The Retained EU Law (Revocation and Reform) Act: Are we about to see the regression of air pollution standards in the UK?

On 6 July 2023, Dame Glenys Stacy, the chair of the Office for Environmental Protection (OEP), wrote to the environment secretary, Thérèse Coffey, raising her concerns about the lack of environmental safeguards in the newly passed Retained EU Law (Revocation and Reform) Act (REUL) and in particular, the removal of certain legislation regarding air pollution.

The fact that Dame Glenys felt compelled to take such action is significant and suggests that we should all be concerned about the government’s future approach to tackling air pollution.

What is air pollution?

Air pollution consists of harmful particles and gases in the air. The two pollutants causing the most concern in the UK and Europe are fine particulate matter (PM2.5) and nitrogen oxides (NOx). It is the burning of fuels (in our vehicles, homes and industrial settings) that is the main source of man-made particulate matter.

Leigh Day is currently representing over 245,000 diesel vehicle owners in their emissions claims against motor manufacturers who allegedly fitted so-called ‘defeat devices’ in their vehicles to artificially reduce emissions of toxic NOx gases. We believe our clients were deliberately misled over the environmental performance of their vehicles and that the culpable manufacturers should be held to account for cheating the EU and UK emissions laws.

The government has declared poor air quality as ‘the largest environmental risk to public health in the UK’. This is because air pollutants are linked to chronic conditions and diseases such as asthma, heart disease and stroke. Estimates indicate that tens of thousands of people are dying every year in the UK due to long-term exposure to air pollution.

Air pollution also has detrimental impacts on our natural environment. Pollutants in the air can be toxic to our ecosystems, contaminating and degrading our biodiversity.

What are the legislative reforms made under REUL?

Major UK legislation such as the Clean Air Act 1993 and Environment Act 1995 has worked, in conjunction with a series of EU directives and regulations, to see a continuous decline in the emissions of PM2.5 since 1970. The role of EU derived legislation and policy has undoubtedly been instrumental in regulating and enforcing the UK’s commitment to reducing air pollution. However, on 29 June 2023, REUL was passed by the government, formally marking the beginning of a process that will see hundreds of retained EU laws scrapped by the end of this year. Over half of the 600 laws being removed relate to the environment, including the following key air quality-related legislation:

• Commission Implementing Decision 2018/1522: requires public consultation on matters regarding national air pollution and to take account of the need to reduce emissions, in particular PM2.5 and NOx.
• Regulations 9 and 10 of the National Emission Ceilings Regulations (NECR) 2018 (S.I. 2018/129): require that the secretary of state prepare and implement a national air pollution programme to meet stringent emissions targets and to conduct public consultation on any revisions to such targets.

It is the revocation of regulations 9 and 10 of the NECR which has caused particular concern amongst environmental groups and the OEP. The NECR sets emission reduction commitments and reporting obligations which are legally binding on the government. Whilst it is important to point out that the government has not decided to scrap the emissions targets set out in the NECR altogether, it is notable that it has chosen to dispense with the regulations which compel the government to actively plan and implement an air pollution programme and subject the same to public scrutiny.

Government’s response to criticism of REUL

The government has hit back against accusations of REUL having the effect of weakening existing air pollution laws. In Thérèse Coffey’s response to Dame Glenys’ letter, she rejects the idea that REUL will have a negative impact on environmental protection and endorses the introduction of the Environmental Principles Policy Statement as a safeguard against the weakening of environmental legislation. This statement, which will take effect from 1 November 2023, places a legal duty on ministers to have “due regard” to five environmental principles contained within the Environment Act 2021 when making policies. The effectiveness of this policy statement, however, is questionable.

It is significant that ministers are permitted to take a “proportionate approach” in the application of the policy statement and should balance all social, economic, and environmental considerations in policy making. This grants ministers wide scope to sacrifice environmental concerns as they deem fit and seems very much at odds with the government’s pledge “to place environmental considerations at the heart of policymaking”. This “due regard” duty on ministers is also arguably vague and non-committal, particularly when contrasted against the legally binding obligations placed on the government by regulations 9 and 10 of the NECR.

The government’s apparent reluctance to commit to protecting and improving upon existing environmental protection legislation is also evidenced by its refusal to include an environmental non-regression clause in REUL. This clause was a suggested amendment to REUL put forward by Lord Krebs in the drafting stages of the Act and it was a simple one – for the government to commit to non-regression on existing environmental protection standards.

Lord Callanan, the energy minister, defended the decision to omit the non-regression clause on the basis that such a clause was too vague and would enable green lobbyists and lawyers to challenge every change made to environmental regulations, consequently making them “very happy about all the work it would generate for them”. This is a flimsy argument. If the government was so concerned about boundless legal interpretation of the non-regression clause and the courts thereby overstepping Parliament in the legislative process, surely it could have been drafted in a way to carefully define what non-regression means to prevent this supposed barrage of litigation?

Conclusion – troubling gap left in environmental protection standards

By the government’s own admission, air pollution is the greatest environmental public health risk in the UK, so why is the issue not being treated with the due consideration and urgency it demands? REUL presented the government with an opportunity to review and improve existing air pollution legislation, but instead we are faced with the very real prospect of the regression of air pollution standards. Notably, under the Environment Act 2021, the government decided to set a PM2.5 annual concentration target of 10 micrograms per cubic metre to be met across England by 2040.

Had the government retained regulations 9 and 10 of the NECR, it would have been required to meet this target a decade sooner, in 2030. Such decisions, along with the unconvincing Environmental Principles Policy Statement and absence of a non-regression clause, mean that REUL offers little reassurance that the government has a comprehensive plan to proactively tackle air pollution. As Dame Glenys points out in her letter, there are simply no statutory requirements which are equivalent to regulations 9 and 10 of the NECR.

Ultimately, the revocation of existing air pollution legislation through the enactment of REUL leaves a troubling gap in environmental protection standards which the government has not convincingly addressed. Given the very serious implications for both public health and the environment, we should all be concerned that the government appears to be evading imposing legally binding duties on itself to improve our air quality.

As the issue of air pollution gains increasing attention in the media and public concern grows, we hope that the government reassesses its approach towards air pollution and implements a more robust and rigorous legal framework which rightly prioritises our environment in future policymaking.