THE CLEAN AIR HANDBOOK A practical guide to EU air quality law (VERSION 2.0)

By Alan Andrews November 2015

The Project Clean Air is co-financed by Life+, the EU’s instrument supporting environmental projects 2 THE 3 CLEAN AIR HANDBOOK

Contents

4 Introduction 6 The right to clean air – the theory 6 The Air Quality Directive 10 The right to clean air in the European Court of Justice 12 A summary 13 The right to clean air – the reality 13 Lack of information 14 Air quality plans 14 Access to justice 15 Clean air cases in the EU 17 The right to access information on air quality 17 The Air Quality Directive 18 Environmental information requests 22 The right to participate in decisions affecting air quality 22 Plans and programmes 25 Projects and permits 28 Enforcing the right to participate 29 Access to Justice I – the right to access national courts 29 Enforcing information and public participation rights 30 Enforcing national environmental laws 36 Conclusion 37 Access to justice II – enforcement by the Commission 37 The infringement procedure 39 Advantages and disadvantages 40 Problems with air quality infringement cases 41 The “Fresh Approach” 41 Engaging with the Commission 42 Conclusion 43 Annex I – possible test cases 44 Annex II – template environmental information request letter 48 Author contact details 4 Introduction Fortunately, EU law provides citizens with 5 some possible solutions to these difficulties, by guaranteeing them rights to certain procedures. Domestic courts are obliged to give effect to EU law, even if this involves setting aside incompatible national laws. Domestic courts “Air is essential for our lives. We all must give effect to EU law rights by providing have the right to breathe fresh air.” effective remedies.

Janez Potocnik, former European Commissioner for Environment1 The EU is also a party to an international treaty – the “Aarhus Convention” – which guarantees the public the right to access information, participate in the formulation of plans relating to the environment and to access courts to challenge breaches of environmental law. This provides campaigners and lawyers with a “toolkit” of procedures that can be used to access their right to clean air.

The purpose of this handbook is to provide individuals, groups and lawyers with a straightforward, easy-to-use guide to EU air quality law. Whether you are a concerned citizen trying to find out what levels of pollution are like in your neighbourhood, an experienced NGO The handbook only covers EU law aspects campaigner trying to influence an air quality plan of air quality law. Unfortunately national air for a heavily polluted city, or a lawyer trying to pollution laws are beyond its scope. However, 1 before taking legal action you will need to take Clean air is essential to good health and a basic More than one fifth of the EU urban population the advice of a lawyer who is an expert in the human need. EU law has recognised this need are exposed to air pollution which exceeds EU relevant national laws and legal procedures. and given legal protection to it through directives limit values2. As of 2013, exceedances of the Domestic courts are obliged Usually the earlier you can obtain such advice and court judgments. PM10 daily limit value were registered in 22 the better. EU Member States3, while 19 remained in to give effect to EU law, even A series of EU directives have imposed 4 This publication is part of the project “Clean breach of limits for NO2 . In theory, citizens in if this involves setting aside progressively more stringent limits on levels all those countries could go to court to demand incompatible national laws. Air Europe” which is funded by Life+, the EU of harmful air pollution in ambient (outdoor) air. that action is taken. In reality, national rules and instrument supporting environmental projects. These limits are known as “limit values”, and procedures often make it very difficult for them the European Court of Justice has long held that to do so. limit values have particular legal consequences: bring a case concerning air quality, this guide where limit values are breached, concerned will give an overview of the relevant aspects individuals and groups have the right to go of EU law, together with some practical tips on before national courts to demand that action More than one fifth of the EU how they can be used effectively. This is the is taken. In this sense, EU citizens have a legal urban population are exposed second edition of the handbook, which has been right to clean air. to air pollution which exceeds updated in light of several developments since However, for most people in the EU, this right EU limit values. the publication of the first edition in May 2014, exists only on the pages of legal textbooks. Air notably the rulings of the ECJ and UK Supreme pollution has a major impact on human health. Court in the ClientEarth case. It is associated with a range of deadly diseases EU law is constantly evolving, so the intention is including cancer, heart disease, strokes and that the handbook will be updated periodically to asthma, and is the number one environmental reflect further major developments in the field. If cause of death in the EU, responsible for more 2 European Environment Agency, ‘Air Quality in Europe you are aware of any such developments, such than 430,000 early deaths in 2012 alone. - 2015’ (Report) (30 November 2015), at page 8: http://www.eea.europa.eu/publications/air-quality-in- as a legal action before your national courts, then europe-2015 please get in touch. 3 European Environment Agency, ’Air Quality in Europe 1 Speech to the closing conference on the European – 2015’ (Report), at page 21, note 2 above. year of air (Council of Europe), Strasbourg, 9 December 2013: http://europa.eu/rapid/press-release_ 4 European Environment Agency, ’Air Quality in Europe – SPEECH-13-1049_en.htm 2015’ (Report), at page 30, note 2 above. 6 The right to clean air - tasks.7 Some member states take a very centralised 7 approach, whereby responsibility stays with national Pollutant Obligation Time period Compliance Permitted annual the theory government. Others take a more decentralised deadline exceedences approach, passing responsibility for complying “Every person has the right to live in an Nitrogen Hourly limit value of 1 hour 01/01/2010 No more than 18 with limits and preparing air quality plans down to dioxide (NO ) 200 μg/m3 (possible environment adequate to his or her health and 2 regional or local authorities. It is sometimes difficult well-being, and the duty, both individually and in extension to to determine exactly who is responsible for what.8 latest 1/1/2015) association with others, to protect and improve

the environment for the benefit of present and Regardless of how national legislation allocates Annual mean limit value of Calendar year 01/01/2010 n/a 5 future generations.” responsibility, it is the national government 40 μg/m3 (possible which bears ultimate responsibility for ensuring extension to The Air Quality Directive compliance with EU directives. The Commission latest 1/1/2015) Air pollution was one of the first environmental can only bring infringement action against Coarse Daily limit value of 24 hours 01/01/2005 No more than 35 problems to be addressed by the EU. Since Member states, not individual regions or cities 9 particulate 50 μg/m3 (possible the early 1980s, EU directives have set limits (see further at Chapter 7). Nevertheless, all matter (PM ) extension to public bodies, including regional and local 10 on emissions and ambient concentrations of 11/6/2011) air pollutants which harm human health and authorities, are under a duty to work towards contribute to other environmental problems such achieving objectives set by EU law. Annual mean limit value Calendar year 01/01/2005 n/a as acidification and eutrophication. (possible Limit values of 40 μg/m3 extension to The most recent directive relating to ambient The strictest type of air quality objectives 11/6/2011) (outdoor) air quality is the Air Quality Directive contained in the Directive are known as “limit (the “Directive”), which was adopted in 2008.6 Fine particle Annual mean limit value values.” Limit values are set for: Calendar year 1/1/2015 n/a of 25 μg/m3 The Directive consolidated a number of earlier (PM2.5) directives and sets objectives for several • Particulate Matter (PM10 and PM2.5) pollutants which are harmful to human health. • Sulphur Dioxide (SO2) It requires member states to: • Nitrogen Dioxide (NO2) The most commonly breached limit values and must ensure that “throughout their zones and • Lead • Monitor and assess air quality to ensure that the relevant deadlines by which they should have agglomerations” levels of these pollutants do • Benzene it meets these objectives; been complied with are shown in the table above. not exceed the limit values by the relevant • Carbon Monoxide deadlines.11 • Report to the Commission and the public Limit values are expressed by reference to a Limit values are informed by guidelines set by on the results of this monitoring and certain period of time. Typically there are both It is important to note that the limit values apply the World Health Organisation (WHO). However, assessment; annual average limits and shorter term limits – “throughout” each zone and agglomeration. This in the case of PM10 and PM2.5, the limits are e.g. daily or hourly limits. Annual mean limits means that limit values apply everywhere within • Prepare and implement air quality plans considerably higher (i.e. less stringent) than the are designed to protect us from long-term a zone or agglomeration, other than:12 10 containing measures to achieve the WHO recommendations. (chronic) exposure to air pollution while hourly objectives. and daily limits are aimed at protecting us from • Workplaces (which are governed by EU short-term (acute) exposure to episodes of high health and safety legislation); EU directives must be transposed into national pollution that last only hours or days. So to take 7 Air Quality Directive, Article 3. • The carriageways of roads and central legislation, which will designate which authority the example of PM , there is an “annual” mean 10 reservations (unless there is regular or body is responsible for each of these various 8 For example in the UK, the Air Quality Standards limit value of 40 μg/m3 and a “daily” limit value, Regulations 2010 officially transpose the Air Quality pedestrian access to such reservations); which sets a limit of 35 days each calendar Directive, designating the Secretary of State, i.e. year in which 24-hour mean levels of PM can national government, as the competent authority for all 10 • Locations where members of the public obligations under Article 3. However, separate legislation exceed 50 μg/m3. do not have access and there is no fixed imposes duties on local authorities and the Mayor of 5 The UNECE Convention on Access to Information, habitation. London to work towards air quality objectives. Public Participation in Decision-making and Access to Limit values are the strictest type of objective Justice in Environmental Matters, 1998 (preamble): 9 See Treaty on European Union (TEU), Article because they impose an absolute, unqualified This is a commonly misunderstood or misapplied http://www.unece.org/fileadmin/DAM/env/pp/ 4(3):“Member state shall take any appropriate duty on the member state to achieve them by part of the Directive, but it is fundamentally measures, general or particular, to ensure fulfilment of documents/cep43e.pdf a given deadline, regardless of the cost (see important. the obligations arising out of the Treaties or resulting 6 Directive 2008/50/EC on ambient air quality and cleaner contrast with target values below). from the acts of the institutions of the Union. The air for Europe OJ 2008 L152/1. In December 2013 the member states shall facilitate the achievement of the Limit values do not only apply where air quality European Commission proposed a package of proposals “Zones and agglomerations” are areas Union’s tasks and refrain from any measure which could is monitored. Nor is it permissible to calculate relating to air pollution, which included a revised National jeopardise the attainment of the Union’s objectives.” designated by member states for the purposes Emission Ceilings Directive (COM (2013) 920). However, of monitoring and assessing air quality. The it will likely take some time for this proposal to be 10 For a summary of these pollutants and an explanation adopted. In any event, this is less relevant to the right to of the harm they cause to human health and the Directive gives member states a great deal of clean air as it relates to total emissions of air pollution, environment, see the EEA Report, note 2 above and discretion as to how they divide their territory 11 Air Quality Directive, Article 13. rather than concentrations of pollution in ambient air: the following WHO factsheet: http://www.who.int/ into zones and agglomerations. Member states 12 Air Quality Directive, definition of “Ambient Air” Article http://ec.europa.eu/environment/air/clean_air_policy.htm mediacentre/factsheets/fs313/en/ 2 and Annex III, Section A. 22 8 average levels of air quality across the zone or measures have been taken to reduce emissions Time extensions 9 agglomeration. The effect of this provision is that of ozone precursor gases, enforcement may be even if air pollution is below the limit in 99 per possible and indeed, worthwhile. Perhaps the worst aspect of the Directive is that cent of a zone or agglomeration, if the limit value it introduced the possibility of member states is exceeded at just one location, for example Air quality plans obtaining a time extension to the deadlines for next to a busy main road, the whole zone or achieving limit values. The original deadline for The Directive recognises that some member agglomeration is considered to have breached achieving the PM10 limits was 2005 and the states will sometimes fail to meet air quality the limit. deadline for achieving the NO2 limits was 2010. objectives, so contains a mechanism for However, because many member states had ensuring that air quality is improved in order But this does not mean that member states have failed to meet the PM10 limits and were also to minimise the impact on human health. The to monitor air quality everywhere. This would of projected to fail to meet the NO2 limits by 2010, course be impossible, or at least very expensive. Directive requires that where, in any zone or they successfully lobbied for this provision to be In fact, the Directive only requires member agglomeration, a limit value or target value is included in the Directive. states to use a small number of monitoring exceeded, the member state must prepare an air stations. However, those monitoring stations quality plan in order to achieve the limit value or In the case of PM10, member states were able to 18 must be placed at a location within the zone or target value. obtain a time extension until 2011 at the latest. agglomeration which is representative of the For NO2 and benzene, the Directive allowed Where the breach occurs after the relevant highest levels of pollution within that zone or member states to obtain a time extension deadline has expired, the air quality plans must agglomeration.13 postponing the deadline for compliance until 1 “set out appropriate measures, so that the January 2015. All time extensions have therefore More detail on monitoring and assessment of air exceedance period can be kept as short as now expired and the limit values apply as normal. 19 quality is provided in Chapter 4. possible.”

