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Brexit and Air Pollution

Posted on 11th April 2016

A vote to leave the EU could weaken air quality legislation at a time when air pollution is killing thousands of UK citizens every year

On 23 June 2016, the UK will go to the polls to determine whether or not we stay part of the European Union. Pollsters currently describe the split between the ‘stay’ and ‘leave’ camps as fairly even.

Opposition to the EU within the UK has long focused on the idea that Brussels is remote and overly officious; imposing unwanted bureaucracy and ‘red tape’. In the case of air quality at least, a different narrative has emerged with EU standards facilitating the protection of UK lives and the health of our citizens from the harmful effects of air pollution, where our own Government is not prepared to take action.

Air pollution is killing British people in their tens of thousands every year. The UK’s Department for the Environment, Food and Rural Affairs (Defra) conceded in September last year that in excess of 50,000 people die each year from the effects of nitrogen dioxide and particulate matter.

These toxic gases affect the respiratory system, and those with underlying conditions such as asthma and COPD (chronic obstructive pulmonary disease) are particularly affected. Vulnerable groups also include the elderly and children, whose still-developing lungs can be stunted by the effects of breathing toxic air. Links have been established between air pollution and the onset of asthma in children and new research is emerging which links air pollution to a wide variety of adverse health effects including low birthweight, autism, schizophrenia, stroke and cancer.

The health effects of air pollution are also an equality issue; more deprived communities have a disproportionately high incidence of respiratory conditions, which makes them more susceptible. In addition, they have less freedom to move away from highly polluted areas.

Regulation of air pollution in the UK stems from EU legislation, and the UK has been in breach of the key legislative provision since 2010. Directive 2008/50/EC sets maximum permissible levels for key pollutants affecting human health, including nitrogen dioxide and particulate matter. This is translated into national law in the UK via the Air Quality (Standards) Regulations 2010.

Key areas with very elevated nitrogen dioxide in London include Brixton, Hammersmith, Camden, Putney and parts of East London such as the Old Kent Road. On Brixton Road, the target annual mean NO2 level was exceeded more than threefold in 2015.

Despite the urgent public health threat posed, action by Defra has been lacklustre to say the least. The same is true of other relevant Government bodies such as the Mayor of London and Transport for London. Air pollution kills more people annually than alcohol, obesity, and traffic accidents combined, but has for the most part remained off this Government’s radar.

This situation is now starting to change and in a key judicial decision of April last year, the Supreme Court declared Defra to be in breach of EU regulations on nitrogen dioxide levels and ordered it to make new plans to clean up air pollution in the “shortest time possible”. This finding relied on EU law and was made following a referral from the European Court of Justice in Luxembourg (the EU Court).

Defra’s revised plans were accordingly put out for consultation in September 2015 and were finalised in December 2015. They met with condemnation from air quality advocates as being inadequate to bring about compliance, which was in any event still not predicted in some parts of London until 2025, making the period of the breach around 15 years.

Clientearth, the charity which brought the initial legal action against Defra, have now said that they will take the matter back to court to compel the Government to take more effective action to combat air pollution.

It is very unlikely that this action would have succeeded were it not for the EU regulations and the ability of the litigants to involve the European Court of Justice. If the UK were to leave the EU and the issue of regulating air pollution subsequently fell to our own national government, there would be nothing to prevent the repeal of the regulations which enforce the EU standards within the UK.

The EU is also separately bringing infraction proceedings against the UK for failing to comply with the EU Directive.

The absence of meaningful action by the UK Government on air pollution is accordingly being filled largely through EU regulation and enforcement. Measures such as stepping up the introduction of the Ultra-Low Emission Zone in London, speeding up the introduction of cleaner buses and introducing a diesel scrappage scheme are investments in our future which require principled political leadership, and which so far our Government are unwilling to implement.

Indeed, far from enforcing such measures, the Government has instead sought to hinder EU initiatives that counter nitrogen dioxide vehicle emissions. EU legislation on ‘real world’ emissions testing, designed to ensure that nitrogen dioxide emissions are met not just in laboratory conditions but also on our roads, is being introduced in the wake of the VW scandal. However, car manufacturers with the support of the UK Government have successfully argued for a ‘conformity factor’ which means in reality that cars can continue to emit over 100% more than the legal emissions limit until 2018.

It is notable in this regard that Boris Johnson, a key advocate of Brexit who likes to portray our EU membership as bringing about a stream of meddlesome and petty regulations, has a dreadful record on combating air pollution during his tenure as Mayor. During the 2014 smogs he was reported as saying: “I’m urging people just to have a little balance here, I cycled this morning and it seemed perfectly fine to me”.

Should we leave the EU and continue with this approach to air pollution, we could then find that air quality continues to improve in the rest of Europe but starts to fall away in the UK. Without the ‘stick’ of EU legislation, the Government is likely to further prioritise financial interests over steps limiting nitrogen dioxide emissions. It is likely that existing standards would be diluted, in order to obtain an economic advantage over other countries.

It would also presumably become more difficult to challenge large infrastructure projects which threaten to increase nitrogen dioxide levels, such as the proposed third runway at Heathrow.

An alternative scenario on leaving the EU could be that the UK would remain part of the European Economic Area (EEA) and accordingly would still most likely have to abide by EU air quality legislation. It has not yet been determined what will happen to our economic relationship with the EU should the Brexit campaign succeed. Iceland, Liechtenstein and Norway belong to the EEA but not the EU, and are bound by much EU legislation. We would then find ourselves in the unfortunate and undemocratic position of no longer be able to properly influence air pollution policies at EU level, but nevertheless having to comply with them.

In the area of air pollution and human health, particularly given its transboundary nature, it is apparent that the best results are achieved when neighbouring countries work together to improve standards. A recent study led by the University of Leeds has found that EU policies and new technologies prevent about 80,000 deaths each year. It would be a great shame to lose this momentum.

Our Actions Civil Liberties & Human Rights Solicitors are backed by nearly four decades of experience and have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.