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UK Air Quality – Is enough being done?

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The quality of the air that we breathe has a dramatic impact on health and it has been highlighted in recent weeks that the UK and other European nations have not been able to maintain a suitable level of clean air for their inhabitants. The Prime Minister largely dismissed the problems encountered by many across the UK in recent weeks as merely an extraordinary natural event where Saharan dust travelled on the wind North from central Africa into Europe. However, this phenomenon merely emphasised the fact that the UK has one of the poorest air qualities in Europe and is currently on course to fail to meet the EU-set targets for 2015. The London Air Quality Network website has an interactive map showing the extent to which limits are being exceeded in London that clearly demonstrates the challenge faced. Not adequately addressing air quality means that not only are the UK population suffering from more frequent respiratory-related illnesses, the government is also exposed to the likelihood of fines being imposed by the European Commission who spoke out against the Prime Minister’s remarks.

The Health Impacts of Poor Air Quality

A study conducted in 2010 by the Environmental Audit Committee found that in London approximately 41,404 ‘life years’ were lost to Londoners and 3,300 deaths linked to air pollution. In the South East more generally, the same number of life years and 4000 people died from related illnesses.

Air quality can be affected by a wide range of pollutants that can be emitted into the air from several sources ranging from large industrial installations to an individual member of the public. Regulation of air quality covers many of these pollutants, including some of the most hazardous pollutants such as sulphur dioxide, nitrous oxides, lead and carbon particulates (known as PM-10 and PM-2.5). In the last decade there has been more research into the health effects of air pollution, especially carbon particulate matter which can increase the likelihood of respiratory illness and cancer. Most of the pollution in the UK comes from industrial processes and increased awareness about the hazardous nature of some substances has led to a search for alternative processes and raw materials, and investment in carbon capture technologies. The government’s current drive towards a growth in manufacturing within the UK will have to address how to best balance economic growth with public health and whether to incentivise investment in green technologies. However, government investment in research and development of green technologies has decreased since the Coalition government came to power in 2010. The Europe 2020 Sustainable Development Strategy expects 3% of GDP to be spent by Member States on research and development by 2020, with UK expenditure falling to 1.72% in 2012 from 1.77% in the previous year.  

Not only do these pollutants affect human health, they also have negative impacts on the wider environment. Some of the most well known effects are acid rain, and eutrophication of soil which can have disastrous effects for wildlife and habitats. Greenhouse gases such as carbon dioxide are also contributing to global warming and climate change across the globe. Although the UK produces a relatively low level of emissions when compared to major industrial nations such as China and India, the UK should be taking an active lead in the promotion of green technology. The government should seize the initiative on developing better green technologies to give it a competitive advantage moving into the later parts of the 21st century when there will be an inevitable shift from fossil fuels as worldwide availability decreases.

Current regulation of Air Quality in the EU

Air quality regulation has been driven largely from the EU level because of the trans-boundary nature of the problem. The improvement of air quality requires the cooperation of all Member States as well as a collaborative approach to information gathering and sharing of technologies. The EU has been very pro-active in their pursuance of environmental protection across all elements of the environment from nature conservation to waste management. The specific regulation of air quality should be viewed in the context of this proactive approach, especially the ambitious ’20:20:20’ targets of: a 20% reduction of greenhouse gas emissions from 1990 levels, raising the share of EU renewables to 20% of reduction and a 20% improvement in energy efficiency. These targets are driven from the international level by the climate change treaties such as Kyoto, with the next conference due to be held in Paris next year.

Specifically in relation to air pollution, the Air Quality Framework Directive (2008/50/EC) is the comprehensive piece of EU legislation that is designed to set procedures and general targets to be achieved by Member States. Its overall aim is to reduce emissions and improve air quality across Europe through its three core elements.

Firstly, Article 4 provides that each Member State is under an obligation to set up and monitor the level of air quality in ‘zones or agglomerations’. In the UK there are 43 such zones, with London proving to be the most problematic. Article 6(3) requires physical measurements where the pollutants are above the accepted standard and allows objective estimation and modelling for other areas.