Target values14 Unhelpfully, the Directive does not give much indication of how long “as short as possible” Short-term action plans23 There are also less strict legal obligations known might be (this was one of the questions as “target values.” They apply to: considered by the European Court of Justice In addition to air quality plans, the Directive gives (ECJ)20 in the ClientEarth case - see below). member states the option of producing “short- is particularly bad. Strangely, despite the well- documented short-term health effects (including • Ozone term action plans” to address pollution episodes • Benzoapyrene15 The Directive is also quite prescriptive as to what which last days or weeks. This is another way death and hospital admissions) of elevated levels

information must be included in an air quality in which the Directive weakened existing legal of particulate matter (PM10 and PM2.5), these Unlike limit values, target values need only 24 plan. Air quality plans must include the following protections: under an earlier directive, the provisions apply only to ozone, NO2 and SO2. 16 be achieved “where possible” and without information:21 preparation and implementation of short-term incurring “disproportionate cost.” 17 In reality, this action plans had been compulsory. However, When levels of ozone reach a certain level (known wording makes target values very difficult to • A description of measures; they were unpopular with member states as the “information threshold”), member states enforce and so they really only act as non-binding which claimed that they were ineffective, so are required to inform the public by means of • The estimated impact of each measure; and guidelines. For this reason, this handbook will the legal duty was weakened so that it is now radio, television, newspapers or the internet. focus mainly on limit values. • A timetable for implementation of each purely discretionary (unless an alert threshold is Where levels of ozone, nitrogen dioxide or reached - see further below). However, these provisions are not entirely measure. sulphur dioxide reach dangerously high levels, meaningless. Member states must take cost- Alert and information thresholds25 known as “alert thresholds” over a period of effective measures and must adopt air quality three consecutive hours, member states are plans where target values are not met. So in For short periods of high pollution, the best way required to draw up a short-term action plan.26 extreme cases, for example where despite the of reducing the harm caused is by reducing ozone target value being breached (as is the people’s exposure to it, particularly among case for large parts of the EU), no air quality plan vulnerable groups such as children, older has been adopted or where no cost-effective people or those with health conditions which are exacerbated by air pollution. For this reason the Directive contains provisions requiring the authorities to warn the public when pollution 13 Air Quality Directive, Annex III, Section B.1 (a). 14 Air Quality Directive, Articles 16 and 17. 15 Obligations in relation to benzoapyrene are not laid 18 Air Quality Directive, Article 23. down in the Air Quality Directive but in Directive 19 Air Quality Directive, Article 23. 22 Air Quality Directive, Article 22 and Annex XV. 2004/107/EC relating to arsenic, cadmium, mercury, 20 References to the ECJ refer to the upper chamber of 23 Air Quality Directive, Article 24. nickel and polycyclic aromatic hydrocarbons in ambient the Court of Justice of the European Union which hears 24 Directive 96/62/EC on ambient air quality assessment air OJ 2004 L23/3. cases brought under Articles 285 and 267 of the Treaty and management OJ 1996 L296/1 (“the Air Framework 26 But in the case of ozone, only where a short-term 16 Air Quality Directive, Recital 9. on the Functioning of the European Union (TFEU). Directive”). action plan would be effective – see Air Quality 17 Air Quality Directive, Article 17. 21 Air Quality Directive, Annex XV, Section A. 25 Air Quality Directive, Article 19 and Annex XII. Directive second paragraph of Article 24(1). 10 The right to clean air in the European Court Unfortunately, the court held that such plans only The ClientEarth case 11 of Justice had to ensure a gradual return to compliance with limit values. However, the Janecek case The Janecek case and the four judgments in 35 The European Court of Justice (ECJ) has made was a ruling on obligations laid down by an cases brought by the Commission against a number of important rulings on the legal earlier version of the Directive.29 The plans member states all concerned obligations under 36 meaning and effect of limit values. These rulings under discussion in that case were “short- earlier air quality directives. have given rise to the principle that we have term action plans”. Although the Directive The ClientEarth case37 was the first ECJ ruling on a right to clean air in EU law. The Court has weakened the provisions regarding short-term the Directive. This case was originally brought by repeatedly held that limit values confer certain action plans by making them optional rather than ClientEarth against the UK government for failure rights on EU citizens, which are enforceable compulsory,30 it introduced the new concept of to comply with limit values for NO in 16 zones before national courts. an “air quality plan”31 which was much more 2 and agglomerations. The UK’s air quality plans demanding than the equivalent requirements Commission v Germany27 showed that these limits would not be achieved for “plans or programmes” under the earlier Air until 2020, or in the case of London, 2025. Framework Directive.32 In particular, it required The right to clean air has its origins in this ClientEarth brought a legal challenge before the air quality plans to keep the exceedance period 1991 case, which concerned Germany’s failure national courts, on the grounds that the Directive “as short as possible.” The inclusion of this UK Supreme Court to comply with one of the first EU air quality required compliance no later than 2015.38 directives, which laid down limit values for levels wording in the Directive was a direct response of lead in ambient air. The ECJ held that because by the Commission to the judgment in Janecek. The UK’s response was that it was not possible that limit values were achieved throughout all the limit values were imposed specifically to The significance of this wording will be fully to achieve compliance by 2015, due to a number zones and agglomerations. protect human health, it meant that whenever considered in later chapters but for now it of factors beyond its control, and so it could not It then referred a number of questions of they are exceeded, “persons concerned must be suffices to say that it means more than the apply for a time extension.39 Instead, the plans interpretation of EU law to the ECJ using in a position to rely on mandatory rules in order gradual return required by the ruling in Janecek. had been prepared in order to comply with the the “preliminary reference procedure.” This to be able to assert their rights”. This implied Directive’s requirement that air quality plans Commission v Italy procedure allows national courts to suspend that people could go to court to enforce their must contain measures to ensure the limits proceedings while the ECJ makes a preliminary right to clean air. are achieved in the shortest time possible”.40 The ECJ has repeatedly ruled that limit values ruling on the relevant questions of EU law.41 It is impose an absolute duty on member states 2020/2025 was therefore the “shortest 28 intended to ensure that national courts in different The Janecek case time possible” for these purposes. The UK to comply with limits by the relevant deadline. member states are applying EU law consistently. subsequently published revised projections This idea lay largely dormant for 15 years until So it is no excuse if a limit value is breached The ECJ’s ruling is binding not only on the showing that the plans would in fact not achieve the Janecek case in 2007. Dieter Janecek was because of technical, financial or administrative referring court but also on the domestic courts in compliance until after 2030 in some zones the resident of a highly polluted street in Munich difficulties. This principle was applied in the the 28 other member states. specific context of air quality in the case of who took legal action in relation to breaches ClientEarth’s case was dismissed at first Commission v Italy. 33 Italy had argued that it The questions referred can be summarised of the limit values for PM10. The case was instance by the High Court and again by the could not possibly have achieved the PM limit as follows: eventually referred to the ECJ, which held that: 10 Court of Appeal. An appeal was then made to values because of various technical difficulties, the UK Supreme Court - the highest court in “... natural or legal persons directly concerned by including unfavourable weather conditions and 1. Where a member state fails to comply with the UK. The Supreme Court allowed part of the a risk that the limit values or alert thresholds may the fact that EU policies had failed to deliver the a limit value by the original deadline, is it appeal, making a declaration that the UK was in be exceeded must be in a position to require the expected reductions in PM precursors. These required to apply for a time extension? 10 breach of its EU obligations by failing to ensure competent authorities to draw up an action plan excuses were not accepted by the ECJ, which 2. In what circumstances can it be exempted where such a risk exists, if necessary by bringing stated that “it is irrelevant whether the failure from this requirement? an action before the competent courts.” to fulfil obligations is the result of intention or negligence on the part of the member 35 In addition to Commission v Italy, note 33 above, the 3. What does the Directive mean when it states This was a landmark ruling and one of the most state responsible, or of technical difficulties ECJ has given judgment in Case C-479/10 Commission that air quality plans must contain measures important environmental cases in recent years. encountered by it.”34 v Sweden [2011] ECR-I 70, Case C-34/11 Commission to achieve limit values “in the shortest time It established not only that citizens had the right v Portugal (not yet published) and C- 365/10 Commission v Slovenia [2011] ECR-I 40. possible”? to go to court to enforce limit values (the right of standing), but also a right to a plan (the right to 36 Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, a legal remedy) and the right to demand judicial particulate matter and lead in ambient air OJ 1999 scrutiny of that plan (the right to substantive review). L163/1. 29 The Air Framework Directive, note 24 above. 41 The preliminary reference procedure is laid down in 37 Case C-404/13 R (on the application of ClientEarth) v the Treaty on the Functioning of the European Union 30 Air Quality Directive, Article 24. Secretary of State for Environment, Food and Rural (TFEU), Article 267. Where the national court is the 31 Air Quality Directive, Article 23. Affairs. highest court in the land i.e. a court to which there 32 Air Framework Directive, Article 8(3) 38 Either in accordance with Article 22, where a time is no recourse to appeal, it must make use of this extension is sought, or in accordance with Article 23 procedure unless the provision in question is “acte 33 Case C-68/11 Commission v Italy (not yet published), at i.e. “in the shortest time possible” cannot logically be clair” i.e. so obvious as to leave no room for doubt (see 27 Case C-59/89 Commission v Germany [1991] ECR-I paragraphs 58-66. See also Case C-337/89 Commission later than 2015. Case C-283/81 CILFIT and Lanificio di Gavardo SpA v v UK [1992] ECR-I 6103 (drinking water), Case C-56/90 2626, at paragraph 22. Ministry of Health [1982] ECR-I 3415 ). This principle Commission v UK [1993] ECR-I 4109 (bathing water). 39 In accordance with the Air Quality Directive, Article 22. 28 Case C-237/07 Janecek v Freistaat Bayern [2008] ECR is often misused by national courts to avoid making I-6221 at paragraph 39. 34 Ibid at paragraph 63 40 In accordance with the Air Quality Directive, Article 23. preliminary references. 12 4. What remedies should national courts provide have a right to demand that the relevant The right to clean air - • Inadequate air quality monitoring, 13 where a member state has failed to comply authorities prepare an air quality plan to for example insufficient numbers of, with the Directive (for example by failing to ensure they are achieved, if necessary by the reality inappropriately located or old and meet limit values)? taking legal action before national courts. unreliable monitoring stations.

The ECJ ruled on these questions in November • Member states are under an obligation of • Inconsistency between “official” air 2014. It restated the legally binding nature of air result to achieve compliance with the limit quality data and other “unofficial” data. quality limits and ruled that national courts are values. This means that the air quality plan For example in Belgium, the official data obliged to provide a remedy where these are must contain all the measures necessary to which the Government uses to report to the breached. While national courts could determine secure compliance. Commission show that Brussels has almost

exactly what kind of remedies to give, they must achieved compliance with the PM10 limits; be sufficient to ensure that the responsible • That plan must contain measures to achieve however citizens have raised concerns about the limits in the shortest time possible, not authorities establish a plan which meets the the lack of PM10 monitoring stations in some requirements of the Directive. merely a “gradual return” to compliance. of the busiest and most polluted roads (such as, Arts-Loi, Rue Belliard, and Avenue de la • The national court must review the content of The ECJ did not give much guidance on the Couronne). meaning of “as short as possible,” leaving it to the plan to ensure that the measures included national courts to scrutinise plans to determine are sufficient. • Lack of up-to-date information, with data whether they were really achieving compliance published a long time after breaches of limit • Practical, financial, technical or other in an acceptable timeframe. Crucially, however, This chapter will explore some of the typical values have occurred. Statistics on breaches difficulties in achieving limit values are the ruling did make clear that plans must achieve problems faced by EU citizens when trying to of limit values are often not made publically not relevant. more than the “gradual return” envisaged in uphold their right to clean air. This draws on available until they are reported to the Janecek. This is all very well in theory but the reality for two main sources. First, a study conducted Commission, for which the Directive millions of people throughout Europe is that by Professor Jan Darpö, Uppsala University, allows nine months after the end of the In April 2015, the case returned to the UK 44 their right to clean air is violated, often on a daily Sweden, on the implementation of the Aarhus calendar year. Supreme Court for it to apply the ECJ’s judgment 43 basis, and yet too often no action is taken. There Convention in the 28 EU member states. to the facts in the case and determine what • Information presented in highly technical is an old legal maxim that “there is no right Second, a questionnaire conducted specifically action to take. The Court unanimously ruled in formats such as spreadsheets containing without a remedy” and this applies equally to the for this project and responded to by NGOs in ten favour of ClientEarth and issued a mandatory “raw” data. right to clean air: we can talk all we like about EU member states, specifically on questions of order requiring the UK government to prepare the right to clean air but if there is no remedy air quality. new air quality plans by the end of 2015. The • Information and alert warnings not being available to guarantee it, it is of little interest to implications of the ClientEarth are discussed Although the specific details vary from country given. For example, during the London anyone other than law students and academics. below.42 to country, some common problems emerge. Olympic Games the UK government failed to issue smog warnings, despite levels of In the next chapter we will explore some of These can be broadly categorised under the ozone exceeding the information threshold on the reasons why it is so difficult to access our following headings: several occasions.45 right to clean air, before going on to look at The right to clean air – a summary • Inadequate information some possible solutions provided by EU and • Lack of information on the status of The ClientEarth ruling marks a major step international law. • Inadequate air quality plans implementation of the measures announced forward in the development of the right to clean in the air quality plans. air which was first established in Janecek. The • Lack of access to justice right to clean air in EU law can be summarised • Lack of information about the effects of as follows: proposed developments on local air quality.

