UK could face substantial EU fines after Supreme Court ruling on air pollution, says expert

Eluned Watson of Pinsent Masons, the law firm behind Out-Law.com, was commenting after the UK Government conceded it had breached EU air quality rules. The Supreme Court has asked the Court of Justice of the European Union (CJEU) for guidance on how it should enforce compliance as part of a preliminary ruling against the Government.

"Although the Environment Secretary accepts that the UK is in breach of its obligations to comply with nitrogen dioxide limits provided in Article 13 of the EU's Air Quality Directive, the Supreme Court's judgment sends a very strong message to the Government that further urgent action is required to reduce nitrogen dioxide levels and to improve air quality," Watson, an environmental law expert, said. "The UK now faces a very serious threat of EU infraction proceedings that could lead to substantial fines."

The EU's Air Quality Directive prescribes limit and target values for the concentrations of air pollutants present in the ambient air. The Directive sets values for pollutants including: nitrogen dioxide and oxides. fine particles such as PM10 and PM2.5, benzene, carbon monoxide, lead and ozone.

The case against the UK Government began in 2011, following the publication of draft plans to reduce air pollution in 40 cities and regions exceeding European limits by the Department for the Environment, Food and Rural Affairs (Defra). ClientEarth, a non-governmental organisation, originally brought its challenge against the UK Government's alleged failure to comply with requirements of the Directive and to produce proper air quality plans to bring nitrogen dioxide within the limits prescribed by the Directive.

Prior to the Supreme Court’s ruling, the UK government applied to the EC for a time extension for 23 of 40 air quality zones that were failing to comply with the limits, extending the deadline from 2010 to 2015, which was granted. It had to demonstrate that it had plans to bring nitrogen dioxide within these limits by 1 January 2015. ClientEarth said that the strategy was illegal because only 23 of the 40 areas would comply with the limits by 2015, as required by  the Directive. Areas including Manchester, Birmingham and Glasgow would not comply with the limits until 2020 under the strategy, while pollution levels in London would not be sufficiently cut before 2025.

The Supreme Court issued a declaration that the Government was failing to meet its obligations under the Directive, departing from the rulings of the lower courts which had decided against making this declaration. It has asked the CJEU for clarification over whether the UK should have formally applied to the European Commission to postpone the 2015 deadline before publishing its plans, as well as to what extent the national courts can enforce EU law.

"The court is satisfied that it should grant the declaration sought, the relevant breach of article 13 having been clearly established," said Lord Carnwath in his leading judgment. "The fact that the breach has been conceded is not, in the court's view, a sufficient reason for declining to grant a declaration, where there are no other discretionary bars to the grant of relief."

"Such an order is appropriate both as a formal statement of the legal position, and also to make clear that, regardless of [the matters referred to the CJEU], the way is open to immediate enforcement action at national or European level," he said.

According to BusinessGreen, the European Commission was preparing a case against the UK for breaches of the Air Quality Directive before the Supreme Court delivered its judgment. Environmental law expert at Pinsent Masons Eluned Watson said that there were questions around whether it would begin infringement proceedings in light of its ongoing review of air policy.

"The judgment comes at the same time that the European Commission is undertaking a comprehensive review of EU air policy, building on the 2005 Thematic Strategy on Air Pollution and the Clean Air for Europe (CAFE) initiative," she said. "Whether the Commission decides to press ahead with enforcement action against, and make an example of, the UK whilst it is also consulting on such a large scale review of existing EU air quality legislation is open to debate."

"Indeed, it is not just the UK that is failing to meet the required nitrogen dioxide limits and this judgment may lead to the Commission looking to put in place EU-wide measures to try to speed up reduction of nitrogen dioxide levels and for quicker compliance with the Directive," she said.

Watson said that the CJEU's response to the questions raised by the Supreme Court "should hopefully provide greater certainty for EU member states" on issues of interpretation and enforcement more generally.