Secondly, the Directive imposes mandatory environmental quality standards (EQSs) and targets on Member States. The EQSs are substance-specific and differ in their stringency depending on the hazardous nature of the substance. For example, sulphur dioxide, a toxic by-product of industrial processes is more tightly controlled than the emission of CO2.  The Directive allows for derogation from the standards only in relation to the less dangerous substances and even then in limited circumstances. The current targets were set for 2010, with a specific provision allowing for a 5-year extension if a credible air quality plan is in place and the excesses currently experienced are not beyond the ‘margin of tolerance’. The UK government has been granted an extension on the NOx limit values until 2015 but the Commission have rejected attempts to extend this time period beyond 2015. If the pollution levels are outside the margin of tolerance, then the Directive requires short-term plans to mitigate the pollution levels much quicker. These short-term plans can be very drastic as highlighted by the recent action taken by the French government of having to prevent all traffic travelling into the centre of Paris.

Thirdly, Member States are put under an obligation of publicity and communication of air quality information. They have a duty to alert the public if pollution goes above accepted levels, as they did recently in relation to the Saharan dust problem.

Implementation and UK Performance

The Directive itself is clearly very onerous and requires Member States to carry out extensive monitoring activities as well as taking all steps reasonably practicable to reduce emissions to the target levels. However, the obligations placed on Member States should be taken far more seriously than they currently are; if the UK fails to reach its targets by the 2015 cut-off it will be liable to infringement proceedings by the European Commission. These proceedings, brought under Art 263 TFEU, can entail the imposition of a fine and a rolling penalty until compliance is achieved. These fines can be extreme as emphasised by the case of Commission v France. This concerned France’s failure to properly implement the Common Fisheries Policy, the ECJ found in favour of the Commission and imposed a lump sum penalty of £20million and a penalty payment of £57million for every 6 months that the defect in transposition of the relevant Directive was not remedied.

The Commission report that approximately one-sixth of environmental infringement cases that are brought under the Article 263 procedure related to air quality, most frequently the breach of PM-10 limit values. Beyond infringement proceedings, the case of Janecek made clear that specific provisions of the AQFD have direct effect and are thus enforceable by private individuals. In this regard, ClientEarth brought a claim against the UK government for their failure to adequately address NOx emissions which was upheld by the High Court.

As of 2010, only four of the 43 UK zones complied with the limits on airborne pollutants, which is a major cause for concern. Joan Walley, the chairwoman of the Commons Environmental Audit Committee recently spoke of the negative impacts of air quality and the failure of the UK government to adequately address the issue:

Thousands of Londoners are having their lives shortened every year by diesel fumes and tiny particles of tyre and soot in the air. Look out across the capital on a sunny day and you can see the smog hazily smothering the city,

The government are therefore in a very difficult situation for many reasons. Firstly, it is in breach of the emission limits values and has not even applied for an extension in some areas that may not reach their set targets until 2025, such as London. Secondly, the Commission has only allowed twelve zones to have a time extension, with four actually having their compliance period shortened. The current approach to regulation by the Coalition government is to avoid bureaucracy wherever possible but it is clear that more drastic action is now required to deal with the issues faced.

The announcement that the Commons Environmental Audit Committee are to produce a further report on the state of the environment and investigate what the government should be doing to combat the problem of poor air quality, although time is running out to take action. Any action taken will require conditions being placed upon businesses and possibly the general public which does lead to a questioning of whether the targets set by the EU are too ambitious. The ambition of these targets reflect the prevailing view of international agreements which is that we cannot afford to be complacent over the harmful effects that human activity is having on the environment. It may be true that adjusting behaviours and industry to meet these targets would be an onerous process, but there is a need to be innovative and forward-thinking in meeting the demands rather than adopting a pessimistic view that we simply will not be able to meet the targets set.

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Tagged: Environmental Law, European Union

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