Infringement action looms as UK air quality failures continue

Air quality breaches recorded in the latest annual compliance report leave the UK open to EU infringement proceedings. A complaint and legal action are ongoing

Latest air quality compliance report shows NO2 levels still too high (photo: Iain Buchanan, CC by SA 2.0)Legally binding EU air quality standards for nitrogen dioxide (NO2) are being breached in 35 of the UK’s 43 zones, according to official data for 2011 published by the environment department (DEFRA) on 28 September.

The continuing breaches of the 2008 EU ambient air quality directive leave the UK vulnerable to costly infringement proceedings from the European Commission, which appears to be hardening its stance.

At the same time DEFRA is handling a complaint to the commission from campaign group Clean Air in London (CAL) while legal NGO ClientEarth is attempting to restart its legal challenge to UK air quality plans.

The UK has the highest proportion of air quality zones in breach of annual average NO2 limits that were supposed to be met by 2010, but it is by no means the only member state facing difficulties. The failures are blamed largely on the poorer than expected performance of the ‘Euro’ vehicle emissions standards.

Speaking at the end of September EU environment commissioner Janez Potocnik acknowledged the Euro standards problem but said that member states were the “main issue” in non-compliance.

“They have insisted on flexibility in applying air quality legislation,” he said. “This has, unfortunately, not led to better implementation. Too often, the response has been too late.”

Joe Hennon, spokesman for commissioner Potocnik, told ENDS: “Infringement action in the autumn is a real possibility. But as we are currently assessing the situation in many countries, not just the UK, it may be a bit later.”

The UK breaches recorded during 2011 include three zones which exceeded the legally enforceable standard for hourly mean NO2 concentrations. These were Greater London, Glasgow and south east England.

There were breaches of the NO2 annual average limit in 35 zones including four which had been granted a conditional time extension by the commission just three months ago (ENDS Report, July 2012).

The extension, granted under article 22 of the Air Quality Directive, gave nine zones until as late as 2015 to meet NO2 limit values on condition they remained within the limit plus a margin of tolerance.

But this condition was broken in four zones, the 2011 compliance report shows. It is prepared for DEFRA on behalf of the UK and devolved administrations.

Other areas in breach include 15 zones for which an article 22 time extension was rejected by the commission and 16 zones in which DEFRA does not expect compliance before 2020.

Plans for these 16 zones have been challenged by ClientEarth. The zones have a particularly large compliance gap between actual levels of NO2 and the average annual limit value of 40 micrograms per cubic metre.

But ClientEarth argues DEFRA could do more to bring compliance forward. It told ENDS: “The government’s lack of action on air pollution is achieving the results you’d expect – very little.”

In its legal challenge it argued that DEFRA should have been obliged to draw up plans setting out how these zones would be brought into compliance by 2015, the latest date available under an article 22 extension.

But DEFRA contended that it could remedy the breaches through article 23 of the directive under which zones not in compliance must have air quality plans containing “appropriate measures, so that the exceedance period is as short as possible”.

The DEFRA interpretation was supported in a High Court ruling last year and then confirmed by the Court of Appeal in June (ENDS Reports, December 2011 and June 2012).

But ClientEarth maintains that this interpretation undermines the whole article 22 time extension procedure.

The commission seems to agree with this view. Potocnik’s spokesman Hennon told ENDS: “it would make little sense if ‘as soon as possible’ [under article 23] were to be later than 2015. This would allow member states to bypass the extension arrangements in article 22.”

Legal action

ClientEarth is seeking leave to take its case to the Supreme Court which is expected to decide whether to accept it in December.

This ongoing legal dispute will have to be settled by the courts but does not reduce the risk of infringement for the UK, which is by its own admission still in breach of NO2 limits.

Breaches of the legally binding NO2 limit values are the most serious problem listed by the UK’s 2011 compliance assessment summary, as was the case in its 2010 report (ENDS Report, October 2011).

But breaches of the non-legally binding target value for benzo-[a]-pyrene were also recorded during 2011, in seven out of the 43 UK zones. These are either close to industrial point sources or in Northern Ireland, where use of solid fuel for home heating is associated with emissions.

Ongoing breaches of the benzo-[a]-pyrene target value are likely, because emissions have been stable for several years (ENDS Report, September 2011).

All UK zones met target values for ground-level ozone pollution in 2011. But 43 of 43 zones breached the long-term objective for health protection. This marks a continuous deterioration since 2009 when 39 zones breached the objective.

For fine particulate matter (PM2.5) no zones breached the 2010 target value of 25μg/m3. This will become a legally binding limit value in 2015, falling to 20μg/m3 in 2020.

This year also sets the baseline for a 15% reduction target in the populations’ average exposure to PM2.5, by 2020. This complex measure is set with reference to the average during 2009-2011 which for the UK was 13μg/m3.

Initial signs for progress against this longer-term objective are not promising as the measure increased from 12.5μg/m3 in 2009 to 13.0μg/m3 in 2010 and 13.5μg/m3 in 2011.

A breach of the daily coarse particulate matter (PM10) limit recorded in London in 2010 was remedied in 2011, largely because the commission had granted an extension covering part of the year.

The time extension, the use of dust suppressant road spray and the choice of monitoring stations used in DEFRA’s official air quality network are subject of a formal complaint to the Commission made by campaign group Clean Air in London (CAL) in March (ENDS Report, March 2012).

The group’s director Simon Birkett said: "DEFRA's response to our complaint through the ‘EU pilot’ process failed to address the substance of the issues raised and included logic that would have made the Byzantines proud.  We continue therefore to urge the commission to launch infraction action against the UK for breaching legal standards for air quality in London and elsewhere."

The commission informed ENDS it planned to react to DEFRA’s response by the end of October. This could include asking for more information, launching infringement proceedings or closing the case.

Evidence in the 2011 compliance report shows the challenge ahead in meeting a government promise to “work towards full compliance with European air quality standards”. This was a key pledge in the coalition agreement.

DEFRA has said it hopes to “reduce the infraction risk” faced by the UK and other member states through a 2013 review of EU air quality legislation (ENDS Report, March 2012).

But it is unlikely the commission will accept a weakening of air quality standards in the review. If anything the reverse is more likely since EU standards are already less stringent than reference levels set by the World Health Organisation (WHO).

In its latest report on air quality across the EU the European Environment Agency noted that almost all city dwellers in the bloc are exposed to particulate matter in excess of levels recommended by WHO.

Discussing the 2013 review, commissioner Potocnik said: “some still argue that in times of severe economic hardship, air pollution measures are too costly. I would argue that air pollution itself imposes much greater costs on the economy.”

He argues that a strengthened EU air quality regime “will actually benefit European companies by giving them a lead in growing markets [such as China]”.

As part of the review he is considering launching an innovation programme to support the development of clean air technologies in Europe.

Potocnik said that policy proposals from the review will come at roughly this time next year.

A major aspect of the review will also be the long-anticipated revision of the EU National Emission Ceilings (NEC) Directive. Limits for five major pollutants agreed by the EU under the Gothenburg Protocol earlier this year will form the basis of this revision (ENDS Report, May 2012).