26 October 2017

NGO ClientEarth has threatened a fresh legal challenge to the air quality plan (PDF) published by the UK government at the end of July. The air quality plan sets out measures for reducing nitrogen dioxide (NO2) levels below EU limits in the shortest possible time.

The plan was met with an initial challenge from ClientEarth while it was still in draft form on the grounds that it did not go far enough to meet the government's legal obligations to improve air quality. The courts rejected the challenge on the basis that it was premature – the government needed to be given an opportunity to complete the consultation process on its proposals and publish its final plan before ClientEarth could seek to challenge it.

The message from ClientEarth at that stage was very much "watch this space", and we did not have to watch for long.

New legal challenge by ClientEarth?

The new air quality plan has been widely criticised for its failure to introduce any kind of concrete national solutions for a national problem, instead passing the buck to local authorities to try to fix air quality issues at a local level. ClientEarth has written to the UK government to threaten a fresh legal challenge – the latest in a seven year campaign by the NGO to get the government to implement firmer air quality policies.

The letter warns that, if the government fails to engage in constructive discussions and take steps to plug the gaps in its latest air quality plan by introducing national measures for reducing NO2 levels below legal limits in the shortest possible time, ClientEarth will commence a third round of legal action. The government was given until the end of last week (20 October) to respond, failing which a new judicial review process will be launched. ClientEarth’s next move has not yet been announced.

The expiry of the ClientEarth deadline for the government coincides with introduction of the new toxicity charge (or "T-charge") in London on 23 October – a £10 toxicity surcharge on the existing £11.50 congestion charge applied to all vehicles that do not meet the Euro 4 emissions standard or higher. It also coincides with the publication of new government statistics showing that the number of UK local authorities missing their air quality targets has reached a seven year high.

Indeed, it has been difficult for some time now to avoid headlines which relate in one form or other to the UK’s air quality issues. Air quality has a persistent presence in the public consciousness and continues to be a contentious political issue.

How will this impact on our clients?

So what does this all mean for businesses in the UK, both in terms of day-to-day operations and development opportunities?

The fact that environmental groups are up in arms about the weakness of the air quality plan from an environmental protection perspective might indicate a less onerous, more growth-orientated framework. However, this may not entirely be the case.

  • First, the current air quality plan’s key theme of placing the burden of taking steps to achieve air quality improvements on local authorities carries with it a significant likelihood of a wide degree of local variance in what will emerge. Local fixes for local problems sounds sensible in principle – local authorities do, after all, know the needs of their individual area's communities and businesses best – but if you have a nationwide business, the implications of the local focus of the new air quality plan could cause real headaches for operations and strategic planning.
  • Secondly, all the to-ing and fro-ing on policy and the successive legal challenges leads to uncertainty. The lack of clear national direction invites over-caution from local authorities and government regulators. At Burges Salmon, we are already seeing evidence of such over-caution and we are witnessing the adverse effects this can have on the development plans of some of our clients. We are acting on cases where the single issue in dispute is NO2 Without commenting on specific cases, it is fair to say that the absence of clear direction at national level is not helping decision-makers who may then make decisions that do not strike an appropriate balance between environmental protection and the other pillars of sustainable development – social and economic development.
  • Thirdly, there is also a significant degree of uncertainty as to whether or not the current form of proposals would survive a ClientEarth challenge. The government's track record against ClientEarth is not strong (2-0 to ClientEarth), so it is entirely possible that the government will be sent back to the drawing board yet again on its plans. This uncertainty makes it difficult to take forward looking decisions.

What should you be doing?

Whatever the outcome of the ClientEarth challenge and whatever the final shape of the government's air quality plans, the likelihood ultimately is that tighter controls on polluting activities will be introduced in a shorter period and over a greater geographical range than has been the case to date. This will require action by businesses to adapt day-to-day operations and future projects to ensure that they comply with the new restrictions while remaining economically viable. It will also provide opportunities, such as state support for new low emission technologies, for those who are able to position themselves to take advantage.

Close engagement with decision makers and regulators from an early stage on new projects will be essential and keeping up to date on the twists and turns of UK air quality law and policy is highly recommended.

Key contact

Michael Barlow

Michael Barlow Partner

  • Head of Environment
  • Head of Water
  • Head of ESG

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