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Environmental campaigners win an important victory for access to justice

High Court says changes to cost rules in environmental court cases must be amended

And UN report says UK is “further away” from compliance with Aarhus Convention

October 13th 2017

Environmental campaigners won important concessions at the High Court last month concerning changes to the rules that govern environmental court cases, such as a legal challenge to a public body’s environmental policy. As we discussed in a previous article, the UK Government announced the changes last November and the new rules were introduced in February – see the concluding section ‘Moving the Goalposts: Limiting access to justice’ in ‘Future of EU Nature Directives still uncertain following appointment of new Environment Secretary’. The previous rules, which had been in force since April 2013, set a cap on the costs that a claimant would be liable to pay if they lost a legal challenge in an environmental court case. The costs were set at £5,000 for individuals and £10,000 for charities and non-governmental organisations; the defendant’s costs were also capped at £35,000. [1] The changes to the rules retain these figures as a “default” cap on costs. However, the changes also give judges the ability to increase or decrease the cap on costs at any time during a case, making the costs of mounting a legal challenge uncertain. Claimants bringing environmental cases to court are also obliged to provide more information on their financial circumstances, which could be disclosed to the court. [2]

These changes were challenged by the law firm Leigh Day, acting on behalf of a partnership of three organisations: the RSPB, Friends of the Earth, and environmental lawyers Client Earth. At an initial hearing at the High Court on Wednesday 19th July, David Wolfe QC, representing the three organisations, argued that the new rules did not follow the spirit of the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases. Client Earth said: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [3]

The Aarhus Convention

The full title of what is commonly referred to as the Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It was formulated by the United Nations Economic Commission for Europe (UNECE) and adopted at a ministerial conference in June 1998, entering into force in October 2001. The objective of the Convention is stated in Article 1, which says: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party [to the Convention] shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” [4] The provisions of the Convention cover those three broad areas: access to environmental information; public participation in environmental decision-making; and access to environmental justice.

The right of access to environmental information

On the first (access to environmental information), Article 4 of the Convention gives people the right to receive environmental information held by public authorities. The definition of “environmental information” is itself broad (the definitions are set out in Article 2), and includes information not only on environmental policies or the state of the environment but also on things such as the state of cultural sites and built structures, “inasmuch as they are or may be affected by the state of the elements of the environment” or, through these elements, by factors such as legislation, programmes, or development projects. Public bodies are also obliged to collect and disseminate environmental information, as stipulated in Article 5 of the Convention. [5]

The right to participate in environmental decision-making

On the second (public participation in environmental decision-making), Articles 6, 7 and 8 of the Convention gives everyone the right to participate in environmental decision-making, which include the “preparation of legally binding instruments”. Public authorities must make arrangements to enable non-governmental organisations and the general public to comment on proposals for plans, programmes and projects relating to or affecting the environment, and must take these comments into account in their decision-making. They must also provide information on their final decisions and their reasons.

Access to justice in environmental matters

On the third (access to environmental justice), Article 9 of the Convention gives people the right to challenge decisions made by public bodies when those decisions have not respected the two previous rights or have contravened environmental law in general. Paragraph 1 covers the right of access to a review procedure when requests for information under Article 4 have been denied. Paragraph 2 covers a similar right for those “members of the public concerned” who have a sufficient interest, or alternatively who maintain an impairment of a right, to challenge the legality of a decision (where the “public concerned” is defined as people affected by or likely to be affected by an environmental decision, or people having an interest in such a decision, including non-governmental organisations that promote environmental protection). Paragraph 3 gives members of the public the right of access “to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

The reduction of “financial and other barriers to access to justice”

Paragraphs 4 and 5 of Article 9 are those aspects of the Convention that have featured prominently in the legal challenge. Paragraph 4 includes the statement that the procedures referred to in the previous paragraphs “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” [6] And Paragraph 5 says: “In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

Environmental campaigners said that the changes to the cost capping rules, introduced in February, bring uncertainty to the costs of making a legal challenge and will deter claimants pursuing a genuine case, which is contrary to Article 9 of the Aarhus Convention.

