Environment Act 2021 – Clearing the air

With the focus on air quality intensifying, we consider the scope and impact of new legislation.

Introduction

Whether it is in the form of reports identifying London as the world’s most congested city in 2021¹, air pollution warnings for London², the UK apparently having the worst respiratory death rate statistics in western Europe³ or sands from the Sahara blowing across Europe⁴, air quality continues to regularly feature in the news. It is no coincidence then that air quality also continues to be the subject of new legislation, with air quality being one of the focal points of the Environment Act 2021 (the Act). 

This article considers the air quality measures in the Act and the extent to which they are being brought into effect.

Overview of air quality measures in the Act

There are a number of air quality measures within the Act which range from the high level to the very specific.  Broadly speaking, the former are found in Part 1 of the Act, whilst Part 4 is air quality-specific, introducing various measures via a mixture of new provisions and amendments to existing air quality related legislation in Schedules 11 and 12 of the Act. 

We consider each of the air quality measures within the Act further below.

Air Quality Targets

At the “high level” end of the range of measures in the Act are the environmental governance provisions in Part 1, which include the 25 Year Environmental Plan being given statutory status.  Among the provisions that came into force on 24 January 2022 are requirements for the Secretary of State to set new long-term environmental targets in four identified priority areas, one of which is air quality.  Whilst “long term” is defined to mean at least 15 years, the detail around these targets is otherwise left for future regulations.

In addition to the long-term targets, the Act includes a specific requirement to set a target for fine particulate matter (PM_2.5), the air pollutant widely regarded as being of the greatest harm to human health, with 307,000 premature deaths estimated to have been attributable to PM_2.5 in the EU in 2019 alone⁵.  Again the detail around this target is left for future regulations, although the government has now launched a public consultation on the targets as a first step to putting the "flesh on the bones" of the powers that have been brought into effect⁶.

It is notable that the air quality targets in the consultation all relate to PM_2.5 , with the government proposing:

• An annual mean concentration target of 10 micrograms per cublic metre (µg/m3) to be met across England by 2024; and
• A population exposure reduction target of 35% by 2040 compared to a base year of 2018.

The consultation paper explains that a reduction in population exposure to PM_2.5  in England "of just 1 µg/m3 could prevent an estimated 50,000 cases of coronary heart disease, 16,500 strokes, 9,000 cases of asthma and 4,000 lung cancers over 18 years" and suggests that the targets will "contribute to levelling up objectives" and "have large co-benefits for climate change objectives".

As impressive as this all sounds, these proposed targets will not be without controversy, however.  This is because they do not meet the World Health Organization's (WHO) guideline level, a position that Department for the Environment, Food and Rural Affairs (Defra) has sought to explain as follows⁷:

"Our evidence strongly sets out that the new World Health Organization guideline level (published in autumn 2021 of 5 µg/m3) is not possible to achieve in many locations in England, due to the level of natural PM2.5 and pollution blown in from outside the country".

No doubt views will be expressed on this.  The consultation runs until 11 May 2022.

Local Air Quality Management Framework

Part 4 of the Act amends existing legislation in a number of respects, including by placing the Secretary of State under a duty to regularly review and annually report on the National Air Quality Strategy and requiring all tiers of government and neighbouring authorities to co-operate in the development of action plans in Air Quality Management Areas.  In the background to these changes are the successful ClientEarth judicial review proceedings on the basis of non-compliance with EU-derived limits and Southwark Coroner Court's finding that air pollution contributed to Ella Adoo-Kissi-Debrah's death from asthma in 2013.

The amendments will take effect on 1 May 2022.

Smoke Control Area Enforcement

Similarly taking effect on 1 May 2022 are the changes to the enforcement of smoke control areas in England in Part 4 of the Act.  These changes amend the Clean Air Act 1993 to give local authorities the power to issue civil penalty notices for the emission of smoke in smoke control areas in a similar way to the enforcement of road traffic regulations.

Whether this will lead to a new army of smoke control enforcement wardens patrolling the streets remains to be seen but this is a measure that is specifically aimed at PM_2.5 emissions, with domestic burning apparently contributing 38% of PM_2.5 emissions in 2019⁸.  In this regard, it is worth noting that the Clean Air 1993 itself is the latest iteration of the legislation originally enacted after the Great Smog of London, which is estimated to have been responsible for 12,000 deaths in 1952.

Environmental Recall of Vehicles

Part 4 of the Act also includes powers for the Secretary of State to make regulations of the compulsory recall of vehicles/engines on the basis that relevant environmental standards are not met.  These powers are a direct result of another past news event - the VW emissions scandal - but currently there is no date when they are due to take effect.

Summary

So, in terms of where the air quality measures in the Act have got to, the current position may be summarised as follows:

• Air Quality Targets – new provisions in force since 24 January 2022 but subject to consultation and future regulations;
• Local Air Quality Management Framework – changes coming into force 1 May 2022;
• Smoke Control Area Enforcement – changes in England coming into force 1 May 2022; and
• Environmental Recall of Vehicles – not yet in force and date to be appointed.

However, perhaps the most significant date to note is a non-legislative one. The government's consultation on environmental targets closed on 11 May 2022. Given the complaints about the consultation, the date when the government's response is to be published will be keenly awaited.
 

[1] https://www.bbc.co.uk/news/uk-england-london-59949097

[2] https://www.theguardian.com/uk-news/2022/jan/13/londoners-told-to-reduce-physical-activity-on-friday-due-to-pollution

[3] https://www.bbc.co.uk/news/health-60524677

[4] https://news.sky.com/story/sahara-dust-cloud-cars-left-covered-in-red-storm-that-blew-in-from-europe-12567718

[5] EEA Report "Health impacts of exposure to fine particulate matter in Europe" published 14 December 2021

[6] See: https://consult.defra.gov.uk/natural-environment-policy/consultation-on-environmental-targets/

[7] https://deframedia.blog.gov.uk/2022/03/17/environment-act-2021-environmental-targets/

[8] DEFRA Policy Paper "September 2021: Air Quality Factsheet (Part 4)"