UK government needs "robust and effective" plans to tackle air pollution after EU commences proceedings, expert says

Out-Law News | 25 Feb 2014 | 5:25 pm | 3 min. read

The UK government will have to produce "robust and effective" plans to tackle excessive air pollution in a number of cities and regions following the start of legal proceedings by the European Commission for its failure to tackle the problem, an expert has said.

The UK has two months to respond to the Commission's 'letter of formal notice' before it will take further action, which could include a referral to the Court of Justice of the European Union (CJEU) and substantial fines.

Linda Fletcher of Pinsent Masons, the law firm behind Out-Law.com, said that the Commission's actions were "not surprising", given that the UK Supreme Court had already found the government in breach of its obligations under Article 13 of the EU's 2008 Air Quality Directive. Although the Commission is currently taking action against 17 EU member states in relation to air quality problems, this is its first challenge in relation to nitrogen dioxide (NO2) levels, she said.

"Last May, the Supreme Court issued a declaration that the UK government was not meeting its obligations under the Air Quality Directive regardless of it having obtained an extension from the Commission for 23 out of 40 air quality zones from 2010 to 1 January 2015," she said. "The problem with this was the fact that it was clear that a number of cities and regions would not be in compliance by 2015, with London not complying until 2025 under Defra's plans to reduce the levels of NO2."

"It is no surprise, therefore, to see that the Commission has now launched legal proceedings against the UK as the extension in time to 2015 for complying with pollutant levels required that a credible and workable plan was presented setting out measures to keep the exceedance period as short as possible and the UK has not done this," she said.

The Air Quality Directive prescribes limit and target values for the concentrations of air pollutants present in the ambient air. It sets values for pollutants including nitrogen dioxide and oxides, fine particles such as PM10 and PM2.5, benzene, carbon monoxide, lead and ozone. Member states were able to apply for a five-year extension to ensure compliance, but in order to qualify they had to be able to demonstrate that they had workable plans in place to bring air pollution down to acceptable levels by 1 January 2015.

ClientEarth, the non-governmental organisation behind last year's Supreme Court challenge, took the Department for the Environment, Food and Rural Affairs (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 the limits until 2020. Pollution levels in London would take until 2025 to bring within the limits. In its judgment, the Supreme Court said that the UK government was in breach of its obligations and asked the CJEU for guidance on how it should enforce compliance.

NO2 is the main air pollutant that leads to ground-level ozone, which in turn can cause major respiratory problems and damage to animals and plants. Those living in cities are particularly at risk as most NO2 emissions originate from traffic fumes.

Environmental and energy law expert Linda Fletcher said that although the UK government consulted on changes to the local air quality management regime in September 2013, its proposals received little support.

"Although it was recognised that local authorities had an important role to play in producing action plans and tackling 'hot spots', the responses at the same time indicated that there needed to be a more coherent approach," she said. "A new consultation on alternative plans is likely to be issued by Defra later this year."

"In the meantime, we are likely to see more low emissions zones being introduced across the UK and it would seem logical for air quality to be considered in developing national transport plans for the UK," she said.

In a statement, the Commission said that the existing air quality legislation gave member states a degree of flexibility in meeting safe air pollution target levels.

"Although the original deadline for meeting the limit values was 1 January 2010, extensions have been agreed with member states which had a credible and workable plan for meeting air quality standards within five years of the original deadline, i.e. by January 2015," it said. "The UK has not presented any such plan for the zones in question. The Commission is therefore of the opinion that the UK is in breach of its obligations under the Directive, and a letter of formal notice has been sent."