Air Pollution in the UK – Seven years of illegal NO2 emissions

UK Government publishes its latest plans to tackle air pollution

But compliance with legal limits is still a distant prospect

August 21st 2017

The UK Government has published its latest plans to tackle air pollution, following a long-running legal battle over its failure to comply with EU standards for air quality. The plans were published by the Department for the Environment, Food and Rural Affairs (Defra) and the Department for Transport on 26th July and focused on curbing roadside nitrogen dioxide (NO2) concentrations. In a press release, the Government announced that a comprehensive Clean Air Strategy will be published next year which will outline its plans to tackle other sources of air pollution. [1] The press release highlights the Government’s intention to end the sale of all new conventional petrol and diesel vehicles by 2040, whilst the current strategy on curbing NO2 levels places the onus on local authorities to produce action plans.

Client Earth v. UK Government: A seven-year legal battle

The UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations is the latest development in a seven-year legal battle between the UK Government and the environment law firm Client Earth, which began in 2010 as a collaborative venture with the campaign group Clean Air in London. [2] In an initial response to the latest plan, Client Earth has described it as lacking in urgency and apparently “little more than a shabby rewrite of the previous draft plans.” [3] Anna Heslop, one of the firm’s air quality lawyers, said: “Successive governments have failed to protect us from illegal air quality. We’ve had to return repeatedly to court to challenge the Government on its weak and incoherent air quality policies and yet, seven years on, we are still having to fight to protect people’s health.” [4]

Should the lawyers take further court action, it will be the eighth time that Client Earth has taken the UK Government to court over its plans to curb NO2 emissions. In summary, the legal saga is as follows:

• 2011: High Court
• 2012: Court of Appeal
• 2013: UK Supreme Court
• 2014: European Court of Justice
• 2015: UK Supreme Court
• 2016: High Court
• 2017: High Court

What follows is the background to the latest plans. This legal saga can best be summarised as a history of missed deadlines, deliberate procrastination, and persistence on the part of the UK Government in its refusal to comply with EU law. Its air quality plans have repeatedly been deemed unlawful by the courts, and the Treasury has been consistent in having the final say, placing economic and political considerations above public health.

January 2010: UK misses deadline for legal limits of NO2 emissions

The legal battle began in 2010 as a response to the UK’s failure to meet the requirements of the EU’s Ambient Air Quality Directive which came into force in 2008. The 2008/50/EU Directive forms part of a body of legislation which sets out health-based standards and targets for a number of pollutants, including nitrogen dioxide, sulphur dioxide, carbon monoxide, lead, benzene, and fine particles known as particulate matter. Under EU law “a limit value is legally binding from the date it enters into force subject to any exceedances permitted by the legislation.” [5] The limit value for nitrogen dioxide (NO2), which came into force on January 1st 2010, is 40µg/m3 (40 micrograms per cubic metre), taken as the average measure over a twelve-month period. A recent report on the implementation of the Directive says that NO2 levels at the most polluted traffic site in London (Marylebone Road) were well above 100μg/m3 in the period 2003 to 2009. [6] In 2013, NO2 annual mean concentrations of 85μg/m3 were recorded. In short, the levels have been well over the legal limit of 40µg/m3, which should have been met by the start of 2010.

The impact of diesel

A recent study by the Royal College of Physicians says that every year in the UK “around 40,000 deaths are attributable to exposure to outdoor air pollution” [7] Air pollutant emissions from road traffic are generally held to be the main source of the problem, with diesel vehicles in particular being the main source of NO2 emissions. The irony here is that in 2001 the Labour Government adopted measures to boost the sale of diesel vehicles on the grounds that this would cut carbon emissions and help to reduce the effects of climate change. Martin Goodman reports that the Government published guidance on NO2 levels in 2004, in which it claimed “the UK Air Quality Strategy aims to achieve its objectives earlier than the EU has set.” However, this optimism was based on old data which showed a 37% fall in NO2 emissions in the decade up to 2000, with the expectation of a further 25% fall by 2010. The calculations did not foresee the impact of the increased use of diesel. [8]

2011–2012: High Court judges say enforcement of legal requirement is a matter for the European Commission

The legal case first appeared before the High Court in 2011, with Client Earth launching a judicial review of the failure by the Secretary of State for the Environment, Food and Rural Affairs to comply with the legal limits for NO2 emissions as set out in the Directive. The judge presiding over the case found that the Government was indeed in breach of a legal requirement, but declined to rule on any remedy, saying that enforcement was a matter for the European Commission. In May 2012, Client Earth appealed to the Court of Appeal, but the Court upheld the decision of the High Court judge. [9]

2013: UK Supreme Court seeks advice from European Court of Justice

In 2013, however, Client Earth submitted an appeal to the newly formed Supreme Court, and the court found in Client Earth’s favour. The Court ruled that the UK Government was in breach of a legal duty to comply with NO2 limits in 16 cities and regions, including Manchester, Birmingham and Glasgow, as well as London. As for what action should be taken, the Court then sought advice from the European Court of Justice regarding the provisions of the Air Quality Directive and the role of national courts in providing appropriate remedies.

