The right to clean air in the ClientEarth case

Transcription

1 The right to clean air in the Analysis and next steps Introduction On 19 November 2014 the European Court of Justice (ECJ) ruled on case C-404/13 ClientEarth. 1 The case had been referred to it by the UK Supreme Court in July 2013 under the preliminary reference procedure. 2 This allows national courts to refer cases to the ECJ where they are unsure how to interpret EU law. The UK Supreme Court asked 4 questions relating to the interpretation of the 2008 Ambient Air Quality Directive (the 'Directive'). 3 This ruling was the ECJ s answer to these questions and the first ECJ ruling on the Directive (previous cases concerned earlier air quality directives). This ruling binds the UK Supreme Court, which will now have to apply it to the facts in the UK case. It also sets an EU law precedent and therefore is binding on national courts in all EU member states. The ruling The ECJ s answers to the 4 questions were as follows: Question 1: Are member states obliged to apply for a time extension where they breach the limit values after the original deadline? Background: Article 13 of the Directive requires member states to achieve NO 2 limits by 1 January However, article 22 allows member states to postpone this deadline by a maximum of 5 years i.e. until 1 January 2015 provided they (a) establish a plan showing that they would achieve compliance by 2015 and (b) obtain the approval of the Commission. The UK had argued that it could not comply by 2015 and so did not apply for a time extension for 16 UK zones. Answer: Yes. The Article 22 procedure is mandatory i.e. Member States which were unable to achieve the limits by the original 2010 deadline were obliged to apply for a time extension and prepare a plan containing measures to achieve compliance by Question 2: Are there any circumstances which would justify not applying for a time extension? Background: The UK had argued that preparing a plan to achieve compliance by 2015 would have involved disproportionate cost and political difficulties. The High Court accepted this argument. 1 Case C-404/13 R (ClientEarth v Secretary of State for Environment, Food and Rural Affairs. 2 Article 267 TFEU. 3 Directive 2008/50/EC.

2 Answer: No. Question 3: What is the effect of article 23, in particular the requirement that member states shall draw up plans containing "appropriate measures so that the exceedence period can be kept as short as possible"? Background: The UK argued that because it was not applying for a time extension under article 22, it was instead submitting plans under article 23. So instead of showing compliance by 2015, they were setting out how the UK intended to achieve the limits in the shortest time possible. The UK argued that this was after 2015 in the 16 zones. In the case of London the plans did not project compliance until The UK has subsequently published revised projections showing that the plans would in fact not achieve compliance until after 2030 in some zones. 4 ClientEarth s case was that as short as possible could not be after 2015 i.e. the maximum extended deadline available where a time extension had been applied for and approved by the Commission. Answer: Frustratingly, the ECJ has misunderstood the question referred, so has not elaborated on what as short as possible means. It thought that the UK was asking whether the production of an article 23 plan meant that the UK avoided being in breach of article 13. However, the UK Supreme Court had already issued a formal declaration that the UK was in breach of article 13 so this was not in question. So what we are left with is that as short as possible means as short as possible. We therefore must look elsewhere in the judgment for guidance as to what this might mean (see further below). Question 4: Do national courts have to provide a remedy (such as a court order) where a case is brought before it? Background: ClientEarth had asked the courts to impose a mandatory order requiring the UK Government to produce a new plan showing compliance by However, neither the High Court or Court Of Appeal had given any kind of remedy despite the UK s clear and admitted breach of the limit values after The UK Supreme Court gave only a declaration that the UK was in breach of article 13 of the Directive. Answer: National courts must provide a remedy, such as an order, which results in the responsible authority establishing a plan that complies with the directive (i.e. one that achieves compliance by 1 January 2015/ as soon as possible ). So if a claimant is able to prove that a plan does not contain all appropriate measures to achieve the limit values as soon as possible, the court must order the Government to produce such a plan

