structure under which the UK’s attempts to remedy its breaches can be scrutinised by the Courts.

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