House of Lords Scrutiny Committee criticises the rule changes

The legislation that implemented the changes – the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) – was scrutinised by the Secondary Legislation Scrutiny Committee of the House of Lords, which published a report of its findings on 23rd February. [7] A consultation on the changes was held towards the end of 2015. [8] The Committee’s report considers the response to this consultation submitted jointly by the RSPB, Friends of the Earth and Client Earth, and also considers the paperwork accompanying the legislation which the Ministry of Justice provided to explain the changes. Two significant observations emerge. Firstly, the report describes the Government’s intention to discourage “unmeritorious claims which cause unreasonable costs and delays to development projects.” However, the joint submission notes a failure of the Ministry of Justice to provide any evidence that the number of “unmeritorious claims” is a problem. The report continues:

“It provides data which shows that the number of Aarhus cases in 2014–15 was 153 which is on a par with the established average. They also comment that between April 2013 and March 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed in contrast with 16% of ordinary judicial review cases. Over the same period 24% of the environmental cases were successful for the claimant in contrast with 2% for all cases in 2014. All of which indicates, according to the submission, that environmental cases represent good value for money in comparison with mainstream judicial review cases.”

The second observation concerns the Government’s stated intention of “introducing more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection.” However, the submission points out that the cap on costs affects only the claimant’s liability to pay the defendant’s costs, while the claimant’s own legal costs are not included. The report says that the Government’s stated intention “may escalate the claimant’s legal costs and act against the intention of the Aarhus Convention that the costs of environmental litigation should not be prohibitive.”

The report concludes that the Ministry of Justice “has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.” It continues:

“While asserting that the changes are to ‘discourage unmeritorious claims’, no figures are presented that illustrate the proportion of Aarhus claims that fall into that category. We are told that the financial impact on the public sector is minimal, so there does not appear to be a significant saving to the tax payer from these changes. Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to the consultation and the submission[s] received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts. The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation. We have also written to the Minister to express our concerns over the way that this policy change was presented.”

UN Report: UK has moved “further away” from compliance with the Aarhus Convention

The Government’s changes received another blow on the 28th July when the United Nations Economic Commission for Europe (UNECE) published a report concerning the UK’s compliance with its obligations under the Aarhus Convention, to be submitted to a meeting of the parties to the Convention in September (11th to 13th). The report summarises the findings of the Aarhus Convention Compliance Committee (ACCC), which notes a lack of progress on the part of the UK in meeting its obligations under Article 9 of the Convention. It makes a specific reference to the changes to the cost capping rules, saying that while the 2017 amendments introduced some positive improvements, overall they appear to have moved the UK “further away” from meeting the requirements of the Convention. [9]

The report requests the UK, as a matter of urgency, to take the necessary measures “to ensure that the allocation of costs in all court procedures subject to Article 9 is fair and equitable and not prohibitively expensive.” It also calls on the UK to “further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice” and “to establish a clear, transparent and consistent framework to implement Article 9, Paragraph 4, of the Convention.” Additional requests include a review of the time scale for bringing judicial review applications in Northern Ireland, and a request to “ensure that in future plans and programmes similar in nature to national renewable energy action plans are submitted to public participation as required by Article 7, in conjunction with the relevant paragraphs of Article 6 of the Convention.” The report also recommends that the UK “ensure that its Civil Procedure Rules regarding costs are applied by its courts so as to ensure compliance with the Convention.”

The Verdict of the High Court

On September 15th, the High Court delivered its verdict on the challenge to the new rules. Introducing the grounds for the challenge, Justice Dove prefaced his comments by describing the provisions of the Aarhus Convention and explaining that the Convention “is an unincorporated International Convention which has no direct effect in domestic law. Legal effect is however conferred upon the treaty to the extent that it has found expression in EU environmental legislation.” [10] Article 6 of the Convention (“public participation in environmental decision-making”) is contained within the EU Environmental Impact Assessment under the EU Directive 2011/92/EU, he said. He went on to explain that “provisions in relation to access to justice are contained both within the Environmental Impact Assessment Directive and the Industrial Emissions Directive in similar terms.” He then quoted Article 11 of the EU Environmental Impact Assessment Directive which essentially transposes extracts from Article 9 of the Aarhus Convention, including the statement on prohibitive costs (Paragraph 4), into EU law.

