Client Earth pollution case goes to Europe after Supreme Court victory

Environmental lawyers’ organisation Client Earth has won its appeal to the Supreme Court over air pollution, with a five-strong panel referring questions over EU air quality regulation to the Court of Justice of the EU (CJEU).

Dinah Rose
Dinah Rose QC

Client Earth had taken its case to the Supreme Court after the Court of Appeal (CoA) declined its application for judicial review of the Government’s plans to improve air quality.

In a judgment handed down this morning, Lord Carnwath JSC upheld Client Earth’s appeal, declaring that the Government is in breach of article 13 of the EU Air Quality Directive. However further proceedings are stayed pending referral to the CJEU.

In March (7 March 2013) Blackstone Chambers’ Dinah Rose QC argued for Client Earth that under the EU’s Air Quality Directive, the Government should be forced to provide the European Commission with plans for reducing nitrogen dioxide levels by 1 January 2015 in 17 regions of the UK.

Draft air quality plans submitted to the commission by the Government in September 2011 indicate that compliance with the directive will only be achieved between 2015 and 2020 in 16 of 40 zones which currently exceed nitrogen dioxide limits, including Birmingham and Manchester, and before 2025 in London.

Although the Government had conceded that it was in breach of the directive, Carnwath JSC said: “The fact that the breach has been conceded is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief. Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effect of articles 22 and 23, the way is open to immediate enforcement action at national or European level.”

Carnwath JSC added that because the case raises “difficult issues” of European law guidance from the CJEU is required. Outstanding issues include whether an EU member state is required to seek a postponment of a deadline if it cannot meet that deadline, what the country’s obligations are, and the remedies which a national court should provide when a jurisdiction is non-compliant and has not sought a postponement.

Both Client Earth and the Government are now invited to submit any amendments to the proposed questions, and summaries of their submissions as to the answers, to the Supreme Court within four weeks.

Client Earth CEO James Thornton said the ruling would force the Government to come up with a plan to improve air quality.

“The Supreme Court recognised that this case has broader implications for EU environmental law: the Government can’t flout environmental law with impunity. If the Government breaks the law, citizens can demand justice and the courts must act,” he added.

Carnwath JSC gave the only judgment, but the case was also heard by Lords Hope, Mance, Clarke and Sumption.

For more on Client Earth see our 2011 feature and Hot 100 video interview with CEO James Thornton

For the appellant Client Earth

Blackstone Chambers’ Dinah Rose QC, Ben Jaffey and Emma Dixon, instructed by Client Earth

For the respondent, the Secretary of State for Environment, Food and Rural Affairs

Monckton Chambers’ Kassie Smith, instructed by the Treasury Solicitor