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Review of European Community & International Environmental Law

RECIEL 24 (3) 2015. ISSN 2050-0386 DOI: 10.1111/reel.12137

Case Note
Standing Up for British Lungs: Effective Judicial
Enforcement in Environmental Law – R (on the
application of ClientEarth) v. Secretary of State for
the Environment, Food and Rural Affairs
Emily Barritt*

The judgment of the Supreme Court of the United
Kingdom in R (on the application of ClientEarth) v.
Secretary of State for the Environment, Food and Rural
Affairs represents a pragmatic approach to a pressing
public health problem. However, the appellate history
of the case reveals a number of important failures in
the proper process of European Union law, in relation
to the granting of an effective judicial remedy and with
regard to the preliminary reference procedure.
INTRODUCTION
R (on the application of ClientEarth) v. Secretary of
State for the Environment, Food and Rural Affairs1 is
the endpoint in a protracted piece of litigation brought
by ClientEarth in order to enforce the government’s
obligations to reduce concentrations of nitrogen
dioxide in accordance with the Air Quality Directive.2
When the Supreme Court handed down its judgment in
April this year, it was hailed by ClientEarth, and its
partner nongovernmental organizations, as a great
success. The Supreme Court had made a mandatory
order requiring the government to submit a new plan to
show the Commission how it would reduce nitrogen
dioxide levels in as short a time as possible. Thus, after
a five-year legal battle, ClientEarth had been granted a
remedy. From a more circumspect perspective,
however, this case (or at least its history) is cause for
lamentation, as well as celebration.
The appellate history represents a number of distressing
failures in the machinery of European Union (EU) law.
First and foremost, there was a failure on the part of the
United Kingdom (UK) to meet the ambitions of the
Directive – to achieve the relevant limits for nitrogen
dioxide in order to protect public health. In addition,
there was a failure by the UK courts to supply a timely
remedy to ensure effective legal protection.3 The case
also raises serious questions about the preliminary ref-
erence procedure, exacerbating the existing prejudices
that seem to exist amongst the judiciary in the UK.4
However, in spite of the problematic elements in the
antecedence of the case, the Supreme Court’s judgment
is a laudable example of a pragmatic approach to an
overcomplicated problem. Further, the case represents a
significant step in environmental law, as it underlines
the important principle of effective judicial enforce-
ment, opening the way for effective judicial enforcement
in relation to other environmental considerations.
FACTUAL AND LEGAL
BACKGROUND
The facts of this case relate to the failure of the UK
government to meet certain limit values for nitrogen
dioxide set by the Air Quality Directive and its actions
in relation to that failure.5 The point of EU law upon
which this case turns relates to the correct action that
the UK government ought to have taken once it had
realized that it was in breach of the relevant limits.
Whilst the essential point of the case seems simple – the
UK government had failed to meet the legal limits set by
the Directive for ambient air pollution and thus was in
breach of its obligation – it took a long time to achieve
a remedy for that breach. It was only when the case
reached the Supreme Court that a declaration was