He then went on to explain that the new cost rules put in place a series of bespoke provisions “designed to give effect to the requirements of the Directives”. However, he continued, the EU Directives only cover those claims that are related to Article 9 Paragraph 1 or Article 9 Paragraph 2 of the Aarhus Convention. This means in fact that the extent of the costs protection under the new rules exceeds that which is required by EU law, because they include judicial review claims that fall within the scope of Article 9 Paragraph 3 of the Aarhus Convention. Justice Dove then described the grounds for the legal challenge, as follows:

“There are three Grounds raised by the claimants. The first Ground is that the provisions of the rules which enable a variation of the costs limits at any point in the litigation are in breach of the requirements of EU law as set out above. The second Ground is that it is unlawful for the 2017 Amendments to fail to provide for private hearings when a claimant or a third party supporter’s financial details may be discussed and examined at such a hearing. The third Ground is that the claimants seek a declaration that in the light of the CJEU jurisprudence [i.e. European Court of Justice case law] the claimant’s own costs of bringing the litigation should necessarily be included within the assessment of the financial resources of the claimant for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are ‘prohibitively expensive’.” [Para 25]

Justice Dove then considers each ground in turn, beginning with a lengthy analysis of ground one. Speaking for the defendants (i.e. the Secretary of State for Justice and the Lord Chancellor), James Maurici QC argued at the initial hearing that the test of whether or not the purpose of the Directives was to be achieved was not certainty but “reasonable predictability”. Justice Dove accepts that argument in his judgement, but says that an application to vary the costs should be made at an early stage of the proceedings, thus giving “reasonable predictability” of the costs to the claimant. Concluding that stage of the argument, he says he is satisfied that the provisions of the cost rules “in relation to varying the default costs caps is consistent with the applicable EU law when considered in the context of the surrounding procedural rules and practices.” [Para 41]

Moving on to ground two, Justice Dove considers the circumstances in which a claimant’s financial details may be discussed in the course of an environmental court case. He says that the defendant has shown a willingness to amend the new rules to allow for hearings to be heard in private when the claimant is a private individual. The defendant has also said that if the claimant is a charity or a non-governmental organisation, they would only need to disclose aggregate amounts of third party support, which would avoid the necessity of providing information in relation to the size of individual donations. However, Justice Dove says, “it does not directly address the question of the identity of the sources of third party support.” Concerns have been expressed by charities that disclosing the identities of their supporters may deter future support, the result being less funds available to support legal cases and potentially deterring future claims, which would be in breach of the requirements to ensure a wide access to justice. “It follows,” says Justice Dove, “that I am satisfied that the concerns raised by the claimant under Ground 2 are legitimate.” He recommends that if a dispute about costs were to proceed to a hearing, then the rules should provide for that hearing to be held in private in the first instance. This would apply equally whether the claimant were a private individual or a non-governmental organisation. He also recommends that the rules be more specific about the nature and the content of the financial information required. [Para 57]

Moving on to ground three, Justice Dove discusses the question of what is generally held to be “prohibitively expensive” with reference to case law and what has come to be known as the Edwards principles, resulting from a previous decision of the European Court of Justice alluded to above (“the CJEU jurisprudence”). The ‘Edwards principles’ set out the criteria for deciding when costs can be held to be “prohibitively expensive”. In this regard, Justice Dove accepts the argument that the claimant’s own costs should be included in assessments of the claimant’s financial resources for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are “prohibitively expensive”. [Para 59]

To summarise, Justice Dove accepted the principle that a cap on costs could be varied, but stipulated that this should happen at an early stage of the proceedings to give “reasonable predictability” of the costs to the claimant. On the second and third grounds, he accepted the arguments presented by David Wolfe QC, representing the RSPB, Friends of the Earth, and Client Earth. The changes to the rules will stay in place until the recommended amendments have been made.

“An important victory for access to justice”

The judgement was welcomed by environmental campaigners and by Leigh Day, the law firm representing the three organisations. Speaking for Leigh Day, solicitor Rowan Smith said: “This is a hugely important judgement for anyone who cares about the environment. We have achieved major concessions to the Government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims. Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.” [11]

In a joint statement, the three groups said: “Today’s verdict is an important victory in the battle for better access to justice in England and Wales. People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for. Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court, as any hearing about costs protection limits will now take place in private. The Ministry of Justice must change its rules to include this, so that they are lawful.” [12]

Martin Harper, the RSPB’s Director of Conservation, said the judgement was vital in the light of the UK’s proposed exit from the EU. “Without oversight from EU institutions and with uncertainty of what will replace the European Court of Justice, it is down to UK citizens and organisations to challenge decisions affecting the environment,” he said. “This means that the protection of our air, water, countryside and wildlife will rely upon the courts, so everyone must be able to access them. The government is claiming that judicial review and parliamentary process are sufficient to replace the oversight of the EU. If people and charities are hindered by uncertain court costs, our environment could be at real risk.” [13]

