THE Government has been ordered by the UK’s highest court to take immediate action over its obligations under European law on air pollution limits.
Supreme Court justices announced their decision today in the latest round of a battle by environmental campaigners over levels of nitrogen dioxide in the air.
In a unanimous ruling, a panel of five judges, headed by the court’s president Lord Neuberger, ordered “that the Government must prepare and consult on new air quality plans for submission to the European Commission ... no later than December 31 2015”.
The justices were urged by ClientEarth at a hearing earlier this month to order the Government to produce a new plan urgently for reducing levels.
Ben Jaffey, representing ClientEarth in its case against the Environment Secretary, told them that only such enforcement action by the court would provide “an effective remedy” for the “ongoing breach” by the UK of European Union (EU) law on limits for the pollutant, which causes breathing and heart problems.
Announcing the decision, Lord Carnwath said: “The new government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.”
ClientEarth cited illegal levels of air pollution West Yorkshire, Sheffield and other British cities.
Levels of harmful nitrogen dioxide (NO2) in areas of West Yorkshire, including areas of Leeds, Bradford, Huddersfield and Wakefield, are not expected to be within legal limits until after 2030.
The pollution is estimated to cause 1,000 premature deaths a year in West Yorkshire.
In May 2013, the Supreme Court granted ClientEarth a declaration that the UK was in breach of its obligations under the Air Quality Directive over nitrogen dioxide levels.
The case then went to the Court of Justice of the European Union (CJEU) for determination of what were described as “difficult” issues of European law.
The CJEU ruled that national courts can force governments to comply with EU rules and empowered the UK courts to take any necessary measure, such as an order in the appropriate terms, to ensure that the national authority establishes the air quality plan required by the directive.
On April 16 the action returned to the Supreme Court for the justices to hear argument on issues arising out of the findings made last November by the court in Europe.
ClientEarth has said that under existing plans, some areas such as London, Birmingham and Leeds would not meet pollution limits until 2030, 20 years after the original deadline of 2010.
It says air pollution causes 29,000 early deaths a year in the UK, more than obesity and alcohol combined.
Mr Jaffey asked the judges to quash the existing air quality plan “which was prepared under a fundamental error as to the law”, and to direct the “prompt production of a new air quality plan within three months”.
There should be a legally-binding and “mandatory order requiring the urgent production of a new and lawful air quality plan”, he submitted.
He said the Secretary of State “admits in this case the UK has failed to comply with the nitrogen dioxide limits first laid down by EU law in 1999, now contained in Article 13 of the directive”.
Mr Jaffey told the court: “The UK had more than 10 years’ notice of the implementation of these limits. The UK has now been continuously in breach of those limits since January 2010.
“A maximum of five years time extension was available, expiring by January 1 2015 at the latest. This period has also now expired, but the UK never applied for an extension in many areas. The UK therefore remains in breach.”
Kassie Smith QC, for the Secretary of State, referring to the application for a mandatory order, urged the court to “exercise its discretion” and not make such an order.
Quashing or declaratory orders would be “sufficient” in the case, she said, particularly in the light of the indication that revised air quality plans were already being produced.
After the judges made their mandatory order, ClientEarth described the ruling as “historic”, saying it was “the culmination of a five-year legal battle fought by ClientEarth for the right of British people to breathe clean air”.
It said in a statement: “The ruling will save thousands of lives a year by forcing the Government to urgently clean up pollution from diesel vehicles, the main source of the illegal levels of nitrogen dioxide found in many of the UK’s towns and cities.”
ClientEarth said the Supreme Court ruling means “the Government must start work on a comprehensive plan to meet pollution limits as soon as possible. Among the measures that it must consider are low emission zones, congestion charging and other economic incentives”.
It is calling for action to clean up the “worst polluting diesel vehicles, including through a national network of low-emission zones”.
ClientEarth lawyer Alan Andrews said: “Air pollution kills tens of thousands of people in this country every year. We brought our case because we have a right to breathe clean air and today the Supreme Court has upheld that right.
“This ruling will benefit everyone’s health but particularly children, older people and those with existing health conditions like asthma and heart and lung disease.
“The next government, regardless of the political party or parties which take power, is now legally bound to take urgent action on this public health crisis.
“Before next week’s election, all political parties need to make a clear commitment to policies which will deliver clean air and protect our health.”