Bringing justice through the air quality directive

Photo: Jess Loughborough / Creative Commons

Suing countries and municipalities that fail to comply with the EU air quality standards is a way to speed up the otherwise rather slow enforcement process by the EU bureaucracy.

EU legislation on air quality has been around since the eighties, but the early writings were more of a recommendatory nature, with little legal space to act on countries that were in non-compliance. In the air quality framework directive from 1996 (1996/62/EC) the basic conditions for legally binding air quality standards were introduced, but it was not until 2005 that air quality standards for particulate matter (PM₁₀) came into full effect and any legal claims could be made. For nitrogen dioxide (NO₂) the standard entered into effect in 2010 (with the option for countries to request a time extension until 2015). Limits for PM_2.5 will not be binding until 2015.

In 21 of the EU member states at least one of their air quality zones exceeded the 24-hour limit for PM₁₀ in 2009. The regular routine is for the European Commission to report countries that fail to comply with the directive to the European Court of Justice (ECJ). So far, only two countries, Sweden and Slovenia, have been condemned for exceeding the PM₁₀ limits in 2005, 2006 and 2007, but not given any penalties. Cyprus, Italy, Portugal, Spain, France and Belgium have all been referred to the ECJ but are still awaiting court decisions. Another group of countries have received warnings.

However not all of the 20 per cent of the EU urban population that lives in areas where PM levels are too high have the patience to wait for years for the EU bureaucracy to run its course. By suing a city, using the national legalisation that follows the transposition of EU legislation, or if needed going all the way to the ECJ, civil society has the possibility to take action.

Munich was one of the first cases of this type. According to German law, environmental organisations cannot appeal against environmental legislation – this can only be done by affected citizens. A Mr Dieter Janecek, who lives near the central ring road in Munich, volunteered to be this individual. Close to his home was one of the municipality’s monitoring stations. In 2005 and 2006, high levels of PM₁₀ were recorded there, for more than the 35 days allowed in the directive.

Mr Janecek demanded that the city should adopt an action plan to deal with the air quality problems in his district. The application was dismissed in the court of first instance. He continued to a higher administrative court, which stated that a citizen has the right to require an action plan, but cannot insist on measures that would guarantee compliance in the short term.

Both Mr Janecek and his counterpart, the state of Bavaria, appealed against this judgement to the Federal Administrative Court, which stated that national law alone cannot entitle an individual to have an action plan drawn up. The court however directed a question to the European Court of Justice (ECJ), asking whether conditions were different under Community law. In 2008 the ECJ confirmed that individuals directly concerned can require local authorities to develop short-term action plans when there is a risk that alert thresholds or limit values are exceeded.

With the outcome of the ECJ behind them, German citizens have pursued cases against several other cities that exceed air quality standards, thus forcing them to develop or renew action plans.

A similar case occurred in Sweden, where the Swedish Society for Nature Conservation (SSNC) has pursued a court case on behalf of five members living near one of central Stockholm’s main streets, known for having the worst air quality in the country. Due to the heavy transit traffic and poor air circulation the air quality limits for PM₁₀ and NO₂ are exceeded every year.
In January 2008, SSNC handed a complaint to the City of Stockholm, with a demand to act on the high levels of air pollution. In April 2009, the municipality rejected the complaint on the grounds that further investigations were needed. A month later, SSNC lodged an appeal to the County of Stockholm. In June 2011 the County Administrative Board set aside the City of Stockholm’s decision to reject complaints without further action regarding the levels of PM₁₀. The city has however appealed against the decision.

A third example comes from the United Kingdom, where several cities are struggling with the NO₂ limits. Because 40 (out of 43) air quality zones were exceeding the limits in 2010, the Commission required action plans to be drafted to show how they were going to ensure compliance by 2015 at the latest. After reading the draft action plans, Client Earth, an environmental law organisation, noted that 17 of them did not demonstrate sufficient measures and did not expect to be in compliance until 2020, and in the case of London not until 2025.

In late July 2011, Client Earth decided to launch a judicial review against the UK Secretary of State for Environment, Food and Rural Affairs for failing to protect the health and lives of people through the inadequate NO₂ plans. However, a High Court judge dismissed the case at a hearing in London in December, saying that it was up to the European Commission, not a national court, to take corrective action.

The national conditions for pursuing legal cases to improve air quality vary considerably across member states. There are several other countries where, as in Germany, environmental organisations cannot be stakeholders. A recent precedent-setting ruling in the ECJ might however have changed these circumstances completely.

A Slovakian environmental group got the right to be party in a case concerning habitat protection for bears, through the Aarhus convention, which the European Union has signed and ratified. This can probably, though it has not been tried yet, open up the right for environmental groups to be a party in court cases concerning national law that follows under the EU air quality legislation.

The financial risk for the pursuer is another factor that varies. In some countries there is a risk of having to pay all trial costs (which can amount to hundreds of thousands of euro), while in other countries trial costs are either paid by the state or there are other legal devices that protect financially weaker parties.

One way to avoid these costs is to threaten to pursue legal action, put the air pollution problem in the public eye and hope that the resulting pressure will be enough to settle an agreement with the local authority. This strategy was proven successful in Denmark in 2008, when four environmental groups prepared a lawsuit against the Danish government for not doing enough about PM₁₀ levels in the capital. This caused headlines in some of the leading newspapers, and the Environmental Protection Agency subsequently came up with the necessary action plans.

Kajsa Lindqvist