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Environmental law, and with it the law on air quality, was dominated by European law prior to the UK’s departure from the EU. During the Brexit transition period (to 31 December 2020), EU law continued to apply in the UK under the terms of the Withdrawal Agreement.

But now that the transition period has come to an end, substantive changes have been made to the law on air quality, with more changes potentially afoot.

In this blog post, we’ll look at the changes made to date and the potential future changes in the area of air quality.

Prior to the end of transition

The Air Quality Directive came into force on 11 June 2008 and sought to minimise the harmful effects of air pollution by setting standards for ambient air quality, requiring member states to actively assess and manage air quality in different areas. The Air Quality Directive also set limit and target values for a number of pollutants.

The Air Quality Directive was implemented in England through the Air Quality Standards Regulations 2010, air quality plans, and clean air zones.

The Air Quality Standards Regulations are retained EU-derived domestic legislation under s. 2 of the European Union (Withdrawal) Act 2018. The Directive itself is not retained but is still relevant for the purposes of interpreting the Air Quality Standards Regulations and other relevant retained legislation.

Immediate changes made after the end of transition

A number of practical changes were made to retained EU law by a series of EU Exit regulations, such as the Air Quality (Amendment of Domestic Regulations) (EU Exit) Regulations 2019, to ensure that the regime can continue to function in the context where the UK is no longer a EU member state. Changes include creating legislative functions for the Secretary of State to replace the functions previously conferred on the Commission.

A few more substantive changes have been made by EU Exit regulations. For one, a new limit value has been set for PM 2.5 of 20 μg/m³ (which was previously set at 25 µg/m3.). Also, where the Secretary of State considers that a limit value has been exceeded for a reason attributable to natural sources that will not be considered an exceedance.

Further changes are made to how the Air Quality Directive 2008 is to be interpreted post-Brexit. For example, a reference to the ‘appropriate competent authorities and bodies designated pursuant to Article 3’ is changed to ‘the Secretary of State’. It is important to ensure that when considering the Air Quality Directive alongside the 2010 Regulations, the relevant EU Exit regulations are considered alongside it.

Environment Bill

These initial changes were to ‘tweak’ the UK’s air quality regime ready for the end of the transition period, but further changes to air quality regulation could be coming in the Environment Bill. Part 4 covers air quality and the following changes are currently included:

  • a duty on the Secretary of State to review the Air Quality Strategy at least every five years and to report annually to Parliament on progress in delivering air quality objectives in England;
  • stricter requirements for local authorities under the Local Air Quality Management framework, such as action plans where local air is in breach of air quality objectives;
  • powers for local authorities to impose civil penalty notices for smoke emissions in smoke control areas in England. Statutory defences are removed and enforcement is made easier; and
  • the Secretary of State is given powers to make regulations for the recall of products, including vehicles, that do not meet legal emissions standards.

Elsewhere in the Bill, provisions are included which require the Secretary of State to set a binding target to reduce PM2.5 in ambient air. New powers are also proposed for the Secretary of State to set at least one long-term target for each of the four priority areas (air quality, water, biodiversity and resource efficiency and waste reduction) with draft legislation required to be laid before 31 October 2022.

Unfortunately the Environment Bill passage through Parliament is making slow progress and has been postponed to the next session later this Spring. For more details on the Environment Bill, see our previous blogs on the subject.

Clean air zones

Clean air zones (CAZs) have been instrumental in pursuit of air quality objectives. Although CAZs do not present a legal change, a number of new CAZs, or similar schemes, are due to come into force in the near future to help tackle air quality concerns in some of our biggest cities.

Most recently, the Bath and North East Somerset launched the first CAZ in England outside of London. BDB Pitmans were delighted to advise Bath and North East Somerset on the Scheme. For further information on clean air zones and out teams work in this area see our new brochure.

‘Sometimes, all I need is the air that I breathe’ (The Hollies, The Air that I Breathe)

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