Blog

Post-Brexit regulation on Air Pollution

By June 6, 2017 No Comments

The former UK Government had not clarified its plans for post-Brexit regulations on air pollution before Theresa May declared the elections last April.  Many have deemed air pollution to be a significant election decider.

On the one hand, the Executive had pledged to keep the UK environmental standards up to EU levels and declared its continued commitment to improving air quality even after leaving the EU. The Conservative Manifesto has assured the public that The Great Repeal Bill is the legal tool that will be used to convert EU laws and regulations into UK laws, before Brexit is finalised. The long-term UK commitment to environmental protection, in particular the introduction of the 1956 Clean Air Act before the UK joined the EU, has been proudly mentioned in various occasions as a reassurance that everything will work out fine in the end.

On the other hand, there is not yet a clear, long term plan portraying how these promises will feasibly take place. Some parties have indicated that this will be delivered by a “renewed” Clean Air Act.

On a jurisdictional scale, the challenge faced by Parliament consists of transferring all regulation, regulatory bodies and agencies under the British system while planning the UK’s departure from EU law authority. Because of the different sectors and businesses involved in this process, PM May has accepted that some industries will still abide to EU agencies until after completion of Brexit, meaning that their transferral could happen well after that still. Moreover, some sector industries prefer to wholly stay under EU authority, self-predicting that the transition would have excessive costs. Among them, the aviation and aerospace industry is unwilling to create a new domestic regulatory body and is working at Parliament to lobby for continued membership of the European Aviation Safety Agency (EASA).

The Government officially declared that, “To ensure a smooth transition and provide certainty […] we are going to turn existing EU law into UK law. […] All Government departments are currently reviewing the EU laws that apply in their areas and how our withdrawal from the EU will affect how these laws work. Without this Bill, there would be large gaps in the UK statute book after we left the EU”. This is easier said than done.

The challenges faced by environmental legislation

Turning EU law into UK law before the deadline will be hard. The Environment committee at Parliament has pushed the Government to define this branch of legislation before the Brexit deal is concluded so as to allow scrutiny from the parliament and public. In fact, in a past statement made by the then environment secretary Andrea Leadsom, she herself recognised that, “up to a third of the existing body of EU environmental legislation cannot readily be transposed into UK domestic law because of technical issues, and that work will be needed to make them work once Britain leaves the EU.”

The main risk here is that public opinion will be left with little or no time for debate once the deal is reached, eliminating the chance for UK citizens’ voices to be heard on the issue of air pollution in Great Britain post-Brexit Britain. This could pose a substantial risk, given that the PM’s priorities de facto seem to stand afar from environmental protection; the Brexit White Paper failed to include any environmental protection referrals among its 12 points, signalling that the environment is not a top priority for the current administration. Furthermore, environmentalists fear for further environmental deterioration should a Brexit deal not be reached, and if PM May loses faith to her promise of making the UK a low tax zone at the door of the continent.

The seriousness of the air pollution problem according to data

The UK is currently struggling with containing environmental pollution levels; this is an undeniable fact.

According to the Government’s own estimates, the UK undergoes a cost of at least £27.5bn a year due to air pollution, and recent studies have linked this to a multitude heart and lung health problems, such as asthma. In April 20167, MPs described it as a “public health emergency” in Parliament.

According to the UK Parliament’s Environment, Food and Rural Affairs committee’ report on air quality, up to 50,000 people annually are dying prematurely due to air pollution-related illnesses, such as cardiac and respiratory diseases. The report therefore urged the Government for action, advocating for the establishment of Clean Air Zones in dozens of English towns and cities.

Notably, within the first five days of 2017, London had surpassed the city’s annual air pollution limit of nitrogen dioxide (NO2) allowed for the whole of the year. The UK as a whole has been consistently breaching NO2 limits established by the EU since 2010. The UK was last warned in April 2015, when the Supreme Court ruled that the country was in breach of the European Air Quality Directive and insisted that the Government draw up a plan for compliance by the end of 2016.

According to the latest review, Britain is failing to uphold its laws, not only with regards to air quality, but also with water standards and the conservation of several species.

