Six years ago, if you were looking for news about air pollution, you were much more likely to find stories about Beijing than Birmingham, Bath or London. Fast forward to 2019 and it is difficult to miss headlines which regularly report on air quality in UK cities or detail new studies linking air pollution to a long list of serious health problems. Increasingly, the courts are being asked to deal with air quality as an issue in litigation across a number of fields, from judicial review to planning and inquests.

Poor air quality has been named the ‘single biggest environmental health risk’ by the World Health Organization and a ‘public health emergency’ by a cross-party committee of MPs. Recent headlines report links between air pollution and childhood asthma, cancer, dementia and early menopause. In the UK alone, air pollution is linked to 40,000 early deaths annually.

Air quality is primarily regulated by the EU through the Air Quality Directive. The UK is currently in breach of EU limits for Nitrogen Dioxide and subject to infraction proceedings brought by the Commission. In 2014, a small legal environmental charity called ClientEarth commenced judicial review proceedings challenging the government’s failure to comply with the EU Air Quality Directive. This was a significant turning point for the law on air quality and for the government’s handling of its failure to achieve legal nitrogen dioxide limits. Through three separate claims, ClientEarth has successfully and repeatedly held the government to account in the UK Supreme Court, the CJEU and the High Court.

The main contributor to nitrogen dioxide concentrations in the UK is road transport, in particular emissions from diesel vehicles. The problem has been exacerbated in part by government policy which previously incentivised the purchase of diesel cars due to their lower CO2 emissions. The scale of the problem was also underestimated due to the emissions testing scandal where car manufacturers were gaming emissions tests so that their cars produced lower emissions than in real-world driving conditions.

Court scrutiny of UK compliance

The EU Ambient Air Quality Directive 2008/50/EC (implemented through the Air Quality Standards Regulations 2010), imposes duties on the Secretary of State to achieve compliance with limits on pollutants in a certain timescale. The deadline for compliance for nitrogen dioxide was 2010.

As the government did not comply with the EU’s deadline, the Secretary of State was obliged by the Directive to produce an air quality plan which demonstrated how the UK would achieve compliance ‘in the shortest possible time’. The government’s plan has repeatedly been knocked back by the courts for being insufficiently robust. Legally, these cases are interesting because they show the courts carrying out an intense scrutiny of government policy, although still working within the confines of judicial review.

"Following the first inquest, new evidence came to light linking the unlawful levels of air pollution where Ella lived with the severity of the asthma attack"

As a result of the second ClientEarth challenge, the government produced a new air quality plan that targets 23 local authorities and requires each area to produce a plan that would achieve compliance by 2021. The likely way of achieving this is to introduce a charging clean air zone (similar to the London congestion charging zone (CAZ)), but councils are given some leeway to propose measures that would be as effective as a CAZ. Part of this plan was challenged again, and quashed again, in a third ClientEarth claim.

Although the national air quality plan is now in the implementation phases, this may not be the end of litigation in this area. We may see challenges to CAZs or other measures adopted by local authorities. One can see the potential for challenge from those who are in favour of more robust measures, or from road users and businesses who feel they are being unfairly targeted. In either case, a challenge will have to comply with ordinary judicial review principles, and so the scope of any claim may be quite limited.

How does air quality litigation affect individuals?

The current national air quality plan requires local authorities to develop ways to achieve compliance with limit values. This has resulted in proposals for charging CAZs in cities such as Birmingham, Leeds and Newcastle. Other cities, such as Edinburgh and Oxford have proposed banning certain types of vehicle in their city centres. London has implemented its own CAZ in the form of an ultra-low emission zone in central London. Not all of the proposed CAZs affect car drivers, but where they do, owners of older petrol and diesel vehicles will have to choose between paying to drive in city centres, or upgrading to a new cleaner vehicle. We are also likely to see more incentives to using zero-emission capable vehicles, such as mobility credits (paying people to give up their cars) and licensing requirements for taxi and minicabs to be zero-emission capable.

Air quality issues have also become increasingly common in town and country planning. Prior to the ClientEarth litigation, it was unlikely for someone objecting to development to raise air quality as an issue. Recently, air quality arguments have become increasingly popular in planning cases and a few challenges based on air quality grounds have made it to the High Court. This means that anyone objecting to major development in their area would be well advised to look at the air quality impact. A high profile example of this is the challenge to the Heathrow third runway, which is in part on air quality grounds.

Human rights may also play a role. In R (on the application of AB) v HM Assistant Coroner for Inner South London [2019] EWHC 1334, the High Court ordered a fresh inquest into the death of Ella Kissi-Debrah, a 9-year-old girl who died from a severe asthma attack. Following the first inquest, new evidence came to light linking the unlawful levels of air pollution where Ella lived with the severity of the asthma attack. The application to the High Court was disposed of by way of an agreed order, as all parties accepted that the new evidence required investigation. However, what is of interest in this case is whether the coroner will ultimately conclude that Article 2 ECHR is engaged and that the State is or may be responsible for Ella’s death, by failing to comply with the deadline for achieving nitrogen dioxide limits. If the fresh inquest (which is yet to commence) concludes that Article 2 has been breached, this could open the door for a damages claim. Given the vast number of health problems that air quality has been linked to, it is unlikely that this type of claim is a one-off.

What next for air quality?

Thanks to the efforts of ClientEarth and others, the UK will comply with air quality limits in the not too distant future. What then for air quality litigation? Given the rapid expansion of cases in this area the last two or three years, it is likely that the courts will still be grappling with air quality in years to come – particularly if it evolves into a human rights issue.

Rose Grogan practises environmental and planning law, public law, construction law and energy law at 39 Essex Chambers. She represented the Mayor of London in the second ClientEarth judicial review.

Unaware: Nearly 130,000 drivers have been fined in the three months since the Ultra Low Emission Zone’s introduction in London, more than a quarter of the 433,358 older vehicles that have driven through it, raising about £26 million in levies and penalty charges for TfL but damaging air quality, reported the Daily Mail (10.8.19).