#17713 - Air Quality Law Notes - Environmental Law

Air Quality Law Notes

What is the nature of air pollution problems?

Definition and Nature

Per Fisher, Scotford and Lange (2019) a dominant feature of air quality law is its anthropogenic nature.

• Air pollution problems are both created by and detrimental to humans – as such, there is widespread pressure on politicians to improve air quality

One of the problems with air quality is that, historically, we have not worried about air pollution until we can see it or its effects – this means that regulation has largely been reactive and ad hoc.

• Some of the solutions to air pollution over history have been to make it invisible

  • In the UK between the 1930s and 1970s, a key strategy in combatting air quality problems was the introduction of taller chimney stacks for industrial installations – these allowed for pollution dispersal at higher levels in the atmosphere and led to considerable improvements in (local) UK air quality

The Problem

Air pollution problems are largely a result of increased transport movements within European and a slow turnover of vehicle fleets

• Our understanding of these developments is being greatly aided by advancements in the scientific community

  • BUT: air pollution is not just a question of scientific measurement

    • DePuis (2004) assesses air pollution regulation from a sociological perspective

      • He emphasises the existence of air pollution not in terms of scientific models and measurements or economic values, but rather as social artefacts: that is, the products of social interactions and relationships including inequalities knowledge, power and politic

Air pollution is not simply concerned with controlling excessive concentrations of pollutants in the air; it is a social construction that involves choices about what behaviour gets controlled, and who is to bear the primary benefit and cost of this

Pollutants

The diversity of the problem can be seen through the fact that there are a range of different pollutants.

• Sulfur Dioxide (SO2); Nitrogen Oxide (NO) and Nitrogen Dioxide (NO2), collectively NOX – causes acid rain and dry acid deposition when they are oxidised in the atmosphere, which in turn causes the death of flora and fauna, degradation of soils, and the corrosion of buildings

• Heavy Metal Particulates – these substances (including cadmium, lead and mercury) are emitted by combustion processes and are harmful to human health, potentially causing kidney, lung and bone problems (cadmium); and also acting as neurotoxins (lead and mercury)

• Particulate Matter – this refers to any matter in the air that is very, very small (these are emitted directly into the air, mainly from combustion processes)

  • There is increasing evidence that dust particles of such small size can have deleterious effects on human health, particularly in causing respiratory illnesses and lung cancers, irrespective of the chemical composition of the pollutant.

• Benzene, Polycyclic Aromatic Hydrocarbons, Dioxins and Furans – these are aromatic organic compounds which have toxic and carcinogenic effects, being able to alter DNA and even cause birth defects

• Persistent Organic Pollutants (POPs) – these are toxic pollutants that bioaccumulate (that is, they bind to fatty tissues of living organisms, including humans) and pass between generations of food chains

• Volatile Organic Compounds (VOCs) – these are organic compounds that are highly reactive under normal atmospheric conditions

What is the history of air quality law?

UK History

The history of air quality law in the UK is a long one, with air pollution controls being known to exist in the thirteenth century

• Wilde (2010) notes the issues inherent in different regulatory techniques – the Alkali Act 1863 provides a nice example of the shortcomings of an approach to pollution control that relies solely upon monitor8ng exhaust pipe emissions

  • Emission limits are of limited effect unless they are informed by data on the cumulative effect of emissions on the receiving media

• Private nuisance has also been used as a response to air quality problems

  • BUT: private nuisance actions could also undermine the improvement of overall air quality levels by contributing to longer-range air quality problems.

    • This is because, particularly after the case of Manchester Corp v Farnworth, air pollution will not be an actionable nuisance if released higher into the atmosphere (via higher chimney stacks) and then carried further afield.

International Developments

In 1941, the Train Smelter arbitration established that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory or another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”.

• This sort of customary law was insufficient

The primary international law control of transboundary polluting emissions today is now through regional treaties – including the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (CLRTAP)

• CLRTAP was adopted in response to growing concerns as to the transboundary movements of acidifying pollutants

CLRTAP does not set air quality standards directly or set up liability rules for polluting states.

• Rather, contracting parties agree to endeavour to “limit and, so far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution”

• It contains important provisions on the sharing of information

Yaminneva and Romppanen (2017) argue that this system of international law does not provide a comprehensive response ot air pollution

• This is so for the two reasons:

  1. Customary international law in the form of principles of international environmental law only has limited value – they are subject to divergence in interpretation

  2. Principles of international law gain their full functionality when they are operationalised in treaties and other legal instruments

     • Thus far, not a single treaty of global significance on air pollution is in existence

How does air quality law operate in the EU?

General

In the 1970s, the UK began a piecemeal approach to tackling the most serious instances of air pollution.

• It introduced emissions standards for vehicles and minimum air quality standards for particular polluting substances

• This style of directive—setting environmental quality standards for individual pollutants—has now been largely superseded by air quality standards being contained in a single Air Quality Directive.

There are three distinctive features of EU air quality law:

1. EU air quality regulation is prescriptively detailed and requires serious action

2. The body of regulation is diverse but also wide-ranging

3. The nature of the problem of polluted air quality (being transboundary and unpredictable due to secondary atmospheric causes and the co-ordinate effort required to reduce air pollution levels) makes certain regulatory approaches particularly suitable

   • In particular, EU air quality regulation involves:

     • EU transboundary regulation (implementing international law);

     • Environmental quality standards (EQSs) to ensure that safe overall air quality levels are legally mandated; and

     • National limits on certain polluting emissions

Policy

Alongside the air quality measures in law, there have been two strategic phases in EU air quality policy:

1. Phase 1 – the Commission’s 2001 Clean Air for Europe Programme (CAFE) and the 2005 Thematic Strategy on Air Pollution outline a strategy for policy up until 2020

2. Phase 2 – in 2011-2013, a policy review of the TSAP and CAFE led to a new Clean Air Package

   • This review recognised the pressing need for more action, and was supported by the 7th Environmental Action Programme, also launched in 2013, which requires ‘strengthening efforts to reach full compliance with Union air quality legislation and defining strategic targets and actions beyond 2020’

     • The key planks for the Clean Air package were set out in a new Clean Air Programme for Europe, which focused on meeting targets by 2020 and set new air quality targets for 2030

       • The Commission justified this dual approach by saying that a thorough review of EU air policy to date has shown that the combination of targets and legislation has delivered real benefits for human health.

Ambient Air Quality Directive (AQD)

The 2008 Air Quality Directive (AQD) is the central plank of EU air quality law.

The AQD imposes four type of obligations on Member States:

1. Monitoring and Assessment Obligations (Chapter II)

Once atmospheric pollution levels vary so greatly across the EU, a vast web of measuring stations is required across the EU to ensure acceptable air quality levels overall.

Article 4 – requires Member States to establish ‘zones or agglomerations’ throughout their territory

• This is so that areas with relatively common air quality characteristics can be assessed together

  • The Directive seeks to minimise monitoring burdens by requiring intensive physical monitoring—obtaining air quality data from ‘fixed measurements’ taken at discrete sampling points—only in zones where threshold levels of pollutants are exceeded.

2. Mandatory Environmental Quality Standards and Targets (Chapter III)

The AQD sets out a series of environmental quality standards (EQSs) and targets, which vary based on the pollutants covered, in light of their respective risks to human and environmental health and current knowledge about how to control them.

• Broadly speaking, there is a sliding scale of air quality standards,...