Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger and William Upton consider ClientEarth’s recent successful air quality case against the government and the publication of the Environment Agency’s corporate scorecard.

Air Quality: ClientEarth 4, HM Government 1

As the national press noted last week, ClientEarth has yet again succeeded in court in its case against the government about the Air Quality Plan for tackling roadside nitrogen dioxide concentrations. The judgment makes it clear that it is likely that the Court will make a mandatory order requiring the urgent production for England of a Supplement to the 2017 Plan containing measures sufficient to rectify the deficiencies identified. It will also direct that the 2017 Plan remains in force whilst the Supplement is produced – in order to avoid yet more delay in its implementation. The Court is also considering allowing the ClientEarth a continuing liberty to apply.

The deficiencies relate to 45 local authority areas. The expectation that they will achieve compliance with the statutory NO2 limit values by 2021 is not soon enough. There was some comfort for the Government, as the Court did not declare that the measures that relate to the five cities that will have to introduce Charging CAZs, and the 23 other authorities (plus London) that are likely to have to do so, are unlawful, even though compliance in those areas will not be achieved until after 2021. Even so, the failure by the Welsh Government to have any proper AQ Plan is unlawful, and further steps will be required there as well.

As Garnham J explained in his November 2016 judgment, and had to repeat again here, “the proper construction of [the EU Directive] imposes a three-fold obligation on the Secretary of State; he must aim to achieve compliance by the soonest date possible; he must choose a route to that objective which reduces exposure as quickly as possible; and that he must take steps which mean meeting the value limits is not just possible, but likely. It follows that the Secretary of State must ensure that there is in place a plan for each zone which meets the three-fold obligation”.

Garnham J also emphasised that the importance of this case is about the substance of the issue as well as about the prolonged failure by the government to comply properly with the law:

“5. Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that “poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions”. As I pointed out in the November 2016 judgment, DEFRA’s own analysis has suggested that exposure to nitrogen dioxide (NO2) has an effect on mortality “equivalent to 23,500 deaths” every year.”

This “UK plan for tackling roadside nitrogen dioxide concentrations” has not had a happy history since the first one was published in 2011. The document before the court this time was the third attempt by the UK to meet its obligations, and the fifth time the matter has been in court since the Supreme Court made a mandatory order requiring the Secretary of State to prepare a new air quality plan by 31 December 2015. ClientEarth are up 4:1 on these cases.

The Courts have themselves come a long way in their own attitude to the issue. The recent intervention by Garnham J can be contrasted with the situation in the first case, decided on 13 December 2011, when Mitting J decided that the government’s concession that it accepted that it would be in breach of its obligations was enough. Back then, he decided that it was inappropriate for the High Court to grant any declaratory relief, that it was not appropriate to grant any mandatory order requiring compliance and that it was for the European Commission to take any enforcement action (which, we can note, it now has).

This is of course the latest skirmish in a long war about air quality issues. The case only concerns the “UK plan for tackling roadside nitrogen dioxide concentrations” and its associated documents, and there are many other pollutants that are of significant concern – especially particulate matters. Whilst ClientEarth can only fight on so many fronts at any one time, their litigation is a healthy reminder of the need for action across the board to meet the UK’s air quality obligations. The implications of this case will continue to play out across a wider field.

Environment Agency publishes corporate scorecard

On 21 February 2018 the Environment Agency published its corporate scorecard for the second quarter of 2017/2018. It has been a mixed bag of results this quarter.

In particular, the EA missed its target to reduce the number of high-risk illegal waste sites. Whilst illegal and problem waste sites are treated as a high priority, operational resource remains under pressure to work through a backlog of historic reports of illegal activity and support major investigations to close down well organised criminal operations. A total of 280 illegal waste sites are recorded in the scorecard, outside of the target of 238 set by the EA and 6 more than the previous quarter. Part of the actions that the EA has adopted include the development of an enforcement strategy for waste to help embed alternative approaches to reducing levels of waste crime but it is not forecast to improve its ‘red’ score by the end of the year.

In contrast the scorecard records that the EA continues to secure improvements to the water environment, continues to reduce serious pollution incident from a high of 696 in Q4 2013/2014 to 394 in Q2 2017/2018 and continues to reduce its own carbon footprint.

In total there are 12 corporate measures for the EA. These are:

• the water environment is healthier
• the EA protect people, the environment and wildlife by reducing serious pollution incidents
• the EA create new habitats
• the EA reduce the number of high risk illegal waste sites
• the EA reduce the risk of flooding for more households
• the EA maintain our flood and coastal risk management assets at or above the target condition
• the EA have a first class incident response capability
• the EA manage our money efficiently to deliver our outcomes
• the EA respond to planning applications within 21 days
• the EA reduce our carbon footprint
• the EA have a diverse workforce
• the EA provide a safe place to work

The corporate scorecard can be found here

Have you seen our NEW Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law. January’s edition can be viewed here. Future editions will be available at the end of each month on our website.

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