2014: European Court of Justice considers “the longest-running infringement of EU law in history”

The European Court of Justice considered a body of evidence in compiling its advice, including the available data on NO2 levels. Martin Goodman says scientists from King’s College London set up a monitoring station in Oxford Street which recorded an average level of 135μg/m3 in 2014, whilst a daytime reading peaked at 463μg/m3. As for the Government’s response: “Lawyers from the European Commission told the European judges that they were considering perhaps the longest-running infringement of EU law in history.” [10]

UK Government hopes to reach compliance by 2025… or 2030…

The provisions of the Air Quality Directive say that member states can apply for an extension of up to five years to meet limiting values in a specific zone, subject to an assessment by the Commission. [11] However, the Government had already missed its 2010 deadline and said to the EU that it was unable to meet the next deadline of January 1st 2015. It was hoping to reach compliance by 2025, but then admitted that the target for NO2 levels in London, Leeds and Birmingham would not be met until 2030. [12] The European Court of Justice delivered its ruling in November 2014. The judgement said that the UK was legally obliged to mitigate air pollution and was “wholly adrift of all procedures to fit such compliance to the given deadlines. Furthermore, it must produce a plan to keep the period in which NO2 pollution was breaking legal limits ‘as short as possible.'”

April 2015: UK Supreme Court orders Government to take urgent action on air pollution

The decision was sent back to the UK Supreme Court, which delivered its verdict in April 2015: “The Supreme Court unanimously orders that the Government must submit new air quality plans to the European Commission no later than 31st December 2015.” [13] The Supreme Court also demanded urgent action on the part of the Government with regard to NO2 levels, without setting a deadline for compliance. However, the parties were granted permission to return to the High Court for clarification of the order, with particular regard to the terms ‘urgent’ and ‘as soon as possible’ and how they were to be understood. A press release from Client Earth said: “The Supreme Court ruling means the Government must start work on a comprehensive plan to meet pollution limits as soon as possible. Among the measures that that it must consider are low emission zones, congestion charging, and other economic incentives. Client Earth is calling for action to clean up the worst polluting diesel vehicles, including through a national network of low emission zones.” [14]

December 2015: the UK Government continues to defy EU law on NO2 limits

Defra published a draft plan in September 2015. In response, Client Earth released a series of press statements which criticised the Government for a lack of joined-up thinking, saying that the Department for Transport and DECC (the now defunct Department for Energy and Climate Change) had failed to make any assessment of the impact on air quality when making major policy decisions, whilst Defra’s draft plans, published as a consultation document, did not meet the demand for immediate action:

“The Supreme Court ordered Liz Truss to come up with a plan to achieve legal levels of air quality as soon as possible. Instead, even under the Government’s own projections, many cities in the UK will still have illegal levels of diesel fumes until 2020 and beyond. In London the problem is even worse – Defra projections say the legal levels of air pollution will not be reached until 2025. The plans contain only one new national measure: ‘clean air zones’ which would restrict older vehicles entering the most polluted city centres – but leaving it up to overstretched and underfunded local authorities to implement them. We therefore don’t have any idea if or when these clean air zones will ever materialise.” [15]

Treasury reduces Defra’s plans for Clean Air Zones

Following the consultation period, the Government’s plans were finally published on 17th December 2015. The plans repeated much of what was said in the draft. So the Government had responded to the Supreme Court ruling by producing an air quality plan by the end of the year deadline, but the plan was to reach compliance with the EU’s limit values for NO2 by 2025. Client Earth said this amounted to a total defiance of the Air Quality Directive, the European Court of Justice, and the UK Supreme Court. According to Martin Goodman, government ministers had been advised by Defra’s head of air quality to implement clean air zones, which would bring forward compliance with EU NO2 limits “by directly removing the dirtiest vehicles from hotspot areas and by encouraging people to swap polluting vehicles for less polluting ones.” [16] However, the Treasury reduced Defra’s plans for 16 clean air zones outside of London to 5 (Birmingham, Derby, Leeds, Nottingham and Southampton), and also blocked an increase in charges for driving in city centres. [17] Client Earth responded to the plan’s publication with an announcement that the Government would face further legal action. The firm’s principal air quality lawyer, Alan Andrews, said: “The Government seems to think that the health of people in cities like Glasgow, Manchester and Bristol is less important than that of people in London. While London gets a clean air zone covering all vehicles, Birmingham gets a second class zone and Derby and Southampton third class, while other areas including Manchester and Liverpool are left out. We all have the same right to breathe clean air.” [18] The new legal challenge was launched in March 2016 when Client Earth lodged papers at the High Court, seeking a judicial review of the Government’s plans. [19]

April 2016: MPs declare UK air pollution to be a “public health emergency”

In April 2016, the Environment, Food and Rural Affairs (Efra) Select Committee, which oversees the work of Defra, published a report on the state of air pollution in the UK and the Government’s attempts to tackle it, declaring that the situation amounted to a “public health emergency.” [20] The cross-party group of MPs called on the Government to introduce a scrappage scheme for old diesel vehicles which would target those older than ten years of age and offer drivers financial incentives to trade them in. The Efra report also says that UK ministers should argue robustly with the EU to set lower limits for nitrogen oxide emissions from new vehicles, as the EU’s ‘real world’ tests, to be implemented from 1st September 2017, would set initial emission limits that are twice as high as previous laboratory test levels and set limits into the 2020s which are 50% higher. [21] The report also reiterates Client Earth’s criticism of the lack of joined-up thinking from government departments: “Despite mounting evidence of the costly health and environmental impacts of air pollution, we see little evidence of a cohesive cross-government plan to tackle emissions.” The report says that the inter-ministerial ‘Clean Growth Group’, which is meant to be co-ordinating efforts to tackle air pollution, is seen as secretive and “does not publish information on its meetings, outcomes or action plans.”

