Are the Government's new plans to tackle air pollution sufficient?

Air quality in the UK has been a hot topic in recent months, including different versions of the Government’s (draft) air quality plans being the subject of various legal challenges. The UK apparently meets EU commitments for overall emissions of all air pollutants, but it fails to meet the statutory limit for nitrogen dioxide (NO2) concentrations. On 26 July 2017, the final form of the “UK plan for tackling roadside nitrogen dioxide concentrations” was published, setting out the Government’s measures to bring our nation in line with the above commitments and to improve air quality across the UK generally.

The updated plan is currently being scrutinised by a number of interested parties, to see how far the Government is going to reduce NO2 (and carbon) levels in the UK, the likely costs of and timings for implementing the measures in the plan and if this form of it complies with EU legislation. If the plan is not deemed to be compliant, it is likely to be challenged in the Court by one of the opposing parties, following the pattern of the last 18 months or so.

In December 2015, the Government published a draft plan, which was challenged successfully by the environmental group ClientEarth – due to its failure to ensure timely compliance with Article 23 of the EU Directive on Air Quality and the associated air quality standard regulations. The Government was ordered to publish a new version for consultation by 24 April 2017 (which the Government tried to delay until after the General Election, but it was required to publish in May) and for the final form to be submitted to the European Commission by 31 July 2017.

The May draft plan gave Local Councils clear duties to develop and implement Clean Air Zone Plans, where NO2 levels were above legal limits, and set out steps to reduce the impact of diesel vehicles and accelerate the move to cleaner transport generally.It suggested retrofitting technologies, alternative fuels, low emission vehicles and a targeted scrapping scheme for certain vehicles still on the roads (the scrapping scheme has not been repeated).

At the end of May, ClientEarth challenged the draft plan in the Court again. It accused the Government of not including “measures which the Government’s own technical data show are the best way to bring down air pollution as soon as possible” – ie impose clean air zones etc. It wanted more ambitious options and firmer commitments, including a scheme for scrapping vehicles fairly. That challenge however failed. The Court held that the May plan complied with legal requirements, but acknowledged that further challenges could be brought in due course, if the final version were not effective enough. It therefore warned the Government that measures in the final plan would have to be equally or more effective than, for example, vehicle charging zones, to meet air quality limits and reduce pollution.

Final form of the plan – published 26 July 2017

The final form of the plan continues to focus heavily on vehicles, especially diesel ones (due to road users apparently contributing 80% of NO2 roadside pollution) and to promote a range of cleaner forms of transport. But it also expands the field to target the reduction of emissions by industry, non-road mobile machinery and buildings (both commercial and domestic). Still it sees NO2 pollution as a localised problem, so intervention is targeted on particular problem areas, and at the main sources - generally a few roads in an area, rather than for example a whole town. Much of the final plan therefore focuses on measures to be introduced at the local level. The headline which has been displayed and discussed the most since the plan was published is that the sale of new conventional petrol and diesel cars and vans is to end by 2040. This measure was fact announced in 2011 and the Conservative Party also promised in its 2017 manifesto that there would be no petrol or diesel cars on the road by 2050. The December 2015 plan strategy still forms part of the July plan, as the latter continues to support actions already being carried out to improve NO2 standards, including the Wider Clean Air Strategy, ways to ensure existing vehicles are cleaner, methods to accelerate the adoption of cleaner vehicles and actions to improve the emissions from other forms of transport, from buildings and from other stationary sources.

The additional actions summarised in the new plan (which in fact repeat many of the details proposed in the draft versions, but with some more robust measures added) include:

Responsibility for reducing NO2 levels in local areas passed down to local authority level;
Consultation on proposals for Clean Air Zone/Low Emissions Frameworks is to be carried out by the Welsh and Scottish Governments;
Highways England have responsibility for improving air quality on the Strategic Road Network in England;
Funding to assist the uptake of low emission buses, taxis and other vehicles;
New real driving emissions requirements for light passenger and commercial vehicles;
Roadside checks on lorry emissions, from as soon as August 2017;
Reduction in NOx emissions from medium combustion plants and small-scale diesel generators;
Call for evidence on a new Aviation Strategy this summer, so taking future action against pollution in relation to this industry can be considered;
An Automated and Electric Vehicles Bill to require motorway service stations and food retailers to install charging apparatus;
Changes to the Government procurement policy to ensure that new vehicles have low NO2 emissions as well as low carbon emissions;
Calls for towns and cities to be revamped through investment in walking and cycling;
and Exploring potential changes to taxation on diesel vehicles and to consumer information on environmental performance.

