Groundhog Day for air pollution breaches: Government loses again

23 February 2018 by David Hart KC

R (ClientEarth No.3) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 21 February 2018, judgment here 

DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.

I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.

We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.

The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.  

So why was it decided to be unlawful?

Breach

The reasons are fairly technical. They focus on the different measures addressed by the Plan to various categories of local authorities with air pollution exceedances.

Category 1 concerns 6 cities, London, Birmingham, Derby, Leeds, Nottingham and Southampton. Category 2 concerns 23 local authorities, who were required to produce their own initial plans by March 2018, and final ones by December 2018. Category 3 concerns 45 further local authorities who were not required to produce a feasibility study.

These 45 areas in Category 3 were expected to come into compliance at various times between 2018 and 2021, but all are categorised together – the judge’s central complaint.

The big acronyms in this area are CAZ (Clean Air Zones) and CCAZ (Charging CAZs).

Cue Garnham J’s central conclusion on the Category 3 45 areas at [71]

But where, in my judgment, the Government’s plan is flawed, and seriously flawed, is in its application of the 3 year benchmark to the 45 local authority areas where compliance is anticipated within 3 years in any event. Plainly, it would be pointless to require these local authorities to embark on the expensive and time consuming enterprise of establishing a CAZ in an area where compliance will be achieved within the same period without a CAZ. But the Government cannot sensibly, or lawfully, substitute the application of its benchmark, however rational in respect of areas where a CAZ is the most efficacious solution, for the requirements of the Directive and the Regulations in areas where it is not

This was because the Article 23 obligation is specific to each and every zone or agglomeration. Every area with an exceedance requires a plan for that area.

So the Secretary of State

must aim to achieve compliance by the soonest date possible; he must choose a route to that objective which reduces exposure as quickly as possible; and that he must take steps which mean meeting the value limits is not just possible, but likely.

And that applies to every zone, not a lumping of all exceedances into a lesser category applicable to all 45 areas.

As Garnham J pointed out, this was really a resuscitation of an argument he had dismissed in November 2016, namely that this was a “proportionate” response to the problem. Proportionate is a weasel word these days, but in this context the judge said it only applied

in the sense of being no more than is required to meet the target.

But you do have to hit the target as soon as possible, not say that you cannot afford to.

In Categories 1 and 2, there are statutory directions requiring local authorities to prepare a full business case for their areas to be submitted to DEFRA – with a suitable enforcement mechanism. Contrast the 45 in Category 3, no enforcement mechanism, with some letters sent in November 2017 and 19 January 2018 (a week before the hearing!) exhorting the 45 to come up with proposals. This was held not to be enough.

The judge also upheld a complaint about the lack of detailed information in the Plan necessary to comply with the Directive in respect of the 45.

He rejected complaints about the lack of obligations applicable to 5 of the 6 cities (all but London) in Category  1 – noting that formal directions were addressed to these cities in December 2017 (in plain response to this challenge).

He also noted an acknowledgement by the Welsh Ministers that they recognised that their own Plan did not comply with the Directive or the domestic Regulations.

Remedy

The judge was inclined not to require a feasibility study to be required of the 12 authorities (of the 45) who were expected to achieve compliance in 2018.

Over and above a declaration, he was also inclined to grant a mandatory order requiring the urgent production of a supplement to the 2017 Plan remedying its deficiencies.

But his closing remarks are highly significant. He noted in [108] that each successful claim had been brought by ClientEarth, a charity for whom the costs of the litigation constituted a significant challenge, and that

in the meanwhile UK citizens have been exposed to significant health risks.

So what to do in the future in terms of policing the Government, 8 years after its breaches started?

It seems to me that the time has come for the Court to consider exercising a more flexible supervisory jurisdiction in this case than is commonplace. ……Given present circumstances, however, I would invite submissions from all parties…..as to whether it would be appropriate for the Court to grant a continuing liberty to apply, so that the Claimant can bring the matter back before the court, in the present proceedings, if there is evidence that either Defendant is falling short in its compliance with the terms of the order of the Court.

The sub-text is clear. The judge was not inclined to put ClientEarth through the hoops of starting a 4th challenge; instead it could simply go back to the judge and say attempt 4 was deficient in this or that way.

The day after the judgment, the Government announced that it was not going to appeal the main judgment.

Comment

Tackling traffic air pollution is not politically or practically easy. Many are wedded to their car or delivery vehicles, and there will undoubtedly be some political sensitivity about making people pay to drive or otherwise restrict their traffic movements. Radical change towards widespread cleaner transport will plainly cost large sums of money.

But think on the different approaches by the state to causing or exacerbating risk of harm. If a business or individual is caught skimping on health and safety measures, with or without resulting injury or death, it can rightly expect prosecution and potentially swingeing fines, or imprisonment for an individual for the worst cases. But if our government drags its feet in addressing a problem which it thinks is killing 23,500 people a year, only an NGO takes it on in court. This is partly a reflection of the psychological difference between the impact of, say, the grieving widow in the health and safety death at work case, compared to the (admittedly statistically calculated) 23,500 deaths from air pollution per year – leaving aside other health impacts.

The next  thought is, inevitably, a Brexit one. DEFRA has promised to consult on some sort of EU Commission-replacement as and when we Exit, to enforce environmental laws in the UK.. And this case is a perfect example of why we would need one, fully independent of government, of course. The EU Commission has been in the background as imposing the ultimate financial sanction if the UK dragged its feet long enough; ironically, DEFRA’s (initially successful) argument in the first ClientEarth case included saying that it was only the Commission who could enforce these sort of breaches.

Finally, it is worth noting how the air pollution issue has immeasurably moved up the political agenda since ClientEarth initially lost its first challenge in December 2011. This is doubtless for a number of reasons including these challenges, but also things like the GLA which is pressing hard for change in London. Let us hope that all of this means there will be enough political will to maintain the substance of the Directive post-Brexit.

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