Once more unto the breach

The ClientEarth litigation on air pollution rolls into a new phase, six years after they first began proceedings. This post tells the story.

 On 31 May 2017, the environmental NGO ClientEarth announced that it had launched a third round of litigation against the government in relation to air pollution.

ClientEarth have stated that the policy measures set out in DEFRA’s latest draft Air Quality Plan for the UK (the 2017 Plan) do not meet the legal standard, and that more ambitious and far-reaching government action is required.

The 2017 Plan here, which is open to consultation until 15 June (so it ends today), addresses the continuing illegal levels of Nitrogen Dioxide (“NOx”) pollution that are present in both urban and rural areas all across the UK. However, environmental groups have been largely united in their criticism of the 2017 Plan’s limited content. The government had been required by European law to achieve NOx compliance by 2010, but the 2017 Plan now anticipates NOx breaches continuing into the 2030’s.

Currently, 40,000 premature deaths per year in the UK are estimated to be associated with air pollution.

ClientEarth have created an online platform for submitting responses here.

A continuation of ClientEarth’s litigation saga, which began in 2011, had been anticipated even before the 2017 Plan came out. The coming litigation will be a fascinating testing ground for the further development of the role of the Courts in enforcing environmental law. It may also give pointers to how the government will navigate its obligations in the transitional legal landscape that Brexit will create.

The context

Why are we here, again?

Although the history will be familiar to many readers, given the number of stages that it has involved so far, a short summary is appropriate.

The government’s obligations derive from Directive 2008/50/EC on ambient air quality and cleaner air for Europe (the Air Quality Directive), which consolidated and updated a number of prior instruments regulating air quality. The AQD sets maximum levels (both for specific incidences and as averages across the year) for a number of ambient air pollutants.

EU Member States were given until 1 January 2010 to achieve compliance with the NOx thresholds; however, Member States were also allowed to apply for a five-year extension to 1 January 2015 (an Article 22 Extension) “where the limit values for [NOx] cannot be achieved” by 2010 (Article 22(1) of the AQD). A further provision required Member States to make additional plans to address any periods in which limit values were exceeded, which would keep those periods “as short as possible” (an Article 23 Plan) Article 23 of the AQD.

The first round: 2011 – 2015
In July 2011, the environmental NGO ClientEarth brought judicial review proceedings challenging the government’s then Air Quality Plans.

Specifically, ClientEarth objected to the fact that the 2011 plans envisaged that national compliance would only be achieved by 2020 (with the sole exception of London by 2025).

ClientEarth argued that the government was obliged (i) as a matter of procedure to apply to the Commission for an Article 22 Extension, and (ii) as a matter of substance to achieve the 2015 long-stop deadline.

The government argued that compliance by 2015 was impossible, and that an application under Article 22 was consequently pointless and unnecessary.

The High Court and the Court of Appeal agreed with the government’s reading of the AQD. Both courts reflected on their public law powers in this sphere – they considered that the architecture of the AQD pointed to the European Commission as the appropriate enforcing authority (via infringement proceedings and fines). More broadly, both courts considered that a mandatory order requiring the government to achieve compliance by 2015 “would raise serious political and economic questions which are not for this court” ([2011] EWHC 3623 (Admin) at paragraph 15; [2012] EWCA Civ 897 at paragraph 22).

Following a reference to the CJEU, the Supreme Court reversed the first of these decisions. (An Article 22 Extension was moot by this stage, as the return hearing took place some four months after any such extension would have expired.)

The Supreme Court held that domestic courts were empowered to enforce the obligations in the AQD, declared the government to be in breach of the AQD, and ordered the government to produce in short order a new Article 23 Plan which would ensure that NOx levels were brought within compliant limits in a time “as short as possible”.

Unfortunately, what “as short as possible” should mean in practice was outside the scope of the Court’s deliberations.

Round Two
Pursuant to the Supreme Court’s order, the government produced a revised plan for consultation in December 2015. Again, this was challenged on multiple grounds by ClientEarth as being insufficient. The High Court agreed, and ordered a wholesale revision of the 2015 plan (which revision has produced the 2017 Plan now in consultation). The government did not appeal.

Interlude
Another, more minor, skirmish occurred in late April 2017, when the government unsuccessfully attempted to postpone publication of the 2017 Plan on the basis of election purdah rules. Constitutional arguments aside, two things are worth noting from this.

Firstly, the government lost on the basis that the delay was incompatible with the requirement to address air pollution “as soon as possible”, shedding some wider light on how the courts are viewing the strength of that obligation. Secondly, the government’s attempt to postpone highlights the fact that effective practical measures are likely to face strong hostility from parts of the public – as any cursory review of the comments sections of online newspapers will reveal.

