Courts require action to clear the air

Member states that fail to protect people’s health will – eventually – end up in court, and persistent failure is likely to become very, very costly.

Binding air quality standards that are set to protect peoples’ health – most of which were agreed and adopted by EU member countries nearly 20 years ago – are frequently being exceeded. The Commission is currently pursuing infringement actions for excessive levels of particulate matter (PM₁₀) against 16 member states. Legal action has also been initiated on nitrogen dioxide (NO₂), so far involving 12 member states.

Two of the cases, for persistent exceedance of the limit values for PM₁₀ in Bulgaria and Poland, have been brought before the European Court of Justice (ECJ). In a landmark ruling in April 2017, Bulgaria was the first country to be ordered by the ECJ to take action to improve air quality (see AN 2/17, p. 26–27).

The ruling against Poland followed on 22 February 2018. Here, the court pointed out that between 2007 and 2015 the country regularly exceeded the daily limits for toxic PM10 in the air in 35 zones and the annual limit values in nine zones.

It should be noted that PM₁₀ limits are still being broken across most of the country. According to an air quality assessment published by Poland’s General Inspectorate for Environmental Protection, 35 out of 46 zones recorded breaches in 2016. One of the main causes of air pollution in Poland is the burning of coal for heating and electricity production.

ClientEarth lawyer Agnieszka Warso-Buchanan said that the Polish authorities have been aware of the scale of the problem for years but have not taken the action required to reduce air pollution and protect citizens’ health. “Their actions can be described in three words: ineffective, inadequate and negligent as Air Quality Plans are too vague, quality requirements for solid fuels are still missing and the standards for stoves only apply to new devices,” she said.

If Poland continues to breach air pollution limits, the country risks hefty fines. However, penalties can only be imposed after yet another court process.

Based on the guidelines of the European Commission, ClientEarth estimates that in the case of Poland, financial penalties may range between €5000 and €300,000 for each day of the infringement plus a lump sum penalty of between €4.3 million and €50 million.

Warso-Buchanan concluded: “Fines are a definitive measure. Instead, we hope that the Polish government will decide to adopt the regulations necessary to improve air quality as soon as possible.”

Several other countries are now also facing court action. The Czech Republic, Germany, Spain, France, Italy, Hungary, Romania, Slovakia and the United Kingdom could all be sent to court next month. Environment ministers from these nine countries were all summoned to Brussels for a special meeting with Environment Commissioner Karmenu Vella on 30 January, where they had to try to explain and justify their failures to meet the air quality standards.

In a statement after the ministerial meeting, commissioner Vella said: “The deadlines for meeting the legal obligations have long elapsed, and some say we have waited already too long, but we can delay no more, and I have made that very clear to ministers this morning.”

Despite this, the countries were given an opportunity to come back with new measures, and in mid-February the Commission confirmed that all nine countries had submitted additional information, which should be evaluated by the Commission within the following month.

Commenting on the ministerial meeting and the court ruling on Poland, Margherita Tolotto of the European Environmental Bureau (EEB) said: “There’s a toxic bloc of EU countries that are consistently breaching air quality laws and have been far too slow to clean up their air. This ruling is not just about Poland; it serves as a warning to other governments that there are consequences for inaction on air pollution. We expect other governments will be sent to court in March.”

One day before the ECJ ruling on Poland, on 21 February, the Royal Court of Justice in London ruled that the UK government’s air quality plans for England were insufficient and unlawful. This was an embarrassing third defeat in successive cases brought by environmental lawyers ClientEarth. The judge ordered ministers to require local authorities to investigate and identify measures to tackle illegal levels of pollution in 33 towns and cities as soon as possible.

The ruling means, for the first time ever, that ClientEarth can immediately bring the government back to court if it prepares a plan which is unlawful, a move that was described by the judge as “wholly exceptional”.

ClientEarth lawyer Anna Heslop said: “The judge ruled that the government’s plans were seriously lacking and has ordered urgent and additional measures. In addition to the government substantially losing this case, the court has made an exceptional ruling which will allow us to return immediately to court if the government’s next plan is not good enough, to protect people’s health.”

The Welsh government conceded the case against it and will have to produce a draft plan, to bring pollution within legal limits, by 30 April 2018 and a final plan by 31 July 2018. The UK government must finalise new plans for England by 5 October 2018.

On 27 February, Germany’s highest federal administrative court ruled that German cities can introduce diesel restrictions with immediate effect. The court said national-level laws could be bypassed to allow regional authorities to protect people’s health in areas where air pollution exceeds legal limits. The decision is final.

The ruling came after German states had appealed against bans imposed by local courts in Stuttgart and Düsseldorf in cases brought by Environmental Action Germany (DUH) and ClientEarth over poor air quality.

ClientEarth’s lead clean air lawyer Ugo Taddei said: “The win is a tremendous result for people’s health in Germany and may have an impact even further afield. This ruling gives long-awaited legal clarity that diesel restrictions are legally permissible and will unavoidably start a domino effect across the country, with implications for our other legal cases. Putting traffic restrictions on the most polluting vehicles is the quickest and most effective way to protect people from harmful air pollution.”

The court recognised that immediate bans on all diesels would not be a proportionate solution. It has said all diesels up to and including Euro 4 can be restricted. From September 2019, bans will also apply to Euro 5 diesel vehicles.

So far, the car industry has only offered updates to engine control software to reduce NOx emissions from diesel cars, but the court decision in favour of diesel bans could up the pressure on them to provide significantly more efficient – and more costly – hardware fixes to heavily polluting diesels.

Christer Ågren

Sources: EEB media briefings on air quality (www.eeb.org); ClientEarth News (www.clientearth.org); European Commission press release 19 and 30 January; Guardian 21 February; EurActiv 22 February.