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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ClientEarth (No.2) v Secretary of State for the Environment, Food and Rural Affairs  EWHC 2740 (Admin) (02 November 2016)
Cite as:  Env LR 16,  EWHC 2740 (Admin),  WLR(D) 590,  PTSR 203
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ClientEarth (No.2)
- and -
Secretary of State for the Environment, Food and Rural Affairs
Kassie Smith QC and Julianne Kerr Morrison (instructed by Government Legal Department) for the Defendant
Hearing dates: 18th & 19th October 2016
Crown Copyright ©
Mr. Justice Garnham:
The Legislative Scheme
(2) In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account the relevant World Health Organisation standards, guidelines and programmes…
(3)[Previous Directives]…need to be substantially revised to incorporate the latest health and scientific developments and the experience of the Member States…
(30) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to promote the integration into the policies of the Union of a high level of environmental protection and the improvement of the quality of the environment in accordance with the principle of sustainable development as laid down in Article 37 of the Charter of Fundamental Rights of the European Union."
"ambient air" shall mean outdoor air in the troposphere, excluding workplaces…
"limit value" shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and /or the environment as a whole, to be attained within a given period and not to be exceeded once attained;
"air quality plans" shall mean plans that set out measures in order to attain the limit values or target values;
"margin of tolerance" shall mean the percentage of the limit value by which that value may be exceeded subject to the conditions laid down in this Directive;
"target value" shall mean a level fixed with the aim of avoiding preventing or reducing harmful effects on human health and/or the environment as a whole to be attained where possible over a given period;
"zone" shall mean part of the territory of a member state, as delimited by that member states for the purposes of air quality assessment and management;
"agglomeration" shall mean a zone that is a conurbation with a population concentration in excess of 250,00 inhabitants or, where the population concentration is 250,000 inhabitants or less, with a given population density per km2 to be established by the Member States .
"1. Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.
In respect of nitrogen dioxide and benzene the limit values, specified in Annex XI may not be exceeded from the date specified therein."
"1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline."
1. Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.
In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children.
"(1) Where the levels of sulphur dioxide, nitrogen dioxide, benzene, carbon monoxide, lead and PM10 in ambient air exceed any of the limit values in Schedule 2 or the level of PM2.5 exceeds the target value in Schedule 3, the Secretary of State must draw up and implement an air quality plan so as to achieve that limit value or target value.
(2) The air quality plan must include measures intended to ensure compliance with any relevant limit value within the shortest possible time…
(4) Air quality plans must include the information listed in Schedule 8…"
"1. Article 22(1) of Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe must be interpreted as meaning that, in order to be able to postpone by a maximum of five years the deadline specified by the Directive for achieving conformity with the limit values for nitrogen dioxide specified in annex XI thereto, a Member State is required to make an application for postponement and to establish an air quality plan when it is objectively apparent, having regard to existing data, and notwithstanding the implementation by that Member State of appropriate pollution abatement measures, that conformity with those values cannot be achieved in a given zone or agglomeration by the specified deadline. Directive 2008/50 does not contain any exception to the obligation flowing from article 22(1)."
2. Where it is apparent that conformity with the limit values for nitrogen dioxide established in annex XI to Directive 2008/50 cannot be achieved in a given zone or agglomeration of a member state by 1 January 2010, the date specified in that annex, and that Member State has not applied for postponement of that deadline under article 22(1) of Directive 2008/50 ,the fact that an air quality plan which complies with the second subparagraph of article 23(1) of the Directive has been drawn up, does not, in itself, permit the view to be taken that that Member State has nevertheless met its obligations under article 13 of the Directive.
3. Where a Member State has failed to comply with the requirements of the second subparagraph of article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by article 22 of the Directive, it is for the national court having jurisdiction, should a case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter."
"27. Before this court, both counsel have bravely attempted their own linguistic analysis of the reasoning [of the CJEU] to persuade us that the answer is clearer than it seems at first sight. I am unpersuaded by either. Understandably neither party wanted us to make a new reference, although that might be difficult to avoid if it were really necessary for us to reach a determination of the issues before us. If I were required to decide the issue for myself, I would see considerable force in the reasoning of the Commission, which treats article 22 as an optional derogation, but makes clear that failure to apply, far from strengthening the position of the state, rather reinforces its essential obligation to act urgently under article 23(1), in order to remedy a real and continuing danger to public health as soon as possible. For the reasons I have given I find it unnecessary to reach a concluded view.
28. The remaining issue, which follows from the answers to the third and fourth questions, is what if any orders the court should now make in order to compel compliance. In the High Court, Mitting J considered that compliance was a matter for the Commission:
"If a state would otherwise be in breach of its obligations under article 13 and wishes to postpone the time for compliance with that obligation, then the machinery provided by article 22(1) is available to it, but it is not obliged to use that machinery. It can, as the United Kingdom Government has done, simply admit its breach and leave it to the Commission to take whatever action the Commission thinks right by way of enforcement under article 258 of the Treaty on the Functioning of the European Union ." (para 12)
The Court of Appeal adopted the same view. That position is clearly untenable in the light of the CJEU's answer to the fourth question. That makes clear that, regardless of any action taken by the Commission, enforcement is the responsibility of the national courts.
