29 November 2016

The legal regime

Under the EU Air Quality Directive 2008 and the UK implementing Regulations, the government has a legal obligation to produce air quality plans (AQP) for zones and agglomerations that do not meet EU limits for air quality including nitrogen dioxide emissions from vehicles.

It is common ground that the government has failed to meet such limits in 40 out of 43 of its zones and agglomerations.

Under EU and UK law, the government's AQP must set out appropriate measures to reduce nitrogen dioxide levels below EU limits in the shortest possible time.

The litigation

This High Court judgment is just the latest in a long-running legal challenge by ClientEarth that dates back to 2011 and has already visited the UK Supreme Court and the Court of Justice of the European Union.

In April 2015 the Supreme Court ordered the Government to revisit its AQP after ruling it did not meet the UK's legal obligations to reduce poor air quality in the shortest possible time.

In December 2015 the government produced a new AQP. It proposed achieving compliance by 2020 through the introduction of five Clean Air Zones outside of London, in Southampton, Birmingham, Nottingham, Derby and Leeds, and further measures, such as the Ultra Low Emissions Zone (ULEZ), in London.

However, ClientEarth was concerned that the AQP still did not go far enough or fast enough and issued another judicial review. The proceedings were supported by the Major of London.

After a two-day hearing in October 2016, Mr Justice Garnham agreed with ClientEarth and the Major of London, and quashed the current AQP, sending the government back to the drawing board.

The judgment

The judgment concludes that the government made a number of errors in devising its AQP.

The government had adopted modelling that was, on the evidence, optimistic, and as such the measures in the AQP were not measures "intended to ensure" compliance in the shortest possible timeframe.

The government's modelling continued the existing pattern of five-yearly intervals with the next compliance assessment year being 2020. Government officials then looked at the extent of anticipated non-compliance in 2020, given expected improvements in emission abatement technologies. Clean Air Zones were proposed for those zones or agglomerations which were not anticipated to have come into compliance by 2020. The court held that this was not the correct approach: the government should be modelling to find out how quickly all of the areas not currently in compliance could be brought into compliance, not working backwards from 2020, which was an arbitrary date adopted for convenience.

Finally, for the avoidance of doubt, the court made it clear that it was not open to the government to take a longer route to compliance on the basis of cost.

The political response

The Prime Minister has told Parliament that the government does not intend to appeal this judgment. Defra now has until 24 April 2017 to produce a draft Air Quality Plan and until 31 July 2017 to deliver the final plan.

Next steps

Whatever the outcome of discussions, the likelihood is tighter controls on emissions in a shorter period and over a greater geographical range than the government's plans to date. This is likely to have a significant impact on a number of major industry sectors, including transport, infrastructure and energy, and important implications for the public sector and local authorities who may have to deliver the plans.

As the government goes back to the drawing board on its air quality plans, businesses need to keep a close eye on the plans that will emerge and how these will impact commercial operations.

Burges Salmon's market-leading environmental law team will continue to stay at the forefront of air quality and industrial emissions law and policy.

Implications of the judgment for the transport sector

We wait to see what measures the government will now put forward. Our predictions are as follows:

  • Change will come quickly: the government's self-imposed 2020 deadline was too far into the future, according to the court, so businesses must plan for significant change at short notice.
  • Clean Air Zones are likely to be the primary mechanism for compliance: this was the favoured option in Defra's previous AQP and, despite submissions that CAZs alone could not address air quality issues, the Judge concluded that there was no reason why CAZs could not work in principle.
  • There will be more Clean Air Zones: local authorities in zones or agglomerations not currently in compliance may find that government orders them to impose CAZs in their areas.
  • The Clean Air Zones may be more challenging in scope: political pressures and public resistance should not be determining factors, according to the judgment.
  • Other options, such as diesel scrappage schemes, retro-fit schemes for buses and HGVs, and fiscal incentives, may be reconsidered: the Claimants were highly critical of Defra's rejection of (and Treasury opposition to) such plans and, although the court did not adopt such criticism, it did make it clear that the cost of such measures could not justify the adoption of slower but cheaper routes to compliance. It is therefore now for government to show that such measures would not reduce the period of time to reach compliance.

The transport sector will need to watch this space closely over the next few months. Burges Salmon offers a tailored alerting service for key developments on air quality and emissions control. For more details please contact Michael Barlow or your usual Burges Salmon contact.

Key contact

Michael Barlow

Michael Barlow Partner

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

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