May 2016: London Mayor Sadiq Khan joins Client Earth’s legal challenge

In May 2016, newly-elected London Mayor Sadiq Khan announced his intention to submit statements and evidence in Client Earth’s forthcoming legal case at the High Court. Speaking to the Guardian’s environment correspondent Damian Carrington, he said: “The government’s current air quality plan with respect to London is based on the very limited ambition of the previous mayor to tackle air pollution and isn’t enough to protect Londoners’ health.” [22] Earlier that month, the Guardian had revealed that Boris Johnson, Sadiq Khan’s predecessor, had commissioned a report on air pollution in London but the report had remained unpublished since its completion in 2013. The report showed that 433 schools in London are in areas that exceed legal limits for NO2 pollution and that 80% of those schools are in deprived areas. [23] On taking up his post as mayor, Sadiq Khan set out new plans to tackle London’s air pollution problem, which included doubling the size of the ‘Ultra Low Emission Zone,’ which Boris Johnson had planned to implement by 2020, and retrofitting 1,000 more buses with cleaner technology. Older, dirtier diesel vehicles will be charged £12.50 to enter the low emission zone. Sadiq Khan said to the Guardian: “It’s clear we need to speed up our efforts so I’m calling on government to match my new level of ambition for London and to work with me to improve our city’s dirty air and to make sure we get within legal limits much sooner – before the current target of 2025.” [24]

November 2016: Judicial Review finds Air Quality Plan is based knowingly on flawed data

Client Earth’s case was heard at the High Court in October 2016. In delivering the Court’s ruling, Mr Justice Garnham agreed with Client Earth that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible.” The judgement, published on 2nd November, said that the Government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and found that the Government had erred in law by setting compliance dates based on an over-optimistic modelling of pollution levels, using lab tests which they knew to be flawed. Instead of identifying measures that would achieve compliance as soon as possible, “it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.” [25] The judge said it was remarkable that the Government had acknowledged that its plan was built around a forecast based on figures which emerging data was undermining and that “if higher, more realistic, assumptions for emissions are made, the number of zones which will not meet the limit value in 2020 increases substantially.” [26]

Evidence suggests the Government’s timetable is motivated by the prospect of EU fines

The judge also commented on ministerial correspondence which suggested “that a principal driving factor in selecting 2020 was not the obligation to remedy the problem as soon as possible but to remedy it in time to avoid EU infraction proceedings.” [27] The correspondence said: “In developing potential measures for the plans we have used projected exceedances in 2020 as the basis for defining the worst areas. This is based on our understanding that 2020 is likely to be the earliest the EU will move to fines.” The judge said that, while there can be no objection to a member state having regard to cost when choosing between two equally effective measures, or when deciding which organ of government should pay, he rejected “any suggestion that the state can have any regard to cost in fixing the date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another.” [28] He continued: “In those respects the determining consideration has to be the efficacy of the measure in question and not their cost. That, it seems to me, flows inevitably from the requirements in the Article to keep the exceedance period as short as possible.”

Back to the drawing board

The ruling was welcomed by Client Earth whose air quality lawyer Alan Andrews said in a press statement: “We need a national network of clean air zones to be in place by 2018 in cities across the UK, not just in a handful of cities. The Government also needs to stop these inaccurate modelling forecasts. Future projections of compliance need to be based on what is really coming out of the exhausts of diesel cars when driving on the road, not just the results of discredited laboratory tests.” [29]

For the Government, it was a case of ‘back to the drawing board.’

UK Government is ordered to produce a draft plan by 24 April 2017…

The deadlines for the Government were delivered by Mr Justice Garnham at the High Court on 21st November. The judge, rejecting the Government’s suggested timetable of September 2017 to produce a final plan, ordered the Government to produce a draft plan by 24th April 2017 and a final one by 31st July 2017. The judge also requested that the Government publish the technical data on which it was basing its plans, and gave Client Earth permission to return to the High Court should there be any further problems with the draft plan. Responding to the ruling, Alan Andrews said that a total of 37 out of 43 zones in the UK had illegal levels of air pollution, and argued that a national network of clean air zones must be part of the Government’s plans, which meant far more than the six which were currently planned. [30]

But on 21 April 2017 the UK Government wants an extension

Following the PM's decision to call a general election on 8th June, the Government then made a last-minute attempt to delay publication of the draft plan, seeking 30th June and 15th September as the new deadlines. The application to the High Court was submitted late on Friday 21st April after the court had closed, and shortly before the original deadline of 4pm on Monday 24th April. Mr Justice Garnham ordered a hearing into the application for Thursday, 27th April. At the hearing, the Government claimed that "purdah rules" meant that they could not publish the plans until after the general election, but was forced to concede that the delay could have an impact on the implementation of measures to reduce air pollution "as soon as possible." Client Earth argued that air pollution was a matter of public health not politics. The judge agreed, but accepted that purdah rules would affect the local elections on 4th May. He ordered the Government to produce the plans by the new deadline of 9th May. The 31st July deadline remained in force. [31]

May 2017: Draft plans are “weak and incoherent”

The draft plans were finally published for consultation on 5th May, while the results of the local elections were still being counted. Client Earth’s CEO James Thornton gave an immediate response, saying the plans were weak and incoherent, and that the UK would still be faced with illegal air quality for years to come under the proposals: “We fail to see how the non-charging clean air zones, proposed by the Government, will be effective if they don’t persuade motorists to stay out of those areas. The Government seems to be passing the buck to local authorities rather than taking responsibility for this public health emergency,” he said. He also noted that the Government had failed to make any commitments to a diesel scrappage scheme. [32]

