The legal case for low emission zones

An introduction to ClientEarth

“The United Kingdom is in breach of its obligations to comply with the nitrogen dioxide limits provided for in Article 13 of Directive 2008/50/EC”

“... the way is open to immediate enforcement at national or European level.”

16 zones and agglomerations

London

Manchester

Liverpool

Teeside

Hull

Southampton

Glasgow

Belfast

Eastern England

South East England

East Midlands

The Potteries

Yorkshire & Humberside

West Midlands

North East England

West Midlands

The Dirty Dozen

Tyneside

Liverpool

Sheffield

Bristol

Brighton

Birkenhead*

Preston*

Swansea*

Belfast

South West England

North East Scotland

South Wales

4 Questions referred to the ECJ

1. Are member states obliged to apply for a time extension?

2. If so, when are they excused?

3. What does “as short as possible mean?”

4. What remedies must national courts provide?

The Commission’s case

• UK first to face NO2 infringement

• Press release

Janez Potocnik

An introduction to ClientEarthECJ Hearing Autumn 2014?

2nd UKSChearing

2015

Court of Justice of the European Union, Luxembourg

“...the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible.”

Directive 2008/50/EC, Article 23

Defra’s case

• Could not apply for a time extension

• 2025 = “shortest time possible”

• Failure of Euro standards

• Breaches in other Member States

“Investigate the feasibility of a national framework for low emission zones”

“Use the European Commission review of air quality legislation, expected in 2013, to seek amendments to the Air Quality Directive which reduce the infraction risk faced by most Member States, especially in relation to nitrogen dioxide provisions.”

ClientEarth’s case

• As short as possible = as short as physically possible

• Limit values v target values

• Mandatory order

Case C-56/90 Commission v UK (1993)

•Legal duty to achieve limit values by deadlines is absolute•UK failed to demonstrate impossibility•More than just “best efforts”

“It is irrelevant whether the failure to fulfil obligations is the result of intention or negligence by the member state…or of technical difficulties encountered by it”

Case C-68/11 Commission v Italy (2012)

Irrelevant factors:

•Financial•Political•Legal•Technical

• Weather• Crime• RiotsCrimeSocial unrest

C-237/07 JanecekThe right to clean air

An introduction to ClientEarthFederal administrative Court, Leipzig Hess and Bavaria

ordered to improve NO2 plans

Crystall ball gazing

Early 2015: Supreme Court order for new plan to tackle

NO2 ASAP

A National Network of

S

The Berlin LEZ

19% reductions in NOx emissions

40% reductions in black carbonemissions

70 +LEZs

The need for a national framework

• Ensure effectiveness• Uniform standards • Create a level playing field • Avoids pollution displacement• Economies of scale

LEZs and localism

• Compliance impossible before 2025

• Failure of Euro standards

• Other Member States are in breach

National framework Local authority

Set standard (Euro VI+) Opt out

Certification scheme for retrofit equipment

Designate boundaries of LEZ

Vehicle registration/stickers Which vehicles it applies to*

Test cycle Hours of operation*

Inspection regime and fines Complementary local measures

Enforcement

Publicity and consultation

• Legal necessity

• Moral imperative

• Economic opportunity

Thank you

Alan Andrews+ 32 2808 3467aandrews@clientearth.orgwww.clientearth.orgwww.facebook.co.uk/ClientEarth@ClientEarth