3
* Corresponding author. Consolidated Version of the Treaty on European Union, [2012] OJ
Email: emily.barritt@kcl.ac.uk C326/15, Articles 4 and 19.
1 4
R (on the application of ClientEarth) v. Secretary of State for the V. Heyvaert, J. Thornton and R. Drabble, ‘With Reference to the
Environment, Food and Rural Affairs, Case C-404/13, [2015] UKSC Environment: The Preliminary Reference Procedure, Environmental
28, [2015] PTSR 909 (‘ClientEarth’). Decisions and the Domestic Judiciary’, 130:3 Law Quarterly Review
2
Directive 2008/50/EC of 21 May 2008 on Ambient Air Quality and (2014), 413.
5
Cleaner Air for Europe, [2008] OJ L152/1. Directive 2008/50/EC, n. 2 above, Article 13.
© 2015 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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RECIEL 24 (3) 2015 STANDING UP FOR BRITISH LUNGS: EFFECTIVE JUDICIAL ENFORCEMENT
issued stating that the UK government was in breach of
its obligations – even though the breach had been
apparent from the very beginning. This section sets out
the factual and legal background to the ClientEarth
case in order to understand the significance of the
Supreme Court’s judgment. By way of background to
the case, the broad purpose of the Directive and the
three key articles are discussed first.
The Air Quality Directive is designed to reduce pollu-
tion levels in ambient air across the EU, thus minimiz-
ing the harmful effects of pollution on human health. In
order to achieve this aim, the Directive sets out emis-
sion limits and corresponding timetables in relation to
specific pollutants, such as nitrogen dioxide, benzene
and sulphur dioxide.6 The first provision in the Direc-
tive relevant to the case is Article 13, which requires
compliance with the relevant limit values for nitrogen
dioxide by 1 January 2010. The second relevant provi-
sion, and at the heart of the disagreement, is Article 22.
It provides a procedure that enables the Member States
to apply for a five-year postponement of the attainment
deadline set by Article 13.7 Where a Member State
applies for postponement under Article 22, it is
required to inform the European Commission and to
submit air quality plans detailing how it plans to meet
the postponed deadline for attainment.8 The require-
ment to submit an air quality plan is intended to allow
the Commission to assess whether the relevant condi-
tions for compliance will be met. The final provision
pertinent to this case, Article 23, requires Member
States to develop air quality plans in zones or agglom-
erations,9 where Member States exceed limit values or
value targets. Where a Member State exceeds those
values, Article 23 requires that the air quality plans
address how the exceedance period can be kept as short
as possible. The ClientEarth case turned on under-
standing the proper relationship between these three
provisions.10
In 2010, it was obvious that in addition to failing to
reach the limit values in 40 of the 43 zones and agglom-
eration by the 1 January deadline set in Article 13, the
UK government was also likely to fail to meet the post-
poned deadline of 1 January 2015 in at least 17 of the
zones. It chose not to apply to the Commission for post-
ponement in relation to those zones.11 Therefore, in
6
Ibid., Article 4.
7 12
Ibid., Article 22.1.
8
Ibid., Article 22.4 specifies what should be contained in the plan set
out in section B of Annex XV of the Directive.
9
In order to better enable Member States to measure levels of pol-
lutants and thus to reach the required limits, the Directive requires
Member States to establish zones and agglomerations throughout
their territory and to monitor levels (and reduce) pollution in these
established zones. Ibid., Article 4.
10
ClientEarth, n. 1 above, at paragraph 2.
11
Note that over the course of the litigation the prospects for early
compliance became more difficult because nitrous oxide levels con-
tinued to increase unabated. Ibid., at paragraph 30.
© 2015 John Wiley & Sons Ltd
2011, ClientEarth issued judicial review proceedings
against the Secretary of State for the Environment,
Food and Rural Affairs.12 It argued that the UK govern-
ment had failed to meet the limit values for nitrogen
dioxide, set out in Article 13, and to apply for an exten-
sion of those limit values, as required under Article 22.13
The UK government admitted its failure under Article
13 but argued that the Directive did not require it to
apply for postponement under Article 22.1. It under-
stood this provision as merely requiring the compil-
ation of a plan in accordance with Article 23 so as to
demonstrate how compliance would be achieved. It
argued that the Article 22 procedure was discretionary,
drawing specific attention to the language of this pro-
vision, which states that ‘a Member State may post-
pone’ the relevant deadline.14 Mr Justice Mitting, in the
High Court, was persuaded and ClientEarth’s case was
dismissed.
In spite of the Secretary of State’s admission that the
UK government was in breach of Article 13, ClientEarth
were left without a remedy. They appealed, but again
the court was unconvinced about the mandatory char-
acter of Article 22. The Court of Appeal dismissed the
case and ClientEarth were again denied a remedy.15
Both the High Court and the Court of Appeal were
content to leave effective enforcement of the Directive
up to the Commission. When ClientEarth appealed to
the Supreme Court, however, the Court was persuaded
of the need to issue a declaration that the UK govern-
ment was in breach of Article 13, notwithstanding the
fact that the UK government had admitted the breach.
As to the correct application of Articles 22 and 23, it
recognized the need to seek guidance from the Court of
Justice of the European Union (CJEU) and thus made a
preliminary reference.
The Supreme Court submitted four carefully con-
structed questions for the CJEU’s consideration.16 The
first two questions relate to Article 22, asking, first,
whether Member States were obliged to seek postpone-
ment in accordance with Article 22, and second,
whether there were any circumstances in which a
Member State could be relieved of that obligation. The
third question asked whether Member States, failing to
comply with Article 13, had an obligation to prepare a
The proceedings initially related to the inadequacy of the public
consultation for the air quality plans submitted, but the claim was
modified to assert that the government had an obligation to make an
application for postponement under Article 22.1 of Directive 2008/50/
EC.
13
R (on the application of ClientEarth) v. Secretary of State for Envir-
onment, Food and Rural Affairs, [2011] EWHC 3623 (Admin).
14
Directive 2008/50/EC, n. 2 above, Article 22 (emphasis added).
15
R (on the application of ClientEarth) v. Secretary of State for
Environment, Food and Rural Affairs, [2012] EWCA Civ 897.
16
R (on the application of ClientEarth) v. Secretary of State for Envir-
onment, Food and Rural Affairs, [2013] UKSC 25, at paragraph 39.
369
EMILY BARRITT RECIEL 24 (3) 2015

