UN’s special rapporteur on human rights says UK is ‘flouting’ its duty to protect its citizens. Catherine Early reports on the likelihood of further legal action
Air pollution has risen up the political agenda in the UK in recent years as medical professionals have joined forces with environmental campaigners to raise public awareness of the issue and put pressure on the government to solve it.
A large portion of the blame has been laid on diesel cars, sales of which were encouraged by previous governments because diesel engines emit fewer greenhouse gases than petrol ones. Between 2000 and 2016, the proportion of cars powered by diesel rose from 12.9% to 39.1%, while that of diesel light goods vehicles rose from 76.9% to 96.2%, according to government data.
The government’s latest headline-grabbing policy is a ban on all conventional petrol and diesel cars by 2040 to deal with illegal levels of nitrogen dioxide (NO2) that have put it in breach of the European Union’s Air Quality Directive.
Its strategy tasks local councils with finding solutions to tackle NO2 hotspots. Draft plans are required by March 2018.
The government will provide £255 million (2.2 billion yuan) to councils to support them with implementing their plans, and will also set up a Clean Air Fund to help pay for measures such as changing road layouts, removing traffic lights and speed humps or upgrading bus fleets.
UK government in court
The government has been taken to court over air pollution three times by legal campaigners ClientEarth, which has successfully argued that its proposals so far are totally inadequate and too slow to deal with the scale of the issue.
Each time, the speed of implementation of the government’s proposed policies has proven to be a key issue. The directive mandates member states to reduce NO2 to within legal limits “in the shortest time possible”. In the first case, heard at the Supreme Court in 2015, five judges ruled that the government must take “immediate action” to tackle NO2. Under the government’s proposals, parts of the UK including London and Birmingham would not have achieved legal limits on NO2 until after 2030.
The department revised its plan and proposed a system of Clean Air Zones (CAZs), where the most polluting cars would be discouraged from entering five English cities through a charge. But this was bounced back into the High Court last year by ClientEarth, which again argued that it lacked ambition, and that the government had watered it down on cost grounds.
Judge Mr Justice Garnham stated that the environment department must develop a new plan to meet EU limits “as quickly as possible” and take steps that mean meeting them is “not just possible, but likely”. The third case brought by the organisation forced the government to publish a consultation on its plan ahead of the general election in May, instead of postponing it till September as it had planned. Justice Garnham rejected the department’s application to defer publication on the grounds that air quality was a “significant threat” to public health.
The latest version of the strategy faces similar criticisms. It’s key policy to ban the sale of diesel and petrol cars would be implemented in 2040. In addition, 23 local authorities have been asked to spend 18 months finding ways to reduce air pollution, with charging vehicles to enter towns and cities deemed a last resort, despite the fact that the government’s own research has already shown that CAZs are the most effective way of achieving a reduction in NO2.
Anna Heslop, clean air lawyer at ClientEarth, said: “We welcome the move towards clean technology, but in terms of air quality, it’s a smokescreen. It’s going to take a long time for that fleet turnover to take place. They need to do whatever is necessary to tackle the problem in the shortest time possible. Their own evidence shows that the best way to do that is to set up Clean Air Zones, where the most polluting vehicles are discouraged from entering polluted areas, usually by charging them.”
ClientEarth also wants CAZs to be set up by central rather than local government to ensure consistency in how they are implemented across the country.
The British Lung Foundation also stressed that much more action needed to be taken now, and called the strategy’s approach “patchwork and piecemeal”. “Filthy air has reached a crisis point”, a spokesperson said.
In a statement, the environment department (Defra) said: “Our plan to deal with dirty diesels will help councils clean up emissions hotspots – often a single road – through common sense measures which do not unfairly penalise ordinary working people.”
But the British Lung Foundation’s spokesperson said: “We need consistent action in urban areas across the UK. It’s not just about cleaning up one polluted road – city-wide comprehensive solutions are needed. Otherwise we risk just moving the problem around.” The charity also backs CAZs, and financial incentives to persuade the public to replace their diesel cars with less polluting vehicles.
ClientEarth has already written to Defra to question how it will assess the councils’ proposals, and how quickly this will be done. It also wants to know what action will be taken in other areas that have not been asked to draw up plans. Defra said it would respond to ClientEarth’s latest questions “in due course”.
Pan-European legal action
Over the past three or four years there has been a surge in legal cases to push national and regional governments to act on air quality, according to Heslop. Many have been brought across the EU. Several cases have been won in Germany, where authorities in Dusseldorf, Munich and Stuttgart have been forced to rewrite air quality strategies and will have to introduce restrictions on the most polluting diesel vehicles.
In July, France’s highest legal authority the Conseil d’État, ordered the French government to produce plans within nine months to clean up the country’s illegal air pollution following legal action.
It is possible that such legal action is inspiring other groups across the world.In December 2016, a group of Chinese lawyers charged the governments of Beijing, Tianjin and Hebei with failing to protect their citizens from air pollution, which is linked to a third of all deaths in the country.
It is unclear if this case will go to court, but the fact that it has been proposed goes to show that if governments do not act on this public health threat, citizens will do their best to force them to.
Update: Baskut Tuncak, special rapporteur on human rights related to toxic waste, will deliver his report on the UK to the UN human rights council this week. More information in this Guardian article.