Climate change has become an increasingly pressing issue that world leaders are trying to tackle on a global level. An associated problem and major contributory factor is air pollution which affects the health of tens of millions of people. Understandably, concerns about air pollution have become a key driving force behind the new measures to ensure cleaner air and achieve a greener way of living.
In recognition of the severity of the problem, in December 2020 a coroner concluded that exposure to excessive air pollution was a causal factor in the death of nine-year old Ella Adoo Kissi-Debrah, who suffered from asthma. The coroner’s inquest established that, between 2010 and her death, Ella had been exposed to levels of nitrogen dioxide and particulate matter in excess of the World Health Organization (WHO) guidelines and the main source of this exposure was traffic emissions.
World leaders met in Paris in 2015 in order to reach agreement on a way forward. Every country agreed to work together to limit global warming to two degrees hotter and to aim for 1.5 degrees. A further summit, COP26, is taking place this year, in Glasgow between 31 October and 12 November 2021 to agree the next steps in tackling climate change.
Meanwhile, the UK Government has introduced the Environment Bill into Parliament which passed its third reading in the House of Lords with amendments. It is now before the House of Commons for consideration of those amendments and will pass between the Houses until the text is agreed. The date for consideration was 8 November 2021, during COP26.
The Bill covers a variety of key issues including waste and resource efficiency, air quality, water, nature and biodiversity and conservation covenants. This article focuses particularly on the new powers relating to air quality.
The Bill introduces a duty on the Government to reduce the annual average level of fine particulate matter (PM2.5) in ambient air and it provides a new power for the Secretary of State to set long term environmental targets by regulation. It requires the Secretary of State to set at least one long-term target in each of the four priority areas of air quality; water; biodiversity and resource efficiency; and waste reduction.
The existing Environment Act 1995 and the Clean Air Act 1993 will be amended to enable more effective action to tackle air pollution, including increasing transparency, co-operation between authorities, and accountability at all levels. In addition, a new duty will be imposed on the Secretary of State to review the Air Quality Strategy at least every five years and to report annually to Parliament on progress in delivering air quality objectives in England.
There are also stronger requirements for local authorities under the Local Air Quality Management framework, including the requirement for action plans where local air is in breach of air quality objectives.
Building on the enforcement powers traditionally used to ensure product safety laws, the Bill will give the Secretary of State power to make regulations for the recall of relevant products that do not meet relevant legal emission standards.
This power will hold vehicle manufacturers accountable for producing substandard vehicles, as was shown in the 2015 Dieselgate scandal. VW admitted that approximately 11 million cars worldwide were fitted with a “defeat device” which changed the car performance to circumvent emissions tests. The software worked to detect the “rolling road” test conditions under controlled laboratory conditions and to put the vehicle into a safety mode in which the engine ran below the normal power and performance.
This resulted in some cars that emitted nitrogen oxide pollutants up to 40 times above what is allowed in the US being approved.
There will also be new powers for local authorities to impose civil penalty notices for the emission of smoke in smoke control areas in England. This will remove the existing statutory defences and make enforcement easier.
This appears to be a particularly interesting shift in the approach to regulating climate change. Previously, guidance was provided to enable individuals and companies to operate in a more environmentally-friendly way. The Environment Bill, however, will be legally binding when it becomes an Act of Parliament and it will be a mechanism to hold governing bodies accountable.
The Environment Bill is a positive and welcome extension of product safety laws and has been designed to deal with more acute and immediate dangers from product defects that cause environmental harm, as well as the more indirect harm to individuals. The case of Ella Adoo Kissi-Debrah is significant because it shows a direct causal link between the air pollution and her premature death.
The Bill will hold the Government to account for excessive levels of air pollution and drive the move towards more sustainable living. It will provide clarity to businesses about the standards required and ensure continuity of legislation now that the UK has left the EU.
COP26 will be an important milestone and set standards and targets for the participating countries to adhere to. Progress can only be made by legislation such as the Environment Bill as guidelines are not enough to encourage businesses and governments. Enforcement of this legislation will be imperative to achieve compliance.
This article was co-written with Kate Abercromby, trainee solicitor in the commercial dispute resolution team.