A flawed consultation

The draft plans were accompanied by a public consultation which ran from 5th May to 15th June. But on 31st May Client Earth said that the consultation did not include measures which the government’s own technical data showed were the best way to bring down air pollution as soon as possible. In particular, the evidence showed that a network of clean air zones which charged the dirtiest diesel vehicles for entering the most polluted areas of the UK would be the most effective solution, but the draft plans did not set this out as a proposal. Client Earth’s lawyers had written to Defra seeking improvements to the draft, but Defra had refused to modify the consultation. James Thornton said the consultation was flawed and that Client Earth would be seeking a ruling from the High Court on this issue. “The government’s plans and consultation do not match what its own evidence says needs to happen,” he said. “If the evidence shows that taking certain measures will be necessary to tackle the public health crisis of polluted air, then the plans and associated consultation needs to make that clear.” [33]

July 2017: Back to the High Court

A hearing at the High Court was set for Wednesday 5th July. Mr Justice Garnham ruled that the draft plan in itself was not unlawful, but suggested that the final plan could well be open to legal challenge if it did not deal with some of the concerns presented by Client Earth. [34] The judge also stated that any alternative measures to meet air quality limits would have to be equally effective or more effective than a clean air zone that charged polluting vehicles for entering.

The final plan was published on 26th July.

A “highly localised” problem, says Government

We return now to this latest plan, the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations. In its press release, the Government’s use of statistics reduces the problem of air pollution to a relatively minor proportion of the country’s roads. It says that NO2 levels have decreased by 50% in the last 15 years, but 4% of Britain’s major roads (81 out of 1,800) are due to breach legal pollution limits for NO2, including 33 outside of London. Consequently, the Government’s press release describes NO2 pollution as a highly localised problem and places the burden on local authorities to sort this out: “Due to the highly localised nature of the problem, local knowledge will be crucial in solving pollution problems in these hotspots,” it says. [35]

Local authorities must take “robust action”

The Government says it will be providing towns and cities with £255m to implement local plans. Local authorities will be asked to produce initial plans within eight months and final plans by the end of 2018. Local councils “with the worst levels of air pollution at busy road junctions and hotspots must take robust action,” with the aim of delivering roadside NO2 compliance “in the fastest possible time.” In addition to the £255m implementation fund, the Government has also announced a new Clean Air Fund, the details of which will be announced later this year. The aim of the Clean Air Fund is “to support improvements which will reduce the need for restrictions on polluting vehicles.” Local authorities will be invited to bid for funds to carry out these improvements. The measures could include reducing congestion by changing road layouts or removing traffic lights and speed humps; upgrading bus fleets with new low emission buses or retrofitting older buses with cleaner engines; encouraging the uptake of ultra low emission vehicles; and introducing concessionary travel schemes and new park and ride services. A consultation is expected in the autumn to gather views on measures to support those affected by local plans, such as a targeted scrappage scheme for car and van drivers.

Charging polluting vehicles should be a last resort, says Government

The Government says local authorities should only consider restrictions on polluting vehicles if their action plans are insufficient to ensure legal compliance, and charging should only be considered as a last resort. In addition, “restrictions or charging on polluting vehicles should be time-limited and lifted as soon as air pollution is within legal limits and the risk of future breaches has passed.”

£2.7bn to improve air quality

The Government says it is committing £2.7bn in total to reducing vehicle emissions and improving air quality, including investments in the development and manufacture of ultra low emission vehicles, and a £100m Clean Bus Technology Fund grant scheme to fund new buses and retrofitting older buses, £40m of which was being made available immediately. A ring-fenced Air Quality Fund of £100m has been allocated to Highways England to help improve air quality on the national road network as part of the Government’s Road Investment Strategy. The fund will be available to 2021 and an article in the Independent reveals how Highways England may spend part of the money, following the publication of its air quality strategy. [36]

Highways England’s air quality strategy, published on 2nd August, says “emissions from diesel vehicles are a significant contributor to the poor air quality at the roadside” and contributes around 77% of the NO2 close to the motorway network. [37] The agency is investing in a three-year programme from 2015 to 2018 which will deliver around 50 continuous monitoring stations across the road network to provide real time air quality information. It is also exploring the possibility of using physical barriers to pollution by testing a a new polymer material with the potential to clean the air. If the tests are successful, it will consider using the material to build canopies which would cover stretches of its road network. The agency says it started trialling a physical air quality barrier in 2015 which covered a 100-metre stretch of the M62, “initially 4 metres high and raised to 6 metres in early 2016.” It then carried out a trial of a barrier incorporating an innovative polymer material with the potential to absorb NO2. The strategy document says: “We are using these trials to investigate if barriers can help contribute to improving air quality for our neighbours. The results from the monitoring of such trials will help us understand if this has been a success with the potential to implement barriers on our network. We are also investigating if we can reduce the costs to construct a canopy, which is a tunnel-like structure designed to prevent vehicle emissions reaching our neighbours, to make this a viable solution.”

