ClientEarth’s Legal Case

ClientEarth, a member of the Healthy Air Campaign, has taken the UK Government to court over the country’s illegal levels of nitrogen dioxide, a harmful pollutant that mainly comes from diesel vehicles. Here, we look at the legal case and what it could mean for the air we breathe in the UK.

Why a court case?
EU legislation sets out the limits for different air pollutants to which all EU member states must adhere. The 2008 Ambient Air Quality Directive (‘the Directive’) sets limits on pollution levels for pollutants, including fine particulate matter (PM10 and PM2.5), sulphur dioxide, benzene and nitrogen dioxide.

Back in 2011, with the Directive now put into national legislation, the UK had missed the 2010 deadline for nitrogen dioxide limits. In order to apply for a time extension, the UK government’s Department for Environment, Food and Rural Affairs (Defra) drew up plans to meet the legal limits. Instead of demonstrating their attempt to comply by 2015, however, as required by the Directive, these plans showed that limits would continue to be broken for many years. In fact, Defra have now said they believe limits will be breached until after 2030.

ClientEarth took the government to court to prevent the huge wait before we can stop breathing this harmful pollution.

What’s wrong with nitrogen dioxide?
Nitrogen dioxide is devastating for public health. Research is mounting all the time about the problems it can cause or exacerbate. The World Health Organisation (WHO) has declared diesel exhaust, the main source of nitrogen dioxide on British roads, to be carcinogenic.

This needs to stop. The UK needs to quickly and dramatically reduce the levels of nitrogen dioxide, and eradicate this invisible killer. So far, however, there’s been little action from successive governments. ClientEarth has shown that we all have a right to clean air, and yet that right is not being enforced: the law is being broken and we’re all paying the price.

How do the legal limits work?
In the Ambient Air Quality Directive, the annual mean limit for nitrogen dioxide is 40 micrograms per cubic metre (µg/m3). For context, King’s College discovered that the annual mean recorded on London’s Oxford Street in 2013 was 134 µg/m3 – more than three times the limit.

The UK is divided into 43 zones for the purposes of measuring air pollution. If limits are breached along just one busy street, the whole zone is in breach; if one zone breaches, the whole country has breached. ClientEarth has listed 16 zones in the legal case, all with sky-high levels of nitrogen dioxide. According to Defra’s Air Quality in the UK 2013 report, only five zones in the UK didn’t breach the annual mean limit in 2013. So the UK isn’t just breaching this limit slightly in one or two places; this is a huge problem across the country.

Government projections are that, under existing plans, many areas in the UK will be breaching the limits for years to come – London, Birmingham and Leeds will have illegal air until after 2030.

Are the legal limits safe?
Unfortunately, not. Evidence shows that the air we breathe could still be harming our health even if air pollution is under the legal threshold. So even if a country is abiding by air quality law – which the UK very much isn’t – people can still develop health problems from breathing in harmful pollutants.

This is why the WHO has stated we need much lower, stricter limits for all pollutants than the EU currently has in place. The Healthy Air Campaign is calling for the UK Government to work towards WHO recommended limits. We all deserve to breathe clean air.


from Clean Air in London's report on diesel.

from Clean Air in London’s report on diesel.


Why is the UK breaching?

Nitrogen dioxide mostly comes from diesel exhaust. The bad news for our health is that the UK has a lot of diesel vehicles.

Wrongly identified as more environmentally-friendly than petrol, diesel has been promoted by successive governments through measures like tax relief. This has worked all too well and, in recent years, diesel cars have been outselling petrol cars. The amount of diesel on the roads is the primary reason why the UK is breaching its nitrogen dioxide limits.

Both for our health and to fulfill its legal requirements, the UK Government needs to reduce diesel traffic in towns and cities. The best way to do this is through a national network of low emission zones – areas in town centres that restrict traffic and encouraging walking and cycling.

Without a national network of low emission zones, the UK will find it very difficult to reduce nitrogen dioxide. People who live, work, travel or spend any time in urban areas will still be breathing carcinogenic fumes every day, for years and even decades to come.

What’s happened so far with this court case?

ClientEarth brought a claim in the UK High Court in 2011, asking for Defra’s plans to be revised to achieve the nitrogen dioxide limits by 2015 at the latest. Despite an admission by the UK government that the limits were being breached, this claim was dismissed by the court – and again by the Court of Appeal in May 2012. ClientEarth was, however, given leave to appeal to the Supreme Court.

In 2013, the case reached the UK Supreme Court, who disagreed with these initial rulings. The Supreme Court ruled that the government was breaking the law by failing to ensure that legal limits of this pollutant were met. Before making a judgment, however, they referred a number of specific questions about the Directive to the European Court of Justice. These questions were asked to gain clarity before giving a final ruling.

The ruling from the European Court of Justice

In November 2014, the European Court of Justice (ECJ) delivered its judgment in ClientEarth’s case, agreeing with ClientEarth on all points. The ECJ said UK plans should have aimed at compliance by 1 January 2015; and that the UK courts must order the government to produce a plan to achieve these limits “as soon as possible”.

