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.
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?