The unintended consequences of EU law and policy on air pollution

• Date: 01 November 2017
• Author: Aleksandra Čavoški
• DOI: http://doi.org/10.1111/reel.12211
• Published date: 01 November 2017

RECIEL. 2017;26:255–265.    

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wileyonlinelibrary.com/journal/reel

DOI: 10.1111/reel.12211

SPECIAL ISSUE ARTICLE

The unintended consequences of EU law and policy on air

pollution

Aleksandra Čavoški

© 2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Correspondence

Email: A.Cavoski@bham.ac.uk Air pollution still represents a major environmental hazard in urban areas in the

European Union (EU). This article argues that the EU’s regulatory framework in this

policy area for the past decade contributed to a series of unintended consequences.

The increasing influence of climate change objectives on the air pollution agenda led

to a shift in the regulatory approach to emissions from vehicles by focusing solely on

the overriding interest of reducing carbon dioxide emissions and developing individual

policies to that effect. This resulted in a disconnect between regulatory approaches to

urban air quality and vehicle emissions standards with the effect of producing unin-

tended consequences of unlawful levels of air pollution, in particular nitrogen oxides

and particulate matter emissions as well as unintended consequences for the car in-

dustry and consumers. The article applies Merton’s framework of unintended conse-

quences, which provides a useful explanatory model of the EU’s multi- level governance

process in the complex area of environmental law.

1 | INTRODUCTION

The scale and severity of the effects of urban air pollution have be-

come increasingly apparent in recent years. The 2016 World Health

Organization (WHO) report on air pollution unequivocally identified it

as the biggest environmental risk to health, with an ‘increasing number

of acute air pollution episodes in many cities worldwide’.1 While air

quality has seen substantial improvements in the European Union

(EU), especially in regard to reducing the carbon dioxide (CO2) emis-

sions as a result of its ambitious climate change agenda, urban air qual-

ity still persists as a significant environmental challenge.2 Despite the

reduction in CO2 emissions there continue to be unlawful levels of

emissions of nitrogen oxides (NOx) and particulate matter (PM), origin-

ating predominantly from road transport. Just in Europe, around

400,000 premature deaths are caused annually by pollution from road

transport.3

A good illustration of large- scale breaches of NOx and PM air pol-

lution standards in Member States were recently exposed in ClientEarth

v Secretary of State for the Environment, Food and Rural Affairs, which

unveiled the severity of air pollution in the United Kingdom (UK).4 In

2010, several limit values for nitrogen dioxide (NO2) prescribed in the

Ambient Air Quality Directive were exceeded in 40 of the 43 zones or

agglomerations within the UK. In July 2011, the nongovernmental or-

ganization (NGO) ClientEarth initiated a judicial review seeking a dec-

laration that the UK was in breach of its obligation to comply with NO2

limits provided in Article 13 of the Air Quality Directive 2008/50 and

sought a mandatory order compelling the Secretary of State to pro-

duce an air quality plan pursuant to Article 22 of this Directive.5 This

proceeding raised important questions about the interpretation of ob-

ligations imposed on Member States in Articles 22 and 23 of the

Directive and the jurisdiction of national courts to act in cases when a

Member State fails to meet the requirements stipulated in Article 13

of the Directive. The Supreme Court made a declaration that the UK

was in breach of Article 13 of the Air Quality Directive 2008/50 and

1World Health Organization (WHO), ‘Ambient Air Pollution: A Global Assessment of Exposure

and Burden of Disease’ (WHO 2016) 49.

2European Environment Agency (EEA), ‘Air Quality in Europe – 2016 Report’ (EEA 2016) 6–9.

3F Amato et al, ‘Urban Air Quality: The Challenge of Traffic Non- exhaust Emissions’ (2014)

275 Journal of Hazardous Materials 31.

4R v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 (ClientEarth

case).

5Directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L152/1.