R Clientearth v Secretary of State for Environment, Food & Rural Affairs

JurisdictionEngland & Wales
JudgeLord Carnwath
Judgment Date01 May 2013
Neutral Citation[2013] UKSC 25
Date01 May 2013
CourtSupreme Court

[2013] UKSC 25

THE SUPREME COURT

Easter Term

On appeal from: [2012] EWCA Civ 897

Before

Lord Hope, Deputy President

Lord Mance

Lord Clarke

Lord Sumption

Lord Carnwath

R (on the application of Clientearth)
(Appellant)
and
The Secretary of State for the Environment, Food and Rural Affairs
(Respondent)

Appellant

Dinah Rose QC

Emma Dixon Ben

Jaffey

(Instructed by Client Earth)

Respondent

Kassie Smith

(Instructed by Treasury Solicitors)

Lord Carnwath, DELIVERING THE JUDGMENT OF THE COURT

1

This is the judgment of the court, giving reasons for making a reference to the Court of Justice of the European Union (CJEU). The court has also decided that, on the basis of concessions made on behalf of the respondent, the appellant is entitled to a declaration that the United Kingdom is in breach of its obligations to comply with the nitrogen dioxide limits provided for in Article 13 of Directive 2008/50/EC ("the Air Quality Directive"). Decisions on the extent of other relief (if any) will have to await the determination of the CJEU on the questions referred. In these circumstances the judgment does no more than set out the factual and legal context of the dispute, and the issues of European law which now arise (as a basis in due course for a reference in compliance with the recommendations of the CJEU: 6 November 2012 C 338/1).

Background
2

Nitrogen dioxide is a gas formed by combustion at high temperatures. Road traffic and domestic heating are the main sources of nitrogen dioxide in most urban areas in the UK. The Air Quality Directive imposes limit values for levels of nitrogen dioxide in outdoor air throughout the UK. These limits are based on scientific assessments of the risks to human health associated with exposure to nitrogen dioxide. These risks are described in the agreed statement of facts and issues:

"At concentrations exceeding the hourly limit value, nitrogen dioxide is associated with human health effects. Short term heightened concentrations of nitrogen dioxide are associated with increased numbers of hospital admissions and deaths. At elevated concentrations, nitrogen dioxide can irritate the eyes, nose, throat and lungs and lead to coughing, shortness of breath, tiredness and nausea. Long-term exposure may affect lung function and cause respiratory symptoms. Nitrogen dioxide, along with ammonia, also contributes to the formation of microscopic airborne particles, one of the many components of particulate matter (PM10 and PM2.5) which have been calculated to have an effect equivalent to 29,000 premature deaths each year in the UK. It is currently unclear which components or characteristics of particulate matter lead to these health impacts."

European Air Quality Legislation
3

The current EU legislative framework governing air quality has its origins in the Air Quality Framework Directive of September 1996 (96/62/EC) (the Framework Directive). The general aim of the directive, as stated in article 1, was

"to define the basic principles of a common strategy to:

- define and establish objectives for ambient air quality in the Community designed to avoid, prevent or reduce harmful effects on human health and the environment as a whole,

- assess the ambient air quality in Member States on the basis of common methods and criteria,

- obtain adequate information on ambient air quality and ensure that it is made available to the public, inter alia by means of alert thresholds,

- maintain ambient air quality where it is good and improve it in other cases."

4

Article 2 contained the key definitions which have been carried into the later directives, including:

"'limit value` shall mean a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained;

'target value` shall mean a level fixed with the aim of avoiding more long-term harmful effects on human health and/or the environment as a whole, to be attained where possible over a given period;

'margin of tolerance` shall mean the percentage of the limit value by which this value may be exceeded subject to the conditions laid down in this Directive;

5

A "zone" was defined as a "part of their territory delimited by the Member States", and an "agglomeration" was defined as;

"a zone with a population concentration in excess of 250 000 inhabitants or, where the population concentration is 250 000 inhabitants or less, a population density per km 2 which for the Member States justifies the need for ambient air quality to be assessed and managed."

