Breathing in unlawful air

The government is failing in its legal duty to protect people from air pollution, the Supreme Court has held.

Environmental lawyers’ group, ClientEarth succeeded in its case that the UK government is in breach of the EU Air Quality Directive, Directive 2008/50/EC. It argued 16 cities and regions—including London, Manchester, Birmingham and Glasgow—will suffer illegal levels of nitrogen dioxide, a toxic gas, until 2020 or 2025. The main sources are road traffic and domestic heating. ClientEarth argued that the government should provide the European Commission with a reduction plan by 1 January 2015.

The Supreme Court has referred a number of legal questions to the Court of Justice of the European Union. These relate to the circumstances in which a member state can postpone, or be relieved of, its obligations, and what remedies a national court can provide in the event of non-compliance.

James Thornton, ClientEarth CEO, said the government faced “court action on two fronts”.

Delivering his judgment in R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25, Lord Carnwath declared that the government was in breach of Art 13 of the Directive.

Acknowledging that the government had already conceded the breach, Lord Carnwath said: “The fact that the breach has already been conceded is not, in the court’s view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief. Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of arguments about the effects of Arts 22 and 23, the way is open to immediate enforcement action at national or European level.”