Air pollution plan cannot be delayed, high court tells government

The government has been ordered to publish its plans to tackle air pollution by 9 May after a judge rejected a plea by ministers to delay until after the general election.

Mr Justice Garnham, ruling against the government, also told ministers to stick to his original deadline of 31 July to publish the final policy on tackling the air quality crisis – the same date specified in his original order in November 2016.

He rejected the government’s application to appeal, and said the immediate publication of the plan was essential. The government can still take their case to the court of appeal.

“These steps are necessary in order to safeguard public health … the continued failure of the government to comply with the EU directive and regulation constitutes a significant threat to public health.

“Exposure to nitrogen dioxide [leads to] 23,500 deaths annually in the UK – that’s more than 64 deaths each day.”

The government had said publishing the plan would have been like dropping a controversial bomb into the election campaign. James Eadie QC, representing the government, said it would be better to put the publication on hold until after the general election to avoid the controversy over how to tackle the air quality crisis being seen as a “Tory plan”.

On Thursday, he applied on behalf of the government to delay publishing the draft air quality plan and consultation until 30 June and the final policy until 15 September. But it was not, he said, some sort of “guise” and did not mean there was a lack of commitment to tackle the problem.

“If you publish a draft plan it drops all the issues of controversy into the election … like dropping a controversial bomb,” said Eadie. He said this could risk breaching rules about civil service neutrality, and might limit the effectiveness of the consultation.

The government had been under a court direction to produce tougher draft measures to tackle illegal levels of nitrogen dioxide pollution, which is responsible for tens of thousands of premature deaths each year, by 4pm on Monday. Its original plans were challenged in court by the environmental group ClientEarth and in November last year a judge found them to be so poor as to be unlawful.

But after Theresa May called a general election for 8 June, ministers lodged a lengthy application to the court late on Friday asking judges to allow them to breach the Monday deadline to “comply with pre-election propriety rules”.

In court on Thursday, Garnham challenged the government’s counsel on the reasons for the delay. “The issue [of air pollution] is there anyway … why is it better to have the parties debating what ought to be in a draft plan or what might be as opposed to what is in the draft plan?” he asked.

Eadie replied that it would be better to put the publication of the plan on hold to avoid it being seen as a Tory plan during the election campaign. He said the Department for Environment, Food and Rural Affairs believed that short delays to the timetable were not expected to alter the dates for taking action.

But Garnham challenged him again on this assertion: “I simply do not understand. How can it be that a six- or seven-week delay in the process doesn’t affect achieving the objective or getting to that objective in the fastest possible time?”

He added that the government’s approach had been “far too leisurely” because ministers were in breach of the EU air quality directive and the air quality crisis was a “matter of great urgency”.

Any new air quality plan will have to specify several clean air zones (CAZs) across the country, which impose charges on drivers of diesel vehicles, if they are to be acceptable to the court.

The government’s first plan – which included five CAZs in Birmingham, Derby, Leeds, Nottingham and Southampton to be introduced by 2020 – was found to be illegal by the court. Garnham also told the government the modelling it had used for its plans was over optimistic.

ClientEarth opposed the government’s application to delay the publication.

Nathalie Lieven QC said the environmental group’s primary concern was to have the air quality plan published as soon as possible and to see action taken.

“Air quality is a huge issue of public concern, and a huge focus for the media,” she said. “It’s on the front pages of newspapers day in day out … and it is an issue in this election whether the government publishes the consultation or not. The government is not making it an election issue by publishing the document. The controversy is there and it is not going to be put on hold by not publishing this consultation document.”

The court heard that Defra’s own evidence showed nitrogen dioxide pollution alone caused 23,500 premature deaths a year, which amounted to 450 a week, or 64 a day. A delay of six weeks in publication, Lieven said, did make a difference – the difference was hundreds of deaths.

Air pollution was described by MPs last year as a public health emergency. According to Defra’s own figures, it leads to 40,000 premature deaths a year.