Why the ruling by the Supreme Court on air pollution could stop plans for a new SE runway

The Supreme Court has ruled that the Government must produce a new action plan by the end of this year for bringing air pollution within legal limits. A decision to allow another Heathrow runway could be legally challenged unless the Government’s new plans are sufficiently ambitious to reduce emissions of a 2 runway airport below the legal limit – and also leave enough headroom to accommodate the negative impact of a 3rd runway. There is only pure speculation on how it could be achieved. The court ruling also suggests that the cost-benefit analysis for adding a runway will need to be revised, as the Government has previously claimed that complying with air quality law would be too expensive. And this does not only affect Heathrow, but Gatwick too. Gatwick is keen to claim it does not have a poor air quality problem. But EU regulations require not only that poor air quality must be improved but also that good air quality should be protected.  A 2nd Gatwick runway would mean local air pollution hotspots, with a risk of breaching the legal limits. The Airports Commission has a duty to the public not to recommend a project that would significantly damage people’s health. It would also be a poor use of taxpayer’s money to make recommendations that invite a legal challenge.
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Why This Week’s Court Ruling on Air Pollution Could Stop Airport Expansion

1.5.2015  (Huffington Post)

By James Lees (AEF – Aviation Environment Federation)
Sat at the back of the Supreme Court this week, while cheers erupted with the announcement that the panel of judges had unanimously ruled in favour of Client Earth’s air pollution case, it is possible to imagine a member of the audience hurriedly typing out a message to his or her colleagues.

It reads: “we may have a problem”.

That person could be a member of the Airports Commission staff and he or she would know that the ruling could mean the end of Heathrow’s third runway scheme and possibly even Gatwick’s bid for a second runway.

The Airports Commission, tasked with making recommendations on the future of UK airport capacity could already have written its final report, recommendations finalised, and be waiting for the post-election humdrum to die down before the report would be launched into the public sphere. The Supreme Court ruling changes that.

There is now a serious challenge to any recommendation to build a new runway, particularly (but not only) at Heathrow. Around the airport, the area is in breach of legal limits for NO2 pollution today and has been for many years. Modelling released by the Government’s environment department revealed that the area around Heathrow is forecast to continue breaching legal limits up to 2030, that’s with just two runways.

The Airports Commission has concluded that expanding either Heathrow or Gatwick would have a negative impact on air pollution through increases in air traffic and cars and taxis needed to carry passengers to and from the airport. This should mean thatunder law, planning permission for Heathrow (and possibly even Gatwick) should be refused as is the case for all developments that will cause air quality limits to be breached, or make air quality worse in an area where pollution already exceeds the limits.

But until now, there has been little reason for the Commission to think that this represented a meaningful barrier to airport expansion. The UK has been in breach of air pollution laws for some time and the Government claimed that it would take time to put in place effective measures to tackle air pollution. Being compliant with legal limits by 2030 was the latest estimate.

The Government’s stance was firmly rejected this week by the Supreme Court when it ordered the Government to produce a new action plan by the end of this year for bringing air pollution within legal limits. Any decision to expand Heathrow could be legally challenged unless the Government’s new plans are sufficiently ambitious to reduce emissions below the legal limit and leave enough headroom to accommodate the negative impact of an additional runway. That is a tough ask and it is pure speculation about how it could be achieved.

The court ruling also suggests that the cost-benefit analysis for expansion will need to be revised since the Government has previously claimed that complying with air quality law would be too expensive. The cost of having to take additional mitigation measures to accommodate increased emissions from a new runway under legal limits should be added to the cost-benefit analysis of a new runway.

Does the court’s decision open the door to a Gatwick runway? Not necessarily. EU regulations require not only that poor air quality must be improved but also that good air quality should be protected. It has been estimated that if all of the local jobs predicted by the Airports Commission materialise following Gatwick expansion, there would be an additional 100,000 vehicles using roads around the airport each day. That could create an air pollution hotspot around Gatwick. The lower background air pollution means that there is a lower risk of breaching the legal limits but a risk still remains.