Due to these reasons, the UK Parliament Environmental Audit committee expressed its concerns about a Government agenda potentially scaling back from its pledges on the environment in exchange for easier trade deals in a post-Brexit scenario. The Conservative Manifesto, published on the 18th of May, reminds us that its party is committed to tackle climate change, having recently ratified the Paris Agreement. Although the Manifesto shows a willingness to “champion greater conservation co-operation within international bodies” and protect rare species, it does not delve into how to reach these objectives, nor does it touch upon other topical subjects, such as the banning of red diesel, the use of chemicals in manufacturing, or the need to establish an enhanced UK environment agency. Furthermore, the Manifesto suggests the establishment of a 25-year-plan in favour of an improvement of legislation post-Brexit yet does not mention in what direction this would go. The lack of current action as well as direction for future action is therefore leaving many concerned for the environmental future of the UK post-Brexit.

What about the EC Reasoned opinion and the UK High Court of Justice deliberation

On 15th February 2017, the European Commission (EC) issued a ‘reasoned opinion’, warning Germany, Italy, Spain and the United Kingdom about continued air pollution breaches. The EC acknowledged that air pollution is a serious public health risk, with most emissions attributed to road traffic. Specifically, the United Kingdom has 16 air quality zones; among them London, Birmingham, Leeds and Glasgow. The ‘reasoned opinion’ states that “EU legislation on ambient air quality (Directive 2008/50/EC) sets limit values for air pollutants, including nitrogen dioxide [NO2]. In case such limit values are exceeded, Member States are required to adopt and implement air quality plans that set out appropriate measures to bring this situation to an end as soon as possible. […] If Member States fail to act within two months, the Commission may decide to take the matter to the Court of Justice”.

The Government was asked to publish an updated clean air proposal by 24th April, yet the Department for Environment, Food and Rural Affairs (DEFRA) applied to postpone the report release until after the general election, with the final report to be published on 15th September. Consequently, this would have postponed all plans to tackle illegal levels of air pollution until then. The UK High Court of Justice ruled against the appeal, asserting that the call for a general election does not justify the postponement of a deadline that should have been planned for in advance. Therefore, the final Air Quality Plan (AQP) Report’s publication has maintained the original deadline and is due on July the 31st 2017.

The High Court also ordered the UK Government to publish a draft AQP by 9th May, accepting the consultation to be delayed until after the local elections on 4th May, to allow Local Authorities enough time to respond.

Importantly, a technical report attached to the draft AQP identifies charging Clean Air Zones (CAZs) as the most effective measure to reduce emissions. It obligates Local Authorities to produce evidence that there are no other actions potentially more effective than charging CAZs in order to be “approved by Government and thus be considered for […] funding”.

In simple words, the draft AQP fails to abide to its own technical report. This attitude is presumably a way to frustrate the ability of Local Authority attempts to enforce CAZs, by pushing them to conduct redundant feasibility studies on top of already conducted work. Moreover, this takes responsibility away from the Government and gives it to local authorities.

The incongruence between the technical report and the conclusions of the draft AQP is what has motivated ClientHeart to go back to Court to have the publication of the last Government air quality plan appealed.

Conclusion

Election-mode is on; pollution may be higher on the voters’ agenda than some politicians might think.

The UK has attained a consistent record of breaching EU parameters on air pollution. Notwithstanding Brexit, the next Government will still have to be accountable to its own Parliament and citizens on this matter regardless of any European binding legislation.

An alternative to simply transferring a whole body of laws and regulations into domestic law through the Great Repeal Bill could come about through two kinds of solutions. The first solution could see the UK encouraging a new “Environmental Protection Act” in order to provide an equivalent or improved level of environmental protection compared to the one currently in place under the EU legislative umbrella, as suggested by the Environmental Audit committee.  An alternative solution that could go into effect after Brexit would be to adopt the World Health Organisation (WHO)’s guidelines on air quality. These set even more stringent targets than those of the EU, specifically on particular matter (PM10: 20 µg/m3 annual mean 50 µg/m3 24-hour mean). It is believed that the establishment of a body capable of enforcing the proposed changes would be crucial, such as the establishment of an enhanced Environmental Agency before the next General Election (or, as in the case of the US ‘Volkswagen Emissions Scandal’, an Environmental Protection Agency acting to enforce legal obligations).

It is favourable and crucial to uphold this country’s tradition of care for and conservation of the environment, by leading the way towards a wholly-encompassing and forward-looking legislation on environmental protection and to consider this as an opportunity to set an example to be followed by others in the future.

 

Anna Pastore

Anna Pastore has been working in both advocacy and charitable sectors for the last four years. Her work has focused on stakeholder engagement, policy analysis, communication and consultation projects. She holds an M.Sc. in Population and Development Studies from the London School of Economics and Political Science (LSE) and an M.A. in International Relations from Ca’ Foscari University in Venice, Italy.