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Press release: 4 March 2021
After years of warnings from the European Commission, the Court of Justice of the European Union (CJEU) ruled today that the UK has “systematically and persistently” exceeded legal limits for dangerous nitrogen dioxide (NO2) since 2010, and has failed against its legal duties to put plans in place to tackle the problem in the shortest possible time. This could see the UK facing fines if it still fails to take action to comply.
The news comes soon after a coroner confirmed that the UK’s illegal levels of air pollution contributed to the death of 9-year-old Ella Adoo-Kissi-Debrah. Today’s ruling relates to failures that have also been the subject of successful legal challenges that ClientEarth has brought against the UK government in the domestic courts since 2011.
Katie Nield, lawyer at environmental law charity ClientEarth, said: “It’s no secret that successive UK governments have been leaving us exposed to illegal and harmful levels of air pollution for over a decade now. This ruling comes from a European court, but Brexit or no Brexit, these pollution limits remain in national law. The UK government is still bound by these rules and our own domestic courts have repeatedly found that ministers have been flouting them ever since they came into force.
“The government has been dragging its feet for too long on the air pollution crisis, downplaying the problem and passing the buck to local authorities. To tackle harmful nitrogen dioxide pollution quickly, the evidence clearly shows that Clean Air Zones, which are designed to keep the most polluting vehicles out of the most polluted parts of town, are the most effective solution.
“It’s up to the UK Government to work with local leaders to make sure these schemes are put in place as quickly as possible, alongside help and support for people and businesses to move to cleaner forms of transport. Whilst authorities dither and delay on action to get the most polluting vehicles out of our towns and cities, people’s lives are being ruined by toxic air.”
Following today’s ruling, if the UK then still fails to comply within a reasonable period, the European Commission could issue a letter of formal notice requiring the UK to remedy the situation. If the UK fails to do so, the Commission could bring the matter before the CJEU a second time, seeking to have financial penalties imposed, although there remains some uncertainty whether it will have the power or the inclination to do this, now the UK is no longer part of the EU.
The infringement procedure against the UK started before the UK left the EU. The proposed Office for Environmental Protection will be the new domestic institution holding the UK government accountable if it breaches its environmental responsibilities. But this watchdog, proposed in the Environment Bill, is being weakened before it even becomes law.
Nield added: “The UK government has said that Brexit is an opportunity to take back control and to develop “the most ambitious environmental programme of any country on earth”. There is now a clear opportunity to not only establish stronger laws protecting people’s health and the environment, such as putting World Health Organization air quality guidelines into the Environment Bill – but also to create a strong oversight and enforcement body that will ensure those laws are complied with. However, there are big question marks as to whether the proposed Office for Environmental Protection will have the independence, authority and resources to secure genuine improvements in environmental and public health standards.”
Air pollution is recognised by the World Health Organization (WHO) as the biggest environmental health risk in the world. It also tops the list of environment health hazards in the UK and is estimated to cause the equivalent of up to 40,000 early deaths a year nationally.
According to the EU treaties, the Commission may take legal action – an infringement procedure – against an EU country that fails to implement EU law. In this case, the European Commission started infringement proceeding against the UK government in 2014, relating to exceedances of the NO2 limit value in 16 reporting zones in the UK. At the time, only 16 zones were projected to be non-compliant until after 2015, but these projections proved to be optimistic. There are currently 33 out of 43 reporting zones which chart levels of NO2 pollution above legal limits. A referral to the CJEU – the EU’s highest court – is one of the latter stages of the infringement procedure and only used by the Commission as a means of last resort, once other more conciliatory efforts to achieve compliance have been exhausted.
ClientEarth has previously brought and won three cases in front of the courts in the UK – on these three occasions, the courts have found the UK Government to be breaching the law on NO2 pollution and have ordered ministers to produce new compliant air quality plans to tackle the problem.
ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.