Press release: 26 October 2022

Draft EU air law: risks being “more hype than bite” – ClientEarth

Environmental lawyers at ClientEarth have said that the European Commission’s proposal for the revision of the EU Ambient Air Quality Directive (AAQD) has the makings of a world-leading law on air quality – but that its lack of enforcement mechanism could undermine it completely.

The proposal was released just after Belgian citizens sued their government for failing to tighten air quality laws in light of the World Health Organization’s recommendations. German citizens had done the same just weeks before.

ClientEarth head of clean air Ugo Taddei said: “The new limits in the Commission’s proposal sets the right trajectory for protecting EU citizens against dangerous levels of harmful air pollution. But what’s currently on paper is a major missed opportunity to ensure we achieve world-class air quality across the bloc.

“Everyone has the right to breathe clean and healthy air, so it’s encouraging to see new rules on access to justice and the right for citizens to claim compensation from their governments if they fail to act. But the proposal also includes loopholes for EU countries to get away with blatant breaches of the rules. Air quality standards are an empty promise if there are no financial sanctions in place to hold governments accountable if they breach them.

“Proposed changes to the rules on air quality plans also allow EU countries to extend their deadlines to comply with the new standards – when governments’ failure to meet deadlines has been the core problem with the existing AAQD.

“Setting tighter legal air quality limits is paramount to ensure people across the bloc breathe healthy air. But stricter legal limits risk amounting to more hype than bite if there is no way to enforce them. We cannot afford to repeat the shortcomings of the previous Directive – EU citizens demand and deserve better.”

ENDS

Notes to editors:

The World Health Organization (WHO) guidelines are the most authoritative scientific reference to help policymakers across the world in setting standards and goals for air quality management.

The WHO recommends that the concentrations of fine particulate matter (PM_2.5) and nitrogen dioxide (NO₂) not exceed an annual mean concentration of 5 µg/m³ and10 µg/m³ respectively. EU legal limits for PM_2.5 are now 5 times higher than WHO recommendations, while the EU limits for NO₂ are 4 times higher than the WHO’s guidance.

On Monday, nine Belgian residents sued their government for failing to protect people’s health against harmful levels of air pollution. The legal action comes just weeks after seven citizens launched a similar case in Germany.

The European Commission’s proposal lays out a political ambition to achieve WHO alignment in the long term, but only defines legally binding and intermediate steps for 2030.

The proposal contains a new provision granting access to justice to individuals and NGOs concerned by breaches of the AAQD. Despite clear and consistent case law of the Court of Justice of the EU on the matter, there are still significant and systemic access to justice issues in several EU countries (including Poland, Bulgaria and Hungary), preventing people to seek protection when governments fail to tackle air pollution.

The existing rules in the current AAQD state that when exceedances of legal limits occur after the deadline, competent authorities must adopt air quality plans setting out “appropriate measures, so that the exceedance period can be kept as short as possible”. This requirement has allowed citizens, NGOs and the EU Commission to bring enforcement actions. The proposal suggests to amending the requirement and specify that those air quality plans must “keep the exceedance period as short as possible, and in any case no longer than 3 years from the end of the calendar year in which the first exceedance was reported.” However, the only consequence for missing this three-year deadline is the requirement to update the air quality plan. The proposal requires Member States to introduce penalties for breaches of the AAQD, but those penalties would be limited to polluters, carving out the need to sanction the competent authorities.

About ClientEarth

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.