Special Report: Environment – Air pressure
1 September 2014 | By Kate Beioley
24 March 2014
15 October 2014
12 March 2014
6 November 2013
30 October 2013
A fight to take the UK to task for breaching air pollution limits has reached Europe’s highest court, but such action could be harder to achieve in future
Last month an air pollution case against the UK hailed as “perhaps the longest running infringement of EU law in history” reached the Court of Justice of the European Union (CJEU). Not-for-profit legal group ClientEarth has pursued the UK Government for its failure to meet EU air quality obligations since 2010, with the case referred up to Europe by the Supreme Court in May last year.
But adding to that tension are concerns over the Government’s plans to overhaul the judicial review process. With the upcoming case and the threat of a diminished ability to hold countries and organisations to account, life in environmental law is not all organic roses.
ClientEarth has pursued the UK for its failure to meet the EU’s 2008 air quality directive since 2010, led by lawyer Alan Andrews. Last month the case reached the CJEU after travelling through the High Court, Court of Appeal (CoA) and Supreme Court. In the UK’s highest court the organisation succeeded in securing a stinging indictment of the Government for failing to reduce dangerous air pollution.
Depending on the CJEU decision the UK could face £300m in fines and be forced to write a plan to tackle air quality. A judgment against the Government could set precedents affecting EU states’ ability to flout environmental laws.
Once the case comes back to the UK the Supreme Court is expected to give its judgment in early 2015. It could demand the UK comes up with a plan for air quality targets by a deadline and hand it a fine. However, even if the court does not find this way the Government faces legal action from the European Commission, which has launched its own case against the UK.
The UK has exceeded the EU nitrogen dioxide (NO2) pollution limit since 2010 and is one of 21 EU countries failing to get a grip on pollution. This year health warnings were issued when air pollution levels soared in parts of the country.
According to Joe Hennon, the Commission’s spokesman on pollution, around 30,000 people in the UK die prematurely every year from problems linked to air pollution.
In December 2011 ClientEarth took action against the Department for Environment, Food and Rural Affairs (Defra). The organisation said 17 regions and cities including London, Manchester, Birmingham, Glasgow and Cardiff would not meet the limits until after 2015.
The High Court ruled that the UK was in breach of the limit but did not set down a remedy. It ruled that enforcement of the directive was a matter for the Commission. ClientEarth responded by taking the case to the CoA, which also declined to give a remedy ruling despite acknowledging the breach.
On 1 May 2013 the court sided with ClientEarth, ruling that the Government should face immediate enforcement action at national or European level. However, it referred the case to the CJEU to determine what national sanctions should be taken against the UK and what plans the UK should be forced to put in place to meet the target.
At the beginning of this year more pressure was piled on the Government by the Commission, which brought the first-ever case against a member state for breaching NO2 limits.
The Commission said the UK’s failure to meet targets for 40 of the 43 zones it is divided into was not good enough. If, when the case returns to the Supreme Court, it does not award sanctions against the Government or set out a plan to meet the limits the Commission will escalate its case, sending it back to the CJEU. The Commission could recommend a fine running to hundreds of millions of euros.
Higher legal hurdles
This fight is just one of a host of environmental battles within the woolly boundaries of EU law being fought by ClientEarth.
The organisation was established in 2008 by US-born James Thornton and works around the world to effect change in environmental law and practice through a mixture of litigation, lobbying and campaigns.
This includes efforts to write sustainability into EU law and take governments and organisations to task for environmental failings. The group identified the UK’s attitude to air quality as one of those.
However, Government plans to overhaul judicial reviews could make it harder to bring the UK to book in the future.
The Criminal Justice and Courts Bill is before Parliament, aimed at tightening up the criteria for granting reviews. The bill proposes that courts refuse an application for judicial review if it appears likely that the “outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.
ClientEarth lawyer and former Allen & Overy associate Catherine Weller says: “In the future that could be difficult. If the obstacles are increased we could hypothesise that fewer cases will be brought. That would be a tragedy and could result in a lot of decisions that do not adequately take into account environmental decisions.”
But for the moment ClientEarth has its green fingers crossed for the result of its UK pollution case, which could set in motion a call to action for fellow member states.