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Air quality law in the United Kingdom at a crossroads

UK air quality law now finds itself at a crossroads. Air quality law is a well-established area of environmental law, having been at the vanguard of much of it. It is a well-established area across multiple levels of governance, with local and national regulation in the UK operating against a backdrop of binding EU standards and an international law framework for transboundary air pollution (the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (CLRTAP). This multilevel body of law highlights that air pollution is a problem that has many sources – local, transboundary, stationary, mobile, manmade, natural – which act and interact via complex pollution pathways, leading to a range of regulatory responses within and beyond jurisdictional boundaries.

However, whilst well-established, air quality law is not static. In recent years, scientific developments and public interest pressure have animated UK air quality law, particularly through public interest litigation, and now political events question its legal foundations. The June 2016 UK referendum vote to leave the European Union calls into question the central role of EU law in setting and enforcing air quality standards in UK law (through the provisions of Directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L152/1, and particularly through its directly effective requirements to produce national plans to bring air quality levels into compliance). The prospect of upheaval of the well-established multi-level framework for UK air quality law now raises the question of what kind of law we should have for the problem of UK air pollution. This is the crossroads at which UK air quality finds itself.

As the UK government considers how it might exercise its sovereignty in this policy area after withdrawal from the EU, the layers of governance that have defined UK air quality law since the 1970s are unlikely to stay in place in their current form. On one view, the potential release from EU legal control in this area creates an opportunity for the UK to exert control over its air quality policy, and particularly over decision-making in relation to the causes of air pollution, which often involves complex socio-political choices that are typically matters reserved for domestic executive government (which urban transport systems to build or prioritise, what planning policy priorities to pursue, decision-making on major infrastructure projects such as airports, and so on). However, as Liz Fisher and James Harrison point out, regaining control through assertion of national sovereignty is not the only narrative around environmental law and the implications of Brexit.

Air pollution. Public Domain via word.
Air pollution. CC0 Public Domain via Pixabay.

One lesson we can draw from the current legal landscape of air pollution law is that the boundaries of air quality control – both legal and geographical – are far from obvious. Any shift of legal control back to the UK is not a straightforward one when one considers the nature of air pollution as a problem. As a purely practical matter, transboundary sources of air pollution contribute to our UK air quality problems and mean that the UK is not in a position to regulate its air quality with no consideration of air quality control beyond its borders. Equally the UK’s polluting activities have impacts on people and environments in neighbouring countries, and our responsibilities under CLRTAP force us to take responsibility for those impacts.

Our international law obligations remind us that current EU air quality standards are in fact the product of negotiations to which the UK has been party over many years (as a contracting state of CLRTAP, as a Member State of the European Union, and through individual expertise that has contributed to bodies of scientific standards including those of the World Health Organisation) and that their enforcement by citizens is also supported by the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. If we are to think again about what standards we want to subscribe to as a nation and how to enforce these, this does not happen in a vacuum of legal development and expertise once we leave the European Union. Furthermore, if we are encouraged to think about the kinds of legal obligations and mechanisms we should adopt in relation to air quality with a sense of flexibility in policy terms, again we are not working with a blank slate. There are compelling reasons of science, public awareness, philosophy and good regulatory practice that would inform our thinking.

Air quality now represents a public health crisis in major cities in the United Kingdom, as is well recognized by scientific researchers and increasingly by the general public. Scientific advances in understanding the causes and impacts of air pollution not only indicate that we need rigorous quality standards but also that there could be opportunities in revisiting our air quality regulatory framework, for example, by exploring regulatory models that centre around individual pollution exposure levels rather than ambient air quality. Equally, there are opportunities to improve the coherence of the current patchwork of UK air quality legislation, which is poorly coordinated in certain respects that can undermine its effective implementation. More fundamentally, as a matter of social justice, we have moral duties to those people in areas that suffer the worst effects of air pollution (often in vulnerable areas socio-economically) and to future generations to take tackling air quality problems seriously, including through legal frameworks.

It is not a bad thing to have to think about why we have the laws that we do, and to consider whether they could be improved, albeit that such reflection can be fraught with political risk. In all likelihood, the UK government will initially adopt domestic legislation that mirrors current EU air quality standards and requirements when it legally separates from the European Union, but there are difficult issues of enforcement and accountability in relation to those laws that will require careful consideration even with that apparently simple legislative step. As UK air quality law continues to evolve, the intersection of multi-level legal frameworks will continue to feature as a part of this landscape but the role of UK law will become even more important in determining how these layers of governance meet the local problems of air pollution in the UK, and particularly in determining the rights of UK citizens to pursue legal remedies when air quality falls below legally recognised and socially acceptable standards.

Featured image credit: Chimney. CC0 Public Domain via Pixabay.

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