plan under Article 23, and the final question concerned
what remedies the national court ought to provide in
relation to non-compliance by a Member State.
The CJEU’s response is both problematic and helpful. It
is problematic because in attempting to provide an
answer to the first two questions, it reformulated these
into one question. In so doing, it introduces a level of
ambiguity that the Supreme Court had sought to
avoid.17 Therefore, instead of providing an answer as to
whether Article 22 is mandatory, the CJEU stated what
ought to have been clear, that in order to postpone the
deadline a Member State had to make an application
under Article 22 and establish an air quality plan. It
further went on to say that there is no exception to the
requirement of Article 22.1. It thus answered the critical
questions in such a way as to allow both ClientEarth
and the Secretary of State to argue that they had won
their argument.
quality plans under Article 23.1 by 31 December 2015 at
the latest.20
Given the lapse of time, the issue in respect of Article 22
became redundant.21 Accordingly, Lord Carnwath’s
reflections on the proper meaning of Article 22 are brief
and avoid reaching a conclusive view on the issue.22 He
reviewed the response of the CJEU in respect of the first
two questions referred, criticizing it for the ambiguity it
introduces in reformulating the question, as it allowed
both parties to claim victory. He contrasts it with the
Commission’s detailed observations, which he used to
‘fill the gap’ left by the CJEU’s unhelpful reformulation
of the question.23 The Commission’s observations
agreed with the inclination of the UK courts that Article
22 was not mandatory, and rather an ‘optional deroga-
tion’ from the requirements of Article 13.24 As a matter
of interpretation it appeared that the UK government
had won; however, it was a ‘Pyrrhic victory’.25