Round Three
ClientEarth’s latest legal challenge, launched on 31 May 2017, targets failures to “include measures which the government’s own technical data shows are the best way to bring down air pollution as soon as possible”. Further clues to the basis of the challenge may be found in the suggested consultation response (see also here).

The Post-Garnham J Landscape

Garnham J made three key findings on the 2015 plan. Two of these findings (Garnham J at paras 57 and 74) related to the modelling and projections which had been relied on, which have now been revised in the 2017 Plan (although it appears there may be grounds for further challenge here). The third finding related to the meaning of the obligation to limit ongoing non-compliance to a time frame “as short as possible”under Article 23 of the AQD. Garnham J held (at paragraph 42) that measures must be adopted “which mean meeting the [NOx thresholds in the shortest possible time frame] is not just possible but likely.” [emphasis added]

Contents of the 2017 Plan: CAZs

The 2017 Plan places the onus on Local Authorities to solve the issue, principally via the creation of Clean Air Zones (CAZs) which are “[areas] where targeted action is taken to improve air quality and resources are prioritised and coordinated in a way that delivers improved health benefits and supports economic growth.” CAZs do not have to involve entry charges (such as the London Congestion Charge zone): they can instead involve other measures such as more infrastructure for electric vehicles (EVs) and cycling, investment in park and ride schemes, or an increased share of EVs in the public transport fleet.

The Technical Report assumes the deployment of CAZs in 27 cities on the basis of revised projections which indicated that 31 of the UK’s 43 air quality zones would be non-compliant past 2020. This is a marked difference from the 2015 Plan, which projected that only eight zones would be non-compliant by 2020 and that only six cities would require CAZs. (Including the Ultra Low Emissions Zone (ULEZ) for London. See paragraphs 54-6 of the Overview document accompanying the 2015 Plan)

The increase in CAZs can be viewed as one of the tangible successes of the 2016 litigation, which forced the government to revisit its previous “markedly optimistic” (Garnham J at para. 86) modelling assumptions.

Local Authorities will be given until the end of 2018 to present proposals for CAZs to government for approval. It is assumed in the Technical Report that it will take up to three years (to 2020) for CAZs to come into effect.

National measures under the 2017 Plan appear largely in a supporting role. The focus is on Local Authority delivery, which flows from the increased deployment of CAZs.

To charge or not to charge?

Although the Technical Report does not specifically endorse the use of charging schemes within CAZs, it proceeds for the purposes of its projections on the basis that CAZs will do so. (Technical Report at s.4.3.1)

However, the 2017 Plan requires Local Authorities to avoid imposing charges unless this is the only way in which compliance can be most quickly achieved (Consultation document para. 25). This is on the basis that charging would have negative impacts on businesses and individuals, and risk unfairly penalising diesel drivers.

“likely” to keep the exceedance period “as short as possible”?

The language of the 2017 Plan now states in terms that proposed steps must be “likely” to remedy non-compliance as soon as possible. However, in relation to CAZs, paragraph 72(a) of the 2017 Plan states that:

“…a proposed Clean Air Zone plan [submitted by a Local Authority] will only be approved by Government, and thus be considered for appropriate funding support, if it can show that:

a) It is likely to cause NO2 levels in the area to reach legal compliance within the shortest time possible;
b) The effects and impacts on local residents and businesses have been assessed, including on disadvantaged groups, and there are no unintended consequences; and
c) Proposals that request central Government funding support demonstrate value for money.”

The Technical Report and the 2017 Plan envisage a lead-in period of up to three years before CAZs would come into effect. The government proposes to give Local Authorities until the end of 2018 to prepare and submit proposals to the Secretary of State; there would then be a review and decision period, and a number of months to put in place the necessary infrastructure.

In the interim, the government has said it will take a number of additional steps at national level. However, most of these too will have long lead-in times before having any real-world effects, for example:

– Consultations on national frameworks for Wales and Scotland (by end 2017 and mid-2018 respectively;
– A competition for additional funding for hydrogen vehicles (summer 2017)
– A “scheme” for additional funding for retrofitting the most polluting vehicles (later 2017)
– A consultation on regulatory changes for low emissions vans (by mid-2018); and
– “exploring the appropriate tax treatment for diesel vehicles” (by mid-2018)

Stakeholder Criticism

The 2017 Plan has been criticised within the environmental community for the weakness of its ambition, its lack of specifics – a “plan to make a plan” – and for passing the buck: the principal measures which the government has proposed have been put into the hands of local authorities, whose ability to deliver the planned-for outcomes may turn out to be somewhat constrained by austerity.

What has the litigation achieved?

