R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28

ClientEarth challenged the UK Government's continuing failure since 2010 to meet EU nitrogen dioxide limits under Directive 2008/50/EC. Following a CJEU reference, the Supreme Court granted a mandatory order requiring new air quality plans by 31 December 2015.

Facts

The United Kingdom had admitted continuing failure since 2010 to comply, in certain zones, with the nitrogen dioxide limit values prescribed by Directive 2008/50/EC (‘the Directive’). Article 13 of the Directive set binding limits ‘for the protection of human health’, with a compliance date of 1 January 2010. Article 22 permitted member states to apply for a postponement of up to five years, subject to procedural and substantive requirements (including the additional content requirements of annex XV section B). Article 23 imposed a general obligation to prepare air quality plans where limits were exceeded, requiring that the exceedance period be kept ‘as short as possible’.

In its earlier judgment ([2013] UKSC 25), the Supreme Court declared the UK in breach of article 13 and referred questions to the CJEU concerning the interpretation of articles 22 and 23 and the duties of national courts. The CJEU delivered judgment in Case C-404/13 on 14 November 2014. The matter returned to the Supreme Court to determine what further orders should be made.

Evidence from Jane Barton for the Secretary of State disclosed that the projected compliance position had significantly deteriorated: updated 2014 projections showed only five of 43 zones compliant by 2015, and three zones (Greater London, West Midlands and West Yorkshire) not compliant by 2030. The Commission had commenced infringement proceedings against the UK in February 2014. The Secretary of State accepted that the existing air quality plans needed revision.

Issues

Following the CJEU’s responses, the principal issues for the Supreme Court were:

• What relief, if any, should the court grant to remedy the continuing breach of article 13;
• Whether the existing 2011 air quality plans should be quashed and a new plan ordered;
• Whether enforcement could properly be left to the European Commission, or whether the national court was responsible for ensuring compliance.

Arguments

Appellant (ClientEarth)

Mr Jaffey submitted that the article 22 procedure was mandatory, that the existing plan should be quashed as based on an error of law, and that the court should direct preparation within three months of a new plan under article 23(1) showing how the exceedance period would be kept ‘as short as possible’, addressing the checklist of measures in annex XV section B paragraph 3.

Respondent (Secretary of State)

Miss Smith QC contended that article 22 was not mandatory, that the 2011 plans were not vitiated by error of law beyond the article 22 point, and that, given the Secretary of State’s stated intention to produce revised plans by year end, no further relief was necessary. She initially argued that enforcement could be left to the Commission.

Judgment

Lord Carnwath (with whom Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption agreed) allowed the appeal.

Article 22

The CJEU had reformulated the first two referred questions, introducing ambiguity such that each party claimed success. Lord Carnwath found it unnecessary to reach a concluded view on whether article 22 was mandatory, because an extension to January 2015 (the maximum) was now of no practical use. He nevertheless saw ‘considerable force’ in the Commission’s view that article 22 was an optional derogation, and that failure to apply reinforced the state’s obligation to act urgently under article 23(1). The difference between annex XV section B’s content requirements and those under article 23 was ‘more apparent than real’, since article 23 obligations were no less onerous and more specific, and were subject to judicial review.

National court’s responsibility

The CJEU’s answer to the fourth question made clear that, regardless of Commission enforcement action, the national court bore responsibility for securing compliance. Lord Carnwath rejected the position adopted by Mitting J and the Court of Appeal that enforcement could be left to the Commission as ‘clearly untenable’. He cited the CJEU at paragraph 31:

Member states must take all the measures necessary to secure compliance with that requirement [in article 13(1)] and cannot consider that the power to postpone the deadline, which they are afforded by article 22(1) of Directive 2008/50, allows them to defer, as they wish, implementation of those measures.

Relief granted

The critical breach was of article 13, which was supplementary to articles 22 and 23. The breach had continued for over five years and the prospects of early compliance had worsened. While the court would normally accept an undertaking from a responsible public authority, Miss Smith candidly accepted that election-period restrictions on Government business precluded this. The court accordingly made a mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1) according to a defined timetable, with the revised plans to be delivered to the Commission by no later than 31 December 2015. Liberty to apply to the Administrative Court was reserved.

‘As short as possible’

Lord Carnwath flagged, but did not decide, the interpretation of ‘as short as possible’ in article 23(1), noting that the European authorities (in particular Case C-68/11 Commission v Italy) indicated the scope for arguing ‘impossibility’ on practical or economic grounds was very limited. This was a matter that might require early resolution in the context of the new plans.

Implications

The decision establishes that domestic courts have a direct enforcement role in relation to breaches of EU air quality obligations, and cannot abdicate that role on the basis that the European Commission may take infringement proceedings. Where a Member State is in admitted and continuing breach of binding limit values under Directive 2008/50, the national court has jurisdiction, and a duty, to make appropriate orders, including mandatory orders compelling preparation of compliant air quality plans within a defined timetable.

The judgment confirms that the obligation under article 23(1) to keep the exceedance period ‘as short as possible’ is a substantive and demanding requirement, not less rigorous than article 22 in practical terms, and is subject to judicial review by national courts. While the court declined to resolve definitively whether article 22 derogation is mandatory, it endorsed the Commission’s view that failure to seek derogation reinforces, rather than diminishes, the obligation to act urgently under article 23.

The decision is significant for environmental enforcement litigation, public health protection, and the constitutional role of domestic courts in implementing EU obligations. It demonstrates the Supreme Court’s willingness to grant coercive relief against central Government for breach of EU environmental law, and signals that economic or practical difficulties offer very limited justification for delay. The case mattered to public authorities responsible for air quality, transport policy, and to those affected by air pollution. The scope of ‘as short as possible’ was left open for future determination, and the order itself permitted variation and resolution of legal issues arising during plan preparation, indicating an ongoing supervisory role for the courts.

Verdict: Appeal allowed. In addition to the declaration of breach of article 13 already made, the Supreme Court made a mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1) of Directive 2008/50/EC according to a defined timetable, with the revised plans to be delivered to the European Commission no later than 31 December 2015, with liberty to apply to the Administrative Court.

Source: R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28