Although it was agreed that Article 22 was discretion-

Its responses to the final two questions are more
ary, the obligation under Article 23 to prepare a plan for
helpful. In answer to the third question, it made clear
timely compliance was not. The Commission, in its
that the Member States are required to draft a plan
detailed submissions to the CJEU, was at pains to
under Article 23 and that a breach of Article 13 is not
emphasize that the obligations under Article 23.1 were
avoided by drawing up a plan in accordance with Article
as onerous as those under Article 22 (in conjunction
23.1. The only way to avoid the breach would have been
with Annex XV, section 5).26 Importantly, the Commis-
to apply for postponement under Article 22. In relation
sion explained, and Lord Carnwath appears to agree,
to the final question, the CJEU stated that where a
that plans drawn up under Article 23 would be subject
Member State has failed to comply with the require-
to judicial review. Thus, there would be necessary judi-
ments of Article 13, and it has not applied for postpone-
cial oversight of compliance with Article 23, supporting
ment under Article 22, it is for the national court to take
enforcement of the breach of Article 13.
‘any necessary measure’ to ensure that the authority
establishes the plan required by the Directive.18
Given the redundancy of the CJEU’s response to
whether Article 22 was mandatory, the Supreme
Court’s decision focuses on what, if any, orders it ought
THE SUPREME COURT’S to give in order to compel compliance. Although the
CJEU’s answer in relation to the first two questions has
JUDGMENT been less than helpful, its answer in respect of the
fourth question offers dazzling clarity. The Court deems
The judgment of the Supreme Court, implementing the
enforcement to be the responsibility of the national
CJEU’s preliminary ruling, is a paradigmatic and prag-
court. The position adopted by Mr Justice Mitting (sup-
matic approach to what has become an overly complex
ported by the Court of Appeal) to leave enforcement up
case. The legal argument in respect of the proper rela-
to the Commission is seen as ‘untenable’27 and the con-
tionship between Articles 13, 22 and 23, overshadowed
sideration of the financial implications of compliance of
the simple fact that the UK government was in breach of
limited relevance.28
its obligations under Article 13. After all, the ‘critical
breach’ was of Article 13, and not Article 22 or 23.19 In
Accordingly, Lord Carnwath made a mandatory order
order to address the ultimately wild goose chase that
to ensure that the UK government submitted air quality
had allowed the breach to continue for so long, the
plans under Article 23.1 by the end of 2015. The
Supreme Court supplemented the declaration it made
when the case was first before it with a mandatory order 20
Ibid., at paragraph 35.
requiring the Secretary of State to prepare new air 21
Ibid., at paragraph 24.
22
Ibid., at paragraph 27.
23
Ibid., at paragraph 10.
17 24
ClientEarth, n. 1 above, at paragraph 6. Ibid., at paragraph 15.
18 25
CJEU, Case C-404/13, ClientEarth v. Secretary of State for Ibid., at paragraph 6.
26
Environment, Food and Rural Affairs, ECLI:EU:C:2014:2382, at para- Ibid., at paragraph 25.
27
graph 50 (emphasis added). Ibid., at paragraph 28.
19 28
ClientEarth, n. 1 above, at paragraph 29. Ibid., at paragraph 33.
© 2015 John Wiley & Sons Ltd

