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Letter to Secretary of State for Environment, Food and Rural Affairs : re draft Greater Manchester Clean Air Plan

17th May 2019

Re: draft Greater Manchester Clean Air Plan

Dear Michael Gove, Secretary of State

Manchester Friends of the Earth are writing to you regarding Greater Manchester’s Clean Air Plan – Tackling Nitrogen Dioxide Exceedances at the Roadside – Outline Business Case.

Manchester Friends of the Earth are dismayed that Greater Manchester is not planning to meet the legal limits for air pollution before 2024 and would urge you to reject the GM Clean Air Plan as we believe that the current plan is not compliant with the legal requirements as laid down by the High Court.

  • The Legal Test

The judgment of the High Court in ClientEarth (No.2) established important legal tests that apply to the preparation of air quality plans. It gave a detailed and definitive ruling on the proper interpretation of the obligations flowing from the Directive and, in particular, the requirement in Article 23 that air quality plans must be prepared to achieve compliance “in the shortest time possible”. In his ruling, Mr Justice Garnham set out a three-part test for assessing air quality plans. The legal test requires that plans must:

1. Aim to achieve compliance as soon as possible;

2. Choose a route to compliance which reduces human exposure as quickly as possible; and

3. Ensure that compliance with the limit values is not just possible but likely.

  • Compliance as soon as possible.

The deadline for compliance with the legal limits set out in the Directive was 2010. Where those limits were not met, Member States were required to prepare air quality plans in accordance with Article 23 of the Directive, which requires that they set out appropriate measures to keep the exceedance period as short as possible.

The Court did not set a particular date by which compliance must be achieved, but in ClientEarth (No. 2) it ruled that Government had acted unlawfully by fixing on 2020 as a target date for compliance, which it viewed as “too distant“. [Emphasis added].

The primary obligation is to protect human health through the achievement of the limit values by the earliest possible date. Considerations such as cost or unpopularity of measures are not lawful reasons for excluding effective measures from a plan.

  • Reducing human exposure

Whilst compliance might not be achievable immediately, the responsible authorities must reduce exposure as much as possible whilst they are trying to achieve the final objective of meeting the limit values.

Mr Justice Garnham gave further clarification on how this second limb of the legal test should be distinguished from the first, saying that:

“At the heart of my judgment in this case of 2 November 2016 were the conclusions that the proper construction of Article 23 of the ambient air quality directive had three consequences. […]

It is important to emphasise that the first and second of those requirements demand different things. The first is directed at the time by which the objective is to be achieved. The second is directed at the exposure to nitrogen dioxide that persists whilst that final objective is being achieved.”

Any plans which aim to achieve compliance by a certain date throughout the zone, would not meet the legal test, if there were additional or alternative measures which could also reduce human exposure during the period of non-compliance.

The legal tests set out in ClientEarth (No. 2) and ClientEarth (No.3) apply to local authorities in their preparation and implementation of air quality plans. The adoption of local air quality plans that do not meet the tests above will be vulnerable to legal challenge.

The plans themselves must be introduced as soon as can be. Political or technical difficulties are not lawful reasons to justify delay.

Greater Manchester will not have a plan in place before the end of 2019 and is not planning to achieve legally compliant air quality levels before 2024.

Greater Manchester has the highest rates of emergency admissions to hospital for asthma in the whole country – Central Manchester and North Manchester NHS trusts have emergency admissions at double the national average. And evidence shows that the most vulnerable people and those living in disadvantaged areas are at greater risk from air pollution.

Research by Kings College London (KCL) for an IPPR North report published in June 2018 estimated that the annual “cost to the Greater Manchester economy is huge. The KCL study shows that air pollution is costing between £1 billion and £1.2 billion with every single Greater Manchester local authority area affected.” To put this into perspective this figure is approximately a fifth of Greater Manchester’s annual health budget.

As outlined above, Manchester Friends of the Earth are dismayed that Greater Manchester is not planning to meet the legal limits for air pollution before 2024 and therefore we believe that the current plan is not compliant with the legal requirements as laid down by the High Court.

We therefore urge you to reject the draft Greater Manchester Clean Air Plan – Outline Business Case and instruct the Greater Manchester Combined Authority to develop a plan that is both effective and legally compliant.

We would also urge the Government to show national leadership on air pollution. We all deserve clean and healthy air and we need a new Clean Air Act that is fit for the 21st century. Government needs to provide local authorities with the powers and resources to enable all citizens to breathe clean air wherever they live or work.

Yours sincerely

Ali Abbas and Catherine Thomson

Manchester Friends of the Earth co-ordinators

We received a response from Michael Gove MP, Secretary of State on 6th June 2019. (See pdf below)

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