On 4th March 2021, in a case brought before Brexit (C-664/18 Commission v United Kingdom), the Court of Justice of the European Union found that the UK had “systematically and persistently” since 1 January 2010 exceeded the annual limit value for Nitrogen Dioxide (NO2) in zones and urban areas including Greater London, West Midlands, Greater Manchester, West Yorkshire, Teesside, the Potteries, Kingston upon Hull, Southampton, Glasgow, Eastern, South East, East Midlands, North West & Merseyside, Yorkshire & Humberside, North East. The UK was also found to have failed the hourly limit value for NO2 in the Greater London urban area. Overall, the UK was in breach of the EU legal obligation, when in breach, to put itself back in compliance as quickly as possible. The UK was ordered to pay the costs of the European Commission in bringing the case.
The case was one of a lengthy series of similar and related cases in the national and European courts challenging the UK’s rate of progress in achieving compliance with fixed standards required for air quality in European legislation, in this case the Air Framework Directive.
The UK argued that it was not the only Member State to declare breaches of NO2 levels (true, but not a defence, any more than it is if you are stopped for speeding). The UK also sought to deflect blame by asserting that EU emission limit levels were not achieved in part because of the cheating involved in Dieselgate, when emission measurement standards were defeated by the manufacturers’ fitting devices which resulted in misleading results. Neither argument prevailed with the Court.
It was noted that the Commission had convened a summit on air quality in Brussels in 2018 with nine Member States facing infringement proceedings from excessive air pollution involving PM10 particulates or NO2, but that even after this the planned measures conveyed by the UK were not deemed adequate to meet the test of delivering compliance as quickly as possible. It was accepted that the UK had air quality plans for each of the zones in question, but given that breaches had been continuing since 2010, the plans were not sufficiently detailed or specific to be capable of delivering compliance as soon as possible.
In responding to the judgement, a UK government spokesperson was quoted as saying that …”We continue to work at pace to deliver our ambitious NO2 Plan and our 2019 Clean Air Strategy, which was praised by the WHO as ‘an example for the rest of the world to follow’, and that the UK government was delivering a £3.8 billion air quality plan “to tackle nitrogen dioxide exceedances in the shortest possible time”.
Effective enforcement of air quality standards depends on there being clear and unambiguous air quality standards in law, with the political will to deliver effective independent enforcement. Both are put in question by the UK government’s current approach to the Environment Bill. This will replace clear air quality standards with a set of targets selected by the Secretary of State, a refusal to date to accept WHO standards, and replacement of the independent enforcement by the European Commission with the heavily controlled and circumscribed oversight of the Office for Environmental Protection, appointed and financed by the Secretary of State.
In our blog on 18th February 2021, we reported on the efforts of Neil Parish MP, Chair of the House of Commons EFRA Committee, to secure improvements in the Environment Bill to address the UK’s longstanding issues with air quality, and to adopt WHO standards -
Meanwhile on 15th March 2021 the City of Bath launched its Clean Air Zone in response to earlier pressure from the UK government to apply further controls on NO2 air pollution, with some of the strictest controls outside London. It is likely to be closely studied in other urban areas –
https://beta.bathnes.gov.uk/aim-baths-clean-air-zone