Explainer: The Environment Act and air quality

Though centred on its requirement to establish a new air quality target for particulates, the Environment Act 2021 also aims to prevent a repeat of ‘dieselgate’ and reforms the Local Air Quality Management framework. Gareth Simkins explains how the law will function.

A cyclist wearing an anti-pollution mask The Environment Act 2021 makes a series of changes to the regulation of air pollution. Photograph: Leo Patrizi / Getty Images

What is the plan for regulating fine particulate pollution?

As it was going through parliament, one of the most contentious aspects of the Environment Act 2021 was how it would address pollution from fine particulates (PM2.5).

Pressure to put 10 micrograms per cubic metre as an annual average on the face of the bill, ultimately came to nothing. This was despite an earlier government pledge to adopt the target, which was formerly recommended by the World Health Organization. The body has since halved the guideline value.

Instead, a new limit value is expected to be set through regulations next year, possibly accompanied by a long-term population exposure target and perhaps stricter limits on nitrogen oxides.

Consultant Claire Holman, a director of Air Pollution Services and former chair of the Institute of Air Quality Management, said she “wouldn’t be surprised” if the government does accept the UN body’s PM2.5 goal as a long term target, for attainment within 15 years. It would be “perfectly possible” to achieve, she said, given greater powers to control urban wood burning and emissions from restaurant cooking.

READ MORE: The burning question: How can we meet the WHO’s guidelines on particulate matter?

READ MORE: PM2.5 pollution: The difficult decisions the government must make to tackle domestic wood burning

  

How does the law affect air quality policy more generally?

Schedule 11, which holds the bulk of the act’s air quality provisions, specifies that the “national air quality strategy” must be reviewed within 12 months of when the schedule enters force, which will be specified in forthcoming regulations. This implies revisions to the Clean Air Strategy of 2019, plus road transport policy.

English local authorities and “relevant public authorities”, again to be defined in regulations, must have regard to the strategy when exercising functions that could affect air quality.

The schedule also introduces a new duty for the secretary of state to report annually to parliament on the steps taken and progress towards meeting air quality targets.

In comparison, the law’s provisions on the (LAQM), smoke control areas, recall of vehicles that do not meet emission standards and new public sector duties are far clearer. 

How does the act amend LAQM?

An explicit duty to ensure that air quality objectives are maintained after being achieved has been inserted into the Local Air Quality Management (LAQM) framework, which requires local councils to assess air quality and designate air quality management areas where limit breaches occur. This comes on top of requiring improvement measures, with deadlines, to be specified in LAQM action plans.

“We look forward to working with the government to ensure local authorities and other public bodies have the political support, adequate resources, expertise and powers to develop and implement effective action,” under the reformed regime, said consultant Sarah Legge, chair of Environmental Protection UK’s air quality committee.

But Holman doubted much change would emerge, as councils have “so many other things to worry about” and have few levers to pull on air quality, in any case.

How does the act make LAQM more collaborative?

The act reinforces LAQM duties for the mayor of London and ‘metro mayors’, requiring them to provide the local authorities in their respective areas with proposals to clean up the air.

English local authorities may also designate neighbouring councils and the Environment Agency as ‘air quality partners’, obliged to provide “such assistance… as the authority requests”, says the act, subject to the request not being “unreasonable”. The provision fulfils a promise by former environment secretary Michael Gove to introduce a ‘duty to cooperate’ on air quality.

English councils will also have to specify why objectives are or will not be achieved, by naming and shaming the sources and who regulates them – potentially their partner bodies.

What are the consequences for environmental permitting?

The reforms to LAQM could generate local political pressure for the Environment Agency and councils to apply more restrictive permit conditions on certain industrial emitters, though Holman indicated this was an unlikely prospect.

Legge agreed. “I don't know if this gives them the right to gold plate existing industrial permitting standards, it could be argued that these are best practice and so going further would be unreasonable, the one defence it allows,” she told ENDS. She considered that the partnership provision was targeted more at addressing highways issues, which can be controlled by different tiers of local government.

How have smoke control powers been bolstered?

Schedule 12 to the act updates the smoke control area (SCA) system, which dates back to the Clean Air Act 1956.

Under the Act’s 1993 successor, emitting dark smoke from a chimney is liable to a £1,000 court fine. Once the schedule enters force, this will be replaced by a simpler system of civil penalties, between £175 and £300, which could drive up the regime’s negligible enforcement. Appeals will be to the First-tier Tribunal and unpaid bills will be recoverable as a civil debt.

The schedule introduces three new offences related to buying and selling unapproved solid fuel – generally meaning wood and coal – for use in SCAs. Buying it for a domestic fireplace, industrial boiler or industrial plant would be liable for a £1,000 fine, whereas offering it for sale could lead to an unlimited fine. In both cases, exceptions are made for burning in ‘exempt appliances’.

But according to Simon Birkett, founder of Clean Air in London, DEFRA would have been wiser to simply ban wood burning in urban areas by the end of the decade, with limited exemptions for heritage buildings off the gas grid.

However, Bruce Allen, chief executive of the biomass heating trade association HETAS and the Woodsure fuel certification scheme, welcomed the legislation, hoping that it will help cut air pollution. “Providing clear and usable legislation for local authorities to prosecute is a positive step forward, as a lack of enforcement in this area has been a barrier to improvement.

“Stove users who put in the extra effort to burn responsibly by changing to dry wood and smokeless fuels can be assured that they are not having a negative impact on air quality whilst using a low carbon heat source,” he added.

How has the dieselgate scandal impacted the act?

One of the problems exposed by Volkswagen’s dieselgate scandal, which has never received any formal punishment in the UK, was that the government did not have a clear power to order the cars’ ‘cheat device’ to be removed.

In response, the act allows regulations to be issued governing the compulsory recall of any vehicle, machine or part if there are “reasonable grounds for believing the product does not meet a relevant environmental standard”. Such recalls could set a minimum proportion of products sold to be returned, stop them being put on the market and order the payment of compensation and a financial penalty, among other terms.

Financial penalties may also be applied for such failures – and firms cannot simply keep silent in an effort to avoid them. Manufacturers and distributors will be required to inform the government if they have reason to consider that a product is not up to scratch.

“I think dieselgate showed us a loophole, so it’s useful to close it. There are, after all, many other ways organisations could game the system,” Legge told ENDS.