Court says – again – UK must comply with EU air pollution law

3 November 2016 by David Hart KC

R (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 2 November 2016, judgment here

This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year. 

The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J. 

The short version is this.

The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.

The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.

In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.

He countered that such discretion in Art.23 was

narrowed and greatly constrained [48]-[49]

Yes, member states had to include in its plans effective, “proportionate” and scientifically feasible measures. But Art.23 did not allow member states to take into account and balance economic, social and political considerations, and the use of the word “proportionate” did not import the usual considerations of cost

the determining consideration has to be the efficacy of the measure in question and not their cost [50]

In doing so, he took the lead from the Commission’s detailed observations to the CJEU, as had Lord Carnwath before him in his judgment here.

Garnham J then analysed Defra’s AQP. He upheld 2 criticisms of the Plan.

5 year plan

The first was that Defra had decided to project emissions at 5 year intervals, with the first one in 2020. This, said the man from Defra, was the “routine” and “pragmatic” way of carrying out such projections.

This did not cut much ice with the judge:

What is notable by its absence, however, is any evidence supporting the suggestion that five yearly cycles are sufficient when a Member State is faced with the urgent task of bringing its nitrogen dioxide readings back within the limits imposed by the Directive. [61]

Indeed, a disclosed email from the Deputy Director of Environmental Strategy at the Department for Transport questioned precisely the same assumption: [62]. Two things can be said about this email – the first is that it is much to the credit of a civil servant that she felt able to draft such a questioning email, and the second, much to the credit of the department(s) that they were disclosed during the course of these proceedings.

Further evidence suggested that 2020 had alternative attractions to those in government who wished to drag their feet. It, as the judge observed at [66], was thought to be the earliest date at which the EU might move to fine the UK –

That observation certainly suggests that a principal driving factor in selecting 2020 was not the obligation to remedy the problem as soon as possible but to remedy it in time to avoid EU infraction proceedings.

Outcome – the judge thought that Defra erred in law in selecting so distant a date – this did not accord with the urgency imported by Art.23.

Choice of modelling method 

The second point made by ClientEarth and accepted by the judge (between [74] and [86]) is difficult to explain simply. It turns on a specific Computer Program to calculate air Emissions from Road Transport – garlanded with the inevitable acronym, COPERT.

Garnham J considered that, as its work-up toward the Plan progressed, the Government started to realise that its own projections were unrealistic – due to increased emissions thought to derive from diesel vehicles over and above those initially predicted via COPERT – but soldiered on using those same projections. As the judge observed,

it is no answer to that point to say that COPERT is widely used in Europe; the fact that others are ignoring the obvious weaknesses of the data is of no assistance to the department.

COPERT said that specified diesel cars emitted 2.8 times the emission standard. Emerging research (identified by an expert whose report was adduced by ClientEarth) showed that such cars emitted 4.5 or 5 times the standard.

The hand of the Treasury

The judge, however, at [93] rejected submissions that the Treasury could be criticised for its role in all this.

It was

wholly unsurprising that in its dealings with DEFRA the Treasury should have been seeking to manage and limit the extent of public expenditure. That is what the Treasury is there for.

And

Whilst I recognise that negotiations with HM Treasury must have been challenging, DEFRA was the Department responsible for ensuring compliance with the Directive. For understandable reasons HM Treasury did not wish more public funds spent than was necessary to achieve compliance. But doing no more than was necessary was sufficient.

Conclusion

On these two grounds, the judge quashed the AQP and declared it non-compliant with Art.23 of the Directive.

Some reflections on the whole saga. It is oddly uplifting and dispiriting at the same time.

The uplift comes from the fact that an NGO can take on the Government and win, and that the courts are now actively enforcing EU environmental law in line with Lord Carnwath’s firm steer in ClientEarth (1).

The down-draught comes from the fact that we needed an NGO to identify obvious deficiencies in policy-making – twice – and that internal governance  was not up to saying – look, we must do something about this non-compliance (which relates to a death-causing pollutant) even though it will cost and may be inconvenient.

Shortly after the judgment was handed down, the Government declared that it was not going to appeal. A bit odd if it really felt that it was in the right.

Finally, interesting to see if Directive 2008/50 survives long-term post-Brexit  in domestic law. Truly depressing if it does not.

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