• We have a right to breathe air that meets EU Lack of information limit values. The notion that we have a right to clean air • Where air does not meet these limits, we depends on the availability of accurate air quality data. However, in many member states, such information is not freely available. Some common problems included: 42 The implications of the decisions of the ECJ and the UK Supreme Court in the ClientEarth case are further discussed, respectively, in A Andrews, The right to clean air in the ClientEarth case: http://documents. 43 J Darpö ’Effective Justice? Synthesis report of the clientearth.org/download/6640/ and in A Andrews, study on the implementation of Articles 9.3 and 9.4 of The UK Supreme Court ruling in the ClientEarth case: the Aarhus Convention in Seventeen of the member Consequences and next steps: http://documents. states of the European Union’ (Report) (11 October 44 Air Quality Directive, Article 27(2). clientearth.org/wp-content/uploads/library/2015-09-17- 2013): http://ec.europa.eu/environment/aarhus/pdf/ 45 http://cleanairinlondon.org/olympics/government-is- the-uk-supreme-court-ruling-in-the-clientearth-case- synthesis%20report%20on%20access%20to%20 systematically-hiding-smog-episodes-60-years-after-the- consequences-and-next-steps-ce-en.pdf justice.pdf great-smog/ 14 Air quality plans • The unavailability of “substantive review” - Clean air cases in the EU 15 some national courts look only at whether the In most zones and agglomerations where there public authorities have followed the correct is a problem with air quality there is already an rules and procedures. For example, the court Sweden air quality plan in place. However, the problem will check that the authorities have properly is usually that the plan is inadequate or has not In 2008 the Swedish Society for Nature Conservation adopted a plan, but will not review the (SSNC) brought a case against the City of Stockholm been implemented. Common problems with air substance of the plan in order to check that UK for failing to take measures included in its air quality quality plans include: the measures it contains are adequate. plan. Despite a 2012 court ruling in SSNC’s favour, ClientEarth’s case against the UK the lack of any effective remedy has allowed the city Government for failing to meet • Measures are inadequate to improve air • The need for there to be an “administrative to continue to delay taking action. NO limits in 16 zones resulted in quality within a reasonable time-frame. 2 decision” to challenge - making it difficult or the Supreme Court declaring that impossible to challenge omissions i.e. failures the UK was in breach of EU law • Measures are not implemented, or are by the authorities to take positive action to and ordering the adoption of new delayed. improve air quality. air quality plans by the end of the year 2015. • Measures are not supported by adequate information, so any assessment of whether Germany they will be effective is impossible. Solutions in EU law It started in 2005 with the Janecek case. Since then there • Plans are several years old and have not Despite these obstacles, NGOs and citizens are France have been 12 cases brought been updated despite continuing air quality by German citizens and NGOs, increasingly taking to the courts to successfully Since 2006, French NGOs problems. 46 many of which have resulted defend their right to clean air. have brought local and in new measures such as low national cases. French emission zones. In November • Citizens and NGOs are not given adequate courts have so far refused 2015, Deutsche Umwelthilfe, opportunities to participate in the formulation to grant a remedy against with support from ClientEarth, of air quality plans – either no consultation the breaches of the Air launched a further 12 cases over Quality Directive. takes place, or consultation is merely a breaches of limits. token gesture – with views not taken into consideration. Portugal Czech Republic Access to justice In 2015, NGO Quercus In 2011, a citizen brought brought two cases to a case asking for an air In theory, wherever air quality laws are broken, enforce the right to clean quality plan to achieve air in Portugal. These compliance with the PM citizens and NGOs have the right to go to 10 actions aim at improving limit. The administrative court. However, in practice, national rules and air quality plans in Lisbon court recognised the procedures often make it difficult for citizens to and Porto and forcing the citizen’s right of standing access the courts to uphold their right to clean adoption of plans in Braga and declared that the air. Most commonly: and the North Region. government was in breach of EU law. • Restrictive standing rules - individuals and, more frequently, NGOs are denied the right to access the courts.

• The high cost of bringing legal action - the cost of legal fees, including in some cases Austria European Parliament, Strasbourg the risk of paying for the defendant’s legal Since 2005, Austrian citizens and NGOs fees if the challenge is unsuccessful, is a have brought four cases. One granted an Austrian citizen the right to request major deterrent to taking legal action. the improvement of the air quality plan in Graz; one granted NGO Ökobüro • Delays in legal proceedings - legal actions can Italy the right of standing to enforce the Air take several years to reach a conclusion. Genitori Antismog have brought Quality Directive in Austria. a series of cases relating • The unavailability of effective judicial to pollution in Milan, most remedies - some national courts are reluctant recently a 2012 case against the 1 Relating to pollution in Munich (3 cases), Berlin, Hannover, Wiesbaden, Mainz, Darmstadt, Reutlingen, Hamburg, or unable to force authorities to take action, government of Lombardy for failing to tackle NO in Milan. The Offenbach, Limburg. relying instead on non-binding declarations 2 court ordered it to produce an air 2 ÖKOBÜRO, Greenpeace, GLOBAL 2000, VCÖ, ÄrztInnen für 46 Summaries and relevant documents for some of these or merely requiring the relevant authority to quality plan within 60 days. eine gesunde Umwelt. reconsider the disputed decision. cases can be found at: http://legal.cleanair-europe.org/ legal/ 3 For more information on Austrian cases see http://legal. cleanair-europe.org/en/legal/austria/lawsuits-and-decisions/ 16 In March 2015, the environmental NGO Quercus The right to access • levels of ambient air quality; 17 started two legal actions to enforce the right to clean air in Portugal. These actions aim at information on air quality • whether any time extensions have been improving the existing air quality plans in Lisbon T TO CLE granted; and and Porto and at forcing the adoption of air IGH AN R • airA quality plans. quality plans in Braga and in the North Region. E I H R T Further, the information must be provided: All these cases relied on EU law before national courts. The “supremacy” of EU law means that • free of charge; and domestic courts are obliged to give effect to it, SMOG even if this involves setting aside incompatible • by means of any easily accessible media national laws. In addition, domestic courts must POLLUTION (which could include the internet, although give effect to EU law rights, such as the right to this is not specifically required). clean air, by providing effective remedies. ACCESS TO JUSTICE In addition, member states must publish an The EU and each member state are party to annual report summarising, for all pollutants: an international treaty known as the Aarhus Convention.47 The “Aarhus Convention” is PUBLIC • breaches of limit values and other objectives based on the principle that we have a right to a PARTICIPATION The right to access information about air quality such as target values; and healthy environment, and a duty as citizens to is a precondition to the right to clean air: unless protect the environment, which is obviously not people know that there is an air quality problem, • the effects of these breaches, for example on ACCESS TO human health. capable of defending itself in court. It therefore INFORMATION understand the risk it poses to their health and gives us “procedural rights” which help us to are informed about what measures are being So the Directive requires member states to assert our rights to a healthy environment: taken to improve it, they are powerless to provide some very basic information about air take action. quality to the public. However, member states “To be able to assert this right and observe this Figure 1 duty, citizens must have access to information, be The Directive requires member states to provide are given very wide discretion as to what entitled to participate in decision-making and have the public with some information about air information to provide and when and how to access to justice in environmental matters, and quality. However, as we will see in the first part provide it. The result is usually that too little acknowledging in this regard that citizens may of this chapter, these provisions are quite weak information is provided, and/or is provided too need assistance in order to exercise their rights.” and, as we discussed above, many member late to be useful. There have been several cases states even fail to comply with these minimal So the Aarhus Convention guarantees three The Directive also lays down rules on how where NGOs and citizens have requirements. The second part of this chapter 49 basic procedural rights which are deemed information is provided to the Commission. gone to court to successfully will therefore show how EU law based on the In particular, member states must provide the essential to accessing our right to a healthy Aarhus Convention can be used to access environment: Commission with information on which zones defend their right to clean air information about air quality, together with some and agglomerations have breached objectives, practical tips on how this can be used to support • The right to access information; no later than nine months after the end of each campaigns and put pressure on the responsible year. This information is of critical importance as • The right to participate in the formulation of authorities to improve air quality. it is the information on which the Commission plans relating to the environment; and The Air Quality Directive bases its infringement cases against member states (see chapter 7). It is also the easiest data • The right to go to court to challenge breaches General with which to base any national proceedings, of environmental law. as its accuracy cannot be disputed by the The Directive lays down rules on how authorities, given that it is their own data. This provides campaigners and lawyers with a information is provided to the public.48 It “toolkit” of procedures that can be used to help requires that the public, including environmental overcome some of the common obstacles which organisations, consumer organisations and stand in the way of our right to clean air. The organisations representing the interests of following chapters will show how each of these sensitive populations are informed adequately three Aarhus “pillars” can help in upholding the and in good time of: right to clean air.