Looking at a couple of the above aspects in more detail:

Local area measures

Local authorities in England must produce their draft local air quality plans (as per action 1. above) by the end of March 2018 and final local plans by the end of December 2018 – this is earlier than the dates which were proposed in the UK’s draft plan. The plan suggests that the local air quality plans could include measures such as:

Changing road layouts at congestion and pollution pinchpoints;
Encouraging public and private uptake of ultra-low emissions vehicles;
Using innovative retrofitting technologies and new fuels; and
Encouraging the use of public transport.

Funding of £40 million has been promised by the Government to kick-start these local schemes, with funding partly emanating from a higher tax on diesel vehicles. If such measures are insufficient, only then does the Government suggest that local air quality plans could include Clean Air Zones, imposing charging requirements or other access restrictions. But, any such requirements or restrictions would have to be temporary and so would need to be removed once compliance with air quality limits is achieved in that area.

The Government promises financial support for the development and implementation of local plans, consisting of:

A £255 million implementation fund, to help local authorities to prepare their plans and deliver targeted action to improve air quality;
Establishing a Clean Air Fund, allowing local authorities to bid for additional money to improve air quality. This could be for measures to avoid imposing charging zones or access restrictions;
and £100 million for retrofitting and new low emission buses.

The Government states that it will only approve a local air quality plan (and then consider funding for it) if:

It is likely to achieve compliance with NO2 limits as soon as possible;
The local authority has assessed the impacts on local residents and businesses and there are no unintended consequences; and
Proposals which require central Government funding demonstrate value for money.

Vehicle measures

Despite most of the measures in the plan being directed towards cleaning up emissions from vehicles, the Government is keen to avoid unfairly disadvantaging those who bought diesel vehicles in good faith. Previous Governments encouraged diesel over petrol vehicles, as they are comparatively more fuel efficient and have lower CO2 emissions. These changes are going to have a huge impact on the vehicle industry as a whole and on the way in which vehicles in the UK are considered generally. There is already an acceptance that different types of vehicles do need to be brought in or existing ones adapted.

Reactions and likely impacts

Generally the view is that the plan still does not go far enough to address current pollution levels, nor does it bring in/require measures fast enough. Although speedy implementation of the requirements would force the vehicle industry and vehicle users to adapt quickly, part of the Government’s defence of taking some time to bring in these changes is that it does not want to damage business or harm individuals by changing the landscape too quickly. There has been campaigning by opponents to the plan in recent months for the clean air zones to be imposed permanently in areas of bad pollution, in line with evidence showing that the imposition of such zones is effective, so there is now disappointment that they are not to be adopted on this basis. If the other elements of the plan are not deemed to be sufficient to meet the UK’s targets, this aspect might be subjected to another legal challenge.

As vehicles have been shown to be the main producers of NO2 pollution, they are the main target overall for the changes. Other sources of pollution could of course be addressed more seriously and urgently. It will be interesting to see if there are any challenges on the basis that other industries are not being forced to reduce pollution output enough.

Aviation pollution has however been acknowledged in this form of the plan, as an improvement to the last version, but there is little more here than the basis that a strategy needs to be brought in. The Government will be calling for evidence and views on potential measures to address this source of pollution this summer. With the Government’s drive away from fuel based vehicles to electric ones, there is concern that we do not have the charging infrastructure or sufficient levels of electricity (as opposed to other types of energy) available across the UK to support what will be a surge in electric vehicles. There are measures in the plan to help to deal with this, but they will undoubtedly take time to be addressed. While vehicles will simply be plugged into the electric charging points, the electricity itself will need to be produced somewhere, so some NO2 pollution may just be moved from the road network to power stations. Or, if this will in fact lead to a big push towards renewable energy (especially electricity) production over the next few years, apparatus for capturing that energy would need to be planned and set up quickly. Will the opposition to wind farms, solar parks and suggested schemes such as the Severn barrage, continue at the current levels if clean air campaigners can see that they might be the best way to produce the quantities of extra electricity which will be required, cleanly?

Whether or not it is challenged over its compliance with EU commitments or otherwise, this form of the plan, or whatever replacement follows it, will result in significant changes to vehicles and to travel in the UK. Some of these will have to be brought in quickly and others will probably follow at a more leisurely pace. Hopefully the plan will also lead to a reduction in private vehicle use in the longterm (especially if public transport is in turn improved sufficiently), which clearly would have many associated benefits. Even though the commitments and the timings involved are European, improving the health of the nation through the implementation of these measures is not something which the Government is likely to drop after we leave the European Union – and, if the Government did try to water down our commitments in the future, the air quality campaigners would be unlikely to accept such changes.

This article was written by Helen Hutton. For more information please contact Helen on +44 (0)20 7203 5314 or helen.hutton@crsblaw.com