The “Round One” case had mixed results when measured against the terms of ClientEarth’s initial challenge. Compliance by 2015, which was the central demand, never happened, and it has been remarked in some quarters that the government may have found the litigation to be a convenient way of deferring action. However, not only did ClientEarth ultimately obtain a number of robust orders against the government, but the case also had a number of larger effects. Firstly, it helped to focus significant public and media on the issue of air pollution, and the extent of the failure to tackle it. Secondly, it enabled the Supreme Court to take up the reins in driving compliance with European environmental law. A continuation of this more robust approach will be critically important following Brexit, as and when the backstop authorities in the Commission and the CJEU fall away.

“Round Two” in 2016 was a more obvious success in both legal and real-world terms for ClientEarth. Garnham J’s order to produce more realistic modelling has led to the expansion of national action, from six to potentially 27 Clean Air Zones in the coming years.

What happens next?

While the terms of the latest challenge are currently unknown, the fundamental question will clearly be whether the government’s overall approach is, in reality, the fastest means of achieving compliance that can be adopted.

In particular, it may well be argued that charging CAZs would be most effective, and that to accelerate compliance the government should mandate their introduction instead of seeking to prevent charging schemes. Strikingly, paragraph 71 of the 2017 Plan forecasts compliance inside charging CAZs within a year of the implementation, but gives no equivalent projection for non-charging CAZs.

While the government has indicated that it will be taking a number of measures at national level in parallel to CAZs, there may be grounds for questioning the extent of those measures, and the speed at which they are proposed to be rolled out (and as above, many of these will only yield consultation outcomes).

In “Round Two”, ClientEarth argued for greater use of national measures such as targeted scrappage schemes and fiscal disincentives against diesel vehicles, which would accelerate (or improve the odds of achieving) compliance.

Garnham J dismissed this argument on the basis that those measures would be redundant if CAZs were effective. However, this conclusion was justified by an observation that “CAZs come into effect promptly on being established” (Paragraph 92).

It is not clear whether the same conclusion would be reached now given the three-year lead-in period for CAZs. That said, the analysis in the Technical Report of various of these alternative measures appears to indicate that they would also have substantial lead-in times, and would be significantly less effective relative to CAZs.

The counterpart to this question will be the issue of proportionality: the government’s consultation documents refer regularly to value for money, support for a strong economy, and income effects on society.

These references appear to go beyond the limits set by Garnham J, who held as follows: “I reject any suggestion that the state can have any regard to cost in fixing the target date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another.” (See paragraphs 45 – 51 for the wider discussion.)

Evolution of UK Environmental Law

As noted above, the role of European institutions in the enforcement architecture of the AQD was key in the first round of litigation. Although the ECJ and then the Supreme Court directed a strong role for the domestic courts in enforcing the AQD, European enforcement clearly remained a large consideration during the second round of planning in 2015 – the Garnham J judgment (Paragraph 66) refers to a government memo to the Secretary of State in May 2015 which draws attention to the fact that 2020 is “likely to be the earliest the EU will move to fines”.

Following Brexit, it is difficult to predict how the government may view the threat of further court decisions against it. On the one hand, Garnham J’s judgment itself was issued after the Brexit vote, and clearly does not retreat from the robust role which the Supreme Court outlined for the UK courts in relation to the AQD.

On the other hand, even if the government were continually to be sent back to the drawing board by the courts, it is unclear that this would have the same effect as the threat of Commission infringement proceedings and fines. As the April 2017 case amply illustrated, forcibly tackling air quality is likely to generate significant hostility from parts of the public and the press.

Without the countervailing pressure of supranational institutions, the courts may therefore retreat back towards the more “deferential” position taken in the High Court and Court of Appeal in Round One.

Aside from the above, there is also of course the prospect that following disengagement from the EU, the government may simply legislate away any obligation to act any quicker than it considers politically acceptable.

Conclusion

ClientEarth’s litigation to date has helped to push air quality up the political agenda and driven increased effort by the government to tackle the problem. More broadly, however, it has also clarified and strengthened – albeit now for a diminishing window of time – the role of the UK domestic courts in enforcing EU law.

That development had significant potential for NGOs and civil society seeking more broadly to hold the government to account in environmental matters.

The role of the courts must now be defined again in this area during the coming years. This latest litigation seems likely to see a foreshadowing of what that definition may be.

James Arrendale was head of the strategic litigation team at ClientEarth for the 2015 Supreme Court proceedings. He currently advises businesses, NGOs and community groups on environmental and litigation matters. 

With many thanks from UKHRB to the Environmental Law Foundation blog (here) from which this was re-posted. UKHRB has been following this one from the start, but it is important to have the whole story told in one post.

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