47 See note 5 above. 48 Air Quality Directive, Article 26. 49 Air Quality Directive, Article 27. 18 Monitoring and assessment 50 breaches of limit values. While the Commission The Convention also stresses the importance of • Cost-benefit and other economic analyses 19 will take into account information provided widespread public awareness of environmental and assumptions used in environmental The Directive lays down rules on: by citizens and NGOs which contradicts the issues. It therefore imposes an obligation decision-making; and official data and may ask the member state to on public authorities to actively disseminate • the minimum number of monitoring explain these discrepancies, it would never bring “environmental information” and also to make • The state of human health and safety, stations; and infringement cases based solely on unofficial such information available to the public where it conditions of human life, cultural sites and 52 built structures which might be affected by • where they must be located. data. This is rather like the police only being able is requested. to prosecute a criminal where they have made a the state of the elements of the environment These rules on monitoring and assessment, signed confession, even where there are several These provisions are implemented in the or, through these elements, by the factors, while very complex, are insufficient to ensure full eye-witnesses to the crime. EU through the Environmental Information activities or measures. 53 and accurate assessment of air quality. Directive. This means that each EU member state must have passed new national laws, or So almost any information you can think of As explained above, monitoring stations are to adapted existing laws, to ensure they comply relating to air quality would be covered by this be sited at locations which are representative What can you do? with this Directive. If the national laws are not definition, such as data on pollution levels, of the highest levels of pollution in a zone consistent with the directive, national judges are numbers of premature deaths and hospital Inform the Commission or agglomeration. However, in practice, this required by EU law to ignore them. admissions caused by air pollution, cost-benefit analysis of air pollution measures and technical provision is often ignored or abused by member If you think that there are insufficient numbers of Key provisions analysis of air quality plans. states. Monitoring stations are frequently sited monitoring stations, that they are inappropriately in areas which do not have the highest levels placed (for example they are not representative Where a request for environmental information Exemptions of pollution. In an extreme example of this, the of the worst levels of air quality) or that data is made, the information shall be provided as Mayor of Madrid was found to have intentionally is not being properly reported (for example soon as possible and no later than one month There are some limited circumstances in which moved monitoring equipment away from busy where data collected from other reliable sources after being received.54 Where the volume and the information can be withheld: roads and into parks in order to falsely claim contradicts the official data), then you should complexity of the information requested is such that air quality had improved.51 More commonly, • Where the request is submitted to the wrong notify the Commission (see further at chapter that it is not possible to provide it within one member states fail to publish or report data from public authority (but if this is the case the 7 for guidance on how to do this). While the month, the applicant must be notified and the unofficial monitoring sites that are not part of recipient must either transfer the request to Commission has limited resources and cannot information must be provided no later than their official network. Often this will be justified the correct authority or inform the applicant of investigate every complaint, it will usually take two months after receipt of the request. on the basis that the unofficial data does not a keen interest if there are signs that a member the correct public authority). meet the very detailed siting requirements of the state is not being completely honest with “Environmental Information” is defined very • Where the request is “manifestly unreasonable”; Directive, for example because the monitoring it. While ultimately it has to rely on the data broadly,55 and includes any information, whether station is too close to a road junction. provided by the member state, it will usually ask in written, visual, aural, electronic or any other • Where the request is formulated in too officials to explain any discrepancies, particularly material form, relating to: These problems arise in part because general a manner; where it has already opened infringement the Directive does not require sufficient proceedings against it. • The state of elements of the environment • Where the request concerns material in the monitoring stations, allowing member states (including the air and the atmosphere) course of completion (in which case they to use modelling techniques to supplement Breaches of any of the information provisions of must tell you who is completing it and when monitoring data. While modelling provides useful • Factors, such as substances, energy, noise the Directive could also form the basis of legal it will be completed by); supplemental information and reduces the action before national courts (see chapter 6). and radiation affecting those elements and need for expensive monitoring stations, it is not emissions, discharges and other releases into • Where the request concerns internal always accurate and is open to manipulation by Make an information request the environment; communications; member states. Models are only as accurate as the data that you put in them (a phenomenon The Aarhus Convention offers another solution • Activities or measures, including • Where disclosure would adversely affect known by the acronym “RIRO” - rubbish in, to the problem of inadequate information. The administrative measures, environmental confidentiality of the proceedings of public rubbish out). Consequently, if you underestimate Convention guarantees rights of access to agreements, policies, legislation, plans and authorities, international relations, the the number and type of vehicles on the road, environmental information which go further than programmes, affecting or likely to affect confidentiality of commercial or industrial how far they travel and the amount of pollution the relatively weak provisions found in the Directive. those elements of the environment above; information, intellectual property rights, the they emit, then the model will show that air You can make use of these provisions to request confidentiality of personal data.56 • Reports on the implementation of quality is better than it really is. any missing information which can be useful in raising awareness, informing the Commission or environmental legislation; These problems are compounded by the even bringing legal action before national courts. fact that the Commission has no powers of inspection, so is completely reliant on member The Aarhus Convention recognises that access states to provide it with information about to information is an essential prerequisite to the 52 The Aarhus Convention, Article 7. right to live in a healthy environment. Further, 53 Directive 2003/4/EC on public access to environmental it acknowledges that public authorities hold information and repealing Council Directive 90/313/EEC OJ 2003 L41/26. 56 These are just some of the more common examples 50 Air Quality Directive, Articles 5-11. environmental information on behalf of the public which are often used to refuse disclosure of - so really it is “our” information, not “theirs”. 54 Environmental Information Directive, Article 3. 51 Financial Times “Madrid mayor red faced over green information. See Article 4(2) of the Environmental campaign” 4 February 2011. 55 Environmental Information Directive, Article 2(1). Information Directive for the full list. 20 There is a huge body of case law concerning The following is a list of information that • Make sure you are sending the request to 21 how these exemptions can be used. A detailed CASE STUDY you should check, and if it is not publically the public body which actually holds the discussion of this is beyond the scope of this available, formally request it from the information - this can save delays. handbook. However, there are two broad The campaign “Clean Air in London” relevant authorities under the Environmental principles that can be extracted: (CAL) has been very successful at using Information Directive: • Try to be as specific as possible so that your environmental information requests to request isn’t deemed to be “formulated in 58 • Exemptions must be interpreted restrictively generate media coverage and raise the The annual compliance report too general a manner”. i.e. in such a way as to favour access to profile of air quality issues. For example, information. in 2013, Clean Air in London submitted Details of breaches of limit values and • Make sure the information requested isn’t requests for details of emissions other objectives (target values, long-term covered by one of the exemptions. If you • Some of the exemptions are not available of diesel exhaust for every road in objective for ozone). don’t think it is, say so and explain why. where the request relates to information London carrying an average of 10,000 Is an air quality plan in place for all zones • Inform the media - an environmental on emissions into the environment. This vehicles per day. The Mayor declined in which limit values have not been information request can be an extremely is particularly important in the context of these requests at first, but CAL sought achieved? powerful campaigning tool, particularly if it air quality, where many requests could be an “ internal review “ of the refusal. characterised in this way. results in media coverage. The Mayor eventually released the By what date does the air quality plan information, which was used by CAL to These rights of access to information are achieve compliance? An example of an environmental information identify the top five most polluted roads supported by quite strong provisions which request letter is included at Annex II. in London. This generated a great deal Health impacts - how many premature guarantee a right to administrative and judicial of media coverage and was taken up by deaths, hospital admissions, years of life review.57 So if your request for information is local politicians: http://cleanairinlondon. lost are attributable to the levels of air ignored, wrongfully refused (either in full or in org/sources/carcinogenic-diesel-exhaust- pollution in your country, region, town part), or inadequately answered you have a right disclosed-for-every-significant-road-in- or city? to access a quick and inexpensive procedure in Environmental information london/#sthash.yk4pBGFf.dpuf which the authority is required to reconsider its requests can be an decision. In 2014 a request was made by the enormously useful weapon in Sunday Times for a list of the 50 locations This is only a very basic list, most of which is In addition to this procedure, you must also have in the UK with the highest levels of either explicitly or implicitly required by the Air the air quality campaigner’s access to a review procedure before a court of NO , following the previous week’s Quality Directive. An environmental information armoury and crucially, they law or another independent and impartial body 2 announcement that the Commission was request need not be limited to this information established by law (such as a tribunal), in which are free or very low cost taking infringement action against the - as the case studies above demonstrate. Be the decision can be reviewed. So ultimately, if UK for breaching NO limits. The results creative. Try to think what information would you are refused information, you could go to 2 showed that the worst location was be particularly useful, interesting or likely to put court to demand that it is disclosed. See further located just next to Buckingham Palace. maximum pressure on the relevant authorities Chapter “Access to Justice I – enforcement in This story was subsequently taken up by to take action. national courts.” almost every other news outlet, resulting If the public body does not want to give you the Practical tips on using environmental in one of the widest coverage of air quality issues in the UK in recent decades. information, it will try to refuse your request, or information requests at least delay responding until the information is no longer useful. To minimise the risk of this, Environmental information requests can be an the following tips may be helpful: enormously useful weapon in the air quality campaigner’s armoury and crucially, they are free or very low cost. The information can be very useful in supporting campaigns, informing the public, the media and politicians. Journalists in particular are always looking for a “scoop” (an exclusive story) - so if you can get hold of previously secret information, then this can often result in media coverage (see case study: Clean Air in London)

Air pollution makes headlines in Daily Mail, The Sunday Times and The Independent

58 As required by Articles 26 and 27 of the Air Quality 57 Environmental Information Directive, Article 6. Directive. 22 The right to participate the failure of the competent authorities in many So on this basis, individuals and NGOs have the possibility that your participation can actually 23 member states to provide for public participation the right to participate in the formulation of air influence the content of the plan. The relevant in decisions affecting in the formulation of air quality plans. However, quality plans. What does this mean? The Public authorities must consider all the comments air quality it is clear from the following analysis that such a Participation Directive leaves it up to member and opinions they receive before adopting the right exists. states to decide on the detailed arrangements finalised air quality plan. Once they have made for public participation, but does lay down the their final decision, they must make reasonable The Public Participation Directive requires following basic requirements: efforts to inform the public about it, giving the member states to ensure that the “public” reasons and considerations upon which it was is given early and effective opportunities to Who is entitled to participate? based.66 However, the authorities do not have to participate in the preparation and modification agree with the views expressed by the public - The Public Participation Directive leaves or review of the plans or programmes required you have a voice in the decision, but not a vote. to be drawn up under a list of EU environmental considerable discretion to member states to directives.60 One of the listed directives is the Air decide who “the public” is for participating in Framework Directive - one of the predecessors plans and programmes: to the Air Quality Directive. The Air Framework “The public shall mean one or more natural or Directive required member states to draw legal persons and, in accordance with national up “plans or programmes” for zones and legislation or practice, their associations, agglomerations where air quality exceeded organisations or groups.”64 limit values.61 The intention was that for all environmental directives proposed after the “member states shall identify the public As well as the right to access information about Public Participation Directive came into force, entitled to participate... including relevant air quality, the Aarhus Convention also gives you the Commission would automatically include non-governmental organisations meeting any the right to participate in decisions affecting the provisions requiring public participation in plans requirements imposed under national law, such 62 environment. In the context of air quality this and programmes. as those promoting environmental protection.”65 arises in the right to participate in the formulation of air quality plans. However, it is also relevant to Air quality plans under the Air Quality Directive So the right of the individual to participate is decisions on whether to approve certain projects are the successors to the plans and programmes clear. However, the rights of groups such as or industrial activities which are likely to have a required by the Air Framework Directive. It was associations and NGOs are more complicated, as negative impact on air quality. therefore clearly the EU legislator’s intention that this depends on national laws. Unfortunately this they be subject to the provisions of the Public means that member states can (and often do) These rights have been implemented by the EU Participation Directive. In addition, in the absence decide to exclude groups on the basis of certain through the Public Participation Directive59 which of EU legislation, member states are required to criteria such as the numbers of members they requires member states to provide for public interpret national laws and procedures in such a have or the length of time they have existed. participation in: way as to give effect to the Aarhus Convention, However, there are limits to how far they can and therefore give individuals and environmental go in this respect. The ECJ has made a number • Plans and programmes affecting the NGOs a right to participate in the formulation of of rulings that such provisions are illegal where 63 environment; air quality plans. they do not ensure that the provisions of EU law • Projects which are subject to Environmental are made effective. Relevant information Impact Assessments; and Early and effective participation The public must be informed of proposals for air • Industrial permits. Public participation must take place early, when quality plans and relevant information about such Participating in plans and programmes all options are open and before any final decision proposals must be made available, including is made on the content of the air quality plan information about the right to participate and As discussed in Chapter 2, we have a right or before a plan is submitted to the legislative the authority to which to submit comments and to an air quality plan. But we also have a right bodies for adoption. In the case of a local questions. In the context of air quality plans, to participate in the formulation of that plan. 60 Public Participation Directive Article 2 and Annex I. authority, this means that participation must relevant information would, as a minimum, Unfortunately, due to an oversight by the EU 61 Air Framework Directive, Article 8(3). take place before the plan is submitted to the include all the information required by the legislators, this right does not appear anywhere 62 See recital 10 to the Public Participation Directive: municipal council. Directive, including: in the Directive. This has no doubt contributed to “Other relevant community legislation already provides for public participation in the preparation of plans and Participation must also be genuine and effective. • Detailed description of each measure; programmes and, for the future, public participation This is much more than the right to merely be requirements in line with the Aarhus Convention will told that an air quality plan is being prepared and • A detailed timetable for implementation of be incorporated into the relevant legislation from the 59 Directive 2003/35/EC providing for public participation being asked for your views on it: there must be each measure; and outset.” in respect of the drawing up of certain plans and programmes relating to the environment and amending 63 See for example C-240/09 Lesoochranárske zoskupenie with regard to public participation and access to justice VLK v Ministerstvo životného prostredia Slovenskej Council Directives 85/337/EEC and 96/61/EC OJ 2003 republiky [2011] ECR I-1255 (the “Slovakian Bears” 64 Public Participation Directive, Article 2(1). L156/17. case). 65 Public Participation Directive, Article 2(3). 66 Public Participation Directive, Article 2(2). 24 • Estimates of the expected improvements in plan and all supporting information and provide Participating in decisions on projects 25 air quality that will result (including the date detailed comments, it is a good idea to write CASE STUDY and permits by which compliance with limit values is to the competent authority as soon as possible expected to be achieved).67 and request more time, referring to the above In addition to requiring public participation in ClientEarth v Secretary of State for provisions of the Public Participation Directive. plans and programmes such as air quality plans, Other relevant information could include: Environment, Food and Rural Affairs the Public Participation Directive also amended Modification or review two EU environmental directives to ensure they The UK applied for a time extension for • Information about the health and comply with the Aarhus Convention: environmental impacts resulting from the The obligation to prepare air quality plans PM10 for Greater London. air quality plan, for example how many has existed for several years, so in most • The Environmental Impact Assessment (EIA) The Commission raised no objections premature deaths, hospital admissions and cases an air quality plan will already be in Directive;70 and to the time extension notification on so on, would be avoided as a result of the place. The opportunity for public participation condition that the air quality plan for measures in the air quality plan; will therefore usually arise in the context of • The Integrated Pollution Prevention and London was “adjusted” to include modifying or updating an existing plan rather Control Directive (IPPC) Directive, (which measures to be taken in the short-term to • Economic analysis of the measures in than preparing a plan for the first time. Crucially, has now been replaced by the Industrial ensure that the limits were in fact met. 71 the plan, including cost-benefit and cost- the Public Participation Directive requires public Emissions Directive (IED) . effectiveness analysis; participation not only in the preparation of air The UK adjusted the plan to include a Both are potentially highly significant for air quality plans, but also where they are modified • The underlying data such as emission number of measures, including the use of pollution. While a full discussion of these or reviewed.69 Although the Air Quality Directive factors, traffic statistics and any scientific or “dust suppression.” However, it did not directives (which are highly technical and the does not explicitly state that air quality plans technical reports which have been used in the consult the public on this adjusted plan. subject of a large body of case law) is beyond must be regularly modified or reviewed, it is at preparation of the plan; the scope of this manual, it is worth highlighting least implicit that this is the case. ClientEarth’s argument was that either some key considerations that are particularly it was an adjustment of the plan, which • Alternatives which might exist, such as relevant in the air quality context.72 additional measures which have to be was equivalent to “modification” and explored. The Public Participation so public participation was required, or A key point to note is that the Public Participation Directive requires public it wasn’t an adjustment, in which case Directive not only requires public participation in If insufficient information has been provided, you the UK had failed to comply with the decisions subject to the EIA or IED, but it also can make a request for such information under participation where air conditions of the time extension and guarantees rights of access to justice so that the Environmental Information Directive (see quality plans are modified so that was invalid, and the UK was in members of the public concerned can challenge chapter 4). However, you will need to act quickly, breach of the Directive since 2005 (the or reviewed those decisions. However, it does not require as otherwise the information may not arrive until original deadline for achieving PM10 access to justice when it comes to plans and after the participation procedure has closed. limit values). programmes.