3 Analysis On first reading, the ruling does not appear to take us much further forward, merely applying well established EU law principles to the interpretation of the Directive. For example: The answers to the first two questions seem rather irrelevant, as the maximum extended deadline was 1 January 2015, which will have expired by the time that the UK Supreme Court hears this case for a second time. Further, the UK was the only member state to adopt the strategy of not applying for a time extension for all non-compliant zones, so this would appear to have limited application to other member states. The answer to the third question does not elaborate on what as short as possible means. The answer to the fourth question merely restates the principles laid down in the Janecek case i.e. that where limit values are exceeded, individuals concerned have the right to go before national courts to demand a plan. However, this is only of use if we are able to establish what as short as possible means. However, the ECJ s answers to questions 1, 2 and 4 are very useful, in particular as they provide some assistance in interpreting article 23 and the phrase as short as possible. First, the ruling makes clear that limit values which are in place to protect human health impose an obligation of result i.e. member states must take all the measures necessary to secure compliance by the deadline. 5 This is a well established principle of EU law that has been reiterated in numerous ECJ judgments relating to breaches of health-based environmental limits over the last three decades. The most recent and relevant restatement of this principle was in C-68/11 Commission v Italy which concerned Italy's failure to achieve PM 10 limits under the previous air quality directive. 6 The ECJ ruled that factors such as cost, political difficulty, unfavourable meteorological conditions, technical problems etc are not valid excuses for failing to achieve limits by the required deadline. The ruling in the applies these principles to the 2008 Directive. In answering questions 1 and 2, the ECJ was aware that the UK had argued that producing a plan to achieve compliance by 2015 in accordance with article 22 would be expensive and politically unpopular and that this had influenced the courts. The ECJ ruling specifically refers to the remarks by the judge in the court of first instance (the High Court) that he would not have ordered the UK Government to prepare an article 22 plan because to do so would "raise serious political and economic questions and involve political choices that are not within the court's jurisdiction" (paragraph 20). Despite this, the ECJ ruled that the UK should have produced such a plan, that there were no circumstances which would excuse it from failing to do so, and that the UK courts should have ordered it to produce such a plan. It follows that political and economic considerations are not relevant circumstances when it comes to preparation of air quality plans. If we apply this reasoning to question 3, the obligation to prepare plans containing appropriate measures to 5 See paragraphs 30 and Directive 1999/30/EC. 3

4 keep the exceedence period as short as possible would mean that the plan must include all appropriate measures regardless of the perceived cost or political difficulty of implementing them. The answer to question 4 largely restates the principles laid down in the Janecek case 7 to the Directive: Where limit values are breached, concerned EU citizens or NGOs have a right to go before national courts (right of standing). The national courts must provide an effective remedy, including one which forces the competent authority to prepare a plan (right to a remedy). The national court must review whether the plan meets the requirements (right to substantive review). This is useful. It is not as ground-breaking breaking as we would have hoped but the ClientEarth ruling does go further than Janecek. In Janecek the court ruled that plans only needed to ensure a gradual return to compliance and must take into account the balance that must be maintained between the objective of protecting human health and opposing public and private interests. By contrast, in ClientEarth the ECJ ruled that: "...while member states have a degree of discretion in deciding which measures to adopt, those measures must, in any event, ensure that the period during which the limit values are exceeded is as short as possible". 8 Here the ECJ is saying that the degree of discretion member states were previously allowed under the Janecek judgment is now more limited because of the new "as short as possible" requirement introduced by article 23 of the Directive. There is no mention of balancing opposing interests, implying that the achievement of limit values and protection of human health overrides other considerations. So the ECJ has left it up to the national court to determine whether plans really achieve limits as soon as possible. How they will approach this question remains to be seen. However, the ECJ has given them a strong hint that they should interpret this literally: i.e. in order to achieve limits in the shortest time possible, plans must contain all possible measures. This is consistent with the arguments made by both ClientEarth and the Commission in their written and oral submissions to the ECJ. 9 Implications for the UK The case will now return to the UK courts, which will determine whether current plans, which contain no additional measures and do not achieve compliance until after 2030, comply with the Directive. In its official public statement responding to the judgment, Defra announced that it was "revising our plans to reflect recent action so we can be compliant as soon as possible". 7 Case C-237/07 Dieter Janecek v Freistaat Bayern. 8 Paragraph ClientEarth's written observations and other relevant documents are available here: 4