The agency has also set a target of putting a charging point for ultra low emission vehicles every 20 miles on 95% of the road network. However, according to the Independent, the Automobile Association has expressed concern over the pressure a nation of electric cars would place on the National Grid, with a warning “it would have to cope with a mass switch-on after the evening rush hour,” whilst other estimates have suggested around 10 new power stations would need to be built to deal with the increased demand. [38]

The breakdown of the Government’s £2.7bn is detailed in its press release. [39]

Client Earth seeks urgent clarification on the Government’s plan

Reactions to the Government’s latest plans have been overwhelmingly critical. Client Earth’s CEO James Thornton issued a quick response, describing them as little more than a shabby rewrite of the previous draft plans, as mentioned above. “This plan is, yet again, a plan for more plans,” he said. “The Government is passing the buck to local authorities to come up with their own schemes as an alternative to clean air zones which charge the most polluting vehicles to enter our towns and cities. Yet Defra’s own evidence shows that charging clean air zones would be the swiftest way to tackle illegal levels of pollution.” [40] He highlighted the lengthy timetable for local authorities to develop their plans, the lack of attention to devolved regions, and described the 2040 diesel and petrol ban as a diversion because it failed to deal with the immediate problem of NO2 levels.

Last week, Client Earth wrote to Defra seeking urgent clarification on the plans. In particular, the letter asks for clarity on the guidance given to local authorities concerning how they will evaluate the best ways of bringing air pollution down as soon as possible, “as well as how ministers will ensure that air quality limits are met across England.” [41] Client Earth is also seeking clarity on how Defra will assess plans from the 23 local authorities and how quickly this will be done.

What about the devolved regions?

The law firm has also written to the devolved governments of Wales and Scotland, seeking clarification on their plans. Writing in theHolyrood Magazine, Liam Kirkaldy reports that there are currently 38 Pollution Zones in Scotland, which councils have said are at risk of dangerous levels of air pollution. [42] The number has risen from 35 in 2015. Client Earth has warned that “unless ministers take tougher action then Aberdeen and Edinburgh will not meet legal limits until 2020, and Glasgow will not comply until 2024.” The Scottish Government has published a proposal to trial a first Low Emission Zone in one Scottish city, and Client Earth questions how this will help reduce dangerous levels elsewhere. In a letter to the Scottish Government, the lawyers have asked for “further information on how limit values will be met in the shortest time possible in all parts of Scotland.”

Plan criticised by local authorities

The Government’s plan has been criticised by local authorities, politicians, environmental campaigners, and health experts. According to the Guardian, the leaders of Liverpool, Leeds, Birmingham, Southampton, Leicester and Oxford city councils have written to the Environment Secretary Michael Gove, calling for urgent legislation and a comprehensive scrappage scheme to encourage people to give up diesel vehicles. [43] The plan proposes a limited version of a scrappage scheme targeted at those who most need support, such as people on lower incomes or those living in the neighbourhood of a clean air zone. The letter says that the “updated clean air plan, while indicating long-term ambition, still lacks some specific actions that would enable us to meet the legal limits and establish safer air sooner rather than later.” The article by Rowena Mason and Damian Carrington says that Sheffield Council has called the report “woefully inadequate,” with Jack Scott, cabinet member for transport, reportedly saying he was “highly sceptical that the Government’s announcement even meets their legal duties on air quality.”

Ban on diesel is “highly symbolic”

BBC News reports that Liberal Democrat and former energy secretary Ed Davey described the lack of a scrappage scheme as a “shameful betrayal” of diesel car drivers and said it showed “the utter lack of ambition” in the plan, whilst London Mayor Sadiq Khan said people in London were suffering right now because of air pollution and can’t afford to wait. [44] Sue Hayman, the shadow environment secretary, told the Guardian that here had already been “seven years of illegal air pollution under this Conservative government, who have only acted after being dragged through the courts.” [45] Speaking to Ian Johnston, environment correspondent for the Independent, Gareth Redmond-King, head of climate and energy at WWF-UK, said the proposed ban on petrol and diesel vehicles from 2040 might sound good but will end up being meaningless as drivers will be switching to electric vehicles in any case. “The Government’s been failing to comply with this law for seven years,” he said, “and then is setting itself a target so far in the future that it will be delivered even if the Government did nothing.” [46] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, made a similar comment, describing the ban as “highly symbolic”: “Given the rate of improvement in battery and electric vehicle technology over the last 10 years, by 2040 small combustion engines in private cars could well have disappeared without any Government intervention,” he said.

Doctors demand a “more robust response to this public health emergency”

According to the Guardian, senior doctors specialising in child health have also expressed their disappointment at the failure to take more decisive action. [47] Professor Neena Modi, president of the Royal College of Paediatrics and Child Health, said there was indisputable evidence demonstrating the tragic effects that air pollution has on the development of the lungs and hearts of children. “Having been told to go back to the drawing board so many times, that the Government’s final air quality plan still lacks sufficiently strong measures to clean our air is frankly inexcusable,” she said. Professor Jonathan Grigg, from the London School of Medicine and Dentistry, also said more urgent action was needed: “The 2040 target means that several generations of children will suffer the long term consequences of inhaling sooty particles and oxides of nitrogen,” he said. “The Government needs to act now, with a faster and more robust response to this public health emergency.”