Martin Harper also said that colleagues had attended the meeting of the parties to the Aarhus Convention in September, mentioned above, where “the UK conceded that it must take urgent action to make environmental legal action less expensive and more accessible.” And there was further good news, he said, this time from the House of Lords, where peers debated a motion from Lord Marks QC of Henley-upon-Thames that expressed profound regret at the changes to the costs regime. Martin Harper said the quality of the debate was inspiring, “with persuasive and passionate speeches from numerous Peers including the former RSPB Chief Executive Baroness Young, Baroness Parminter and Lord Pannick QC. The overriding theme was the recognition of the vital role that groups like the RSPB play in defending nature and the environment. The outcome was a defeat for the Government as the vote was carried by 164 votes to 97.” [14]

December Update – High Court orders Government to pay all legal costs

Environmental campaigners have secured a further victory, following a High Court decision to order the Government to pay all of the legal costs incurred by the three organisations, up to a cap of £35,000. The High Court also approved the rule changes which the Government was forced to make as a result of the previous ruling. In the order, issued at the end of November, Justice Dove states:

“I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure. Whilst it is correct that in relation to Ground 1 the judgement did not lead directly to a quashing order it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements. The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the Civil Procedure Rules allowing for cost caps to be adjusted.” [15]

Speaking for Leigh Day, the law firm representing the RSPB, Friends of the Earth, and Client Earth, solicitor Rowan Smith said: “This order is significant in confirming the merit of the case we brought on behalf of the NGOs. The government had argued the claimants shouldn’t be entitled to their full legal costs. This order confirms the case was won beyond doubt by our clients, and also justifies the claimants’ push for the rule changes following the judgement. This case resulted in significant amendments to the Government’s costs rules, which will ensure better access to environmental justice and will go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.” [16]

The order was welcomed by the NGOs, who said it confirmed the justice of their case. Martin Harper, the RSPB’s Director of Conservation, said: “The judge awarded us our full costs in this case on the basis that such clarity is in everyone’s best interests and the interests of access to justice.” Client Earth’s lawyer Gillian Lobo said: “We brought this case because of the real uncertainty and chilling effect created by the government’s new costs rules for those who have to go to court to protect the environment. By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice.” [17]

And William Rundle, Friends of the Earth lawyer, said: “In the face of further government protestations the court has made it crystal clear that the claimants were right to bring this case, and so the government should pick up our full legal bill. Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.” [18]

Acknowledgement

Photograph: Coat of Arms on the Royal Courts of Justice, London EC4 © Copyright Christine Matthews and licensed for reuse under this Creative Commons Licence.

Notes

[1] The changes were implemented by a statutory instrument, SI 2017 No.95 (L.1), The Civil Procedure (Amendment) Rules 2017, laid before Parliament on 3rd February 2017, which included other changes to Civil Procedure Rules that were unrelated to environmental cases. The legislation is available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksi_20170095_en.pdf. The legislation was accompanied by a memorandum that summarises the changes. See: Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksiem_20170095_en_001.pdf. The memorandum summarises the procedural changes to environmental cases as follows:

“The new provisions, like those they replace, start with a cap on the liability of an unsuccessful claimant in such a case to pay the defendant’s costs of £5,000 or £10,000 (depending on whether the claimant is an individual or not), and cross-cap on an unsuccessful defendant’s liability to pay the claimant’s costs of £35,000; but they differ in the following main respects: a) extending beyond judicial reviews to include statutory reviews (in particular planning challenges); b) allowing the court to vary the cap and cross-cap either up or down, provided always that any change does not render the cost of proceedings prohibitively expensive for the claimant (and requiring the change if the cost would be prohibitively expensive for the claimant without it); c) requiring the court, when assessing whether proceedings would be prohibitively expensive if the change is or is not made, to take into account a list of factors which mirrors those set out by the CJEU [Court of Justice of the European Union] in the Edwards case; and d) making specific provision for appeals requiring the court to apply the same principles on appeal as at first instance (as required by the Commission v. United Kingdom case).” [Para 7.5]

The ‘Edwards case’ refers to case law, relating to the criteria for deciding when costs can be held to be “prohibitively expensive”. The memorandum also explains that the Government was obliged to change the rules because of judgements by the European Court of Justice and the UK Supreme Court that the existing rules were not compliant with EU law [Ibid: Para 7.4].