5 No indication has been given as to whether these will be published for public consultation before the next court hearing. This will determine the future course of the case in the UK. The main cause of NO 2 breaches in the UK and most other member states is emissions from diesel engines (road transport and off-road machines such as those used in construction). Plans will therefore need to include clear commitments to implement measures to cut diesel emissions as soon as possible. The Mayor of London is currently consulting on his proposal for an "ultra low emission zone" for London. This ruling will likely mean that the UK will have to commit to implementing this measure at least in its current form and provide the Mayor with support to improve on it, for example by introducing it earlier and making it larger. However, as the case concerns 15 other zones (and there are even more which are now projected to breach limits long after 2015), this will not suffice. ClientEarth is calling for a national network of "ultra" low emission zones as one component of a comprehensive plan to reduce diesel emissions. Wider implications The ruling will have an important bearing on the Commission's infringement cases. While the UK remains the only member state currently subject to infringement action in relation to NO 2, there are many others which are also in breach of NO 2 limits, do not have time extensions approved and which do not project compliance for many years. These countries will now be at risk. The Commission was waiting for the ClientEarth judgment before taking further action on NO 2 cases, so we should now see letters of formal notice issued against others starting in early Meanwhile the Commission has continued to make progress in its infringement cases against the 17 member states in breach of PM 10 limits: the day after the judgment in the, the Commission announced that it had issued Germany, Slovakia and Austria with reasoned opinions - the final warning before referral to the ECJ. 10 When the ECJ eventually rules on one of these cases (as yet none have been referred to the ECJ), this should provide further clarity on the meaning of "as short as possible." However, any ECJ judgment would not be until 2016 at the earliest. The ruling will put enormous pressure on EU member states to agree to improvements to the Euro VI/6 regulations, particularly those for light duty vehicles. It is widely acknowledged that successive EU regulations, particularly the Euro 4 and 5 standards, have failed to deliver the expected NOx emissions reductions in real urban driving conditions. It is hoped that the latest Euro 6 standard will eventually lead to significant real-world reductions, but early studies suggest that Euro 6 cars currently on the market are exceeding the emission limit by a factor of ten in urban driving conditions. 11 Negotiations are currently underway on new regulations which will improve on Euro 6 by requiring vehicles to meet real world driving emission tests rather than simply rely on laboratory testing. These new regulations are scheduled to come into force in 2017 but face resistance from vehicle manufacturers

6 The ruling will also put pressure on the Commission not to withdraw its clean air package. The package, which comprises proposals for a revised National Emission Ceilings Directive and a new Medium Scale Combustion Directive, will be essential to ensure that local measures to achieve limit values (such as low emission zones and restrictions on burning of solid fuel for domestic heating) are complemented by national measures to cut overall emissions and reduce trans-boundary air pollution. For example, bodies representing cities and regions across the EU have already called for the current proposal to be made more ambitious. 12 Alan Andrews Lawyer +32 (0) aandrews@clientearth.org %20NEC%20Directive.pdf 6

7 ClientEarth is a non-profit environmental law organisation based in London, Brussels and Warsaw. We are activist lawyers working at the interface of law, science and policy. Using the power of the law, we develop legal strategies and tools to address major environmental issues. ClientEarth is funded by the generous support of philanthropic foundations, engaged individuals and the UK Department for International Development. Brussels 4ème Etage 36 Avenue de Tervueren 1040 Bruxelles Belgium London 274 Richmond Road London E8 3QW UK Warsaw Aleje Ujazdowskie 39/ Warszawa Poland ClientEarth is a company limited by guarantee, registered in England and Wales, company number , registered charity number , registered office 2-6 Cannon Street, London EC4M 6YH, with a registered branch in Belgium, N d entreprise , and with a registered foundation in Poland, Fundacja ClientEarth Poland, KRS , NIP