ClientEarth wins air pollution case in High Court, that government action has been too slow

ClientEarth has won its High Court case against the Government over its failure to tackle illegal air pollution across the UK.  In a damning indictment of ministers’ inaction on NO2 air pollution, Mr Justice Garnham agreed with ClientEarth that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible” and said that ministers knew that over optimistic pollution modelling was being used.  In his ruling, the judge questioned Defra’s 5 year modelling, saying it was “inconsistent” with taking measures to improve pollution “as soon as possible.”  Defra’s planned 2020 compliance for some cities, and 2025 for London, had been chosen because that was the date when ministers thought they’d face European Commission fines, not which they considered “as soon as possible.”  The case is the second the government has lost on its failure to clean up air pollution in two years.  In the judgment he handed down Mr Justice Garnham ruled that the government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and said that the government had erred in law by fixing compliance dates based on over optimistic modelling of pollution levels. Future projections of compliance need to be based on  real emissions, not discredited lab tests.
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Read the judgment here

no2dirtyair-at-high-court

ClientEarth has won its High Court case against the Government over its failure to tackle illegal air pollution across the UK.

In a damning indictment of ministers’ inaction on killer air pollution, Mr Justice Garnham agreed with ClientEarth that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible” and said that ministers knew that over optimistic pollution modelling was being used.

In his ruling, the judge, who listened to two days of argument at the High Court last month, questioned Defra’s five year modelling; saying it was “inconsistent” with taking measures to improve pollution ” as soon as possible.”

Defra’s planned 2020 compliance for some cities, and 2025 for London, had been chosen because that was the date when ministers thought they’d face European Commission fines, not which they considered “as soon as possible.”

The case is the second the government has lost on its failure to clean up air pollution in two years.

In April 2015, ClientEarth won a Supreme Court ruling against the government which ordered ministers to come up with a plan to bring air pollution down within legal limits as soon as possible. Those plans were so poor that ClientEarth took the government back to the High Court in a Judicial Review.

In his judgment handed down this morning, Mr Justice Garnham ruled that the government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and said that the government had erred in law by fixing compliance dates based on over optimistic modelling of pollution levels.

ClientEarth CEO James Thornton said: “I am pleased that the judge agrees with us that the government could and should be doing more to deal with air pollution and protecting people’s health. That’s why we went to court.

“The time for legal action is over. This is an urgent public health crisis over which the Prime Minister must take personal control. I challenge Theresa May to take immediate action now to deal with illegal levels of pollution and prevent tens of thousands of additional early deaths in the UK. The High Court has ruled that more urgent action must be taken. Britain is watching and waiting, Prime Minister.”

During evidence, the court heard that Defra’s original plans for a more extensive network of Clean Air Zones in more than a dozen UK cities had been watered down, on cost grounds, to 5 in addition to London.

ClientEarth air quality lawyer Alan Andrews added: “We hope the new Government will finally get on with preparing a credible plan to resolve this issue once and for all. We look forward to working with Defra ministers on developing a new plan which makes a genuine attempt to achieve legal limits throughout the UK as soon as possible.

“We need a national network of clean air zones to be in place by 2018 in cities across the UK, not just in a handful of cities.  The government also needs to stop these inaccurate modelling forecasts. Future projections of compliance need to be based on what is really coming out of the exhausts of diesel cars when driving on the road, not just the results of discredited laboratory tests.”

http://www.clientearth.org/major-victory-health-uk-high-court-government-inaction-air-pollution/

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Related ClientEarth articles


See also

High court gives ministers deadline of April for draft of tougher air pollution plan and final by 31st July 2017

22.11.2016

On 2nd November, environmental lawyers ClientEarth inflicted a humiliating legal defeat on the UK government (the 2nd in 18 months) when the high court ruled that DEFRA plans to tackle illegal levels of air pollution in many parts of the UK were unlawful. The court gave the government 7 days to agree on the next steps, but it rejected the proposal from ClientEarth for an 8 month timetable for the improvements, saying it needed till September 2017. Now the high court judge, Mr Justice Garnham, has ruled that DEFRA must must publish a stronger air quality draft plan by 24th April 2017 and a final one by 31st July 2017. The judge also ordered the government to publish the data on which it will base its new plan. In his judgement on 2nd, the judge said it was “remarkable” that ministers knew they were using over-optimistic pollution modelling, based on flawed lab tests of diesel vehicles rather than actual emissions on the road, but proceeded anyway. He also ruled that ClientEarth can go back to court if it deems the government’s draft plan, due in April 2017, is once again not good enough to cut pollution rapidly. Alan Andrews, ClientEarth’s air quality lawyer, said: “We will be watching on behalf of everyone living in the UK and will return to court if the government is failing.” ClientEarth believes measure such as a diesel scrappage scheme and other measures that would cost money, that the Treasury has been unwilling to approve.   22.11.2016

http://www.airportwatch.org.uk/2016/11/high-court-gives-ministers-deadline-of-april-for-draft-of-tougher-air-pollution-plan-and-final-by-31st-july-2017/

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See also

ClientEarth back in court against UK government over illegal air pollution

17.10.2016 (ClientEarth press release)

Update from day one of the hearing: Read material from our skeleton argument.