The Airports Commission, as an independent but taxpayer funded organisation, has a duty to the public not to recommend a project that would significantly damage people’s health. It would also be a poor use of taxpayer’s money to make recommendations that invite a legal challenge. That is why it is possible to imagine a concerned Airports Commission member of staff hurriedly typing away on his or her phone at the back of the courtroom this week.

James Lees
Research and Communications Officer

Aviation Environment Federation
2nd Floor, 40 Bermondsey Street, London, SE1 3UD
t: +44 (0) 20 3102 1509

http://www.huffingtonpost.co.uk/james-lees/air-pollution_b_7188314.html

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See also:

Landmark air pollution ruling by Supreme Court could scupper 3rd runway at Heathrow due to high NO2 level

The UK Supreme Court has quashed the Government’s ineffective plans to cut illegal levels of air pollution in Britain and ordered it to deliver new ones by the end of the year. The Supreme Court Justices were unanimous in their decision, saying: “The new Government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.” This could have implications for a 3rd runway at Heathrow, as areas around the airport continue to be stubbornly above the EU legal limits. That is due both to air pollution from the planes in addition to the huge amount of traffic on the M4 and M25. In their verdict, 5 judges ordered the Secretary of State at DEFRA to consult on strict new air pollution plans that must be submitted to the European Commission by 31 December 2015. The EU Air Quality Directive demanded the UK brought pollution down to legal limits by 2010 or apply for an extension by 2015. But the government in 2011 said that a number of areas, including London, would be unable to comply by 2015 and instead argued the law allowed it to comply “as soon as possible”. The judgement marks a victory for the campaigning legal firm ClientEarth. HACAN commented: “This is a potential show-stopper as far as a 3rd runway is concerned.”

Click here to view full story…


Part of letter by Jeff Gazzard:

Gazzard letter 1.5.2015


Comment from an AirportWatch member in the Heathrow area:

The Davies Commission conclusions can’t be accepted without proper scrutiny of the detailed local air quality dispersion modelling – which probably means a proper consultation.

It shouldn’t be forgotten that the last consultation in 2007/8 had government documents (?reverse-engineered) to explain that there would be no air quality problems with predicted graphs, based on new Euro vehicle emission standards, showing pollution levels to plummet as the years pass.

The Environment Agency argued that the argument was very optimistic and out of line with the trends in actual measured values.

Nevertheless the Government decided to proceed with the expansion proposal.

In practice, the predicted values at the monitoring locations for 2010 were not achieved and the air quality modelling for the Cranford Agreement application shows rather more areas modelled to be above EU limits than was the case in 2007.


See also
30.4.2015
UK Human Rights Blog
BY DAVID HART QC

Supreme Court: no excuses, UK must comply with EU air pollution law

http://ukhumanrightsblog.com/2015/04/30/supreme-court-no-excuses-uk-must-comply-with-eu-air-pollution-law/

R (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

The first two questions concerned two provisions in the Directive, Article 22 (concerning the postponement of deadlines) and Article 23 which provided for the provision of air quality plans. Unfortunately, the CJEU merged the questions, and gave one answer, thus leading to, as Lord Carnwath explained, an important ambiguity in both question and answer, not elucidated in

its characteristically sparse reasoning

ClientEarth and Defra battled it out over the ambiguity, but the current Supreme Court thought that the answer was still not clear. It proceeded not to answer the question, saying that it had become academic because the final deadline (1 January 2015) imposed by Article 22 had in any event expired by the time the matter came before the Supreme Court.  More on this gripping issue in my last post, though as will be apparent I had there somewhat overstated the clarity of the CJEU’s response. The furthest that Lord Carnwath was inclined to go (though not reaching a concluded view) was that he saw considerable force in the Commission’s reasoning that Article 22 was an optional derogation, but in the event that the state did not apply for such a derogation, it was under an

essential obligation to act urgently under article 23(1), in order to remedy a real and continuing danger to public health as soon as possible

The CJEU had dispensed with an Advocate-General’s opinion in this case, and in its absence, Lord Carnwath found a good deal of assistance in the Commission’s detailed observations – a helpful hint to those engaged in construing the more Delphic of the CJEU’s pronouncements.

