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Government’s Air Quality Plan ruled unlawful for the third time

Poor air quality is the largest environmental risk to public health in the UK. DEFRA's analysis suggests that exposure to nitrogen dioxide (NO2) has an effect on mortality "equivalent to 23,500 deaths" every year.  In this context, the Government’s efforts to produce a legally compliant Air Quality Plan (AQP) make for very unhappy reading. They took another backward step this week.

The Government first AQP, published in 2011, was quashed by the Supreme Court in 2015.  

The Government published a new AQP in December 2015 but this was held to be unlawful by the High Court (Garnham J) the following year. The Court ordered the Government to publish a new AQP by 31 July 2017.

The Government published a new AQP in July 2017 (the 2017 Plan). ClientEarth - a registered charity, which brought both previous challenges - launched fresh proceedings on the basis that the 2017 Plan failed to meet the Government’s legal obligations pursuant to Directive 2008/50/EC ("the 2008 Directive") and the relevant domestic regulations, i.e. the Air Quality Standards Regulations 2010 (2010/1001)) and the Air Quality Standards (Wales) Regulations 2010 (2010/1433). On 21st February 2018 the High Court (Garnham J again) held that the 2017 Plan was unlawful.  

Ganham J summarised the relevant legal provisions as follows at paragraphs 7 – 15 of his judgement: 

7.  Article 13 of the 2008 Directive imposes limit values and alert thresholds for the protection of human health. It provides:

"1. Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.

In respect of nitrogen dioxide and benzene the limit values, specified in Annex XI may not be exceeded from the date specified therein."

8.  Article 23 provides that:

"Where, in given zones or agglomerations, the levels of pollutants in ambient air exceeds any limit value…member states shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value…specified in Annexes XI and XIV.

In the event of exceedances of those values for which the attainment deadlines have already expired the air quality plan shall set out appropriate measures, so that the exceedance period can be kept as short as possible."

9.  Annex XI to the 2008 Directive imposes a limit value for nitrogen dioxide of an average of 200ug/m3 in any given hour (which is not to be exceeded more than 18 times in a calendar year) and an average of 40ug/m3 which applies to each calendar year.

10.  Annex XV sets out information to be included in the local, regional or national air quality plans for improvement in ambient air quality. Amongst the information required is detail of those measures or projects adopted with the view to reducing pollution. The Plan must list and describe all the measures set out in the project, set out a timetable for implementation, provide an estimate of the improvement of air quality planned and the expected time required to obtain that objective.

11.  The 2008 Directive was brought into domestic law in the UK by means of four sets of regulations, one for each of the home nations. Regulation 26 of the English Regulations (the Air Quality Standards Regulations 2010 (2010/1001)) requires the Secretary of State, when the levels of nitrogen dioxide (amongst other pollutants) exceeds any limit value, to draw up and implement an AQP so as to achieve that limit value.

12.  Regulation 26 also specifies that the AQP must "include measures intended to ensure compliance with any relevant limit value within the shortest possible time…." and "must include the information listed in Schedule 8."

13.  In addition to the provisions referred to in the November 2016 judgment, it is material to note the following five additional provisions.

14.  First, paragraph 8 of Schedule 8 (which, as noted above, is referred to in Regulation 26 of the English Regulations) specifies, as part of the information which must be included in air quality plans, the following:

"Details of those measures or objectives adopted with a view to reducing pollution following 11 June 2008 - (a) listing and description of all the measures set out in the project; (b) the timetable for implementation; (c) estimate of the improvement of air quality planned and of the expected time required to attain these objectives"

15.  Second, the Air Quality Standards (Wales) Regulations 2010 (2010/1433) impose, on the Welsh Ministers, duties in respect of Wales equivalent to those imposed on the Secretary of State in respect of England. In particular, regulations 13 and 20 of those Regulations provide:

"13.(1) …the Welsh ministers must ensure levels of …nitrogen dioxide…do not exceed the limit values set out in Schedule 1 in any zone…

(Schedule 1 imposes the same limit values as are imposed in England.)

20. Where the level of …nitrogen dioxide…in ambient air exceeds any of the limit values in Schedule 1 in any zone…the Welsh Ministers must draw up and implement an air quality plan to achieve the relevant limit value…in that zone." 

The Court has held that the 2017 Plan:

(i)  is “seriously flawed” in its approach to 45 Local Authority Areas, in respect of which compliance with the relevant limit values is expected by 2021, because it does not contain measures sufficient to ensure substantive compliance with the 2008 Directive and the English Regulations (paragraph 80);

(ii)  does not include the information required by Annex XV to the Directive and Schedule 8 to the English Regulations, in respect of those same local authority areas (paragraph 86); and

(iii)  contains no compliant AQP for Wales (paragraph 103). 

There was however some good news for the Government - the Court rejected ClientEarth’s challenge to the modelling underpinning the 2017 Plan. 

The Court will hear submissions as to the appropriate form of relief, but Garnham J has indicated that he is minded:

(i)  to make a declaration that the 2017 Plan is unlawful as set out above;

(ii)  to grant a mandatory order requiring the urgent production of a Supplement to the 2017 Plan containing measures sufficient to rectify the deficiencies identified above; and

(iii)  to direct that the 2017 Plan remains in force whilst the Supplement is produced in order to avoid any delay in its implementation. 

The Judge’s patience is clearly wearing thin, as he is also going to consider giving ClientEarth continuing liberty to apply so it can bring the matter back before the court, in the present proceedings, if there is evidence that the Government is falling short in its compliance with the terms of the order of the Court.