Other commentators have pointed to the lack of attention to other sources of air pollution. Roger Harrabin, BBC environment analyst, said the Government’s plan did not address pollution from construction, farming and gas boilers. [48] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, told the Independent: “There still remain many other urban sources of pollution not only from transport, but also heating, construction, domestic emissions, and external sources of pollution that drift into cities from outside, most notably from the agricultural sector. Some other urban sources of pollution are even on an upwards trend, most notably from wood burning stoves.” [49]

Plan criticised by transport unions

Unions representing the car manufacturing sector have expressed concern over the potential impact on employment when conventional vehicles are phased out. Speaking to the Guardian, Tony Burke, assistant general secretary of Unite, said: “The announcement has wide-ranging implications for the UK economy and future employment prospects of hundreds of thousands of skilled workers. We are calling for a national debate embracing employers, unions and ministers.” [50] And unions representing rail workers have also condemned the Government’s plan, pointing to the recent decision of the Transport Secretary Chris Grayling to abandon plans to electrify parts of the rail network. Speaking to the Independent, Mick Cash, general secretary of the RMT, said the proposed ban on petrol and diesel vehicles “exposes the rank hypocrisy of their decision to shelve long-planned rail electrification works. Puffed up news announcements about plans that are a generation away will not mask the reality of scrapped modernisation programmes on our railways in the here and now,” he said. [51]

Environment Secretary responds: “It’s up to local councils to do the hard work,” he says

The Environment Secretary Michael Gove responded to some of these criticisms on the Today programme on BBC Radio Four. [52] On charging motorists to enter clean air zones, he said the idea had been rejected and that it was up to local authorities to come up with imaginative solutions. “I don’t believe that it is necessary to bring in charging, but we will work with local authorities in order to determine what the best approach is,” he said. He described charging as “a blunt instrument,” saying he would prefer to use “a series of surgical interventions.” “That’s both fairer to drivers and also likely to be more effective, more quickly in the areas that count,” he said. On the idea of a scrappage scheme for old diesel vehicles, he said he had no ideological objection to the idea but insisted it was up to local councils to do the hard work and put them forward. “Everyone acknowledges that scrappage schemes in the past have been poor value for money,” he said. “Essentially they pay people for something they are already going to do.”

But speaking for Client Earth, air quality lawyer Anna Heslop said the plan would fail without a national network of clean air zones, which the Government’s own evidence showed would be the most effective option. “We will be holding the Government to account on this,” she said. “They have been in breach of these limits for seven years, and we will continue to do that.” [53]

European Commission: The Final Word?

Whilst the Government’s air quality plan shifts the burden of responsibility onto local authorities, its press release also places part of the blame for rising NO2 levels on the EU. It states: “The UK is one of 17 EU countries breaching annual targets for nitrogen dioxide, a problem which has been made worse by the failure of the European testing regime for vehicle emissions.” Given the fact that the Government was aware of the flawed data in its projections of NO2 emissions, as mentioned above, one can only describe this comment as somewhat hypocritical. It is also ironic given the fact that in February 2014 the European Commission began infringement proceedings against the UK for its failure to reduce NO2 levels. The EC issued a “letter of formal notice” to the UK Government, which is the first stage in a process that could culminate in the imposition of fines by the European Court of Justice. [54] And in February this year, the EC issued the UK with a final warning to comply with air quality laws that have been breached for the last seven years. [55] In a press release, the EC said NO2 emissions were over the legal limit in 16 air quality zones in the UK, including London, Birmingham, Leeds, and Glasgow. According to BBC News, Alexander Winterstein, speaking on behalf of the EC, was asked whether the UK would remain bound by any legal proceedings after leaving the EU. “For as long as the UK is a member of the European Union, rights and obligations apply,” he said. [56] As mentioned above, evidence submitted in court has suggested that the Government’s timetable on this issue is motivated by the prospect of EU fines, rather than the need to comply with a legal requirement in as short a time as possible, and the latest plan does little to suggest otherwise.

Acknowledgement

Photograph: Hope Street, Glasgow © Copyright Thomas Nugent and licensed for reuse under this Creative Commons Licence. The caption says: “According to Friends of the Earth, this is the most polluted street in Scotland for nitrogen dioxide, resulting from vehicle exhaust fumes.” In 2016. the nitrogen dioxide level at Hope Street, Glasgow, was an average of 65µg/m3. See ‘Scotland’s Most Polluted Streets Revealed – 5 New Pollution Zones Declared’, Friends of the Earth Scotland press release, 15/01/2017. Accessed from: https://foe.scot/press-release/scotland-s-most-polluted-streets-revealed-5-new-pollution-zones-declared/.