29. Notwithstanding that clear statement, Miss Smith initially submitted that, in the absence of any allegation or finding that the 2011 plans were as such affected by error of law (apart from the interpretation of article 22 ), there is no basis for an order to quash them, nor in consequence for a mandatory order to replace them. I have no hesitation in rejecting this submission. The critical breach is of article 13, not of article 22 or 23, which are supplementary in nature. The CJEU judgment, supported by the Commission's observations, leaves no doubt as to the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility of the national court for securing compliance. As the CJEU commented at para 31:
"Member states must take all the measures necessary to secure compliance with that requirement [in article 13(1) ] and cannot consider that the power to postpone the deadline, which they are afforded by article 22(1) of Directive 2008/50 , allows them to defer, as they wish, implementation of those measures."
30. Furthermore, during the five years of breach the prospects of early compliance have become worse, not better. It is rightly accepted by the Secretary of State that new measures have to be considered and a new plan prepared. In those circumstances, we clearly have jurisdiction to make an order. Further, without doubting the good faith of the Secretary of State's intentions, we would in my view be failing in our duty if we simply accepted her assurances without any legal underpinning. It may be said that such additional relief was not spelled out in the original application for judicial review. But the delay and the consequent change of circumstances are not the fault of the claimant. That is at most a pleading point which cannot debar the claimant from seeking the appropriate remedy in the circumstances as they now are, nor relieve the court of its own responsibility in the public interest to provide it."
Production of the AQP
"could have much less impact than a mandatory one and on its own could not give the same degree of certainty of achieving compliance because there was no guarantee that the local authority with an exceedance would implement a voluntary LEZ".
"we have pushed Defra and DfT to provide the least cost pathway to compliance. This involves first defining the minimum set of actions required to meet compliance (and so the overall cost envelope), and then establishing how the costs are most effectively distributed across governments and wider society."
The Competing Arguments
"The second sub-paragraph of Article 23(1) requires a Member State, therefore, to foresee in its plans effective, proportionate and scientifically feasible measures to address the specific emissions problems in the relevant zone as swiftly as possible. In other words, a Member State does not have the full discretion to take into account and balance economic, social and political considerations in its choice of the measures to be foreseen (see mutatis mutandis para 15 and 46 of Janecek), as in so doing it would further prolong the period of non-compliance with Article 13 beyond that which is inevitable. Rather, it may do so only within the limits of the objective prescribed in the Directive, and its margin of discretion is heavily circumscribed."
Criticism of the plan
Five year intervals in 2020
"We had to model a fixed point in time (2020) for practical reasons, but if we get too attached aiming for that date, I think there are significant risks around how we are seen to interpret shortest possible time."
That email prompted the response:
"I would also push back… on the assumption that 2020 has to be the date. The challenge for the courts is for us (government) to set out what the earliest date is. I think we are wiser to do that based on what we think is achievable, having taken into account all the risks, than to argue our case… but that's just me!"
Choice of modelling method
"The main source of health damaging NO2 in urban areas is diesel vehicles…For the last decade, government policy has been to encourage the purchase, and hence use of, diesel cars as they were traditionally considered to release fewer greenhouse gas emissions…than petrol cars.
Transport emissions of air pollutants including NOx are regulated by standards established by EU legislation (so called 'Euro standards')…
To date there have been six Euro standards…which have become increasingly strict over time…For cars, the latest Euro 6 standard is being introduced in several phases…
To date, Euro standards have failed to have the hoped-for real world effect on reducing pollution from diesel vehicles. The failure of successive Euro standards to deliver expected emissions reductions has been well established for several years…"
"Whilst emerging data indicates that the real world performance of vehicles is growing closer to European test cycle results, there is still some disparity. The road transport emissions used to inform our analysis are based on the latest data on vehicle NOx emissions (COPERT 4v11). These COPERT emission factors do include an assessment of non-conformity to account for disparity, however, recent evidence from Portable Emissions Measurement System (PEMS) data based on a limited number of Euro 6 diesel passenger cars has indicated that the current COPERT data may underestimate emissions for some vehicles.
In order to assess how this disparity may affect our projections, an alternative scenario has been modelled, based assuming emissions to be higher than currently predicted."
"if emissions from Euro 6 vehicles were higher in reality than expected in modelling, it could result in up to 22 additional zones being in exceedance of the NO2 limit values in 2020. This demonstrates the significant impact that performance of emissions standards can have on efforts to reduce NO2 concentrations."
"As we are all acutely aware there are major uncertainties around modelling. We have agreed a central set of assumptions from modelling which results in the need for seven low emission zones. However the vast majority of the uncertainty lies on one side of this suggesting more action will be necessary."
"emerging findings from real-world testing by independent experts, Emission Analytics…suggest emissions for Euro 6 are significantly higher than previously thought. With a conformity factor of 4 early modelling estimates that 23 zones would be non-compliant in 2020."
i) that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely.
ii) that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London);
iii) that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and
iv) that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan.
Note 1 I will include reference to Ms Natasha Smith’s first name on each occasion I refer to her, in order to distinguish her from Ms Kassie Smith, counsel for the Defendant, to whom I shall refer as “Ms Smith” [Back] Note 2 When Nitrogen Oxide is emitted in air it rapidly transforms into Nitrogen Dioxide. “NOx” refers to both Nitrogen Dioxide and Nitrogen Oxide. [Back]
Note 1 I will include reference to Ms Natasha Smith’s first name on each occasion I refer to her, in order to distinguish her from Ms Kassie Smith, counsel for the Defendant, to whom I shall refer as “Ms Smith” [Back]
Note 2 When Nitrogen Oxide is emitted in air it rapidly transforms into Nitrogen Dioxide. “NOx” refers to both Nitrogen Dioxide and Nitrogen Oxide. [Back]