ClientEarth's judicial review challenge to UK government's air quality zone plans fails (Court of Appeal) | Practical Law

ClientEarth's judicial review challenge to UK government's air quality zone plans fails (Court of Appeal) | Practical Law

On 30 May 2012, the Court of Appeal dismissed ClientEarth's appeal against the Administrative Court's refusal to grant judicial review of the UK government's air quality plans. (Free access.)

ClientEarth's judicial review challenge to UK government's air quality zone plans fails (Court of Appeal)

by PLC Environment
Published on 10 Jul 2012 • England
On 30 May 2012, the Court of Appeal dismissed ClientEarth's appeal against the Administrative Court's refusal to grant judicial review of the UK government's air quality plans. (Free access.)
NOTE ADDED 21.1.2013: The Supreme Court granted permission to appeal against the decision of the Court of Appeal, on 19 December 2012 (UKSC 2012/0179). The hearing is due to take place on 7 March 2013.
Speedread

Speedread

On 30 May 2012, the Court of Appeal dismissed ClientEarth's appeal against the High Court's refusal to grant judicial review of the UK government in respect of the UK's:
  • Breaches of nitrogen dioxide limits under the Air Quality Directive 2008 (Directive 2008/50/EC on ambient air quality and cleaner air for Europe).
  • Failure to draw up appropriate air quality plans to remedy those breaches.
The Court of Appeal confirmed that the High Court had been right to find that Article 22 of the Air Quality Directive 2008 does not impose a mandatory requirement that a member state that is in breach of nitrogen dioxide limits at January 2010 must draw up an air quality plan setting out measures to achieve compliance within five years. Instead, this is at the discretion of the member state.
ClientEarth is reported to be urging the European Commission to take enforcement action against the UK for breach of the Air Quality Directive 2008. (R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs [2012] EWCA Civ 897.)

Background

Air quality legislation

The Air Quality Directive 2008 sets limit and target values for a number of pollutants, including nitrogen dioxide (Directive 2008/50/EC on ambient air quality and cleaner air for Europe).
Article 13 requires that limit values for nitrogen dioxide are met by 1 January 2010 (the deadline is set out in Annex XI).
Article 23 requires member states to draw up air quality plans setting out measures for meeting limit values or target values in areas where the ambient air does not comply with those values.
Article 22(1) provides that:
"Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a member state may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply."

UK breach of nitrogen dioxide limits

The UK is in breach of limits for nitrogen dioxide in a number of locations.
In June 2011, the Department for Environment, Food and Rural Affairs (Defra) consulted on an updated draft air quality plan that aims to meet the limit values for nitrogen dioxide in England and to form the basis of the UK notification to extend compliance time limits, up to January 2015 (see Legal update, Defra consults on air quality plans to meet nitrogen dioxide limits for England). However, compliance for some areas, including London, was not expected to be possible until 2025.
The UK submitted its air quality plans to the European Commission (Commission) in September 2011.

ClientEarth judicial review challenge

In December 2011, the High Court (Administrative Court) dismissed a judicial review challenge by ClientEarth (an environmental non-governmental organisation) against Defra for the government's alleged failure to comply with emission limits under the Air Quality Directive 2008 or to produce proper air quality plans. However, both parties claimed partial success (see Legal update, ClientEarth's judicial review challenge to UK governments air quality zone plans fails (High Court)).
In January 2012, ClientEarth lodged its grounds of appeal and application for permission to appeal in the Court of Appeal.
Permission for the appeal was granted in March 2012.

Defra response to JR challenge

In October 2011, in response to ClientEarth's legal challenge, Defra launched a consultation on the revised air quality plans (see Legal update, Defra consults on updated air quality plan for London).
In March 2012, Defra announced that it will use the Commission's review of the Air Quality Directive, expected in 2013, to seek amendments to reduce the risk that the UK breaches EU legislation on air quality, as well as simplification of the EU air quality framework (see Legal update, Government announces results of Red Tape Challenge to environmental regulations: Air quality and industrial emissions).

Court of Appeal decision

On 30 May 2012, the Court of Appeal rejected ClientEarth's appeal.
In R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs [2012] EWCA Civ 897, the Court of Appeal confirmed that the High Court had been right to find that Article 22 does not create a mandatory requirement that, if a member state is in breach of air quality limits of nitrogen dioxide at January 2010, it must draw up an air quality plan setting out measures to achieve compliance within five years.
Instead, this is at the member state's discretion.

Comment

ClientEarth is reported to be urging the Commission to take enforcement action against the UK for its breach of nitrogen dioxide limits (see Court of Appeal refuses to force Defra to improve pollution plans, BusinessGreen.com, 31 May 2012).

Sources