Air quality and Brexit

By Scott Lo

There is something in the air. It might be the smell of fresh coffee, the perfume of a fresh Autumn mist, a sense of self-satisfaction (at having achieved a new weight record for a court bundle) or it could even be the sweet frisson of love. While the above are for you to chase (or possibly avoid), what I can guarantee is most definitely in the air, is an increased sense of mortality/morbidity due to a heady cocktail of Particulate Matter (PM10 & PM2.5), Nitrogen Dioxide, Ozone, Polycyclic Aromatic Hydrocarbons, Benzene, Lead, Ammonia, Carbon Monoxide and Sulphur Dioxide.

These airborne emissions lead to the inflammation of the lungs, an increase in respiratory and cardiovascular illnesses, a worsening of heart and lung diseases and the outright prevention of circulatory oxygen uptake. Vulnerable groups such as the elderly, infirm and children are more likely to be at risk of harm, so commiserations are in order if you live in an area of poor air quality.

There are a number of sources for these airborne pollutants, including the burning of fossil fuels at high temperatures, waste incineration, smelting, air conditioning and the evaporation of solvents and motor fuels. However, as relatively few people live next to incinerators or smelting plants, most individuals will likely feel the negative impact of poor air quality due to traffic emissions.

According to a survey conducted in 2010 in the UK, air pollution is estimated to cause around 29,000 deaths each year and reduces the life expectancy of UK residents by an average of 6 months. This comes at a cost of around £16 billion per year. A report from the “Institute of Occupational Medicine” estimates that the gains in life expectancy from eliminating man-made fine particles alone (based on 2005 levels) is larger than those possible from eliminating motor vehicle traffic accidents or second-hand cigarette smoke. The World Health Organisation placed the worldwide impact of poor air quality at 3.7 million premature deaths each year.

So what have we done? The Air Quality Directive 2008 came into force on 11 June 2008 (Directive 2008/50/EC). It sought to minimise the harmful effects of air pollution by setting standards for ambient air quality and legally binding limits for concentrations of major air pollutants. Member states are required to actively assess and manage the ambient air quality in different areas or zones within their territory. The sanctions for a member state to fail to comply with the Directive “must be effective, proportionate and dissuasive”. Perhaps fearful of the possibility of a Brexit-like backlash, no fine has yet been levied on any member state for non-compliance.

Speaking of non-compliance, a particular member state has had a particularly bad run over the last few years. The UK. In April 2015, following a key decision brought by ClientEarth (an activist legal organisation), the Supreme Court declared the UK to be in breach of EU regulations and ordered it to make new plans to clean up air pollution in the shortest time possible.

In brief, the UK’s new plans designated urban areas in 5 cities as Clean Air Zones in order to discourage the use of non-private heavily polluting vehicles, in those zones, through the use of charges. ClientEarth applied for judicial review of these new plans, on the basis that they would inadequately carried forward the ruling of the Supreme Court.

For Mr Justice Garnham, particular issue of note were the disclosures that:

1. A principal driving factor in selecting 2020 as a compliance date was not the obligation to remedy the problem as soon as possible, but to remedy it in time to avoid EU infraction proceedings

2. The modelling used by DEFRA was overoptimistic and based on outdated assumptions. The evidence confirmed that the calculated emission limit was based purely on laboratory testing and that real world tests demonstrated that diesel vehicles exceeded emission limits by a very large margin. If realistic assumptions on emissions were used, the number of zones which would not comply with air quality limits increased substantially from 5 to 30

3. The original plans for a more extensive network of Clean Air Zones had been watered down on cost grounds. It was found that the UK had an overriding duty to comply with the duty to take measures to improve pollution “as soon as possible” and did not have full discretion to take into account economic, social, administrative and political considerations in their choice of measures, as in doing so, would further prolong the period of non-compliance beyond that which is inevitable.

As a result, the air quality plan would only have achieved compliance, if very optimistic forecasts were right and the emerging data was wrong. It was held that to adopt a plan on such assumptions was a breach of both Directive and Regulations. So it was that on 2 November 2016, the High Court quashed the plans and sent the UK Government back to the drawing board.

This is the second time in two years that the UK government has lost a hearing due to its failure to clean up air pollution. The Prime Minister has told Parliament that the government does not intend to appeal this judgement. More significantly, the case itself signals that there is a willingness by the courts to hold the government to account over whether its policies go far enough.

The world (or at least anyone living near a very busy road) waits as the UK government goes back to the drawing board on its air quality plans. Following this judgement however, it may be sensible for other member states to look towards their own ability to comply with Air Quality Directive requirements.

This process of international scrutiny was only possible due to the implementation of the Air Quality Directive and the membership of the UK in the EU. With the inevitable exit of the UK from the EU and its correlating legislative framework, there will be fewer restrictions to prevent the government from repealing the regulations which enforce EU air quality standards upon the UK.

Without the framework of the EU to compel compliance, it is conceivable to envisage a UK government which might prioritise economic development and stability over limiting air quality emissions. The possibility does exist that compliance levels in the UK may begin to fall or stagnate, while air quality continues to improve across the rest of Europe. Alternatively, if the UK does retain membership in the European Economic Area (EEA) it would most likely continue to abide by EU air quality legislation, but will no longer be able to influence EU policy.

It is important to recognise that regarding air quality, Brexit is potentially a loss for citizens on both sides. As a member state, the UK has traditionally had a positive impact in influencing EU policy and has been a driving force towards the adoption of more stringent environmental regulation. The possibility arises that new policies developed by EU will be comparatively weaker without the influence of UK participation.

The fundamental issue is that certain environmental concerns such as air quality do not respect national boundaries. Ergo, one of the objectives of the Air Quality Directive 2008 was to strive for cleaner air across Europe through collaboration, it being recognised that compliance couldn’t be sufficiently achieved by member states alone.

As such, it is of only limited effect for member states to legislate solely on a national basis when international emissions cannot be meaningfully managed. Air pollutants respect no national boundaries and are capable of traversing long distances. Potentially, an elderly fleet of buses in France could hasten the death of an unfortunate in Belgium. Even a Donald Trump Wall could only be of limited effect against such an aerial assault.

I’d welcome any insight on the experiences that other individuals are having in other communities and member states. Is it better, worse or indifferent? The sleeping red giant of China is awaking to the impact of air quality; perhaps bolstered by reports that observed air pollution has been calculated to contribute to 1.6 million deaths a year (roughly 17% of all deaths in China).

How much longer will it be before we do the same? As with most environmental issues, the only likely solutions will be found through greater participation by the citizens of each member state and effective collaboration between international institutions.

Until then, I’d recommend that now is the time to smell the roses, pick up that court bundle and roll up your windows.