6

By article 4(1) the Commission was required to submit proposals on the setting of limit values for various atmospheric pollutants, one being nitrogen dioxide. They were required to take account of the factors listed in Annex II, which included "economic and technical feasibility". Article 7(1) required member states to take the "necessary measures to ensure compliance with the limit values". By article 7(3) they were required to draw up –

"action plans indicating the measures to be taken in the short term where there is a risk of the limit values … being exceeded. Such plans may, depending on the individual case provide for measures to control and, where necessary, suspend activities, including motor-vehicle traffic, which contribute to the limit values being exceeded".

7

Article 8 headed "Measures applicable in zones where levels are higher than the limit value" provided:

1. Member States shall draw up a list of zones and agglomerations in which the levels of one or more pollutants are higher than the limit value plus the margin of tolerance…

3. In the zones and agglomerations referred to in paragraph 1, Member States shall take measures to ensure that a plan or programme is prepared or implemented for attaining the limit value within the specific time limit.

The said plan or programme, which must be made available to the public, shall incorporate at least the information listed in Annex IV."

8

Article 11 contained detailed provisions for information to be given to the Commission about areas of non-compliance and progress in dealing with it. In particular, member states were required to "send to the Commission the plans or programmes referred to in Article 8(3) no later than two years after the end of the year during which the levels were observed" (art 11(1)(a)(iii)).

9

A further Directive 1999/30/EC ("the First Daughter Directive") contained the detail of the limit values, margins of tolerance, and deadlines for compliance for the various pollutants. Annex II set two types of limit values for nitrogen dioxide, an hourly limit value (a maximum of 18 hours in a calendar year in which hourly mean concentrations can exceed 200 micrograms μg/m3) and an annual mean limit value (mean concentrations must not exceed 40 μg/m3 averaged over a year). The deadline for achieving both limit values was 1 January 2010. It is to be noted that for some other pollutants (sulphur dioxide and particulates) an earlier date was set (1 January 2005).

10

The 2008 Air Quality Directive was a consolidating and amending measure. As paragraph (3) of the preamble explained, the earlier directives —

"…need to be substantially revised in order to incorporate the latest health and scientific developments and the experience of the Member States. In the interests of clarity, simplification and administrative efficiency it is therefore appropriate that those five acts be replaced by a single Directive and, where appropriate, by implementing measures."

The Framework Directive and the First Daughter Directive were repealed (Article 31), but the same limit values, margin of tolerances, and deadlines were reproduced in annex XI of the new directive.

11

Article 13 provides:

Limit values and alert thresholds for the protection of human health

"1. Member States shall ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI.

In respect of nitrogen dioxide and benzene, the limit values specified in Annex XI may not be exceeded from the dates specified therein.

The margins of tolerance laid down in Annex XI shall apply in accordance with Article 22(3) and Article 23(1)…"

The difference between the first and second paragraphs of article 13 appears to reflect the fact that the former relates to limits which, unlike those for nitrogen dioxide, had already come into effect at the time of the directive. The absolute terms of the obligation under article 13 may be contrasted, for example, with article 16 which requires "all necessary measures not entailing disproportionate costs" to achieve the "target value" set for concentrations of PM2.5.

12

Of direct relevance to the present appeal are articles 22 and 23. They come in different chapters: the former in chapter III ("Ambient and Air Quality Management", the latter in chapter IV ("Plans"). The relevant parts are as follows:

" Article 22 Postponement of attainment deadlines and exemption from the obligation to apply certain limit values

1. Where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide or benzene cannot be achieved by the deadlines specified in Annex XI, a Member State may postpone those deadlines by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan is established in accordance with Article 23 for the zone or agglomeration to which the postponement would apply; such air quality plan shall be supplemented by the information listed in Section B of Annex XV related to the pollutants concerned and shall demonstrate how conformity will be achieved with the limit values before the new deadline.

3. Where a...

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