Environmental lawyers ClientEarth bring the UK government back to the High Court tomorrow for failing to deal with illegal levels of air pollution.

It’s ClientEarth’s second battle in as many years over the UK Environment Secretary’s failure to tackle the national air pollution crisis.

ClientEarth CEO James Thornton said: “Defra’s latest figures estimate there are 40,000 early deaths across the UK every year because of air pollution. The government is acting unlawfully by refusing to turn this situation around. It is failing morally and it is failing legally to uphold our right to breathe clean air.

“The government must come up with far bolder measures, ready to face this issue head-on.

“Air quality in this country is nothing short of a public health crisis.”

ClientEarth won its case in 2015 in the Supreme Court, which ruled that the UK government must come up with plans to combat the crisis and bring pollution down to legal levels “as soon as possible”.

But the plans adopted in December last year outlined vague proposals that wouldn’t have secured compliance until at least 2025 and even this relied on hugely overoptimistic assumptions about emissions from diesel vehicles.

The original deadline for compliance was 2010.

ClientEarth has launched a wave of clean air cases around Europe in recent weeks, including Brno and Prague in the Czech Republic, and Brussels in Belgium. It has already won cases in Poland and Germany.

The UK case will be heard on the 18 and 19 October, with the verdict to come in the weeks afterwards.  [The verdict was on 2nd November 2016]. 

Update from day one of the hearing: Read material from our skeleton argument.

http://www.clientearth.org/clientearth-uk-government-high-court-illegal-air-pollution/

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From the Guardian’s article

2.11.2016

Diesel vehicles face charges after UK government loses air pollution case

…. an extract  ….

The government said it would not appeal against the decision and agreed in court to discuss with ClientEarth a new timetable for more realistic pollution modelling and the steps needed to bring pollution levels down to legal levels. The parties will return to court in a week but if agreement cannot be reached, the judge could impose a timetable upon the government.

At prime minister’s questions, May said: “We now recognise that Defra [the Department for Environment, Food and Rural Affairs] has to look at the judgment made by the courts and we now have to look again at the proposals we will bring forward. Nobody in this house doubts the importance of the issue of air quality.”

The government’s own estimates show air pollution causes at least £27.5bn a year and in April MPs called the issue a “public health emergency”.

ClientEarth lawyers said they looked forward to working with Defra ministers to make a genuine attempt to rapidly cut pollution to legal limits throughout the UK, including a national network of clean air zones by 2018. “The government will have to be tougher on diesel,” said James Thornton, CEO of ClientEarth. “If you put in clean air zones, it works overnight.”

“Today’s ruling lays the blame at the door of the government for its complacency in failing to tackle the problem quickly and credibly,” said the mayor of London, Sadiq Khan, who took part in the case. “In so doing they have let down millions of people the length and breadth of the country.” Khan aims to have pollution charging in place in central London by 2017 and across the area within the north and south circular roads by 2019.

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The court defeat is also a blow for the new runway at Heathrow the government has backed.  Its approval depended on the effectiveness of the government’s national air pollution plan to meet legal requirements on air quality. The Liberal Democrat leader, Tim Farron, said: “This ruling deals a huge blow to May’s reckless Heathrow expansion plans. The government has already illegally delayed meeting EU pollution limits until 2025 – building a third runway would make the situation even worse.”

Documents revealed during the high court case showed the Treasury had blocked initial government plans to charge polluting diesel vehicles for entering towns and cities blighted by air pollution, due to concern about the political impact of angering motorists.

Both the environment and transport departments recommended changes to vehicle excise duty rates to encourage the purchase of low-pollution vehicles. But the Treasury also rejected that idea, along with a scrappage scheme for older diesels, which ClientEarth supports.

….  and it continues ……

full article at

https://www.theguardian.com/environment/2016/nov/02/diesel-vehicles-face-charges-after-uk-government-loses-air-pollution-case?CMP=share_btn_tw

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See also

High Court win by ClientEarth on air pollution casts more doubt on the possibility of adding a Heathrow runway

The environmental law group, ClientEarth, has won its High Court case against the Government over its failure to tackle illegal air pollution across the UK. The judge agreed that the UK government had failed to take measures that would bring the UK into compliance with the law “as soon as possible” and ministers knew over optimistic pollution modelling was being used. AEF (the Aviation Environment Federation) says this failure by the government to get NO2 levels down discredits the air quality plan that formed the basis for the Government’s argument that a new runway at Heathrow would neither cause not exacerbate legal breaches in NO2 levels. Required to publish an updated plan for UK air quality, Defra produced one in December 2015. This brought forward the anticipated date of compliance to 2025 for London – just in time for the opening of a new runway according to the Airports Commission’s anticipated timeline. But the plans appeared to rely on new, more optimistic forecasts of emissions from diesel vehicles without presenting substantive policy proposals to actually deliver improvements. A new runway at either Heathrow or Gatwick would lead to higher levels of air pollution, and the new court ruling confirms that compliance should not be based on over optimistic modelling – and government needs instead to take action to cut pollution levels.

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