Protection - Pollution - Air pollution - European directive requiring reduction in emissions

R (on the application of Clientearth) v Secretary of State for Environment, Food and Rural Affairs: QBD (Admin) (Mr Justice Mitting (judgment delivered ­extempore)): 13 December 2011

Article 13 of Parliament and Council Directive (EC) 2008/50 (on ambient air quality and cleaner air for Europe) (the directive) required member states to ensure, inter alia, that levels of nitrogen dioxide in ambient air did not exceed the proscribed limit (the limit values) from 1 January 2010.

Article 22 of the directive provided that where, in a given zone or agglomeration, conformity with the limit values for nitrogen dioxide could not be achieved by that deadline, a member state ‘may’ postpone the deadline by a maximum of five years for that particular zone or agglomeration, on condition that an air quality plan was established in accordance with article 23 for the zone or agglomeration to which the postponement would apply. In June 2011, the government outlined its plans for reducing nitrogen dioxide.

The document demonstrated that out of 43 areas or conglomerations in the UK only three had achieved the nitrogen dioxide limit by 1 January 2010. A further 23 were likely to achieve it by 1 January 2015, 17 areas or conglomerations, mostly built up areas, would not achieve the limit until 2020 and 1, greater London, would not achieve it much before 2025. In September 2011, the government submitted its plans to the European Commission in respect of nitrogen dioxide. The claimant sought declaratory and mandatory orders against the secretary of state in relation to the government’s failure to comply with the emission limits set by the directive.

The claimant submitted, inter alia, that pursuant to article 22.4 of the directive the government was obliged to put to the commission a plan for reducing nitrogen dioxide to levels below the limit values by 1 January 2015. Further, the claimant sought a declaration that the UK was in breach of an obligation to comply with nitrogen dioxide limit values provided for in article 13 of the directive. The government contended that its obligation was to reduce nitrogen dioxide to comply with the limit values by 1 January 2010, something which it accepted that it had not done. Consideration was given to article 258 of the Treaty on the Functioning of the European Union (the treaty). Although the claimant’s submissions centred around article 22.4 of the directive, the court considered the issue mainly in relation to article 22.1.

The court ruled: (1) Article 22.1 of the directive gave member states a discretion to apply to postpone the deadline by a maximum of five years. The use of the word ‘may’ in the English text and the word ‘peut’ in the French text was unequivocal and conferred a discretion. If a member state would otherwise be in breach of its obligations under article 13 of the directive and wished to postpone the time for compliance then the machinery provided by article 22.1 was available to it. However, it was not obliged to use that machinery and could simply admit its breach and leave it to the commission to take whatever action it thought appropriate.

Given that the UK was not obliged to apply for a postponement for up to five years under article 22 of the directive, there could be no basis for issuing a mandatory order for the secretary of state to do so.

(2) It was now common ground that the UK was in breach of its obligations under article 13 of the directive. In the circumstances, a declaration would serve no purpose other than to make clear that which was already conceded. The means of enforcing article 13 of the directive lay elsewhere, namely with the commission under article 258 of the treaty and, if referred, with the court of justice of the European Union. Those means were sufficient to deal with the mischief at which the directive was aimed.

Accordingly, it was correct in law to decline to grant any relief.

Stephen Hockman QC and Ben Jeffrey (instructed by Alan Andrews) for the claimant; Kassie Smith (instructed by DEFRA) for the secretary of state.