The point of wider interest arose under the third and fourth questions, namely the obligations under Article 13, and the Court’s duty to enforce breaches of EU environmental law. On the third question, the Supreme Court (in line with the CJEU) emphasised that Article 13 (not to exceed pollution limits) was the primary obligation, to which Articles 22 (derogation) and 23 (plans) were supplementary. About the fourth question, the CJEU had been unequivocal that this was not just a matter for the Commission, but also a matter for domestic courts. Despite that, Defra argued that the existing air quality plans should not be quashed, and in any event Defra were going to replace the existing plans with new ones. The Supreme Court thought that this indication of intent was not enough:

Further, without doubting the good faith of the Secretary of State’s intentions, we would in my view be failing in out duty if we simply accepted her assurances without any legal underpinning.

No undertakings were forthcoming from Defra, because of the restrictions imposed by “purdah”, the constitutional convention that pending an election campaign one government does not do anything to commit its successor. Interestingly, the court also thought it could take notice of the fact that

the formation of a new Government may take a little time.

Upshot: the Supreme Court made a mandatory order requiring new air quality plans complying with the precise terms required by Article 23 within a defined timetable. Article 23 requires such plans to set out measures so that the period for which the UK was in breach of its obligations should be kept “as short as possible”. EU case law (including C-68/11 Commission v. Italyhas previously shown that the scope for arguing that it was impossible to meet its obligations was very limited, and Lord Carnwath foresaw this argument surfacing in the UK’s plans. All the more reason, he thought why the plans should be produced under order of a court, with liberty to determine such issues as and when they arose (without entirely fresh proceedings).

So the order to be made is far from a simple declaration of breach by the UK. Our courts will now have to roll up their sleeves and keep Defra up to the mark.

The judgment gives some of the background to this issue. The UK is one of 17 member states in breach, though the only one against whom the Commission has launched infringement proceedings. Why? We do not know, because the Commission’s correspondence is confidential. Lord Carnwath thinks that the Supreme Court’s previous declaration may have been a trigger (as I suppose may also have been the rather provocative assertion by Defra in the domestic courts that the only enforcer should be the Commission). According to a Defra witness, the main reason is that diesel vehicles emit more NOx than the regulatory test cycle reveals, and Defra cannot do anything about that without an EU-wide measure on diesel engines.  Well, up to a point; the sorts of measures which the Directive envisages as being contained in a member state’s plan under Article 23 include traffic planning, congestion pricing, differentiated parking fees or other incentives establishing low emission zones.

Conclusion

In my post on the CJEU judgment, I mused

….it is now all to play for.  Will the Supreme Court order something with more “teeth” than the existing declaration of breach? If so, what?

Well, it has certainly done that in making a mandatory order, including a structure under which the UK’s attempts to remedy its breaches can be scrutinised by the Courts.


http://ukhumanrightsblog.com/2015/04/30/supreme-court-no-excuses-uk-must-comply-with-eu-air-pollution-law/

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See also:

 

Landmark air pollution ruling by Supreme Court could scupper 3rd runway at Heathrow due to high NO2 level

The UK Supreme Court has quashed the Government’s ineffective plans to cut illegal levels of air pollution in Britain and ordered it to deliver new ones by the end of the year. The Supreme Court Justices were unanimous in their decision, saying: “The new Government, whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue.”  This could have implications for a 3rd runway at Heathrow, as areas around the airport continue to be stubbornly above the EU legal limits.  That is due both to air pollution from the planes in addition to the huge amount of traffic on the M4 and M25. In their verdict, 5 judges ordered the Secretary of State at DEFRA to consult on strict new air pollution plans that must be submitted to the European Commission by 31 December 2015. The EU Air Quality Directive demanded the UK brought pollution down to legal limits by 2010 or apply for an extension by 2015. But the government in 2011 said that a number of areas, including London, would be unable to comply by 2015 and instead argued the law allowed it to comply “as soon as possible”. The judgement marks a victory for the campaigning legal firm ClientEarth.  HACAN commented: “This is a potential show-stopper as far as a 3rd runway is concerned.”

http://www.airportwatch.org.uk/2015/04/landmark-air-pollution-ruling-by-supreme-court-could-impact-3rd-runway-at-heathrow-due-to-high-no2-level/

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