EU legislation for clean air at crossroads
By Yulia Yamineva, Docent in Climate Law & Policy (Adjunct Professor) and Delphine Misonne, Professor, Université Saint-Louis – Bruxelles
Air pollution has been a long-standing problem in the EU. While it has decreased over the past few decades, not least due to the EU clean air legislation and actions by national and local authorities, poor air quality remains the single largest environmental health risk in Europe. According to the EU data for 2020, most people living in urban areas are exposed to PM2.5 pollution at levels that damage their health. Air pollution causes around 300,000 premature deaths per year in Europe and contributes to various diseases including asthma, cardiovascular problems, and lung cancer. Moreover, it disproportionately affects sensitive and vulnerable social groups in the society, raising equity and social justice concerns.
The EU legal framework for clean air is currently being revised as part of the European Green Deal and the Zero Pollution Action Plan. This presents a unique opportunity to strengthen EU air quality standards and increase their ambition towards a better alignment with the new 2021 World Health Organisation (WHO) air quality guidelines.
It is in this context that our seminar “EU Legislation for Clean Air at Crossroads” took place on 21 March 2023 at Université Saint-Louis – Bruxelles in Brussels, Belgium. The event was co-organized by Prof Delphine Misonne, the Centre d’Etude du Droit de l’Environnement et du Patrimoine (CEDRE), and Dr Yulia Yamineva, UEF Law School’s Center for Climate Change, Energy and Environmental Law (CCEEL). *
The main objective of the seminar was to critically reflect on the recast of the EU Ambient Air Quality Directives in light of the recent scientific findings, and experiences from air quality litigation and legal practice. The seminar brought together legal scholars and practitioners (including from the Court of Justice and European Commission), atmospheric scientists, and other experts to address these questions through a joint deliberation.
The program was structured into three sessions, each addressing a specific aspect of the seminar’s topic. The first session focused on air quality litigation and its lessons for the revision of clean air legislation. Air quality litigation by private individuals and NGOs in the EU has been instrumental in the interpretation and implementation of the Air Quality Directives, but it has also highlighted a number of challenges, for instance with respect to access to justice. Some of these challenges have already been clarified in case law while others remain relevant. Existing case law was summarised and discussed by Christoph Sobotta, Legal Secretary at the Chambers of Advocate General Juliane Kokott at the Court of Justice of the European Union. In particular, he reflected on the “new approach” to ambient air law (Janecek, Client Earth, Craeynest, Deutsche Umwelthilfe, Maritsa-Istok 2 cases, etc), emphasising progress and wide implications on environmental law in general, for instance on access to justice and effective judicial protection, despite recent setbacks.
Following this presentation, Emma Bud from Client Earth – a well-known NGO working on strategic environmental litigation – presented on ongoing cases in Germany, Belgium and Italy, with their specific focus on civil liability based on the notion that ambient air could be lawful but not safe. Further, Prof Delphine Misonne provided a commentary on: why litigation matters, the (sometimes difficult) societal impact of such case-law, the crucial role of time horizons, the destinations of ambient air quality law (‘who’ is the public health for after the case JP v Ministre de la Transition écologique?), and the interlinkages within clean air legislation. In the ensuing discussions, participants addressed the scope and limits of state liability, the burden of proof of establishing causality between air pollution and detrimental health impacts, future (legislative) prospects on right to compensation, as well as linkages with the Industrial Emissions Directive.
The second session “Science-law interface” focused on the relationship between scientific findings and legal frameworks. Prof Alastair Lewis, University of York, discussed what should be legislated for in light of data availability and monitoring capacities, highlighting: the relation between measurement and the very existence of ambient air quality standards a chicken and egg problem), the importance of keeping simplicity in future legislation, the regrettable absence of due regard to inequality in exposures when fixing rules on representative ambient monitoring, limited epidemiological evidence for some substances, risks of using models in the context of public confidence, and potential retirements of pollutants from regulation, among other issues. Assistant Professor Pauli Paasonen, University of Helsinki, in his turn presented on addressing air quality with atmospheric and aerosol science, making a case for a broader choice of emission metrics beyond the currently used ones and addressing the transboundary context. Following these two presentations from atmospheric scientists, Camille Bertaux, PhD candidate at Université Saint-Louis – Bruxelles, reflected on the production, usage and impact of WHO air quality guidelines on legal frameworks. Discussion covered the importance of entering in such science & law dialogue, including on the notion of respecting limit values (not necessarily a “yes or no” situation) and the possible necessity to adapt the content of plans according to the changing nature of problems. It also hinted at the future regulation of ozone pollution and parallels between WHO and IPCC in functioning as a science-policy interface.
The third and final session addressed governance aspects in a comparative way and the revision of ambient air quality legislation in the EU in the context of the recent Commission’s proposal for a renewed Directive. First, Prof Eloise Scotford, University College London, discussed what makes a robust governance regime for ambient air quality, emphasising such characteristics as the legal nature of ambient air quality standards, regular review, key questions of scope, legal accountability, strong compliance and enforcement measures, policy integration, and procedural rights. This presentation drew on the findings from the UNEP First Global Assessment of Air Pollution Legislation of 2021 (co-authored by E. Scotford and D. Misonne) and the UNEP Guide on Ambient Air Quality Legislation to be published in 2023 (co-authored by E. Scotford, D. Misonne & A. Lewis).
Magnus Nohll-Ehlers, European Commission, presented the Commission’s proposal for a recast of the Ambient Air Quality Directives, noting its four pillars: overall ambition (new air quality standards, long-term and short-term averages, metrics), governance and enforcement, monitoring and assessment (‘refined approach’, no relocation and supersites), and information and communication. He also highlighted the new provisions on, for instance, a regular review of standards, air quality plans with clear and shorter deadlines to adopt an appropriate plan in case of exceedance of limit values (2 years) and to reduce exceedances (3 years + update), access to justice, compensation of citizens in case of damage to health due to bad planning by public authorities, and information (air quality index). Discussion covered applicable standards in the transitional period, the redefinition of zones for easier comparability (NUTS), the choices of 2030 and 2050 as key deadlines like on climate neutrality), potential for a stronger language on black carbon emissions and ozone pollution, and the feasibility and acceptability of new ‘tort’ provisions. It also extended to the Green Deal and the Commission language on “zero pollution”, seen as both necessary as a change of paradigm but also potentially deceiving for the public if not met in reality and kept as a slogan.
In conclusion, this is a unique moment in the evolution of the clean air legal framework in the EU with a clear opportunity to increase its ambition and strengthen enforceability. While ambition is arguably balanced against realism in environmental regulation, the climate neutrality and zero pollution policy goals have also been clearly articulated and legislated in Europe setting a new bar for associated legislative revisions. One consequence of this should be graduating from a compliance-based approach to actual problem solving when it comes to air pollution.
*The conference was held as part of the PDR-Project WHO-ENVI-LAW funded by the FNRS (National Fund for Scientific Research) in Belgium, and supported by the Atmosphere and Climate Competence Centre, a flagship funded by the Academy of Finland.
Photo by Daniel Moqvist on Unsplash