High Court backs ClientEarth on clean air policy

Debra accepts ruling and will devise new timetable for tackling pollution

Environmental campaigners won the latest round in a legal action against the UK government over levels of air pollution when a judge at the High Court ruled today (2 November) in favour of environmental lawyers ClientEarth.

The Department for Environment, Food and Rural Affairs (Defra) has accepted the court’s judgment. The government now has a week to draw up another plan before returning to court, where a High Court judge could impose a timetable if the new proposals are not deemed sufficient.

ClientEarth took the government to the Supreme Court in April 2015, which led to ministers being instructed to come up with new proposals to comply with EU laws on limits for nitrogen dioxide in the air. That judgment ordered ministers to come up with a plan to bring down air pollution to within legal limits as soon as possible. However, ClientEarth said the new Air Quality Plan did not go far enough and went back to the High Court for a judicial review.

Today Mr Justice Garnham said the 2015 Air Quality Plan (AQP), devised when Liz Truss MP was Environment Secretary, failed to comply with the Supreme Court judgment and EU directives. Mr Justice Garnham also said the government had erred in law by fixing compliance dates based on over-optimistic modelling of pollution levels. “It seems to me plain that by the time the plan was introduced the assumptions underlying the Secretary of State's assessment of the extent of likely future non-compliance had already been shown to be markedly optimistic,” said Mr Justice Garnham.

Mr Justice Garnham said the Secretary of State “fell into error” by fixing on a projected compliance date of 2020, and 2025 for London. He drew attention to the cost implications of delaying the introduction in Clean Air Zones to 2020. “The evidence demonstrates clearly that Clean Air Zones, the measure identified in the plan as the primary means of reducing nitrogen dioxide emissions, could be introduced more quickly than 2020,” said Mr Justice Garnham. “I have also seen a document setting out questions for Defra from HM Treasury dated 18 August 2015; one question asks why the money required 'needs to be spent over two years? The answer given is ‘spend does not have to be over two years, nine years is more realistic given that London does not need to be in compliance until 2025’.”

Following the ruling, ClientEarth chief executive James Thornton said: “This is an urgent public health crisis over which the Prime Minister must take personal control.  I challenge Theresa May to take immediate action now to deal with illegal levels of pollution and prevent tens of thousands of additional early deaths in the UK. The High Court has ruled that more urgent action must be taken." 

A spokesperson for Defra said its plans had always followed the best available evidence. “Whilst our huge investment in green transport initiatives and plans to introduce Clean Air Zones around the country will help tackle this problem, we accept the court's judgment," the spokesman told the BBC. "We will now carefully consider this ruling, and our next steps, in detail.”

The mayor of London, Sadiq Khan, said: “Today's High Court ruling brings sharply into focus the scale of the country's air pollution crisis and lays the blame at the door of the government for its complacency in failing to tackle the problem quickly and credibly. In so doing they have let down millions of people the length and breadth of the country."

The Freight Transport Association (FTA) says the government must come up with new incentives and approaches to improve air quality following today’s decision by the High Court. The FTA’s head of national and regional policy, Christopher Snelling said: “No-one questions the need for better air quality in order to improve people’s health but placing an unfair burden on the freight industry isn’t the answer. The current Defra plan already sets in place targets in cities across the UK that will cost industry millions and could force small businesses out of their markets. This is especially true for those relying on vans because there simply won’t be enough compliant vehicles to satisfy the need.” 

The FTA argues that current air quality proposals already push beyond what many businesses can cope with. If UK cities are to make faster progress on meeting air quality targets, wider approaches and more meaningful support from the government are needed. “If faster progress in commercial vehicle fleet renewal and a switch to alternative fuel is to be made, it will have to be on the basis of support from the government,” said Snelling. “But we can’t just consider commercial vehicles. The regulations Defra is looking at may have to take a broader approach to road transport, not shying away from issues such as the contribution of cars just because it is unpopular with voters. We know that, unlike cars, Euro VI HGVs are meeting their emissions limits. So as newer vehicles populate the fleet, the contribution from lorries will massively reduce anyway.”