The importance of having access to justice to protect the environment and our health

Two recent decisions from national courts in air quality matters in the UK and Germany provide a bright example of why having access to justice is crucial.

Air pollution is causing significant health impacts on people across Europe, responsible for an estimated 400,000 early deaths a year. Air quality standards have been introduced up to 15 years ago, but the vast majority of member states across Europe have illegal and harmful levels of pollution.

In German and UK cities, the main problem are the concentrations of nitrogen dioxide (NO₂) – a gas that causes inflammation of the respiratory system and has been linked to reduced lung function growth in children – cardiovascular disease, heart attacks, strokes and lung cancer. In our towns and cities, NO₂ comes mainly from diesel vehicles. The solution is clear: restricting access of the most polluting diesel vehicles into our cities. However, authorities are dragging their feet rather than taking action, because of the costs or political unpopularity of effective measures.

ClientEarth has been fighting for clean air in Europe for many years now, which culminated last February in two successes that will likely represent a turning point for air quality in Europe.

On 21 February 2018, ClientEarth won its third case against the UK government in three years. In a ruling handed down at the High Court, Judge Mr. Justice Garnham declared the government’s failure to require action from 45 local authorities with illegal levels of air pollution in their area unlawful. He also ruled that the court should have effective oversight of the UK government’s next air pollution plans. It means, that for the first time ever, ClientEarth can immediately bring the UK government back to court if it prepares a plan which is unlawful, without having to apply for permission to bring judicial review. This ruling was described as “wholly exceptional” by the judge. ClientEarth will, therefore, be able to monitor the government’s actions even more effectively.

Germany's market-changing moment

One week later, on 27 February, Germany’s highest court dismissed appeals brought by regional authorities and ruled that German cities have the power and duty to introduce diesel restrictions to protect people’s health in areas where air pollution exceeds legal limits. The Federal Court upheld decisions by lower courts in Düsseldorf and Stuttgart, ordering the introduction of diesel bans as the most effective way to bring illegal NO₂ pollution down as quickly as possible.

In coming to the decision, the Federal Court bypassed national-level laws that prevented regional authorities to ban circulation of the most recent diesel vehicles in German cities. The diesel bans ordered in Düsseldorf and Stuttgart generated hot public debate on the future of diesel. In the run-up to the hearing, Chancellor Merkel had promised to do everything in her power to avoid diesel bans.

Both judgments show that, despite huge political pressure and opposition from governments, people can rely on judges to hold authorities accountable and ensure protection of their right to a healthy environment. In the words of Mr. Justice Garnham, “the history of this litigation demonstrates that good faith, hard work and sincere promises are not enough. The Court […] must keep the pressure on the government to ensure the compliance with the regulations and the Directive is actually achieved.” As the Court cannot realistically monitor the performance by the government of its undertakings and obligations, it is essential “to provide a quick, efficient and low cost means of enabling the current claimant, which has acted as a valuable monitor of the government's efforts to improve air quality to date, to bring the matter back before the Court if there is evidence that the objective in view is not being, or has not been, achieved.”