What does the judgment mean?
This is the European Court’s first ever ruling on the EU’s 2008 Ambient Air Quality Directive, which makes it highly significant. Confirming ECJ precedent, it determines that national courts must provide a remedy to enforce EU law. It also sets a precedent in EU law, so that other legal cases could be launched across Europe if national governments don’t protect people from air pollution.

What’s next for the UK?
The case will now return to the UK Supreme Court for a final ruling in 2015, when judges will apply the ECJ’s ruling to the facts in the case. This could result in the Supreme Court ordering the government to draw up a new plan to meet limits in a much shorter timeframe than they have currently planned. Watch this space.

Until then, ClientEarth will be working with all the organisations in the Healthy Air Campaign, to bring attention to this invisible public health crisis and to push for action.



What can you do?

  • You can read more about the case here.
  • Share this article, and spread the word on twitter.
  • For updates on the case, keep your eyes on our website.
  • Read more about nitrogen dioxide here.
  • The Clean Air Handbook has background on air pollution and European law here.

7 Responses to ClientEarth’s legal case on air quality

  1. Tony Murphy says:

    Ii am concerned that the interest in this problem is, not unnaturally, about the cities – but it must also apply to areas of close proximity to the high volumes of traffic on the busiest sections of major Mway routes. AQMA’are not always related to these kind of conditions and, even when there are some measurements in near proximity, they tend to be NO2 but not the PM’s. Even in AGMA’s where they may measure PM10 they typically do not measure the surely more insidious PM2.5. There is also the issue that reported measures tend to be presented as mean/average monthly which disguises the peaks which will occur during peak traffic periods. The risk to vulnerable groups are surely present as a constant, at almost any level, so that the allowed levels have no meaning in relation to public health. The NO2 is relatively “heavy” so that the risks are associated with the “flight” of the PM’s – carrying a compact parcel of dangerous chemicals with distance possibly governed by their initial trajectory and wind speed. There is some evidence that the presence of trees will alleviate or absorb a significant proportion of these materials but I have the impression that there is still much work to be done to understand this fully. For the well informed average motorist this subject presents a real problem of what to do when he wishes to replace his vehicle and even if all diesel drivers change tomorrow we are a long way from solving the problem in this way. Would appreciate any comments you may have to assist the general public in relation to motoring but also in assessing proposals for housing in areas of close proximity to Mways. Thank you.

    • Hi Tony,

      Thanks for your comment. You’re quite right to say this is not a problem only in our cities; traffic pollution affects anyone living, working or travelling near a main road.

      We can’t provide consumer advice unfortunately. What we would say is that cars are only a part of the problem. For the next Government to work towards safe levels of air pollution, we will need to take big steps to clean up our public transport and the larger vehicles on our roads.

      The latest standards for cars are still emitting dangerous levels of pollution – – so it would be good to see the car manufacturers addressing this.

      Finally, the point you raise about planning and proximity of houses to main roads is a hugely important one. The Environmental Audit Committee – a Parliamentary Select Committee looking at air pollution – made recommendations to the Government that planning rules be changed to move schools and hospitals away from main roads. The Government rejected this proposal in their response sadly, but we won’t stop pushing for action in this area.

      Do let us know about any campaigning on this issue in your area. We need action at all levels of government so the more voices speaking out on this, the better.

  2. Kenneth Rickard says:

    I live in a small village, St.Dennis, in Cornwall where Cornwall Council are in the process of having a mass burn 240,000 tpa waste incinerator being built. When operational in 2016 it is planned operation will include at least 316 HGV movements a day. The access road and the incinerator is situated only 500 yards from our village. We have always contested that the air pollution from incinerator and vehicle emissions will present a adverse effect on human health, all to no avail.
    Our community is desperate for help on the control of all emissions.

    • Andrea Lee says:

      Hi Kenneth. Sorry for not getting back to you sooner and we’re sorry to hear about your situation. Unfortunately we don’t have the resources to provide legal support. You might find some of the information on this page useful though.

  3. […] reduce the pollution and it made it possible for Client Earth, a group of environmental lawyers, to take the government to court over the illegal levels of nitrogen dioxide in 2011. The Supreme Court eventually ruled that the […]

  4. Rhys says:

    What, exactly, is DEFRA’s counter-position? Is it just oppositional defiance, or are they claiming they have reasonable grounds for extending the deadline?
    As much as I agree that the UK government isn’t taking the Ambient Air Pollution Directive seriously (as seems to be its instinct with many EU environmental directives), the directives normally grant exceptions and implore ‘reasonable efforts’. So, I assume DEFRA’s position must be more nuanced than simply claiming ‘we do not recognise the EU’s authority in this area’ or something similar.

    • Andrea Lee says:

      Hi Rhys (and apologies for the late reply). In terms of the original legal action that is explained on this page, the basic argument by the UK Government was that for those 16 zones, for which they had failed to apply for the available time extension, it was simply too difficult to comply with legal limits by 2015 extension deadline. The plans they did produce failed to show, however, that they had considered all the available policy measures so it was not obvious that they were trying to do everything they could to meet legal limits in the shortest time possible. Hopefully this legal briefing by ClientEarth will help explain in more detail.

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