[2] The reasons for the legal challenge are explained by Carol Day, solicitor with the law firm Leigh Day, in an article on Martin Harper’s RSPB blog (Leigh Day represented the three organisations who brought the challenge). See ‘Why the RSPB is contesting government plans to curb environmental legal challenges’, RSPB, 01/03/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/03/01/government-curbs-environmental-challenges.aspx. See also this article by Client Earth: ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23/11/2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[3] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20/07/2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

[4] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, United Nations Economic Commission for Europe (UNECE), 25/06/1998. Commonly known as the Aarhus Convention, the full text is available as a PDF document via this link to the UNECE website: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

[5] In its introduction to the Aarhus Convention, the EU says (with regard to Articles 4 and 5): “Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession.” See ‘What is the Aarhus Convention?’ on the European Commission website at http://ec.europa.eu/environment/aarhus/. The Aarhus Convention is an international convention that has been incorporated indirectly into UK domestic law through EU environmental legislation. This includes: Directive 2003/4/EC, which covers public access to environmental information; and Directive 2003/35/EC, which covers public participation in environmental decision-making and also access to justice. Provisions for public participation in environmental decision-making are also included in a number of other environmental directives, such as Directive 2011/92/EU, the EU Environmental Impact Assessment. The European Commission has been a party to the Convention since May 2005, and the ‘Aarhus Regulation’ (EC No. 1367/2006) “addresses the ‘three pillars’ of the Aarhus Convention –access to information, public participation and access to justice in environmental matters –where those are of relevance to EU institutions.” The European Commission also adopted a Notice on Access to Justice in Environmental Matters in April 2017. The EC states: “The notice is a guidance document that clarifies how individuals and their associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts. The notice is based on decisions of the Court of Justice on how national courts should address questions of access to justice related to EU environmental legislation. The scope is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties. Nor does it concern the judicial review of acts of the EU institutions.” For the details of this and other relevant legislation, see ‘The EU & the Aarhus Convention: in the EU Member States, in the Community Institutions and Bodies’ on the European Commission website at http://ec.europa.eu/environment/aarhus/legislation.htm.

[6] Ibid: see [4]. The full wording of paragraph 4 is: “In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

[7] ‘Secondary Legislation Scrutiny – Instrument drawn to the special attention of the House: Civil Procedure (Amendment) Rules 2017 (SI 2017/95)’, in House of Lords – Twenty Fifth Report of Session 2016-17, HL Paper 114, 23/02/2017. Retrieved from: https://publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/114/11403.htm.

[8] In its Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, Para 8.2, the Ministry of Justice reports on the consultation as follows: “The consultation ‘Costs Protection in Environmental Claims: Proposals to revise the costs capping scheme for eligible environmental cases’ was published on 17 September and closed on 10 December 2015. The Ministry of Justice received 289 responses. Of these, 207 (around 70%) were from individuals. Half of these (103) used a template response prepared by Friends of the Earth and disagreed with the proposals in the consultation, as did the majority of responses received from other individuals. It appears that almost all the responses were received from potential claimants, or those acting on their behalf. The Government had to balance the interests of claimants and defendants (including the Government and its agencies) in the light of case law. A response to the consultation was published on 17 November 2016 (the consultation document and the Government response, together with an impact assessment, are at https://consult.justice.gov.uk/digital-communications/costs-protection-inenvironmental-claims/). In the light of responses received, the Government decided not to proceed with some of the proposals, but concluded that implementing others would ensure compliance with domestic and EU legal obligations.” [Ibid: see Note 1]

