This paper gives an overview of how EU air quality legislation and policy is currently enshrined in the UK legal framework. It sets out the speculation and what is known so far about what could change in respect of air quality following Brexit.Jump to full report >>
Poor air quality is considered by the Government to be “the largest environmental risk to public health in the UK”. As well as human health, air pollution also has implications for the natural environment and for the economy. Due to the transboundary nature of air pollution, action to manage and improve air quality in the UK has been driven by both international agreements and EU legislation, as well as national and devolved legislation.
Current law and policy
At international level, the Gothenburg Protocol and amendments to it set emissions ceilings levels for various pollutants. Its aim is to control long-range transboundary pollution. It is implemented at EU level through several directives, including the National Emission Ceilings Directives of 2001 and 2016. The 2001 Directive is implemented in the UK through the by the National Emission Ceilings Regulations 2002. The 2016 Directive sets emission ceilings which apply from 2020 and has been implemented by the National Emission Ceilings Regulations 2018.
There is also legislation relating to ambient air quality (the air that more immediately surrounds us) at EU level through Directive 2008/50/EC (the “Air Quality Directive”). Instead of setting a ceiling for pollutants, it sets “limit values” (parameters that must not be exceeded) for concentrations of different pollutants. In the UK responsibility for meeting ambient air quality limit values is devolved to the national administrations in Scotland, Wales and Northern Ireland. The Secretary of State for Environment, Food and Rural Affairs has responsibility for meeting the limit values in England and Defra co-ordinates assessment and air quality plans for the UK as a whole.
The Air Quality Directive is implemented in the UK through:
EU infraction proceedings
Enforcement mechanisms for failure to meet air quality limit values are contained in EU law and are not implemented directly in domestic legislation. In February 2014 the EU Commission began infraction proceedings against the UK for its failure to meet air quality targets for nitrogen dioxide set by The Air Quality Directive in certain parts of the UK. On 17 May 2018 the European Commission referred the UK to the Court of Justice of the EU for “for failure to respect limit values for nitrogen dioxide (NO2), and for failing to take appropriate measures to keep exceedance periods as short as possible."
Judicial review and air quality plan compatibility with EU legislation
Separate to the Commission proceedings, but arising from the same EU Air Quality Directive, private judicial reviews have also been brought against the UK Government stemming from the admitted and continuing failure of the United Kingdom, since 2010, to comply (in certain zones), with the limits for nitrogen dioxide levels. These proceedings have resulted in the Government being required to produce a number of different air quality plans aimed at reducing nitrogen dioxide levels.
Brexit: statements, concerns and uncertainties
Until a final Brexit agreement is reached with the EU, much of what will happen to air quality standards and enforcement following Brexit is the subject of speculation. The Government has been clear that it has no plans to change limit values and targets for air quality following Brexit. The Government’s intention is that pursuant to the European Union (Withdrawal) Act 2018, law derived from the EU, including air quality legislation, would be converted into domestic law after Exit Day. Depending on the terms agreed of any future trading arrangements, once the UK has left the EU, the UK could then potentially amend air quality standards and review any deadlines for meeting them.
While the European Union (Withdrawal) Act 2018 will convert the current framework of air quality targets, the role that EU institutions play in monitoring and enforcing these targets will be lost. There has been considerable debate over the loss of the role of EU institutions in monitoring and enforcing environmental law, including on air quality, following Brexit and over the future of EU environmental principles.
In response to concerns raised, the Government held a consultation on environmental principles and governance from May-August 2018. It proposed the creation of a new statutory independent environmental watchdog to hold government to account on its environmental obligations; and options for establishing environmental principles in the UK. A draft Environmental Principles and Governance Bill is due to be published by the end of 2018 to begin the legal process of putting this in place. A Library briefing paper, Brexit and the Environment, provides more context and further information about these issues in relation to the environment more generally. The Bill is also expected to provide the statutory basis for a number of specific air quality proposals which stem from the Government’s draft Clean Air Strategy.
One of the areas that the Government has indicated that it might change post-Brexit is how air quality is monitored and assessed in order to provide requirements that are more targeted and focussed to UK needs.
Some of the Government’s Brexit “no deal” preparation technical notices have implications for air quality policy. These include:
Commons Briefing papers CBP-8195
Author: Louise Smith