environmental justice


Groundhog Day for air pollution breaches: Government loses again

23 February 2018 by David Hart QC


NO2_PicR (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?

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

3 November 2016 by David Hart QC


NO2_PicR (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.

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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.

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Ping pong: CJEU air pollution ruling – back to the Supreme Court

19 November 2014 by David Hart QC


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs , CJEU, 19 November 2014 – read C404-13 

In May 2013, the UK Supreme Court (here) was sufficiently concerned about the UK’s lack of compliance  with EU legislation, Directive 2008/50 (nitrogen dioxide etc in air)  to refer various issues to the CJEU in Luxembourg.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because 40 “zones and agglomerations”  had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the first instance judge and the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings. And those lower courts disagreed with ClientEarth’s interpretation of the Directive, which, as we shall see, has now for the first time been upheld by the CJEU.

The Supreme Court went rather further; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning of the Directive to the CJEU.

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The Supreme Court on “prohibitively expensive” costs: Aarhus again

11 December 2013 by David Hart QC

R (Edwards & Pallikaropoulos) v. Environment Agency et al, Supreme Court, 11 December 2013 read judgment

This is the last gasp in the saga on whether Mrs Pallikaropoulos should bear £25,000 of the costs of her unsuccessful 2008 appeal to the House of Lords. And the answer, after intervening trips to the Supreme Court in 2010 and to the CJEU in 2013, is a finding by the Supreme Court that she should bear those costs.

The judgment by Lord Carnwath (for the Court) is a helpful application of the somewhat opaque reasoning of the European Court on how to decide whether an environmental case is “prohibitively expensive” per Article 9(4) of the Aarhus Convention, and thus whether the court should protect the claimant against such liabilities. The judgment also considers the guidance given by A-G Kokott more recently in infraction proceedings against the UK for breaches of that provision: see my post.

But note that the dispute has been largely overtaken by recent rule changes, and so we should start with these before looking at the judgment.

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Supreme Court refers air pollution case to the EU Court

1 May 2013 by David Hart QC


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs  [2013] UKSC 25, Supreme Court, 1 May 2013 – read judgment

on appeal against Court of Appeal 30 May 2012 read CA judgment

The Supreme Court has taken the UK’s lack of compliance  with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air)  much more seriously than the courts below.  It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings.

This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.

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The CJEU on “prohibitively expensive” and the new protective costs order regime

11 April 2013 by David Hart QC

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims.
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The polluted air that we breathe: Supreme Court to hear case

15 January 2013 by David Hart QC


NO2_PicR (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.

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When does a case become “prohibitively expensive”?

24 October 2012 by David Hart QC

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

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A coach and Aarhus through the planning system? Third party rights under scrutiny

15 August 2012 by David Hart QC


The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties.  A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.

The challenges raise a whole host of issues – the key ones are:

(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;

(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;

(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;

(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;

(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.

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The air that we breathe: NGO’s appeal dismissed

5 June 2012 by David Hart QC

R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD &  RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011, 

A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto  the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.

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Did undercover climate officer go native?

10 January 2011 by Adam Wagner

In a plot worthy of a Hollywood film, the trial of six environmental campaigners charged with conspiring to shut down a power station has apparently collapsed after an undercover police officer switched sides.

According to the BBC:

The six were charged with conspiring to shut down the Ratcliffe-on-Soar power station in Nottingham in 2009. The case was due to start on Monday, but was abandoned after Pc Mark Kennedy contacted the defence team to say he would be prepared to help them. The prosecution subsequently dropped their case. Mr Kennedy had been intimately involved in the green movement since 2000.

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Environmental compliance body urges major changes to law

8 December 2010 by Rosalind English

This time two years ago two obscure environmental groups,  Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.

They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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