Supreme Court to hear final stage in air quality battle this week

The Supreme Court will this week hear the final stage in a four-year battle between an environmental law charity and the Government over its approach to tackling air quality.

The background to the case of R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs is that the Air Quality Directive requires member states not to exceed certain limits on concentrations of nitrogen dioxide set for 1 January 2010.

The directive also provides a mechanism to postpone the deadline by a maximum of five years (to 1 January 2015) on condition that an air quality plan was established.

In September 2011, DEFRA submitted applications for time extensions and accompanying air quality plans to the European Commission in respect of 24 zones. In relation to 16 zones, DEFRA submitted plans showing compliance after 2015 and did not apply for a time extension.

ClientEarth argued that DEFRA was obliged to put to the Commission plans for reducing nitrogen dioxide levels by 1 January 2015.

The Government argued that it was and is under no such obligation, and that if the conditions to apply for a time extension could not be met, the obligation under article 23 meant that plans have to be put in place so that the exceedance period can be kept as short as possible.

In May 2013 the Supreme Court declared that the Government was in breach of Article 13 of the Directive and submitted questions on the interpretation of the Directive to the Court of Justice of the European Union (CJEU).

The CJEU gave its judgment on 19 November 2014, ruling that:

1. in order to be able to postpone by a maximum of five years the deadline for achieving conformity with the limit values for nitrogen dioxide, a member state is required to make an application for postponement;
2. where a member state does not apply for postponement, the fact that an air quality plan has been drawn up which meets the criteria set out in Article 23(1) (i.e. to keep the period of exceedance as short as possible) does not, in itself, permit the view to be taken that the member state has nevertheless met its obligations under Article 13 of the Directive; and
3. where a member state has failed to comply with the limit values for nitrogen dioxide by 1 January 2010 and has not applied for a postponement, it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the national authority establishes the air quality plan required by the directive in accordance with the conditions laid down by the latter.

ClientEarth and DEFRA took different views as to the interpretation of the judgment of the CJEU.

The issue before the Supreme Court is: “Whether, as regards areas where compliance with nitrogen dioxide limits set out in Directive 2008/50/EC (the Air Quality Directive) could not be achieved by 1 January 2010, the Air Quality Directive requires the respondent to have prepared an air quality plan which demonstrates compliance by 1 January 2015. If so, what remedies must the Court provide where the respondent has not prepared an air quality plan which demonstrates compliance by 1 January 2015?”

The case will be heard on 16 April 2015 by a five-judge panel comprising Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption and Lord Carnwath.

ClientEarth today [13 April] argued that the Government’s current plans would not meet legal limits for nitrogen dioxide until after 2030 – “almost a quarter of a century after the original deadline, despite the fact that scientists estimate at least 29,000 people die early in the UK each year as a result of air pollution”.

The charity said it would call on the Supreme Court to order the Government to produce a new plan which would “deliver urgent cuts to the illegal levels of air pollution in towns and cities across the UK”. This plan will need to target pollution from diesel vehicles: the main source of nitrogen dioxide pollution, it insisted.

Alan Andrews, ClientEarth lawyer, said: “We all have the right to breathe clean air and ClientEarth has spent the last four years fighting to uphold that right in Court.

“The Government’s current plans won’t achieve legal limits for decades. Every year that goes by, thousands more people will die or be made seriously ill from heart attacks, asthma attacks, strokes and cancer.”

Andrews added: “We need to get the most polluting diesel vehicles out of city centres as soon as possible for the sake of our health and our children’s health.”

The 16 cities and regions include London, Manchester, Leeds, Birmingham and Glasgow.