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No more smoke and mirrors over air pollution

The High Court has been in the news a lot recently. Shortly before three of its judges were plastered across the front pages of the tabloids for their Article 50 decision, another judgment was handed down which received widespread media attention.

Mr Justice Garnham ruled that the government’s plans to tackle illegal levels of air pollution in the UK failed to comply with a previous Supreme Court ruling on the issue or the relevant EU Directive. He said that the government had ‘erred in law’ by fixing the projected dates it would comply with legal limits for nitrogen dioxide (NO2) based on over optimistic modelling of pollution levels.

It was an extraordinarily embarrassing ruling for the government. This was the second such case that ClientEarth had won against them – the Supreme Court judgment had come in April 2015, when the government was ordered to produce plans that would bring NO2 pollution to within legal limits ‘as soon as possible’.

There are illegal levels of NO2 in 37 of 43 zones in the UK. In towns and cities, the gas comes mostly from diesel vehicles. The government knew of the growing body of evidence showing Euro 6 diesel cars (the latest emissions classification) showing they were emitting several times more NO2 on the road than in lab tests but did nothing to alter their modelling to predict future levels of pollution in the UK’s towns and cities.

Ministers’ planned 2020 compliance for some cities, and 2025 for London, had been chosen because that was the date when they thought they’d face European Commission fines, not which they considered ‘as soon as possible.’

Thankfully, ministers decided not to appeal the decision. Up until this point, their willingness to fight us in the courts was in stark contrast to their apparent willingness to bring down air pollution. Facts that were revealed during the course of the hearing made it clear that cost had been the overriding factor in stopping any meaningful action on air pollution.

We need policies including a national network of clean air zones to stop the most polluting vehicles entering the most polluted areas, a targeted scrappage scheme and serious investment in clean public transport and cycling infrastructure.

As others have observed, if our drinking water was causing 40,000 early deaths a year, causing strokes, cancer and heart disease, there would be a national outcry, and the government would be forced to act quickly. Cost would become a secondary concern.

Air pollution is by its nature invisible but our legal cases, the work of health and environmental campaigners and many, dedicated local groups, has made it visible. Five years ago, when we started our first legal action against the government, media interest was low. Now it is overwhelming.

While the government has surely noticed the torrent of negative media it has got for its borderline reckless inaction in the face of this public health crisis, the early signs after its initial positive step of foregoing an appeal are that its approach will not much change. We have not been able to agree a remedy to propose to the judge and will therefore be putting our opposing cases to the judge.

After losing two court cases and being well aware of the terrible toll that air pollution takes on our health, especially that of the most vulnerable, it is incredible that ministers would still seek to delay action. We cannot let that happen and will do everything possible to make sure that swift, decisive action is taken.

We need policies including a national network of clean air zones to stop the most polluting vehicles entering the most polluted areas, a targeted scrappage scheme and serious investment in clean public transport and cycling infrastructure.

In a topical twist, the ruling in our case puts the brakes on Heathrow expansion until this air pollution crisis is solved. Heathrow is in an area already blighted by air pollution. Any expansion would seriously increase pollution from vehicles going to and coming from the airport. This would be impossible in light of the judgment. That’s before any consideration of the climate change implications, which are far from insignificant.

With media attention and public awareness of air pollution at an all time high, and with two court rulings against it, the government has a clear mandate to act. Despite that, it is likely we will need to push them every step of the way. That is something we will not fail to do.

Photo by David Holt London

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