The letter, which was coordinated by ClientEarth and signed by 46 other air pollution experts, practitioners, lawyers and NGO’s, including the Wildlife and Countryside Link and the Asthma and Lung Foundation, urges the environment secretary to “reconsider the impact that the REUL Act will have on air quality protections for people and nature in the UK”.
Under the REUL Act, the government intends to revoke regulations nine and 10 of the National Emission Ceilings (NEC) Regulations 2018 by the end of the year.
The NEC Regulations set legally binding emission reduction commitments in accordance with the National Emission Reduction Commitments (NERC) for 2020 and 2030 for five air pollutants: fine particulate matter (PM2.5); sulphur oxides (SOx); ammonia (NH3); and volatile organic compounds (VOCs).
Regulation nine requires that the secretary of state “prepare and implement a national air pollution control programme in order to limit anthropogenic emissions in accordance with the national emission reduction commitments.” And regulation 10 requires that before preparing or significantly revising the National Air Pollution Control Programme (NAPCP), the secretary of state must consult the public.
The groups have urged Coffey to “exercise powers under the Act to remove regulations nine and 10 of the NEC Regulations and the Commission Implementing Decision (EU) 2018/1522 (the ‘Implementing Decision’) from Schedule one of the Act, so that they are not removed from the statute books at the end of this year”.
The Implementing Decision 2018/1522 lays down a common format for the NAPCP Directive on the reduction of national emissions of certain atmospheric pollutants.
The letter states that these are “vital pieces of retained EU law” that “provide a framework for robust plan making to ensure that emission reduction commitments can be met and a requirement to ensure that the public has a say in government policy.”
While the letter recognises that the overarching emission reduction targets under the NEC are set to remain, it warns that removing regulations nine and 10 would “seriously undermine confidence that government will properly plan to comply with these legal promises to reduce harmful pollution, and may also prevent meaningful public scrutiny of the adequacy of those plans.”
The government has previously said that it is choosing to revoke these regulations because of duplication between the NEC regulations and the Environment Act 2021.
However, the letter states that analysis has shown that there are “multiple instances where these regulations significantly diverge”. For example, it states that the NEC Regulations provide a much higher level of accountability and transparency.
“Accordingly, such analysis demonstrates how the removal of regulations 9 and 10 and the implementing decision would constitute a removal of protective regulation”, it states.
Post-Brexit green watchdog the Office for Environmental Protection recently raised similar concerns, warning that the removal of these regulations “without alternative statutory requirements constitutes a weakening of the legal framework supporting delivery of improved air quality”.
The letter states that government assurances that the REUL Act will not lead to a row back on environmental protections “simply does not square with how these important laws are being watered down”.
Under the Act, the government has powers to remove the laws that it intends to revoke from schedule one, the groups have urged the environment secretary to use this power, “while there is still time to ensure that a robust framework remains in place and that the public are given the opportunity to have their say in environmental policy that affects their lives and protects their health”.
A DEFRA spokesperson said: "When we consulted on the NAPCP, as required by the NECR, a number of stakeholders said they found the document unhelpful and inaccessible. With this in mind, we are considering how we can simplify the process to reduce administrative burdens and improve transparency.
"The emission reduction targets set out in the NECR remain unchanged and there has been no reduction in the level of environmental protection. As the secretary of state said in her response to the OEP, we remain committed to achieving the reduction targets set out in the NECR and are maintaining the reporting provisions to ensure there is transparency on our progress.”