Reasonable timeframes The time extension process will often result in This formed one of the two grounds in Although the right of access to justice for air the opportunity to participate in the modification ClientEarth’s case (the other being the quality plans is provided for by the Janecek Unfortunately, the Public Participation Directive of air quality plans. member states who applied failure of plans to achieve NO2 limits until case, this does not fulfil the requirements of does not lay down specific timeframes, but for time extensions were required to prepare after 2015). However, a month before the the Aarhus Convention that procedures be states that “reasonable time-frames shall be air quality plans for each zone/agglomeration case was due to be heard, Defra agreed fair, equitable, timely and not prohibitively provided allowing sufficient time for each of the containing measures to achieve compliance by to settle on this part of the claim and expensive.73 For this reason it may be easier to different stages of public participation...”68 the extended deadline. The Commission either offered to hold a public consultation on bring national legal action in relation to an EIA or So what is “reasonable” is left up to the approved time extensions, rejected them, or the adjusted plan. IED decision which will worsen air quality than to member state to decide. “conditionally approved” them. Where time challenge an air quality plan. extensions were conditionally approved, a Given the complex and technical nature of air common condition was a requirement to modify quality plans, considerable time is necessary the air quality plan to ensure that it achieved limit 70 Directive 85/337/EEC on the assessment of the to allow meaningful participation. However a values sooner, or to include additional measures common problem is that an unreasonably short effects of certain public and private projects on the where it was uncertain whether compliance environment OJ 1985 L175/40. This directive has now period of time, for example one month, is given would be achieved by the extended deadline. been replaced – though not changed in its content - by in which to provide comments. It is important Directive 2011/92/EU OJ 2012 L 26/11. Furthermore, that you insist in being allowed to participate “as Where time extensions were rejected, member the EIA Directive has been amended in 2014 by early as possible” and when all options are still states must modify their air quality plans or risk Directive 2014/52/EU. open, rather than only being allowed to participate infringement action by the Commission, or legal 71 Directive 96/61/EC concerning integrated pollution at the very last moment. If you do not think that action by individuals or NGOs in national courts, prevention and control OJ 1996 L257/26. This Directive was repealed and replaced by Directive 2010/75/ you have been given sufficient time to read the so this process has led to further opportunities EU on industrial emissions OJ 2010, L 334/17. The for public participation. Spraying dust suppressant, London participation rights were not changed in substance. 72 See further at http://ec.europa.eu/environment/eia/eia- 67 Air Quality Directive, Articles 22 and 23 and Annex XV. legalcontext.htm 68 Public Participation Directive, Article 2(3). 69 Public Participation Directive, Article 2(2). 73 Aarhus Convention, Article 9(4). 26 EIA and air quality In any event they must take into account the If the responsible authority decides not to make One of the reasons that it is so important to push 27 criteria set out in Annex III. Some of these an environmental impact assessment, it is for an EIA to be carried out is that it requires the The public also has a right to participate in criteria are highly relevant to air quality, for obliged, on request from citizens or NGOs, relevant authority to give reasons for whatever decisions which are subject to an Environmental example: to give reasons justifying this decision.80 decision it takes in relation to the development.81 Impact Assessment. The EIA Directive requires This will not necessarily be the case where an that projects likely to have a “significant effect” • Cumulative effects Where a full EIA is carried out, the developer EIA is not required. Where reasons are given on the environment be subject to a process must produce a detailed report containing certain for a decision it is much easier to determine • Densely populated areas known as “environmental impact assessment.” information including the following which are whether a legal challenge is appropriate and the An EIA requires that the full environmental especially relevant to air quality: • Areas in which environmental quality likelihood of success. impacts of a project are assessed and that standards (such as air quality limit values) consideration is given to mitigating those effects. • An estimate of type and quantity of expected have already been exceeded emissions to air resulting from the operation EIAs are mandatory for certain types of projects of the project; Industrial pollution and air quality • Trans-boundary effects (listed in Annex I) which are assumed to have • An estimate of aspects of the environment The IPPC Directive subjects industrial emissions, a significant impact on the environment. Such So any Annex II project which would significantly likely to be significantly affected, including including emissions into the air, to a permitting projects include airports, motorways and long- increase emissions of air pollution in a densely population, air, climatic factors and process. The IPPC Directive has been “recast” distance railway lines. populated area such as a town or city, where architectural and archaeological heritage; as the Industrial Emissions Directive, which limit values are exceeded should, through the EIAs are discretionary for those projects listed replaced the IPPC Directive from January 2014.82 screening procedure, be identified as likely to in Annex II. The relevant authorities decide • An outline of main alternatives to the project; have a significant impact on air quality. An EIA whether an EIA is needed through a “screening Permits should only be granted where “Best would then be required. • A description of the forecasting methods procedure”, which determines whether a Available Techniques” (BAT) are used, and used to assess the impacts; “Emission Limit Values” (ELVs) are met. project is likely to have a significant effects on The second stage of the EIA process is the environment. Annex II projects which are “scoping”. Scoping is carried out for all projects • A description of the measures envisaged The Public Participation Directive requires public of particular relevance to air quality are urban that require an EIA, whether they fall under to prevent, reduce and where possible participation in the decision to grant the permit. development projects (which includes the Annex I or Annex II, and it is the process by offset any significant adverse affects on the These provisions largely mirror the provisions construction of supermarkets and car parks),74 which the content and extent of the developer’s environment. for public participation in projects subject to EIA. road construction75 and shale gas extraction Environmental Impact Statement are determined. The public concerned must similarly be given (fracking).76 Typically this document will be very large and This process can be carried out by the developer, early and effective opportunities to participate in or the developer may ask the relevant authority technical, however the Directive also requires Member states can decide whether or not the procedure for: for a “scoping opinion”.79 In this case the relevant the developer to produce a non technical to require an EIA for an Annex II project on a authority must give its opinion as to the relevant summary. • Issuing a permit for a new installation; case by case basis and/or by setting certain information to be included. thresholds. However, when an Annex II project Where a full EIA is carried out, the “public • Issuing a permit for any substantial change in is likely to have significant effects on the A typical problem is that projects are not subject concerned” has the right to participate in the the operation of an installation; and environment, member states are obliged to to EIA, because the screening procedure decision whether or not to grant consent to the 77 require an EIA. Also, when they fix thresholds, assesses that the impact on air quality will not project. These provisions mirror those for rights • Updating a permit or permit conditions. they may only exempt certain Annex II projects be “significant” or that air quality is excluded at of participation in plans and programmes, so So if there is a permit being issued or from the requirement of an EIA altogether, when the scoping stage for the same reason. Public there must be early and effective opportunities updated for an industrial process that may all the projects excluded could, when viewed as participation is not required by EU law at either to participate, relevant information must be have an impact on local air quality, this is an a whole, be regarded as not being likely to have the screening or the scoping stage, so it is provided and reasonable timeframes (not shorter 78 opportunity for you to get involved. significant effects on the environment. often difficult to challenge these conclusions. than 30 days) must be given. However, it is important that you try. In some The public concerned is defined as the public member states, national procedures provide affected or likely to be affected by, or having some more limited forms of public consultation. an interest in, the decision. NGOs promoting In any event, you should try and do everything environmental protection and meeting any possible to highlight any air quality impacts. requirements under national law are deemed Because all documents will not normally be 74 EIA Directive, Annex II, 10(b). to have such an interest. So, as with plans and publically available at the screening or scoping 75 EIA Directive, Annex II, 10(e). programmes, the rights of NGOs to participate assessment stage, you may need to submit a are subject to national rules. 76 EIA Directive, Annex II, 2(e). formal environmental information request (see 77 See case C-72/95 Kraaijeveld and others v Gedeputeerde chapter 4) in order to see relevant documents Staten van Zuid-Holland [1996] ECR I-5403, paragraph such as the air quality assessment and traffic 39: “the purpose of the Directive would be undermined, projections. if some projects could escape an environmental impact assessment, though they were likely to have significant effects on the environment”. 80 Case C-75/08 R (on the application of Mellor) v 81 EIA Directive, Article 9. 78 Case C-392/96 Commission v. Ireland [1999] ECR Secretary of State for Communities and Local I-5901, paragraph 75. 79 EIA Directive, Article 5(2). Government [2009] ECR I-3799. 82 See note 71 above. 28 Enforcing the right to participate Projects and permits checklist: Access to Justice I - EU law and the Aarhus Convention provide 29 some partial solutions to these problems. The The EIA Directive does not require that consent Is a project being proposed, such as a the right to access so called “third pillar” of the Aarhus Convention for projects which will have a negative impact new road, supermarket or fracking site national courts establishes the right of access to justice where on the environment must be refused. Even which could adversely affect air quality? environmental laws are broken. This applies where the EIA shows significant environmental both to the access to information and public Has an assessment been made of the impacts, the project can normally still go ahead, participation provisions of the Convention and likely impact of the project on air quality? provided that “consideration” is given to more generally to national environmental laws. mitigate impacts. If not demand one. First, it requires that citizens must have access However, it is arguable that where the EIA If it has been assessed, submit an access to a “review procedure” where an access to shows that a project will worsen air quality such to information request for the assessment information request is ignored, refused, or that a limit value will be breached or an existing 86 and all supporting information. otherwise inadequately responded to. breach exacerbated, any subsequent decision would be unlawful on the basis that it was Second, it requires access to “a procedure” to Is the project likely to worsen air quality inconsistent with the public authorities’ duties where it is already exceeded, or will it challenge any decision, act or omission which flowing from the Air Quality Directive. This would cause an exceedance of air quality limits? is subject to the public participation rights make an interesting test case (see Annex II). conferred by the Convention.87 Have the relevant authorities required a What is clear is that if a project or permit is full EIA to be carried out? Third, it requires that members of the public approved without a proper EIA having been have access to justice to challenge breaches of “Union citizens will have effective access to undertaken, then that decision can be legally If so, has the public been given an national environmental laws by private persons justice in environmental matters and effective challenged. There is extensive ECJ case law opportunity to participate before the and public authorities.88 legal protection in line with the Aarhus arising out of the EIA Directive.83 While most decision has been made? of the case law applies to failures to properly Convention and developments brought about In addition, these procedures must: conduct EIAs, this applies equally to failure to Have the public been given adequate by the entry into force of the Lisbon Treaty and • Provide adequate and effective remedies; properly consult on air quality plans. information, including the report? case law of the Court of Justice of the European Union.”85 • Be fair, equitable and timely; and It is vitally important that you exercise your Have reasonable timeframes been given? As we have seen in the two previous chapters, right to participate, either in the formulation of • Not be prohibitively expensive.89 an air quality plan, or in any decision subject to our right to clean air is supported by a number of other rights, namely the rights to environmental an EIA or IPPC/IED which affects air quality, as NB: The Aarhus Convention does not necessarily information and public participation. But in some member states this is a precondition require access to a judicial procedure, what ultimately these rights are worthless unless they for challenging the ultimate decision. So if you we would call “judicial review”. Administrative are supported by a third right: the right to be don’t exercise your right to participate, you have procedures, i.e. an appeal to an administrative body able to enforce the laws by going to court. This no right to challenge the decision in court (see are sufficient provided that they are impartial and is arguably the most important of all the rights Chapter 6).84 independent and their decisions have binding legal contained in the Aarhus Convention, as without effect. For simplicity this chapter uses the term it there is no right to clean air. “court” as shorthand for whatever procedure or It can be vitally important However, as we saw in chapter 3, the right body is used, whether judicial or administrative. of access to justice is also usually the most that you participate in the Enforcing the rights to access information difficult to exercise. National rules and practical and public participation formulation of air quality realities put numerous obstacles in the way of plans, as in some Member the would-be litigant. National rules on access to The access to justice provisions relating to the States this is a precondition the courts (“standing”) place restrictions on who access to information and public participation can bring cases. Legal procedures are usually “pillars” have been implemented by the EU for challenging the ultimate complex, expensive, and can take years to reach through the Environmental Information Directive decision a conclusion. Even then the decision of the court and the Public Participation Directive. can fail to provide a satisfactory remedy.

