The Right to Clean Air in the EU (2021) PDF

## The right to clean air in the EU ### All pollutants, any effect on human health. - Article 27, proposes that objectives are reached and that their realization is of critical importance. - Article 23, requires member states to ensure that air quality plans are prepared in case of pollution episod...

## The right to clean air in the EU ### All pollutants, any effect on human health. - Article 27, proposes that objectives are reached and that their realization is of critical importance. - Article 23, requires member states to ensure that air quality plans are prepared in case of pollution episodes. - If the deadline has expired, member states are obligated to report on exceedance of limits, and need to include a timetable for returning to compliance. ### The right to clean air in the EU – the reality - Most EU countries face difficulties implementing the Air Quality Directive. - There is a huge "enforcement gap" between the legislation and its implementation. - Air quality is no exception. ### Widespread exceedances of limit values - As of 2017, 17 member states registered exceedances of the EU limit value for daily concentrations of PM10. - 16 member states remained in breach of limits for NO2. - Breaches of the PM limits are clustered around the Po Valley of Northern Italy and Central and Eastern Europe. ### Concentrations of PM10, PM2.5, and NO2, annual limit values - PM10 and PM2.5 breaches follow similar patterns. - Breaches of the PM2.5 limit affect major urban centres across the EU. - Breaches of the NO2 limit affect most major urban centers across the EU. ### Sources of pollution - Transport, domestic heating, and agriculture are the most problematic sectors. - Diesel cars are a major contributor to non-compliance with NO2 limits. - Most diesel cars approved in line with the Euro 5 and 6 standards emit, on average, more than four times the NO2 legal limit. - Some Euro 6 vehicles exceed the regulatory limit by a factor of 12. - Pollution from residential heating emits 150 times more soot particles than all power plants. - Pollution from solid fuel burning stoves and boilers is highly polluting. - Agriculture is responsible for 92% of the EU’s emissions of NH3, which reacts in the atmosphere to form PM. ### Inadequate air quality plans - Most air quality plans are usually ineffective. - Measures are inadequate to improve air quality. - The plans are not supported by adequate information, are several years old, and have not been updated. - There are no real opportunities to participate in the formulation of air quality plans - either no consultation takes place, or consultation is merely a "token gesture". - Technical solutions to air quality problems are known and available - for example, traffic restrictions to the most polluting vehicles in cities (low emission zones). - However, competent authorities are reluctant to implement such measures because of cost and political considerations. ### Inaccurate and unreliable air quality information - Member states do not necessarily measure air quality near major industries or main urban traffic routes. - Member states follow discrepant practices when siting monitoring stations - Brussels has only two traffic stations, while Stuttgart has eight, and Milan 11. - There is a discrepancy between "official" air quality data and other "unofficial" data, especially regarding NO2 concentrations. ### The right to clean air in the EU - going to court - The Commission is the legal authority protecting the right to clean air in the EU. - The Commission has the power, but no obligation, to bring legal proceedings against member states for failing to comply with EU law. - However, the widespread breaches of air quality rules, the Commission faces limitations in ensuring compliance. - Infringement proceedings are a powerful tool but are very slow - it took between six and eight years until the Commission referred Bulgaria and Poland to the CJEU for breaches of PM limits. - After the entry into force of the PM limit values, no financial penalties have been imposed. - Civil society plays a key role to ensure compliance with the Air Quality Directive. - NGOs and citizens are increasingly taking to the courts to successfully defend their right to clean air. ### Access to justice before national courts - Every person has a right to a healthy environment and a duty, as a citizen, to protect the environment (The Aarhus Convention). - The Aarhus Convention guarantees the public three basic procedural rights: - The right to access information - The right to participate in the formulation of plans - The right to go to court to challenge breaches of environmental law. ### Access to justice - Member states must grant the public access to review procedures in three types of cases: - When an access to information request is ignored, refused or otherwise inadequately responded to. - To challenge any decision, act, or omission that is not consistent with the public participation rights. - To challenge breaches of national environment laws by private persons and public authorities. - The CJEU case law is developing and moving toward a more substantial review by national courts. ### The right to clean air in the CJEU - The CJEU has made significant rulings on the legal meaning and effect of limit values. - The rulings have given rise to the principle that people have a right to clean air in EU law, which is enforceable before national courts ### Commission v Germany - The CJEU held that limit values, imposed on clean air, are mandatory rules intended to assert protected human health. ### The Janecek case - In the Janecek case, the CJEU held that natural or legal persons directly concerned by a risk that the limit values or alert thresholds may be exceeded must be in a position to require the competent authorities to draw up an action plan where such a risk exists, if necessary by bringing an action before the competent courts. ### The ClientEarth case - The CJEU ruled that the Air Quality Directive imposes an absolute duty on member states to comply with limits by the relevant deadline. - The CJEU also ruled that environmental NGOs also have standing to enforce the Directive. - The CJEU held that the fact that an air quality plan has been drawn up does not, in itself, permit the view to be taken that that Member State has nevertheless met its obligations under Article 13 of the directive. ### The Craeynest case - The CJEU clarified that national courts must actually scrutinise the content of the plan and assess whether the measures included will be sufficient to achieve compliance with the limit values in the shortest time possible. - The CJEU also clarified that sampling points locations should be chosen according to a high level of protection and to be based, inter alia, on the precautionary principle and on the principle that preventive action should be taken. ### Successful cases across Germany - German courts have built upon the CJEU case law, progressively broadening both the standing requirements and the scope of judicial review of air quality plans. - German courts now regularly review the content of air quality plans. - German administrative courts have clarified that air quality plans comply with the Directive only if they contain an overall strategy for the timely compliance with limit values. ### Additional information - These rulings of the CJEU have established precedents in EU law that are legally binding on all member states, opening the door to a growing number of legal challenges to demand adequate air quality plans across the EU. - Litigation can be an essential tool to drive action of member states to tackle air pollution.