Green lawyers win High Court battle over air quality

The government has failed to take the necessary steps to tackle illegal air pollution across the UK, the High Court has ruled. 

The case was brought by environmental lawyers ClientEarth, which defeated the government on the same issue at the Supreme Court in April 2015. Ministers were ordered to come up with a plan to bring down air pollution to within legal limits as soon as possible.

But ClientEarth was dissatisfied with those proposals, and took the government to the High Court in a judicial review.

Documents showed that the government’s plan to bring air pollution down to legal levels by 2020 for some cities and 2025 for London had been chosen because that was the date ministers thought they would face European commission fines, rather than the date considered “as soon as possible”.

Mr Justice Garnham said that the Air Quality Action Plan, devised when Liz Truss MP was environment secretary, failed to comply with the Supreme Court judgment and EU directives. The judge said the environment secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible”. He also found that ministers knew that over optimistic pollution modelling was being used based on flawed lab tests of diesel vehicles rather than actual emissions on the road.

The government said it would not appeal against the decision and agreed in court to discuss with ClientEarth a timetable for more realistic pollution modelling and the steps needed to reduce pollution to legal levels. 

In his ruling, Mr Justice Garnham questioned the Department for environment food and rural affairs’ five-year modeling. He described it as “inconsistent” with taking measures to improve pollution “as soon as possible.”

In the judgment handed down yesterday, he said the government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and said that the government had erred in law by fixing compliance dates based on over optimistic modelling of pollution levels.

ClientEarth chief executive James Thornton said: “I am pleased that the judge agrees with us that the government could and should be doing more to deal with air pollution and protecting people’s health. That’s why we went to court.

“The time for legal action is over. 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. Britain is watching and waiting, Prime Minister.”

During evidence, the court heard that Defra’s original plans for a more extensive network of Clean Air Zones in more than 12 UK cities was scaled back, on cost grounds, to five in addition to London.

ClientEarth air quality lawyer Alan Andrews added: “We look forward to working with Defra ministers on developing a new plan which makes a genuine attempt to achieve legal limits throughout the UK as soon as possible.

“We need a national network of clean air zones to be in place by 2018 in cities across the UK, not just in a handful of cities. The government also needs to stop these inaccurate Modelling forecasts. Future projections of compliance need to be based on what is really coming out of the exhausts of diesel cars when driving on the road, not just the results of discredited laboratory tests.”

Air pollution causes 50,000 early deaths and £27.5bn in costs every year, according to the government’s own estimates.

The mayor of London, Sadiq Khan, who took part in the case against the government, said the High Court ruling “lays the blame at the door of the government for its complacency in failing to tackle the problem quickly and credibly”. 

A spokeswoman for Defra said: “Improving air quality is a priority for this government and we are determined to cut harmful emissions. Our plans have always followed the best available evidence - we have always been clear that we are ready to update them if necessary. Whilst our huge investment in green transport initiatives and plans to introduce clean air zones [in six cities] around the country will help tackle this problem, we accept the court’s judgment. We will now carefully consider this ruling, and our next steps, in detail.”

After yesterday’s ruling, 27 MPs of all parties lined up to describe their constituents’ concerns and criticise the government for not doing more to clean up the country’s dirty air.

Mark Field, the Conservative MP for London and Westminster, described the situation as a “deplorable state of affairs”. He said: “My own constituents have had enough of the appalling need to state of air quality….We need to ensure the perverse incentives for diesel are stopped in their tracks.”

Ben Bradshaw, Labour MP for Exeter, said: “Given this is the second defeat that government have suffered in the courts surely there is a plan to announce some action in response to the defeat. Where is it? Where are the measures?”