Government ordered to explain application for clean air plan delay

The High Court has ordered a hearing to take place this Thursday into the government’s application to delay publication of the UK’s clean air plan.

Last November, the High Court ordered the Department for Environment, Food and Rural Affairs (DEFRA) to publish a new draft plan by 4pm yesterday (24 April) after criticising its ‘flawed’ efforts to curb air pollution in the UK.

Last Friday (21 April), DEFRA applied to the court to extend the deadline to 30 June, citing ‘pre-election proprietary rules’.

‘Thursday’s hearing is at the court’s direction because the UK government has asked for an extension,’ said ClientEarth CEO James Thornton. ‘We are preparing our response to the government’s application. This is a public health issue and not a political issue. Urgent action is required to protect people’s health from the illegal and poisonous air that we are forced to breathe in the UK.

‘This is a matter for the court to decide once the government has made its arguments because it is the government which has not met, and instead seeks to extend the court’s deadline for the clean air plan, to clean up our air.’

Melanie Carter, head of public and regulatory law at BWB, told Solicitors Journal that the government’s application will ‘no doubt create difficulties’ for ClientEarth in what is an uncertain area of law.

‘The rules governing the pre-election period are mainly determined by convention, and there is little case law on the subject. However, arguably this case is really about the government being required to follow the court’s directions from last year to publish an air quality plan – this is not a new policy and ClientEarth ought therefore, in principle, to have good arguments to resist the application.

‘That said, the courts will be slow to interfere with the established convention of purdah, particularly given the relatively short period now to the general election.’

ClientEarth say the government is currently failing to comply with pollution laws and argues that a total of 37 out of 43 regions of the UK are in breach of legal limits for nitrogen dioxide.

Outdoor air pollution contributes to 40,000 early deaths a year in the UK, according to the Royal Colleges of Physicians and of Paediatrics and Child Health.

In February, the European Commission issued a ‘final warning’ to the UK over breaches of EU air pollution limits.

Labour has condemned the government’s failure to act on air pollution, which it says is a ‘public health emergency’ following new analysis commissioned by the party.

Responding to an urgent question in the House of Commons yesterday, environment secretary Andrea Leadsom, said the government was ‘committed to making sure ours is the first generation to leave the environment in a better state than we found it’.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress