Court Rules That Air Pollution Plan Cannot Be Delayed


The Law Of… Ensuring The Air We Breathe Is Safe

In a blow to the Government, the High Court recently ruled that tougher plans to tackle air pollution need to be published before the general election.

Ministers had hoped to keep the controversial plans under wraps until after the election; however, the High Court has ruled that the plans – which have already faced hurdles – cannot be delayed further.

Explaining the plans, Phillip Gower – Partner in Simpson Millar's Industrial Disease team – details the effects of air pollution and answers some questions about why the Government's plans have caused controversy since 2015.

What Are The Government's Air Pollution Plans?

Due to the risks of poor health from air pollution, the EU has published regulations to ensure that member states are tackling this issue and are keeping citizens safe from the ill health associated with pollution.

It was found in 2013 that the UK was failing to meet these regulations, with air pollution deemed to be over legal levels in 38 of the country's 43 air quality zones.

Despite these findings in 2013, which found that the vast majority of the UK exceeds the legal limit of 40µg/m3 (micrograms per cubic metre of air) of nitrogen dioxide (NO2), the Government was not forced to take action until 2015.

In a case heard at the Supreme Court in 2015 it was ruled that the Government must publish air pollution plans that ensure that it adheres to EU regulations as quickly as possible.

18 months later, the Government was again being defeated in the courts as its published plans were judged to be illegally poor by the High Court.

It was claimed at this time that the plans did not take in enough measures to tackle the crisis quickly enough, with ClientEarth – the legal non-governmental organisation (NGO) that has brought repeated court cases against the Government – arguing that there was too great a focus on cost, instead of what would be the best way to tackle air pollution.

At the time, the judge gave ministers until 24th April to release draft policies that could tackle air pollution in the shortest time possible, thus ensuring that they comply by the ruling in 2015.

In the Government's latest court defeat, the High Court has blocked an application by ministers to delay their latest air pollution plans due to the snap general election called by Prime Minister Theresa May. They claimed that pre-election 'purdah' rules allowed them to delay the publication of their plans until after the election, a claim rejected by Mr Justice Garnham.

Due to the application for delaying the plans being made so close to the original deadline for the draft plans, the judge gave the Government until May 9th to detail its draft proposals, with a final policy required by July 31st, as scheduled in the original order last year.

Why Are These Pollution Plans Necessary?

Air pollution has been garnering increased media coverage recently, especially as further studies are linking pollutants to ill health.

As the main source of NO2, diesel cars are expected to be at the forefront of any air pollution plans, with these engines facing particular scrutiny since the Volkswagen emissions scandal.

At the start of the year researchers found a link between diesel fumes, ill health, and dementia. This preceded an investigation by the Guardian and Greenpeace that found that hundreds of thousands of British school children are being exposed to illegal levels of air pollution, as their schools were located on roads that exceeded the legal 40µg/m3 limit of NO2.

As recently as April a report has shown that tiny particles – such as those produced when burning fossil fuels – can get into the bloodstream and remain in the body for months.

It was claimed that this study showed exactly how air pollution can increase the chances of heart disease and cause premature deaths, as previously it was known that pollutants were causing ill health but it was not certain how it came to affect life expectancy.

These new studies added weight to the Government's own data that predicts the air pollution crisis is responsible for 40,000 – 50,000 premature deaths in the country each year; furthermore, it's estimated that air pollution's cost to the economy is around £27.5billion.

Due to their failure to bring air pollution down to legal levels the Government is liable for any ill health or harm caused by the poor air quality in many of the UK's cities.

We have dealt with a number of asthma and respiratory claims arising because of air pollution across the UK and suspect that the number of these claims will continue to rise while the Government delays tackling this problem.

What Could The New Plans Include?

James Eadie QC, who represented the Government in the recent High Court case, argued that ministers should be permitted to delay draft proposals as the plans could include measures that are not popular amongst the electorate.

It is thought that diesel cars will bear the brunt of the measures to tackle air pollution in large cities; recent plans for metropolitan areas such as London, Birmingham, Leeds, Nottingham, Derby, and Southampton have included ultra-low emission zones where heavy polluting vehicles are charged a high day rate in the hope that drivers move away from heavily polluting diesel vehicles.

It is thought that in some cities these ultra-low emission zones could cut harmful emissions by 50%.

Currently the number of diesel vehicles on the road continues to rise, despite the fact that they are the largest emitters of NO2 on the roads and their health risks being well publicised.

Speaking to Simpson Millar, and commenting on the High Court’s decision to decline the government’s request to delay new air quality proposals, Dr Penny Woods, Chief Executive of the British Lung Foundation, said:

"Common sense has prevailed. The nation’s dirty air is one of the most important public health issues in recent times, and the High Court’s decision recognises the need to urgently tackle this crisis. Toxic air left unchecked will lead to a rising tide of ill health for everyone, particularly those who are most vulnerable. Children, people with a lung condition, and the elderly will be hit hardest."

"Government must now deliver ambitious plans to clean up the air we breathe. There must be a commitment to tough action on emissions from diesel vehicles. Along with a realistic scrappage scheme that enables people to trade in their old cars for cleaner alternatives."

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