The emergence of a right to clean air: Transforming European Union law through litigation and citizen science

• Published date: 01 April 2021
• Author: Delphine Misonne
• Date: 01 April 2021
• DOI: http://doi.org/10.1111/reel.12336

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  RECIEL. 2021;30:34–45.wileyonlinelibrary.com/journal/reel

1 | INTRODUCTION

Air quality is a m atter of rights. A sub stantive right to cle an air has

emerged from European Union (EU) legislation, the corollary of du-

ties made ever tig hter by the Court of Justi ce of the European Union

(CJEU). While th e expression ‘right to cl ean air’ has not yet bee n

written in bol d letters into case law, spe lling out what is now implicit

might turn out to be t he next logical step forwa rd. In delivering on

these develop ments, reliance on t wo factors was and r emains of cru-

cial import ance: litigation and citizen s cience. The vitality of EU le g-

islation on ambie nt air quality – and its ap plication in every Memb er

State – has proved to be qu ite dependent on judici al activism and on

fresh approaches to citizen empowerment.

The present ar ticle focuses on th e CJEU’s interpret ation of EU

law on ambient air qu ality and on how that int erpretation af fects

domestic jur isdictions. It exp lores the appare nt absence of rights

talk in Direc tive 2008/50, the Ambient Ai r Quality Directive,1 whi le

showing in paral lel how air quality, heal th and rights const antly

intersect an d form an undeniable c ontext that favours – a nd even

requires – a stricter protection of individuals against air quality deg-

radation. It ex plains how citizens and ass ociations have become dr iv-

ers for change in ac tivating the potenti al of the Directive. Th e article

also demonst rates how fraught the s ubject has become a nd con-

nects ambi ent air quality law to th e recent major increas e in the

number of low-emis sions zones in Europe. It touches on th e limita-

tions of a direct ive which does not actually gi ve the highest priority

to what it is meant to prot ect, but also rai ses the alert on th e risk

attached to m odifying legislatio n that is now endowed with a par tic-

ularly strong jurisprudential acquis, should newer legislation fa il to

include such re cent advances. Fina lly, the article refle cts on the

trend to adopt a compliance-solving approa ch to the European direc-

tive, while a problem-solving approa ch to air pollution might be mor e

in line with contemporary expectations.

2 | EU LAW ON AMBIENT AIR QUALITY

There is no ‘Clea n Air Act’ under EU law that co nsistently addresses

all issues relati ng to impacts on th e atmosphere. However, ther e is

 1Directive 2 008/50/EC of 21 May 200 8 on ambient air qu ality and cle aner air for Europ e

[2008] OJ L152/1.

Received: 26 July 2 019 

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  Accepted: 10 April 20 20

DOI: 10 .1111/reel .12336

ORIGINAL ARTICLE

The emergence of a right to clean air: Transforming European

Union law through litigation and citizen science

Delphine Misonne

This is an open ac cess article und er the terms of the Crea tive Commons Attr ibution-NonCo mmercial-NoDer ivs License, which p ermits use and dis tribution in

any medium, pr ovided the origina l work is properly cit ed, the use is non-com mercial and no modi fications or adap tations are made.

© 2020 The Autho rs. Review of Europea n, Comparative & Inter national Environm ental law publishe d by John Wiley & Sons Ltd.

Correspondence

Email: delphine.misonne@usaintlouis.be

Funding information

Fonds De La Rec herche Scientifi que - FNRS,

Grant/Award Num ber: CDR 31261240 Air

Pollution Law and its Transformation

Abstract

Air quality is a mat ter of rights. A substant ive right to clean air for individ uals has

emerged from Europe an Union legislation, the cor ollary of duties made ever t ighter

by the Court of Just ice of the European Union (CJEU). In deli vering on these develop-

ments, reliance on t wo factors was and remains of crucial imp ortance: litigation and

citizen science. The pre sent article focuses on the C JEU’s interpretation of European

Union law on ambient air qua lity and on how that interpr etation impacts do mestic

jurisdictions. T he article explores the appare nt absence of rights talk in suc h legisla-

tion, while showing in p arallel how air quality, healt h and rights constantl y intersect

and form an undeniab le backdrop, or context, that f avours – and even requires – a

stricter protec tion of individuals against air quali ty degradation.