85 7th EU European Environmental Action Programme 86 Aarhus Convention, Article 9(1). ‘Living well, within the limits of our planet’ OJ 2013 87 Aarhus Convention, Article 9(2). 83 See http://ec.europa.eu/environment/eia/pdf/eia_case_ L354/171, Article 62: http://eur-lex.europa.eu/legal- law.pdf 88 Aarhus Convention, Article 9(3). content/EN/TXT/PDF/?uri=CELEX:32013D1386& 84 See Darpö “Effective Justice?”, note 43 above at 14. from=EN 89 Aarhus Convention, Article 9(4). 30 For example, if you make a request for the only thing that is consistent is that in nearly It is almost impossible for an environmental In the Slovakian Bears case, an environmental 31 information about how many early deaths are all member states, the would-be environmental NGO to satisfy a “direct interest” test because NGO tried to apply to become a party to caused by exposure to air pollution in your litigant must overcome numerous practical and breaches of environmental laws, by their very administrative proceedings in which various country, and this request is refused, you should procedural obstacles. nature, tend to affect many people. Air quality is hunting groups were applying to a government have the right to go before a national court to the perfect example of this. However, the ECJ ministry for permits to hunt brown bears. The challenge that decision (assuming the authority However, in recent years the ECJ has made has ruled that such provisions are illegal in EU NGO in question appealed against this decision, holds that information). progress where the EU legislators have failed. In law and that both individuals and groups must and the case was eventually referred to the ECJ. several landmark judgments it has strengthened be able to access the courts. The following four Or, if a local authority gave consent to a large the rights of EU citizens and environmental cases show how the ECJ has improved rights of In a landmark ruling, the ECJ held that national new supermarket which resulted in significant NGOs to access national courts to enforce EU standing in environmental cases. courts were required, in order to ensure the impacts on air quality without providing for public environmental law. So together EU law and the effectiveness of EU environmental law, to participation, you should have the right to go to Aarhus Convention have started to overcome the Janecek 91 interpret national laws (in this case, national rules court to challenge that decision. In theory, the various obstacles that national laws have placed on standing) to the fullest extent possible in a failure to allow public participation could render in the way of their citizens. The Janecek case was not only significant manner consistent with the Aarhus Convention. the decision to approve the project invalid. in that it granted the right to clean air - it has significance well beyond the sphere of air This would enable an environmental NGO to Equally, if there was a public participation quality. This is because it recognised that EU challenge before a national court a decision taken process, which you engaged with in order to In several recent landmark citizens had a right to access national courts to which was alleged to be in contravention of EU object to the project because it would increase judgments, the European uphold EU laws which were in place to protect environmental law. While the EU environmental emissions of air pollution, but the authorities Court of Justice has human health had been. Interestingly this right law in this case was the EU Habitats Directive,93 decided to grant permission anyway, you should did not derive from the Aarhus Convention, but this rationale would apply equally to any other still have the right to challenge that decision. strengthened the rights of EU from broader principles of EU law: namely that EU environmental directive. Further, while this citizens and NGOs to enforce national courts must give effect to EU law rights case related to the standing requirements of the In all these cases, the procedure must: by providing effective remedies. Aarhus Convention, the same logic would apply EU environmental law to its other requirements, such as the need for • Provide an effective remedy; procedures to provide effective remedies, be • Be fair and equitable; fair, equitable and timely and not be prohibitively The first obstacle: standing expensive.94 • Not take too long; and Standing (sometimes referred to by the latin Darmstadt 95 • Not be so expensive that you are deterred term “locus standi”) is the ability of a party to from bringing the challenge. participate in a case before the court. Restrictive So taken together, the Janecek and Slovakian national standing rules are therefore the most Bears case mean that both individuals (assuming Enforcing national environmental laws fundamental obstacle: if you have no right to they are sufficiently “concerned”) and go to court in the first place, then you have no environmental NGOs have the right to go to court Unfortunately, the more general access to chance to defend your right to clean air. to challenge a public authority where there has justice provisions relating to breaches of national been a breach of the Air Quality Directive. environmental laws have not been implemented National rules on standing vary greatly across by the EU. An access to justice directive was the EU. Some countries have quite relaxed This was first put to the test in another German proposed in 2003 but was blocked by member rules on standing in environmental cases. case. A German environmental NGO - Deutsche states and so was never adopted and has now However, in many member states, national rules Umwelthilfe (DUH) brought a case against the been withdrawn. The Commission is currently make it virtually impossible for groups such as regional authorities in Hesse relating to breaches of limit values in the city of Darmstadt. In light considering whether to propose a new access associations and NGOs to enforce environmental The Slovakian Bears case 92 to justice directive or some kind of other non- laws. In many member states, environmental of the ruling in the Slovakian Bears case, the legislative proposal aimed at improving access NGOs have been prevented from accessing the However, the Janecek case only guaranteed German court granted DUH standing in the to justice in environmental cases.90 courts because of restrictive national standing rights of standing to “individuals directly case, contrary to normal German procedural rules that require a claimant to be able to show concerned”. It said nothing of the right of requirements that require a claimant to show So for the time-being, apart from where access that they have some kind of direct or individual environmental NGOs or other groups to that they have “direct and individual concern”. to environmental information, environmental interest in the matter which is in some way access the courts. This is highly significant, impact assessment or industrial permits are uniquely relevant to them. as such groups are often best placed to bring concerned, it is for member states to decide legal challenges as they tend to have greater how to implement the access to justice For example in the Janecek case, the claimant, expertise, time and financial resources than provisions of the Aarhus Convention. The result Dieter Janecek, was forced to continue living ordinary members of the public. 93 Directive 92/43/EEC on the conservation of natural is that national access to justice rules vary widely next to one of the most polluted roads in habitats and of wild fauna and flora OJ 1992 L206/7. between different EU member states. Probably Germany (at considerable risk to his health and 94 Aarhus Convention, Article 9 (4). that of his family) because if he moved home 95 Deutsche Umwelthilfe e.V. v Land Hessen in the he would no longer have a direct interest in the Administrative Court of Wiesbaden (2012) Judgment 91 Janecek v Freistaat Bayern note 28 above case and so would not have standing. available here: http://legal.cleanair-europe.org/legal/ 90 See 7th EAP note 85 above, Annex no. 62 and 65. 92 Lesoochranárske zoskupenie VLK note 63 above germany/lawsuits-and-decisions/ 32 ClientEarth96 Expert witnesses can also charge considerable UK Supreme Court which decided that it was 33 sums for their services. Further, there are not unreasonable on either an objective or The ECJ, in the ClientEarth case, has usually additional costs such as court fees and subjective basis for the claimant to pay a lower Both individuals and NGOs finally confirmed that both individuals and the costs associated with preparing and copying sum of £25,000 (c.€35,000)99 To put this figure environmental NGOs have the right to go to legal documents. In some member states, in context, it is roughly equal to the average have the right to go to court court to enforce the provisions of the Air Quality notably the UK, things are even worse, as the national annual earnings. to challenge a public authority Directive against the competent public authority. unsuccessful claimant can be ordered to pay where there has been a breach of Because the ECJ ruling establishes a precedent some or even all of the defendant’s costs if they Due to the delay in hearing the Edwards case, in EU law, which is legally binding on all 28 lose. This is known as the “loser pays” principle. the ECJ’s ruling was overtaken by events. the Air Quality Directive member states, NGOs in other countries can So taking legal action against the government Under the combined pressure of the Edwards now make use of these judgments to overturn can involve taking on the risk of having to pay case, the Commission’s parallel infringement 100 national rules which illegally deny them access tens of thousands of Euros for even a fairly case against the UK and an earlier ruling to the courts. straightforward case. by the Aarhus Compliance Committee in a complaint brought by ClientEarth,101 the UK Tips for funding legal action 97 Djurgarden Edwards 98 introduced major reforms to the allocation of costs in environmental cases in April 2013. Even in those countries where there is a more Other national procedural requirements can This was a reference from the UK Supreme As a result, claimants in cases covered by the equitable allocation of legal costs, merely restrict standing in more subtle ways, for Court in an infamous case in which an individual Aarhus Convention automatically benefit from finding the resources to pay for your own example by requiring that an environmental NGO was ordered to pay £88,000 (c. €97,000) in a maximum cap of £5,000 (for individuals) or legal costs is a real challenge. The following has a certain number of members, or has been legal costs after losing a case against the UK £10,000 (for groups and NGOs).102 The Aarhus possibilities should be explored: active for a certain number of years. In Sweden, Environment Agency relating to air pollution Convention has therefore played a crucial role NGOs were only granted standing in EIA cases Is there a legal aid scheme? (Although from a local cement factory. The UK court asked in improving access to environmental justice where they had a minimum of 2,000 members. note that these schemes are usually only the ECJ a number of questions relating to what in the UK.103 Sweden acknowledged that only two NGOs in the Aarhus Convention meant when it required available to individuals, not NGOs) the entire country met this requirement. The that access to justice must not be “prohibitively The costs of litigation are likely to remain a serious Can you get a lawyer to work for free, on case was referred to the ECJ, which held that expensive.” challenge for claimants in many member states, reduced rates, or on a “no-win, no fee” such a provision was illegal. While EU directives especially those which operate a “loser pays” basis? leave it for national rules to determine the The ECJ ruled that in determining what was system.104 However, there are member states precise standing rules for NGOs, such rules prohibitive: where there is no “loser pays” system and a case You may need to be creative in looking must ensure wide access to justice and the could be brought for less than €5,000. at ways of funding litigation, for example effectiveness of the directive. The Court held • The costs must not exceed the financial through the use of “crowd-funding”. The that the Swedish provision in question would resources of the person concerned nor be Such sums should be within the reach of most following crowd-funding platforms may make it almost impossible for local citizens’ “objectively” unreasonable i.e. unreasonable reasonably well-resourced environmental NGOs. be of interest: groups to take legal action and was for the “average” person; Given the potential strategic benefits of litigation, therefore illegal. such groups should give serious consideration to • The court must look at the actual resources https://www.crowdjustice.co.uk/ making provision within their budgets or even to of the claimant - so it cannot simply base its Another common way of restricting access for raising new funding to pay for litigation. https://www.grrrowd.org/ NGOs is by requiring them to have existed for assessment of what is “prohibitive” based on a certain period of time. Such rules would likely an objective estimate of the resources of the http://citizencase.org/ contravene the ECJ’s ruling in Djurgarden if the average applicant; minimum term was so long that it seriously • The court may also take into account a range restricted access to the courts for environmental of other factors including the claimant’s NGOs and associations. Please contact us (see contact details on chance of success, the case’s importance 99 Eventually the defendants agreed not to seek their full back page) if you think you have a case. costs of £88,000, instead accepting the lower figure (for both the claimant and protection of The second obstacle: prohibitively expense of £25,000 which the claimant had already paid as Even if we cannot help with funding, we the environment) and complexity and the security for costs. would be happy to provide some initial Even where an individual or an environmental existence of any national legal aid or costs 100 Case C-530/11Commission v UK (not yet published). thoughts on your case and will try to put NGO has the right to go to court, this does protection schemes. you in contact with lawyers working in 101 ACCC/C/33/2008: http://www.unece.org/fileadmin/ not help if the costs involved mean that they your country. Unfortunately, the Edwards ruling gives DAM/env/pp/compliance/C2008-33/Findings/ece_ cannot afford to. Legal action usually involves mp.pp_c.1_2010_6_add.3_eng.pdf instructing lawyers, who tend to be expensive. only some very vague guidance to national courts on how they should apply the “not 102 The new fixed costs regime sets a maximum limit of £5,000 for individuals and £10,000 for groups. prohibitively expensive” rule, so is of limited use. This is shown by the final decision of the 103 Eventually the defendants agreed not to seek their full 96 C-404/13 R (on the application of ClientEarth) v costs of £88,000, instead accepting the lower figure Secretary of State for Environment, Food and Rural of £25,000 which the claimant had already paid as Affairs, note 37 above. security for costs. 97 C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening 98 Case C-260/11 R (on the application of Edwards and 104 For a comprehensive assessment of the costs of v Stockholms kommun genom dess marknämnd [2009] Pallikaropoulos) v Environment Agency and others (not environmental procedures see Darpö “Effective ECR I-9967. yet published). Justice?”, note 43 above at 2.4 109 114 34 The third obstacle: the scope of review concentrations of NO2 in ambient air quality. administrative acts. This is a major problem 35 when air quality is concerned, because often it A common problem is that national rules mean measures necessary to tackle air pollution within In the UK, the Supreme Court, delivering the is the very lack of action that is the problem i.e. 106 that it is only possible to challenge the procedure, a shorter time frame. final judgment in the ClientEarth case, has stated the failure by the relevant authorities to adopt not the substance of the decision itself. So it that the requirements of the air quality plans are: or update an air quality plan or take measures to Further clarity on the correct approach to be would be possible to challenge the procedure reduce pollution. This is clearly in contravention taken by national courts was provided by the “[...] subject to judicial review by the national by which an air quality plan was adopted (for of the Aarhus Convention, which expressly ECJ in the ClientEarth case. In particular, the ECJ court, which is able where necessary to impose example where there was no public consultation). provides for review of the acts and omissions held that such detailed requirements as are appropriate However, it would not be possible to challenge of public authorities.115 This is not limited to to secure effective compliance at the earliest the content of the air quality plan, even where it administrative acts.116 “the fact that an air quality plan has been drawn 110 was obviously inadequate, (for example where it opportunity.” up does not, in itself, permit the view to be taken does not include sufficient measures and won’t The fourth obstacle: delay that that a member state has nevertheless met its In coming to this conclusion, the UK Supreme achieve compliance for several years). 107 obligations under Article 13 of the directive.” Court relied heavily on the European A major problem with national legal action is that This is clearly incompatible with EU law and the Commission’s written observations on the case it can take several years to come to a conclusion. In other words, the ECJ clarified that mere 111 Aarhus Convention. However, the recent history before the ECJ. While this is undoubtedly a major problem (and one compliance with the procedure (the adoption of clean air cases shows that litigation can push which ultimately needs EU legislation to resolve), it of a plan) is not sufficient: national courts must Regarding the scope of review by national courts to review the substance of administrative needs to be viewed in the context of two factors. actually scrutinise the content of the plan and courts, the Commission observed that, while decisions and air quality plans, even in the face First, the Commission infringement procedure assess whether the measures included will be member states retains a margin of discretion of long-standing national legal traditions. takes even longer, typically four years just to get sufficient to ensure that compliance with the limit in choosing the suitable measures to be first judgment (see further at chapter 5). Second, values is achieved in the shortest time possible.108 included in the air quality plans, “this margin The Janecek decision did more than merely give several member states project limit values to be a right of standing, it also required substantive of discretion is heavily circumscribed”.112 In The approach required by the ECJ was promptly breached until as late as 2030 or even later. review of the action plan by national courts addition, member states do “not have the full followed by national courts in Germany and the UK. of the adequacy of the measures included in discretion to take into account and balance So in this context, even where national legal action 105 economic, social or political considerations in it. This is crucial where, as in many member In Germany, in two cases brought by DUH takes several years, it will make a difference. For its choice of the measures to be foreseen”.113 states, air quality plans have been adopted, but against the Federal State of Hessen in relation example, despite going through three hearings These observations provide useful guidance do not contain adequate measures to ensure to breaches of NO limits in the cities of Limburg and a reference to the ECJ, the final judgment in 2 to national courts and competent authorities compliance with limit values in a reasonable and Offenbach, the Administrative Court of the ClientEarth case was given in April 2015. By on how to interpret the Directive. A common timeframe. National courts must actually look at Wiesbaden held that financial or economic aspects comparison, the Commission has to date only related problem is that national rules do not the adequacy of the measures in the plans by cannot justify the exclusion from air quality plans taken the first step in the infringement process allow administrative omissions (failures by a reference to the need to achieve limit values in of measures which would effectively reduce the against member states for breaches of nitrogen the shortest time possible. public authority to act or make a decision) to dioxide limits, so the ECJ’s judgment in these be challenged. In some member states, for cases is until 2017. The Janecek case paved the way to clean air example Hungary, it is only possible to challenge litigation in Germany. Citizens and local NGOs It is worth noting that cases brought before have subsequently brought legal challenges to German and Italian courts have proceeded the breach of limit values in many German cities. relatively swiftly, with judgment delivered in less 109 Deutsche Umwelthilfe e.V. v Land Hessen in the German courts have built upon the Janecek Administrative Court of Wiesbaden (2015). English than a year. case, progressively broadening both the standing translation of the two judgments is available here: requirements and the scope of judicial review http://legal.cleanair-europe.org/legal/germany/lawsuits- of air quality plans. In particular, German courts and-decisions/ now regularly review the content of air quality 110 R (on the application of ClientEarth) v Secretary of plans and on several occasions have ordered the State for the Environment Food and Rural Affairs [2015] competent authority to consider specific UKSC 28, paragraph 25. 111 Although this was not a Commission infringement case, so the Commission was not a party to proceedings, as the institution representing the interests of the European Union, the Commission is given the opportunity to submit written and oral observations on cases referred by national courts to the ECJ under Article 267 TFEU. The Commission Written Observations are available at the following link 105 See also joined cases C-165/09 Stichting Natuur 106 See, for example, recent Judgments of the http://documents.clientearth.org/wp-content/uploads/ 114 Concerns about this issue were identified in nearly all en Milieu and Others v College van Gedeputeerde Administrative Court of Wiesbaden on 30 June 2015 library/2013-12-05-ec-written-observations-ce-vs-uk-air- member states surveyed in Darpö “Effective Justice?”, Staten van Groningen and C-166/09 College van in two cases regarding the cities of Limburg and quality-dec-2013-ext-en.pdf note 43 above at 34. Gedeputeerde Staten van Zuid-Holland [2011] ECR Offenbach – available at http://legal.cleanair-europe.org/ 112 Commission Written Observations in the ClientEarth 115 Aarhus Convention, Article 9(3). I-4599 at 103. In the EIA context, see the Djurgarden legal/germany/lawsuits-and-decisions/ case, at 62, note 111 above. case note 97 above at 39, which requires access to a 116 See General Court, case T-338/08 Natuur en Milieu v. 107 Ibid. 49. review procedure to challenge the decision i.e. not just 113 Commission Written Observations in the ClientEarth Commission (not yet published), and case T-396/09 the procedure leading to the decision. 108 Ibid. 57. case, at 63, note 111 above Milieudefensie v. Commission (not yet published). 36 Finally, in many member states, national Conclusion Access to Justice II - • Where the Member state transposes the 37 procedures allow for cases to be “expedited” directive into national legislation, but fails or “fast-tracked” in exceptional circumstances, Litigation is a major undertaking, especially Enforcement by the to ensure that the provisions of the directive often at the discretion of the courts. Where such for an individual or environmental group with Commission are actually implemented in practice - for procedures exist, it can be argued that the courts limited resources of time and money. However, example, failing to ensure that limit values must use them in environmental cases such as sometimes it can be the only way of forcing The Commission has an important role in are complied with. those relating to air quality, in order to ensure the a reluctant authority to act. Litigation can also upholding our right to clean air. The Commission effectiveness of the Aarhus Convention, which bring indirect benefits, such as media coverage, is known as the “Guardian of the Treaty”. It is The process is made up of several informal and requires that procedures be “fair, equitable and which can result in higher levels of public responsible for ensuring that member states formal stages: timely.”117 awareness and put significant political pressure comply with EU law, including environmental on public bodies to take action. Even the threat directives relating to air pollution. It derives its INFORMAL STAGE The fifth obstacle: lack of effective remedies of legal action can – provided it is genuine – put enforcement powers from the Treaty.118 significant pressure on national authorities to STEP 1. Complaint by citizen or group/Commission Even where you overcome all these obstacles, take action. The Commission has the power (but crucially, own initiative action - the complaint is examined there is a risk that ultimately the court fails no obligation) to bring legal proceedings against by the Commission and forwarded to the relevant Member state authority along with a number of to award a remedy which makes any real If you think you may have grounds for a legal member states for failing to comply with EU law. questions aimed at clarifying the issues raised.119 difference. For example, since 2006, French challenge, it is important you seek proper legal These proceedings are usually referred to as NGOs have brought a series of cases at local advice at the earliest opportunity. This handbook “infringement” or “infraction” proceedings. The and national level in relation to the widespread provides only a simple overview of some Commission is also responsible for approving or breaches of the Air Quality Directive in France. relevant aspects of EU law, which will need rejecting time extensions. FORMAL STAGE However, French courts have so far refused to to be considered in light of national laws and ROUND I grant any remedy. procedures by an experienced national lawyer It is important that individuals and NGOs in or other expert. Please contact ClientEarth, who member states draw issues of non-compliance STEP 2. Letter of formal notice - a first written Another common problem is that national courts to the Commission’s attention and keep the warning, setting out the grounds on which the would be happy to provide some initial thoughts Commission thinks the Member state is failing to may simply set aside the public authority’s on the case and try to put you in touch with a Commission up to date with developments comply with EU law and requiring a formal response. decision – the decision then goes back to the where enforcement proceedings are national legal expert. If your case meets our STEP 3. Reasoned opinion - a final written warning, public authority, which may then simply take the internal criteria, we may even be able to provide ongoing. However, this should not be seen typically giving the Member state two months to take same bad decision after following the correct more direct support for your case. as a substitute for national litigation which steps to rectify the breach. Four years procedures. should, where possible, be pursued in tandem STEP 4. Referral to the ECJ with Commission infringement action. The The extent to which national courts must provide STEP 5. First ECJ judgment - if the ECJ agrees with two processes should be viewed as being the Commission it will make a declaration that the effective remedies in the context of the Air complementary. Member state has failed to comply with EU law. The Quality Directive was the subject of the fourth Member state must then take the necessary measures 120 question referred to the ECJ in the ClientEarth This chapter will: explain how the Commission to comply with the ECJ’s judgment. case. The ECJ’s answer made it completely uses its enforcement powers; explain the clear that national courts must provide effective problems faced by the Commission when ROUND 2 legal remedies. In particular, those remedies bringing infringement cases, particularly in If the Commission thinks that the Member state has must be capable of forcing the relevant authority relation to air quality; and give some practical failed to take the necessary measures to comply with to prepare or revise an air quality plan so that advice on how to co-operate most effectively the first court judgment, it may then initiate a second round of infringement action. it meets the minimum requirements of the with the Commission. Directive. STEP 6. Second letter of formal notice121 - setting The infringement procedure out the grounds on which the Commission thinks the Member state has failed to comply with the first court judgment and giving it the opportunity to submit The Commission can bring infringement cases in its observations within a set period (typically two Even the threat of legal action three situations: months). Six years STEP 7. Referral to the ECJ - with recommendation can put significant pressure • Where the Member state fails to transpose for a fine. (Article 260). a directive into national legislation by the on national authorities to STEP 8. Second ECJ judgment - if the ECJ rules that relevant deadline and communicate this to the Member state has failed to comply with its first take action the Commission. judgment, it can issue a fine.

