UK Supreme Court’s Frontal Assault On Diesel Pollution

Andrew Marr in his book ‘Ruling Britannia: The Failure and Future of British Democracy’ had something interesting to say about the early post-war judges:

“The Forties, Fifties and early 60s were the heyday of what we would call judicial passivism, when the generation of war time judges bravely tried to extend their political role, and interpreted their own constitutional powers modestly and bookishly. They didn’t read the records of the Parliamentary debates to try to discover the wider policy thinking behind laws…. They’d stuck doggedly and sometimes pig-headedly to the text of the legislation. Their timidity was wholly understandable: these judges had been educated in the Victorian doctrines of dicey and Parliamentary absolutism”.

A few decades later the Courts in the United Kingdom, especially the Supreme Court of England, would entertain a lis by ClientEarth, a body of activist lawyers to protect the environment, challenging governmental inaction on vehicular pollution. Anglo-Saxon jurisprudence, once upon a time, would have looked with disdain at the public interest litigation of this nature which had its origins in its former colony, India.

Environment and pollution was traditionally seen as the policy matter of the government of the day in Anglo-Saxon jurisprudence. Yet it has become the focal point of the court’s attention. The Court did not confine itself in its customary role when it found that nitrogen dioxide, ammonia and particulate matter (PM10 and PM2.5) was responsible for large number of premature deaths every year in the UK. According to the UK government’s own estimates Air pollution causes 50,000 early deaths and £27.5bn in costs every year.

The European Union had mandated that the member states must necessarily bring down the emission levels “as swiftly as possible”. If not they were to be subject to judicial review of the domestic courts. Fair enough reason for the UK courts to interfere.

Five judges of the Supreme Court of United Kingdom headed by its President in April last year directed the government to comply with a European Union directive to bring nitrogen dioxide to the levels EU prescribed levels. The European Union had mandated the member states to bring down the emission levels “as swiftly as possible”. The court found that the reason for the sharp deterioration of air quality was the failure to implement “European vehicle emission standards for diesel vehicles to deliver the expected emission reductions of oxides of nitrogen”.

The court was completely in sync with the knowledge of a well-known scientific finding about the ill effects of tailpipe emissions of nitrogen dioxide. “Long-term exposure may affect lung function and cause respiratory symptoms. Nitrogen dioxide, along with ammonia, also contributes to the formation of microscopic airborne particles, one of the many components of particulate matter (PM10 and PM2.5) which have been calculated to have an effect equivalent to 29,000 premature deaths each year in the UK.”

What followed was the decision to “issue a mandatory order requiring the Secretary of State to prepare new air quality plans under article 23(1), in accordance with a defined timetable, to end with delivery of the revised plans to the Commission not later than 31 December 2015”.

The government of UK miserably failed to implement the UK Supreme Court directives. In less than 18 months, Client Earth was back in the High Court because of the non-compliance of the mandatory order of the Supreme Court of the United Kingdom. The government’s plans were found hollow to deal with the vehicular pollution in the “shortest possible time”.

The disturbing phenomena in the UK and in India is that Governments are invariably complicit in failing to curb pollution. The papers revealed that the UK Treasury had obstructed plans to charge diesel cars to enter towns and cities badly affected air pollution. Even the attempts by the environment and transport departments to levy a excise duty structure to discourage vehicles using polluting fuels were scuttled by the Treasury. 

In the once again initiated by Client Earth, Mr Justice Garnham of the High Court gave a damning indictment of  Department for Environment Food & Rural Affairs’ "woeful approach" to reduce air pollution levels - which have consistently broken EU legal limits since 2010. The judge, ruled that the Government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and said that it had erred in law by fixing compliance dates based on over optimistic modelling of pollution levels. A fresh timetable will come in place under the aegis of the High Court.

The ruling has had ministers scurrying for cover from angry MPs who were called to explain the court ruling There is no one in in the UK advocating judicial restraint any longer, not even the government. Prime Minister Theresa May has accepted the verdict and declared in the Commons, “Nobody in this house doubts the importance of the issue of air quality. We have taken action, there is more to do and we will do it.”

Santosh Paul is an Advocate practicing in Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.