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.
This paper gives an overview of the current air quality legal framework and sets out the speculation and what is known so far about what could change following Brexit.
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. The National Emission Ceilings Regulations 2018 to implement it are due to come in to force on 1 July 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 not in UK 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 EU 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 EU 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 producing a number of different air quality plans aimed at reducing nitrogen dioxide levels.
Brexit: statements, concerns and uncertainties
The European Union (Withdrawal) Bill 2017-19 is designed to provide legal continuity by copying over the entire body of EU law onto the UK’s post-exit statute book. In broad terms, this means that all EU air quality law will be converted into domestic law from exit day.
The Government has sought to allay concerns about changes to air quality standards following Brexit by stating that there are no plans to change air quality limit values and targets.
It is not clear if the Government would follow any changes to EU air quality standards made following Brexit. It remains a possibility that equivalence between UK and EU standards could still be required under future trade arrangements. Some commentators have said that a change to air quality limit values post Brexit could be desirable on the basis that they could be more refined for the UK’s specific circumstances. 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.
While air quality standards from the Air Quality Directive are enshrined in UK legislation, they are currently monitored and enforced by the European Commission and overseen by the Court of Justice of the European Union. The Government has said that this enforcement mechanism would not continue after the UK leaves the EU.
In response to concerns about enforcement of environmental standards after Brexit, the Government published an Environmental Principles and Governance after the United Kingdom leaves the European Union consultation paper on 10 May 2018, which sets out the intention to create a statutory and independent environmental watchdog to hold government to account. The new body, as proposed, would have the power to issue “advisory notices” to the Government. Concern has been raised that this does not replicate existing enforcement mechanisms and calls have been made for the new body to have the power to take the Government to court and issue fines for environmental breaches.
In relation to the devolved nations, there has been concern about the European Union (Withdrawal) Bill 2017-19 and how it would intersect with a number of devolved environmental policy areas, including air quality. The Secretary of State has said there is potential for a discussion about whether air quality should maintain common UK-wide rules.
Commons Briefing papers CBP-8195
Author: Louise Smith