Notes

[1] ‘Plan for roadside NO2 concentrations published’, UK Government press release, 26/07/2017. Accessed from: https://www.gov.uk/government/news/plan-for-roadside-no2-concentrations-published.
[2] See Martin Goodman, ‘An Air That Kills’, in Client Earth: Building an ecological civilisation, Martin Goodman and James Thornton, London: Scribe Publications, 2017.
[3] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[4] Quoted by Ian Johnston in ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[5] ‘Air Quality Standards’, European Commission, last updated 22/09/2017. Accessed from: http://ec.europa.eu/environment/air/quality/standards.htm.
[6] Implementation of the Air Quality Directive. A study for the European Parliament’s Committee on Environment, Public Health and Food Safety. Nagl, C., Schneider, J., and Thielen, P. April 2016. Accessed as a PDF from: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578986/IPOL_STU(2016)578986_EN.pdf.
[7] Every breath we take: the lifelong impact of air pollution, Royal College of Physicians, February 2016. Available as a PDF from: https://www.rcplondon.ac.uk/projects/outputs/every-breath-we-take-lifelong-impact-air-pollution.
[8] Ibid: see [2].
[9] For a summary of the steps leading up to the UK Supreme Court ruling in 2015, see The UK Supreme Court ruling in the ClientEarth case: Consequences and next steps, Client Earth, September 2015. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2015-09-17-the-uk-supreme-court-ruling-in-the-clientearth-case-consequences-and-next-steps-ce-en.pdf.
[10] Ibid: see [2].
[11] Ibid: see [5].
[12] As reported by Martin Goodman: see [2].
[13] Ibid: see [12]. For the judgement, see ‘R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)’, Supreme Court Judgements, 29 April 2015. Accessed as a PDF from: https://www.supremecourt.uk/cases/docs/uksc-2012-0179-judgment.pdf.
[14] ‘UK Supreme Court orders Government to take “immediate action” on air pollution’, Client Earth press release, 29/04/2015. Accessed from: https://www.clientearth.org/uk-supreme-court-orders-government-take-immediate-action-air-pollution/.
[15] ‘UK Ministers facing new legal action over air pollution’, Client Earth press release, 14/09/2017. Accessed from: https://www.clientearth.org/uk-ministers-facing-new-legal-action-over-air-pollution/. See also the earlier statements: ‘Government Ministers ignoring ruling on air pollution’, Client Earth press release, 11/09/2015, at https://www.clientearth.org/government-ministers-ignoring-ruling-on-air-pollution, and ‘Government releases air pollution plans’, Client Earth press release, 12/09/2015, at https://www.clientearth.org/government-releases-air-pollution-plans/
[16] Ibid: see [2].
[17] Evidence of the Treasury’s involvement emerged at a hearing at the High Court in October 2016. See: ‘Government denied clean air zones to dangerously polluted UK cities’, Client Earth press release, 26/10/2016. Accessed from: https://www.clientearth.org/government-denied-clean-air-zones-dangerously-polluted-uk-cities/.
[18] ‘”Arrogant” UK Government response to air quality will face court challenge’, Client Earth press release, 17/12/2015. Accessed from: https://www.clientearth.org/arrogant-uk-government-response-to-air-quality-will-face-court-challenge/.
[19] ‘ClientEarth takes government back to court over killer air pollution’, Client Earth press release, 18/03/2016. Accessed from: https://www.clientearth.org/clientearth-takes-government-back-court-killer-air-pollution/.
[20] Air Quality, House of Commons Environment, Food and Rural Affairs Committee, 27 April 2016. Accessed as a PDF from https://publications.parliament.uk/pa/cm201516/cmselect/cmenvfru/479/479.pdf . For a summary, see Damian Carrington, ‘MPs: UK air pollution is a “public health emergency”‘, The Guardian, 27/04/2016, at https://www.theguardian.com/environment/2016/apr/27/uk-air-pollution-public-health-emergency-crisis-diesel-cars.
[21] Ibid [20], Paragraph 43. The EU’s decision to implement ‘real world’ tests was announced in a press release in February 2016. See: ‘Vehicle emissions in real driving conditions: Council gives green light to second package’, European Council press release, 12/02/2016. Accessed from: http://www.consilium.europa.eu/en/press/press-releases/2016/02/12-vehicle-emissions-in-real-driving-conditions-2nd-package/. The European Commission’s regulations on vehicle emissions are summarised in ‘Air pollution from the main sources – Air emissions from road vehicles’ at http://ec.europa.eu/environment/air/sources/road.htm. The EC says: “To deal with high on-road emissions from passenger vehicles, where a significant discrepancy with the laboratory testing has been confirmed in recent years, the Commission has developed the Real-Driving Emissions test procedure, which will apply from 1 September 2017.” On emission limits, the EC says: “Euro 5 and 6 Regulation 715/2007/EC sets the emission limits for cars for regulated pollutants, in particular nitrogen oxides (NOX, i.e. the combined emissions of NO and NO2 ) of 80mg/km.” Part of the problem of setting emission limits is the availability of accurate data on ‘real world’ driving conditions. However, an article in the Guardian which appeared shortly before the Efra report reported that “the most comprehensive set of data yet published” showed that “97% of all modern diesel cars emit more toxic nitrogen oxide pollution than the official limit when driven on the road.” See Damian Carrington, Gwyn Topham and Peter Walker, ‘Revealed: nearly all new diesel cars exceed official pollution limits’, The Guardian, 23/04/2016. Accessed from: https://www.theguardian.com/business/2016/apr/23/diesel-cars-pollution-limits-nox-emissions. The Guardian report says that the new data followed the publication earlier in the week by the Department for Transport of emissions results for 37 vehicles, “all of which emitted more NOX on the road than the official limit – but the new data covers more than 250 vehicles in more stringently standardised road conditions. The data was collected and published by testing specialists Emission Analytics and is available at http://equaindex.com/.
[22] Damian Carrington, ‘Sadiq Khan joins air pollution court case against UK government’, The Guardian, 26/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/26/sadiq-khan-joins-air-pollution-court-case-against-uk-government.
