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Air pollution

June - September 2017


The government is still in breach of the Ambient Air Quality Directive and produced a plan in July 2017 to meet the legal limits set out in that directive. That plan was largely the same as an earlier draft, which had been widely criticised for not doing enough. The plan passes responsibility to 23 local councils in England to find a solution to the air pollution crisis, but offers little detail on how air quality will be improved in the rest of England. Accompanying directions and guidance to local authorities lack detail on how to evaluate the best ways to bring air pollution down as soon as possible, and it is unclear how ministers will ensure that air quality limits are met across England. The government has also failed to clarify how Defra will assess the plans from the 23 authorities, or how quickly it will be able to do this. The government’s approach is concerning as an indication of its likely approach to air quality after the UK leaves the EU.

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Principles & strategies
The government intends that the EU Withdrawal Bill will “ensure that the whole body of existing EU environmental law continues to have effect”. However, as currently drafted, the bill fails to carry across the general principles in the EU treaties that underpin air quality policy, such as the goals of sustainable development and a high level of environmental protection, the precautionary principle and the polluter pays principle. The bill also fails to carry across the directives that set the policy frameworks, and the strategies that set out trajectories for achieving policy goals.
The government intends that the EU Withdrawal Bill will “ensure that the whole body of existing EU environmental law continues to have effect in domestic law”. This broad commitment is reassuring, yet it is stated elsewhere that the bill will only convert EU law into domestic law “wherever practical and sensible”, and it is not yet clear whether this could create gaps in air quality policy. The bill also contains extensive powers for ministers to alter that law during the two years following the UK’s exit. We remain concerned about the level of scrutiny given to statutory instruments used in the conversion process, particularly given the short timeframe.

Given that the has been in breach of the nitrogen dioxide limits in large parts of the country since 2010, there is a risk that limits could be weakened after Brexit, to make it easier for the government to meet its legal requirements.
Capacity & funding
Defra is due to see a 15 per cent reduction in its resource spending between 2015 and 2020, although more civil servants are being drafted into the department. The EU environment, agriculture and fisheries acquis are extensive, and it is unclear whether Defra will be able to cope with any additional workload associated with, first, the transposition of that body of EU law into domestic law, and then the monitoring of existing policy and creation of new policy. Most of this effort has happened at EU level thus far.  In its latest Air Quality Plans, Defra has passed responsibility for selection and implementation of measures to local authorities, but there is no indication that local authorities have the capacity or funding to undertake this work.
The EU Withdrawal Bill envisages that existing EU case law will remain applicable by domestic courts. However, the role currently played by the European Court of Justice (ECJ) together with other EU institutions in providing the monitoring, oversight, accountability and enforcement functions required to ensure the effective implementation of air quality legislation will no longer exist.  Although the government has proposed several options to replace the ECJ’s role in resolving cross-border disputes, its eventual position will depend to some extent on what sort of future relationship is negotiated with the EU. And the options paper does not set out an adequate plan for filling the domestic governance gap. This is a particular challenge in the case of air quality, for which the UK is already undergoing infringement proceedings.

Environment Secretary Michael Gove has declared his ambition for the UK to “design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes.” His department must set out soon how it plans to do so.
It is unclear whether and how the UK will continue to co-operate with the rest of the EU on transboundary air pollution after Brexit. The Prime Minister’s speech in Florence stated that the UK and EU share a commitment to high environmental standards, and outlined her preference for a new economic relationship that is underpinned by those standards.