• Where the Member state transposes a directive into national legislation, but fails to do so correctly. 119 For more information about the EU Pilot scheme see: http://europa.eu/rapid/press-release_IP-11-1434_ en.htm 120 TFEU, Article 260(1). 117 Applying the same logic to Article 9(4) of the Aarhus Convention as was applied to article 9(3) in the 121 The requirement for a second reasoned opinion was “Slovakian Bears” case note 63 above. 118 TEU, Article 17, TFEU, Article 258. removed by the Lisbon Treaty. 38 At every stage the Commission has complete FINES – frequently asked questions123 • Seriousness of the breach - including Advantages and disadvantages of the 39 discretion as to whether and when to act. factors such as serious or irreparable Commission’s infringement procedure Regrettably, the Commission does not make When? Rarely and slowly: Fines are very harm to human health or the environment, any documents relating to infringement cases much a last resort, only issued when a whether the breach is a repeated or a one- Advantages publically available. However, it will normally Member state has failed to comply with the off breach and the size of the population • Financial penalties - in the case of air issue a press release whenever it issues a first ECJ judgment and the Commission affected by the breach. quality, where the breaches are widespread, reasoned opinion or refers a member state to has brought a second case to the ECJ. In longstanding, have a major impact on human the ECJ to inform the public that action has environmental cases it takes on average 10-11 • Duration of the breach. health and in many cases involve wealthy been taken. In rare cases, it will issue a press years from the first letter of formal notice to a • Ability of the Member state to pay (by member states, these fines could amount to release where it issues a letter of formal notice, fine being issued. reference to GDP and voting rights in the hundreds of millions of Euros. For this reason for example the action against the UK on NO .122 2 What? The ECJ can apply either or both of Council)125. even the mere possibility of a fine is usually The Commission usually announces decisions two types of fine known as the “daily penalty” taken very seriously by member states. on infringement cases on the third Wednesday and the “lump sum”.124 • The need for the penalty to have a of each month, and will publish a press release deterrent effect. • Strategic overview - the Commission has a on the following website: http://ec.europa.eu/ The two types of fine are calculated differently good overview of the bigger picture i.e. it can environment/legal/law/press_en.htm and serve slightly different purposes. The These factors are all quite subjective and even compare the compliance situation in different daily penalty is the most commonly used of then are not binding on the ECJ, which can member states. the two. It is calculated as a penalty which impose a lower fine. In recent years the Court applies to each day from the date of the has tended to impose lower fines because it has • Resources - the Commission can draw on second court judgment until the Member been sensitive to member states’ reduced ability the resources of a large body of officials and 126 state complies with the law. to pay in light of the financial crisis lawyers. It therefore aims to incentivise the Member However, what we can say is that if a Member • The duty of sincere cooperation - member state to comply with the law as soon as state were to be fined for breach of the Air states are obliged by the Treaty to cooperate possible: the longer it delays, the more daily Quality Directive, the fine would be very large with the Commission. penalties will accumulate. indeed, particularly in the larger, richer member Disadvantages The lump sum acts as a retroactive states such as the UK, France, Germany and Italy. The seriousness of the breach would be punishment against member states for failing • Limited powers - the Commission has very high given the clear impacts on human to act quickly enough to comply with the very limited powers of inspection when it health and that the limit values have been ECJ’s first judgment. It applies for each day comes to environmental matters (in contrast breached frequently and often by very large from the date of the first judgment to the date with competition law, for example, where margins, breaches have been widespread i.e. of the second judgment. it is bestowed with draconian powers). It is in many zones and agglomerations and that the therefore reliant on information provided to it Who? The fine is imposed by the ECJ, breaches affect a large proportion of the urban by member states. This has two unfortunate after considering the Commission’s population. Similarly the duration factor would consequences: recommendation. The fine is imposed on the be high given that the PM limits have been in 10 Member state, not city or regional authorities. force since 2005, so by the time these cases got First, perhaps not surprisingly, member states However, in practice national governments to second court judgment, the member states are not always as helpful as they might be may try to pass all or part of fines down would have been in breach for over 15 years. in providing the Commission with evidence either directly through a formal process, of their own wrongdoing. Further, the European Commissioner for the Environment or indirectly, for example by withholding Karmenu Vella Commission adheres to the so called “Golden funding. Principle” (which flows from the Treaty) that How much? This is a very difficult question to it must trust the information provided to it by 127 answer with any accuracy. The Commission member states; uses a formula to calculate the size of the Second, member states are not required to fine it recommends to the ECJ based on provide information to the Commission on several factors: breaches of air quality limit values until nine months after the end of the calendar year in 125 This is known as the “n” factor, for the n factors 128 applied to each Member state from 2012 see the table which it took place. at pages 4-6: http://ec.europa.eu/eu_law/docs/docs_ infringements/act_part1_en.pdf 123 For more detail on the calculation of fines, see the 126 See for example Case C-279/11 Commission v Ireland following Commission web-page: http://ec.europa.eu/ (not yet published) at paragraphs 78-80, where the eu_law/infringements/infringements_260_en.htm Commission recommended a lump sum fine of 127 The principle of sincere cooperation, see TFEU, Article 124 It was confirmed for the first time that both types of approximately €4.3 million, but the ECJ imposed a 4(3). fine could apply for the same infringement in Case lower fine of€ 1.5 million. 122 http://europa.eu/rapid/press-release_IP-14-154_en.htm C-304/02 Commission v France [2005] ECR I-6263 128 Air Quality Directive, Article 27(2). 40 • Limited resources - while it has greater Problems with the Commission’s air The Commission tried a slightly different tactic The previous unsuccessful cases had been 41 resources than any individual or NGO, quality infringement cases in Commission v Portugal133 and Commission v based only on the first of these grounds. By the Commission does not have sufficient Italy,134 but the result was the same: a practically adding the second ground, the new approach resources to properly fulfil its role as These general problems with the Commission useless declaration that the member states had seeks to ensure that any ECJ judgment would Guardian of the Treaty. For this reason the infringement process are especially prevalent at some point in the past breached the limit require the Member state to take action to Commission favours a “decentralised” model when it comes to air quality infringement values under the 1999 Directive. improve air quality. of enforcement - where it focuses its limited cases. Limit values for PM10 have been in place resources on cases of failure by member since 1 January 2005. The Commission started It is also worth noting the timescales involved: It remains to be seen whether this new states to properly transpose EU directives infringement cases against member states that the letter of formal notice was sent to Portugal in strategy will be successful. What is certain and cases of major, systemic breaches of EU were in breach of PM10 limits after this date, and February 2009 - so it took two years for the case is that it will place even greater demands on law.129 For other cases, it relies on legal action eventually obtained ECJ judgments against four to be heard by the ECJ and a further ten months the Commission’s already limited resources, taken by EU citizens before national courts to member states: Slovenia; Sweden; Portugal and for it to deliver judgment. because it will now have to conduct detailed ensure compliance. Italy. analysis of member states’ air quality plans The result of these setbacks is that ten years in order to assess whether the measures are • Unlimited discretion - the Commission These were only “round one” actions, so the after the PM10 limits came into force in 2005, adequate. For a large member state like France has absolute discretion as to if and when ECJ only had the power to make a declaration not a single fine has been issued, despite the or Germany, this can involve hundreds of to take legal action against member states, that the member state had failed to fulfil its fact that 17 member states were still in breach separate plans for each zone and agglomeration. and whether to proceed to each stage in treaty obligations. member states are then as of 2012. proceedings. While an infringement case required to take the necessary measures to The Commission’s ”Fresh Approach” is open, there will be an ongoing negotiation comply with this judgment. If they fail to do so, to infringement between the Commission and the Member the Commission can then bring “round two” Citizens and NGOs in Member proceedings to enforce compliance with the state. In this respect the process resembles As a result of these setbacks, the Commission court’s judgment, with a recommendation States have a vital role to play a political negotiation rather than a legal adopted a “fresh approach to infringement for a fine.131 process. cases” which it launched in January 2013 to in being the Commission’s coincide with the start of the EU’s “Year of • Political pressure - the Commission faces So in round one cases like these, it is crucial that “eyes and ears” on the ground Air”.135 Under the fresh approach, new letters considerable political pressure from member any declaration made by the ECJ requires the of formal notice were issued against the 17 states not to pursue legal action, particularly member state to take action in order to comply member states still in breach of PM where there is a prospect of a fine in round with the judgment. However, in Commission 10 What is also certain is that these cases will not limit values: two proceedings. It is particularly vulnerable v Slovenia, the court merely declared that by progress quickly. It took over two years between exceeding the limit values for PM in the years to such pressure given its dual roles as both 10 Belgium, Bulgaria, Cyprus, Czech Republic, the Commission issuing the first letter of formal 2005 to 2007, Slovenia was in breach of its the initiator and enforcer of EU legislation, France, Germany, Greece, Hungary, Italy, Latvia, notice under the fresh approach and the first obligations under the earlier Directive. which often conflict. Poland, Portugal, Romania, Slovakia, Slovenia, referrals to the ECJ against Belgium and Bulgaria 138 Spain and Sweden. in June 2015. • Delay - the combined effect of these four This judgment was practically useless as it did not force the member state to take any problems is that the infringement process Letters of formal notice were also issued against Engaging with the Commission measures to comply with it, and therefore gave is very slow. It typically takes around four six member states for breaches of NO limit no opportunity to the Commission to bring round 2 Despite these problems, for many citizens and years to move from letter of formal notice to values: the first court judgment.130 It can then take two proceedings. The ECJ did not even find NGOs, a complaint to the Commission is the several more years to reach second court that Slovenia breached the Air Quality Directive, France, Germany, Italy, Portugal, Spain and the UK. only practical path available due to the problems 132 judgment, at which point the court may only that it had breached an earlier directive. with accessing national courts discussed in issue a fine. By contrast, national legal action The Commission’s only option was therefore to The new approach is based on: chapter 6. can proceed relatively quickly. For example, resume round one proceedings on the basis of However, in the case of air quality, the Genitori Antismog were able to bring a the latest reports received from Slovenia, i.e. • Failure to ensure compliance with limit 136 Commission is already aware of most breaches successful case in less than a year - starting the whole slow process from the very values ; and of limit values and has, in many cases, see map on p. 14 for more details. beginning. • Failure to adopt plans containing measures commenced infringement action. There is little to achieve limits in the “shortest time point in making fresh complaints simply on the possible.”137 basis that limit values are not being met if the Commission has already issued infringement proceedings. This will merely waste the time of the Commission lawyers, which would be better 129 See for example ’A Europe of Results - Applying 133 Commission v Portugal note 35 above. spent on making progress on existing cases. Community Law’ (COM (2007) 502): http://eur-lex. 134 Commission v Italy note 33 above. europa.eu/resource.html?uri=cellar:6fc1ad14- 135 http://europa.eu/rapid/press-release_IP-13-47_en.htm 7018-485f-bceb-ab767b5c5927.0003.02/ DOC_3&format=PDF 136 In accordance with the Air Quality Directive, Article 13. 130 L Kramer, “Environmental judgments by the Court of Justice and their duration” in 2008 Journal for 131 TFEU, Article 260. 137 In accordance with the Air Quality Directive, European Environmental and Planning Law, page 263. 132 Directive 1999/30/EC, note 36 above. Article 23. 138 http://europa.eu/rapid/press-release_IP-15-5197_en.htm 42 However, where there is an existing Conclusion Annex I - 43 infringement case, citizens and NGOs in member states have a vital role to play in being The Commission does not have the resources to Test cases the Commission’s “eyes and ears” on the uphold our right to clean air by itself. As a result The ClientEarth/Darmstadt case remains the most tried and tested litigation strategy: a legal challenge ground and keeping the Commission informed of historical setbacks in infringement cases brought before a national court against the competent authority for ongoing breaches of limit values, of developments. The Commission has limited against member states, it will take many years together with a failure to adopt a plan containing all measures to keep the exceedance period as short resources and is reliant on information provided before any member states face effective legal as possible. This litigation approach has the benefit of relying on the strong judgment given by the ECJ to it by member states, which is not always sanctions for failing to comply with air quality in the ClientEarth case. accurate and in any event is only required to limits. It is therefore essential that national legal action is taken in the meantime. be reported nine months after the end of each There are a number of other possible cases that could be taken which would help uphold the right calendar year. These limited resources will be Ultimately, the right to clean air depends on to clean air, while taking the law forward and raising the public profile of air quality as an issue. Some stretched even further by the “fresh approach”, successful cases being brought both by the of these may be cheaper and easier, as the evidential burden of proving that measures are inadequate which requires the Commission to scrutinise Commission and by citizens and NGOs in is lower. the measures included in each air quality plan. national courts to force national, regional and If any of these cases were referred to the ECJ under the preliminary reference procedure, this would local authorities to take the measures needed to The following information will be particularly establish a precedent in EU law which would be legally binding on all 28 member states. useful: comply with limits and protect health. The following are some ideas for some alternative/additional grounds for bringing national legal action: • Up to date data - the Commission won’t receive data until nine months after the year Information end, so this will be useful, even if it can’t use this information formally; • Inadequate monitoring of air quality, for example, insufficient or improperly located monitoring stations. Such a case would be particularly powerful if it could be shown that there was a serious • Breaches of conditions of time extensions discrepancy between the official data being reported to the Commission and the public and other such as the maximum margin of tolerance; unofficial, yet reliable data.