[23] Adam Vaughan and Esther Addley, ‘Boris Johnson “held back” negative findings of air pollution report’, The Guardian, 17/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/17/boris-johnson-held-back-negative-findings-of-air-pollution-report.
[24] Ibid: see [22].
[25] Paragraph 86 in ‘Approved Judgment of the High Court: ClientEarth (Claimant) v Secretary of State for the Environment Food and Rural Affairs (Defendant)’, Citation Number: [2016] EWHC 2740, Case Number: CO/1508/2016, 02/11/2016. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2016-11-02-high-court-judgment-on-clientearth-no-2-vs-ssefra-on-uk-air-pollution-plans-ext-en.pdf.
[26] Ibid [25], Paragraph 85.
[27] Ibid [25], Paragraph 66.
[28] Ibid [25], Paragraph 50.
[29] ‘ClientEarth wins air pollution case in High Court’, Client Earth press release, 02/11/2016. Accessed from: https://www.clientearth.org/major-victory-health-uk-high-court-government-inaction-air-pollution/.
[30] ‘High Court gives UK Government 8 months to draw up fresh air quality plan,’ Client Earth press release, 21/11/2016. Accessed from: https://www.clientearth.org/high-court-gives-uk-government-8-months-draw-fresh-air-quality-plan/.
[31] The procrastination episode is detailed in a string of press releases from Client Earth. See:
(a) ‘UK Government makes last-ditch bid to delay essential clean air plans’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/uk-government-makes-last-ditch-bid-delay-essential-clean-air-plans/.
(b) ‘High Court orders UK air pollution hearing’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/high-court-orders-air-pollution-hearing/.
(c) ‘High Court rules air pollution plans must be published before General Election’, Client Earth press release, 27/04/2017. Accessed from: https://www.clientearth.org/judge-refuses-uk-government-permission-delay-air-quality-plan-til-general-election/.
The UK Government chose not to appeal the High Court ruling. See: ‘Government will not appeal High Court ruling on air pollution plan deadline’, Client Earth press release, 02/05/2017. Accessed from: https://www.clientearth.org/government-will-not-appeal-high-court-ruling-air-pollution-plan-deadline/.
[32] ‘UK Government releases ‘weak’ air quality plans’, Client Earth press release, 05/05/2017. Accessed from: https://www.clientearth.org/uk-government-releases-weak-air-quality-plans/.
[33] ‘ClientEarth challenges UK government’s air pollution consultation’, Client Earth press release, 31/05/2017. Accessed from: https://www.clientearth.org/clientearth-challenges-uk-governments-air-pollution-consultation/.
[34] ‘High Court judgment on air pollution a “shot across the bows” of government’, Client Earth press release, 05/07/2017. Accessed from: https://www.clientearth.org/high-court-judgment-air-pollution-shot-across-bows-government/.
[35] Ibid: see [1].
[36] Grace Rahman, ‘Motorways could be covered with large tunnels to trap pollution’, The Independent, 03/08/2017. Accessed from: http://www.independent.co.uk/environment/pollution-motorway-tunnels-cover-roads-air-quality-highways-england-a7874221.html.
[37] Highways England Air Quality Strategy, 02/08/2017. Available as a PDF from: https://www.gov.uk/government/publications/highways-england-air-quality-strategy. The agency also says it has previously trialled paint that ‘eats’ oxides of nitrogen alongside the road network.
[38] Rob Merrick, ‘Petrol-diesel car ban: Government plan dismissed as “smokescreen” after key air pollution policies dumped’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/news/uk/politics/petrol-diesel-car-ban-government-air-pollution-2040-policies-michael-gove-environment-groups-deaths-a7860361.html.
[39] Ibid: see [1].
[40] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[41] ‘ClientEarth demands urgent clarification on UK government’s air quality plans’, Client Earth press release, 16/08/2017. Accessed from: https://www.clientearth.org/clientearth-demands-urgent-clarification-uk-governments-air-quality-plans/.
[42] Liam Kirkaldy, ‘ClientEarth calls for clarity on Scottish Government air pollution plans’, Holyrood Magazine, 03/08/2017. Accessed from: https://www.holyrood.com/articles/news/clientearth-calls-clarity-scottish-government-air-pollution-plans. In an earlier press release, Client Earth said the Government’s air quality plan “fails to ensure proper measures will clean up illegal pollution in Scotland, Wales and Northern Ireland” and that it would be raising the lack of detail about the devolved regions at the High Court hearing on 5th July 2017. See: ‘UK Government has a duty to protect all UK citizens from pollution’, Client Earth press release, 03/07/2017. Accessed from: https://www.clientearth.org/uk-government-duty-protect-all-citizens-air-pollution-environmental-lawyers/.
[43] Rowena Mason and Damian Carrington, ‘Government’s air quality plan branded inadequate by city leaders, The Guardian, 26/07/2017. Accessed from: https://www.theguardian.com/environment/2017/jul/26/governments-air-quality-plan-is-cynical-headline-grabbing-say-critics.
[44] ‘Diesel and petrol car ban: Clean air strategy “not enough”‘, BBC News, 26/07/2017. Accessed from: http://www.bbc.co.uk/news/uk-40731164.
[45] Ibid: see [43].
[46] Ian Johnston, ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[47] Ibid: see [43].
[48] Ibid: see [44].
[49] Ibid: see [46].
[50] Ibid: see [43].
[51] Ibid: see [46].
[52] For a summary, see [38].
[53] Ibid: see [38].
[54] ‘Environment: Commission takes action against UK for persistent air pollution problems’, European Commission press release, 20/02/2014. Accessed from: http://europa.eu/rapid/press-release_IP-14-154_en.htm. The Commission gave the UK two months to respond before raising the issue with the European Court of Justice, but Client Earth reported in September 2015 that the case was on hold pending the conclusion of the Client Earth case (see [9]).
[55] ‘Commission warns Germany, France, Spain, Italy and the United Kingdom of continued air pollution breaches’, European Commission press release, 15/02/2017. Accessed from: http://europa.eu/rapid/press-release_IP-17-238_en.htm.
[56] ‘Air pollution “final warning” from European Commission to UK’, BBC News, 1151/02/2017. Accessed from: http://www.bbc.co.uk/news/uk-politics-38980510.

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