Out-Law News 3 min. read

CJEU: UK courts should set out how Defra should tackle nitrogen dioxide pollution target failings

The UK courts could order the Department for Environment, Food and Rural Affairs (Defra) to impose tougher measures on businesses to improve air quality in UK towns and cities following a ruling by the EU's highest court.

In cases where the level of nitrogen dioxide in the air exceeds prescribed EU levels and EU countries do not apply to extend the deadline by which those target levels have to be achieved, national courts can "take … any necessary measure" to require authorities responsible for environment policies to take action to abide by those levels, the Court of Justice of the EU (CJEU) said.

The CJEU was ruling in a case referred to it from the UK Supreme Court over a dispute between Defra and an environmental body.

ClientEarth took Defra to court after its draft plans to reduce pollution conceded that 16 'air quality zones' including Manchester, Birmingham and Glasgow would not comply with limits on the amount of nitrogen dioxide in the air in those areas until 2020. It would take until 2025 for pollution levels in London to come within the limits.

Defra did not apply to the European Commission for more time to conform to EU rules that set out the pollution limits.

The EU's Air Quality Directive prescribes limit and target values for the concentrations of air pollutants present in the ambient air. The Directive sets values for pollutants including: nitrogen dioxide and oxides, fine particles such as PM10 and PM2.5, benzene, carbon monoxide, lead and ozone. The specific limits that are set are attributed to individual "zones and agglomerations" within EU countries and are determined with reference to population density in those areas.

Nitrogen dioxide limits set under the Directive had to be met by 1 January 2010, but the rules did allow EU countries to apply for a five-year extension to ensure compliance. To qualify for the extension, the countries had to demonstrate that they had workable plans in place to bring air pollution down to acceptable levels by 1 January 2015.

The High Court and Court of Appeal in London previously rejected ClientEarth's claims that Defra had acted in breach of EU by failing to meet the target limits on nitrogen dioxide air pollution across 17 areas of the UK and in not applying for the initial compliance deadline to be extended until 1 January 2015.

In his High Court judgment, Mr Justice Mitting said the issue of imposing a mandatory order on Defra to meet its air pollution targets under the Air Quality Directive was "not for this court". He said the issue raises "serious political and economic questions".

"It is clear … that any practical requirement on the United Kingdom to achieve limit values in its major agglomerations, in particular in London, would impose upon taxpayers and individuals a heavy burden of expenditure which would require difficult political choices to be made," the judge said. "It would be likely to have a significant economic impact. The courts have traditionally been wary of entering this area of political debate for good reason. I would, without hesitation, conclude that it is not just or expedient … to grant a mandatory order or injunction in respect of either matter."

However, after the Court of Appeal rejected ClientEarth's initial appeal, the environmental group's bid to have its case heard before the Supreme Court was granted.

In its provisional ruling in the case, the Supreme Court declared that the UK government was failing to meet its obligations under the Air Quality Directive. It asked the CJEU for clarification over whether the UK should have formally applied to the European Commission to postpone the 2015 deadline before publishing its plans, as well as to what extent the national courts can enforce EU law.

The CJEU has now confirmed that there are no exceptions to the rule that countries have to apply for an extension to postpone, up until 1 January 2015, their need to conform to the 2010 air pollution targets. It ruled that the fact an "air quality plan" in accordance with the Air Quality Directive has been established "does not, in itself, permit the view to be taken" that the EU country that has drawn up that plan has met its air pollution targets.

The CJEU confirmed that it is up to the UK courts to determine what action to take to ensure compliance with the Directive.

The European Commission launched legal proceedings against the UK government earlier this year over its alleged Air Quality Directive compliance failings.

“The CJEU has confirmed that an action plan must be drawn up and implemented so as to ensure compliance as quickly as possible, and it now remains to be seen what action the Supreme Court will take in relation to the failure on the part of the UK to do this," environmental expert Fiona Ross of Pinsent Masons, the law firm behind Out-Law.com, said. "The CJEU has confirmed that any necessary measures may be taken by national courts, which could potentially include a binding court order."

"The judgment indicates that the European Commission and the CJEU are increasingly prepared to take action in relation to failures to meet binding targets in EU environmental directives, raising questions over the potential wider implications of the decision," Ross said.

The Supreme Court is expected to decide what action to take in the Defra and ClientEarth case next year, the expert said.

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