[9] ‘Draft decision VI/8k concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention’, United Nations Economic Commission for Europe (UNECE), 28/07/2017. Retrieved from: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Documents_aec/ECE.MP.PP.2017.30_aec.pdf. The ‘positive improvements’ presumably refer to the extension of the cost rules to include statutory reviews of planning decisions (i.e. as well as judicial reviews of decisions made by public authorities), and the specific provisions for appeals (see Note 1). However, the amendments have not addressed the issue of private nuisance claims. The UNECE report says that “by failing to ensure that private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned [i.e. the UK] fails to comply with Article 9 Paragraph 4 of the Convention.” The report goes on to recommend “that the Party concerned review its system for allocating costs in private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention and undertake practical and legislative measures&hellip to ensure that such procedures, where there is no fully adequate alternative procedure, are not prohibitively expensive.” Those recommendations have yet to be acknowledged, as Client Earth pointed out in ‘New UK rules make it harder to bring environmental court cases’ [Ibid: Note 2]. The expanded definition of an Aarhus claim, they say, “does not extend to the full range of claims that come under Article 9(3). This would include decisions to change land use in a national park, the location of solar energy developments, and private nuisance claims. This means the UK will continue to be in breach of access to justice international obligations.”

The issue of private nuisance claims in relation to the Aarhus Convention has been discussed by the barrister David Hart QC on the UK Human Rights Blog. The protections under the Convention are not limited to public law proceedings, he says. Article 9(3) applies to “acts and omissions by private persons and public authorities which contravene national law relating to the environment,” and Article 9(4) (on prohibitive costs) applies to all such procedures [Ibid: Note 4]. However, says David Hart, “despite those words in Art.9(3), the Government has tried to draw a distinction between public law cases and environmental cases raising private law issues such as in the private law of nuisance. For non-lawyers, a private nuisance is when you get stunk out of your home or driven to complain to the police about next door’s noise or when your neighbour funnels polluted water across your land or sends clouds of dust onto your garden or washing.” He then goes on to illustrate the issues that can arise from such cases by discussing some real-life scenarios, one problem being that private nuisance claims can be prohibitively expensive; therefore, only “the most wealthy people” can afford to initiate proceedings. See ‘Government still ignoring private nuisance claims’, David Hart QC, UK Human Rights Blog, 26/01/2017. Retrieved from: https://ukhumanrightsblog.com/2017/01/26/aarhus-convention-update-government-still-ignoring-private-nuisance-claims/.

[10] England and Wales High Court (Administrative Court) Decisions, EWHC 2309 (Admin), Case No: CO/1011/2017, Royal Courts of Justice, 15/09/2017. The Royal Society for the Protection of Birds, Friends of the Earth Ltd & Client Earth (Claimants) v Secretary of State for Justice & the Lord Chancellor (Defendants). For the full text of the judgement, see the BAILLI website at http://www.bailii.org/ew/cases/EWHC/Admin/2017/2309.html. The quote is from Paragraph 8.

[11] ‘NGOs win legal battle over access to environmental justice’, Leigh Day, 15/09/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/September-2017/NGOs-win-legal-battle-over-access-to-environmental.

[12] ‘Victory for UK environment as judge says cost rules must change’, Client Earth, 15/09/2017. Retrieved from: https://www.clientearth.org/victory-environment-judge-says-cost-rules-must-change/.

[13] ‘Good news from last Friday: an important victory in the battle for better access to environmental justice’, Martin Harper, RSPB, 21/09/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/09/21/good-news-from-last-friday-an-important-victory-in-the-battle-for-better-access-to-environmental-justice.aspx.

[14] According to Hansard, the vote was in fact carried by 142 votes for, 97 votes against (not 164 votes for, as suggested). See ‘House of Lords Hansard – Civil Procedure (Amendment) Rules 2017’, 13 September 2017, Volume 783. Motion to Regret. Moved by Lord Marks of Henley-on-Thames. Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17. Retrieved from Hansard at: https://hansard.parliament.uk/Lords/2017-09-13/debates/F39F0795-CF5D-47EB-9055-90108FFC5C48/CivilProcedure(Amendment)Rules2017.

[15] ‘High Court approves rule changes and orders government to pay legal costs in NGOs’ access to environmental justice case’, Leigh Day, 04/12/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/December-2017/High-Court-approves-rule-changes-and-orders-govern. The article provides a legal detail that the 15th September judgement fails to mention in relation to the grounds for the challenge: “The NGOs had challenged the compatibility of the new rules with Article 3(7) of the Public Participation Directive 2003/35/ED, because they failed to provide: (i) at the earliest stage possible, certainty for claimants as to their costs exposure; and (ii) mandatory private hearings into a claimant’s financial resources (including to protect the identity of donors).”

[16] Ibid: Note 15.
[17] Ibid: Note 15.
[18] Ibid: Note 15.

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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.