• Details of any projects which are likely to • Failure to adequately inform the public when information or alert thresholds are exceeded. If such have a major negative impact on air quality; a case were successful it could lead to much greater public awareness of the health impacts of air pollution. • Delays in implementing measures included in air quality plans; • Failure to disclose relevant information on request, for example, number of exceedances of limit values, numbers of premature deaths, locations of pollution “hotspots.” • Evidence of misleading information - for example failure to report data, poorly sited monitoring stations. Participation It is a good idea to meet with the Commission to discuss ongoing infringement cases. In some • Failure to allow for proper public participation in formulation/modification of air quality plans. member states, the Commission sometimes holds a “pre-package” meeting with national • Failure to allow for proper public participation in an industrial permit or an environmental NGOs before meeting with national officials to assessment. discuss ongoing infringement cases. • A decision to approve development consent/an industrial permit where this would lead to a breach If you think that there has been a breach of EU of a limit value or worsen an existing breach – i.e. lengthen the period of exceedance such that it is law which the Commission has not adequately not “as short as possible” as required by article 23. addressed by taking infringement action, you . should consider making a formal complaint to the Commission. Air quality plans

Or write a letter or email. • Failure or delay to implement a measure contained in a plan.

Whichever means you choose, make sure to be • Failure to properly assess air quality impacts of a project or industrial activity, or failure to adequately clear and concise and only provide information mitigate impacts. which is directly relevant to the complaint. Make sure that any assertions you make are supported by facts, data and documents. 44 Annex II - 45 Template environmental information request letter

[Address of competent national/regional authority/municipality/region]

Dear Sir/Madam

Request for environmental information

I am writing to request information under [Directive 2003/4/EC (the “Directive”)].139 To assist you with this request, I am outlining my query as specifically as possible.

Please send me the following information:

1. x

2. y

3. z

As the information requested concerns: [the state of the elements of the environment, such as air and atmosphere];

[emissions into the environment];

[measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect those elements];

[reports on the implementation of environmental legislation];

[cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to above];

[the state of human health and safety];140

we consider that the information we request is correctly characterised as ‘Environmental Information’ as defined in Article 2 of the Directive.

In the event that this request is denied in whole or in part, please justify all deletions or refusals by reference to specific exceptions listed in Article 4 of the Directive [the equivalent provision in national legislation].

I look forward to your response as soon as possible and no later than the one month time limit. Please confirm [by email/in writing] that you have received this request. If you require further clarification about this request, please do not hesitate to contact me on [give contact details].

Please send me the information in [specify format e.g. paper or electronic (electronic will usually be cheaper and quicker)].

Yours sincerely

[ Name ]

139 [If you know the national legislation which implements this directive please refer to that instead]. 140 [Select all that apply. If it is capable of being characterised as emissions into the environment, as most requests concerning air pollution would be, then use this. This is because several commonly used exceptions are not available for these kinds of requests] 46 Image credits 47

Front cover Page 20 Frankfurt nad Menem, Newspaper Praca własna reproductions with thanks to Daily Mail, Page 2 The Independent and Boy enjoying garden The Sunday Times by Pink Sherbet Photography Page 22 Demonstration Page 3 United Workers, Flickr Girl playing Phalinn Ooi, Flickr Page 23 London Eye starlings Russfrei_positiv-307 AKinsey Foto Markus Bachmann Page 25 Russfrei_positiv-034 Dust suppressor truck, Markus Bachmann Simon Birkett

Page 5 Page 31 Girl blowing bubbles Eurasian Brown Bear, by Malcolm Carlaw Rami radwan

Page 9 Page 34 Cyclist Russfrei_negativ-103 Garry Knight, Flickr Markus Bachmann

Page 11 Page 36 UK Supreme Court, Russfrei_negativ-157 Adrian Pingstone Markus Bachmann

Page 13 Page 38 London view Karmenu Vella, EU Mermaid99, Flickr Commissioner for the Environment Russfrei_negativ-585 Markus Bachmann

Page 14 Parlement Européen Louise Weiss Alexandre Prévot, Flickr

Page 17 Legal documents Jeroen van Luin, Flickr

Alan Andrews Lawyer and Project Leader t +44 (0)208 7974 3467 e [email protected] www.clientearth.org

Ugo Taddei Lawyer t +32 2808 4323 e [email protected] www.clientearth.org

ClientEarth is a non-profit environmental law organisation based in London, Brussels and Warsaw. We are activist lawyers working at the interface of law, science and policy. Using the power of the law, we develop legal strategies and tools to address major environmental issues.

ClientEarth is funded by the generous support of philanthropic foundations, institutional donors and engaged individuals.

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