Environment – Air pollution – Directive 2008/50/EC – Limits on nitrogen dioxide levels in outdoor air – Obligations of UK in relation to production of air quality plans under article 22 or 23 of directive – Claimant applying for declaration that Government’s air quality plan for reduction of nitrogen dioxide emissions failed to comply with EU and domestic law and order quashing air quality plan – Whether DEFRA erring in approach to requirements of article 23(1) that periods of exceedance be kept as short as possible – Whether DEFRA giving disproportionate weight to other considerations – Applications granted
In 2010, mandatory limits came into force, under article 13 of Directive 2008/50/EC (the Air Quality Directive), specifying the permissible levels of nitrogen dioxide in outdoor air throughout the “zones and agglomerations” of the United Kingdom. Those limits were based on scientific assessments of the risks to human health associated with exposure to nitrogen dioxide. The main sources of nitrogen dioxide in most urban areas of the UK were road traffic and domestic heating. Article 23 required air quality plans to be established for zones and agglomerations that exceeded the limits and targets so as to ensure that the exceedance period was kept “as short as possible”. Article 22 provided for time extensions to be sought, for a maximum of five years, if the limit values could not be achieved by the deadline in a given zone or agglomeration, on condition that an air quality plan was submitted under article 23, supplemented by the information listed in Section B of Annex XV in relation to the pollutants concerned and demonstrating how conformity would be achieved with the limit values before the new deadline.
The claimant, an environmental law organisation, applied for a declaration that the Government’s air quality plan for the reduction of nitrogen dioxide emissions failed to comply with EU and domestic law and an order quashing the plan. In R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28; [2015] PLSCS 132, the Supreme Court declared that the UK was in breach of article 13 and stated that there was a need for immediate action to address the issue. DEFRA, in purported compliance with that decision and the provisions of the directive, published its air quality plan. The projections of emissions were modelled at five-yearly intervals with a compliance date of 2020 for regional zones, 2025 for London.
The claimant contended that DEFRA had erred in its approach to the requirements of article 23(1) of the directive and had given disproportionate weight to considerations such as costs, political sensitivity and administrative difficulties. Further, the adoption of five-yearly intervals for emission projections was arbitrary, the compliance dates were too distant and the modelling method chosen, in particular reliance on the computer programme to calculate emissions from road transport (COPERT) emission factors, was mistaken.
Held: The applications were granted.
(1) Article 23 was an additional requirement that the defendant had to choose a route to the target which reduced exposure as quickly as possible. It gave member states some discretion to select the necessary measures for compliance but that discretion was narrow and greatly constrained. Member states had to ensure that plans were devised to meet the limits in the shortest possible time. The measures selected to be adopted had to be effective in achieving the objective. There could 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. However, no regard should be had to cost when fixing the target date for compliance, or determining the route by which compliance could be achieved where one route produced results more quickly than another. In those respects, it flowed inevitably from the requirement in article 23 to keep the exceedance period as short as possible, that the determining consideration had to be the efficacy of the measure in question and not the cost. The measures adopted had to be proportionate, in the sense of being no more than was required to meet the target. To do more might impact adversely on other entirely proper and reasonable interests. Accordingly, compliance had to be achieved by the soonest date possible by a route which reduced exposure as quickly as possible.
(2) The use of five-yearly emission forecasts was reasonable for routine air quality monitoring but there was no evidence to support the suggestion that five-yearly cycles were sufficient when a member state was faced with the urgent task of bringing its nitrogen dioxide readings within the limits imposed by the directive. The relevant government department (DEFRA) should have been identifying what measures quickly effected the necessary reductions in emissions, calculating when they could be introduced and then modelling the likely reduction achieved so as to assess what more needed to be done. That would have enabled it to assess whether compliance was possible earlier than 2020. That flaw in its approach tainted the whole exercise. The evidence indicated that clean air zones, as the primary means of reducing emissions, could be introduced before 2020. The problem of reducing nitrogen dioxide levels was urgent and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations. DEFRA had erred in fixing on a projected compliance date of 2020 for little more than administrative convenience and had deprived itself of the opportunity to discover what was necessary to effect compliance by some earlier date, and whether a faster route to lower emissions might be devised.
(3) It was apparent that DEFRA had recognised that they were adopting an optimistic forecast regarding the foundation for its modelling. By the time the plan was introduced, the assumptions underlying the assessment of the extent of likely future non-compliance had already been shown to be markedly optimistic. Reliance on the fact that the COPERT emission factors were widely used in Europe was misplaced. The plan did not identify measures which would ensure that the exceedance period would be kept as short as possible. Instead, 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 the directive and the Air Quality Standards Regulations 2010 which gave effect to it.
Nathalie Lieven QC, Ben Jaffey and Ravi Mehta (instructed by ClientEarth) appeared for the claimant; Stephen Tromans QC and Rose Grogan (instructed by Transport for London In-House Solicitors) appeared for the first interested party; Kassie Smith QC and Julianne Kerr Morrison (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of ClientEarth (No 2) v Secretary of State for the Environment, Food and Rural Affairs.