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RECIEL 24 (3) 2015 STANDING UP FOR BRITISH LUNGS: EFFECTIVE JUDICIAL ENFORCEMENT
epitome of Lord Carnwath’s pragmatic approach in the
case is his sensitivity to the uncertain political situation
existing at the time of the judgment – the UK was in the
run-up to a general election and therefore susceptible to
a change of administration. His unwillingness to accept
the assurances of the then Secretary of State29 and
determination to ensure that the plans were drawn up
are reflected in his statement that ‘the new Govern-
ment, whatever its political complexion, should be left
in no doubt as to the need for immediate action to
address this issue’.30
Although the result in this case is a success from the
perspective of ClientEarth, its journey through the
courts has been a litany of failures in respect of the
effective processes of EU law. In fact, this case shows
the failure of securing the principle of effective judicial
enforcement – neither of the lower courts granted a
remedy to ClientEarth, even though there had been a
clear breach of EU law.
PROBLEMS WITH THE
PRELIMINARY REFERENCE
PROCEDURE
There are two other failures in the appellate history that
deserve further consideration – on the part of the UK
lower courts and the CJEU. The first is that there was a
failure to make a reference at an early stage. Even if the
parties requested no preliminary reference, courts are
still entitled to make a reference of their own accord.31
Given the tight time limits involved and the uncertainty
surrounding the proper meaning of Article 22, the
courts ought to have been minded to make a reference.
Second, when the preliminary reference was eventually
made, the CJEU’s reformulation of the first two
questions referred meant that the issue remained
ambiguous.32 This section reflects on these difficulties
of procedure.
Within the context of EU environmental law, there is a
marked reluctance on the part of UK courts to make
preliminary references to the CJEU.33 Heyvaert, Thorn-
ton and Drabble – who jointly identified a series of
environmental law cases that ought, according to prin-
ciples of EU law, to have been referred to the CJEU but
were not – attribute this to a number of systemic fail-
29
Ibid., at paragraph 30.
30
Ibid., at paragraph 31 (emphasis added).
31
Consolidated Versions of the Treaty on the Functioning of the
European Union, [2008] OJ C115/49 (‘TFEU’), Article 267: ‘Where
such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the
question is necessary to enable it to give judgment, request the Court
to give a ruling thereon.’
32
ClientEarth, n. 1 above, at paragraph 6.
33
See V. Heyvaert et al., n. 4 above, at 413.
© 2015 John Wiley & Sons Ltd
ures with the preliminary reference procedure, such as
the length of time it takes to receive a response to a
reference and the opaqueness of many responses.34 The
ClientEarth case exemplifies both the problem with this
reluctance and why such reluctance exists.
By the time the reference reached the CJEU and was
returned to the referring court, a serious breach of EU
law, given the public health implications, had been
allowed to continue for a period of five years. Admit-
tedly, when Mr Justice Mitting in the High Court first
heard the case, the breach had existed only a year, but
as the case was allowed to make its way up the hierarchy
of courts, the breach continued to go unchecked. This is
particularly problematic given the public health conse-
quences of the breach.35 Had there been a culture of
referring environmental cases and a greater willingness
on the part of the lower courts to use their discretion to
do so, the breach might have been addressed more
quickly.
However, there is irony in this argument. Had the ref-
erence been made at an earlier stage, sufficient time
might not have lapsed to allow the relevant court to
ignore the CJEU’s unhelpful answer with respect to
Article 22. Thus, this case brings to light a separate
problem in respect of the preliminary reference proce-
dure – the willingness of the CJEU to reformulate ques-
tions referred to it.
In this particular case, the CJEU’s reformulation of the
set questions meant that its judgment was of little use to
reaching a conclusion on whether Article 22 was man-
datory or not. Commentators have suggested a number
of reasons as to why the CJEU reformulates questions.
Garc ı́ a Antón argues that this enables the CJEU to
make decisions applicable across Member States, and
thereby create coherent principles of EU law.36 Broberg
and Fenger argue that the court does so in order to
avoid deciding on a ‘controversial or doubtful’ question
of law.37 For Hestermeyer, the willingness of the CJEU
to reformulate preliminary references is a mark of its
beneficence. By reformulating questions, the CJEU
ensures that poorly formulated references, which might
be inadmissible or which fail to address the relevant
question of EU law, can be properly considered.38 Lord
34
Ibid.
35
A total of 28,000 deaths a year are attributed to air pollution in the
UK, although this has been claimed to be a conservative estimate.
See S. Boseley, ‘Air Pollution May Cause More UK Deaths than
Previously Thought, Say Scientists’, The Guardian (2 April 2015).
36
R. García Antón, ‘Indirect Taxation and the Role of the European
Court of Justice within the Preliminary Reference Procedure’, 5:1
Perspectives on Federalism (2013), 38.
37
M. Broberg and N. Fenger, Preliminary References to the Euro-
pean Court of Justice (Oxford University Press, 2010), at 406.
38
H. Hestermeyer, ‘The Implementation of European Union Law in
Germany’, in: E. de Wet, H. Hestermeyer and R. Wolfrum (eds.), The
Implementation of International Law in Germany and South Africa
(Pretoria University Law Press, 2015), 462.
371
EMILY BARRITT RECIEL 24 (3) 2015

Carnwath suggested that it was because the CJEU
anticipated that the answer would be redundant by the
time it was returned to the Supreme Court.39
Whatever the motivation, reformulating carefully and
precisely worded questions posed by the referring court
runs the risk of losing sight of the important issue
raised. Indeed, had the point not been made redundant
by the lapses of time, Lord Carnwath stated that it was
likely that a new reference would have been made in
order to clarify the ambiguity introduced by the CJEU’s
reformulation.40 This adds to an already lengthy
process of making a preliminary reference.
This approach by the CJEU represents a shift towards ‘a
hierarchical model of justice, rather than a cooperative
one’.41 And as Heyvaert et al. argue, it is in part due to
the hierarchical nature of the court that national courts
are unwilling to refer questions, exacerbating the
problem of reluctance to refer by national courts –
unwilling to cede their judicial authority to a hierarch-
ical court.42 Thus, the twin problems of the preliminary
reference procedure represented in this case, support
the need for a continuing conversation about the need
for reform of this procedure.43
THE CHALLENGE OF LEGISLATING
FOR AIR QUALITY PROBLEMS
In addition to highlighting difficulties of the prelim-
inary reference procedure, this case exemplifies a
broader point about the difficulties associated with
regulating and legislating for a challenging, trans-
boundary environmental problem such as air quality
control.44 Of particular note is the complex relationship
between the Air Quality Directive and other regulations
aimed at reducing pollution and improving ambient air
quality. Indeed, one reason advanced by the UK gov-
ernment as to why the air quality targets for nitrogen
dioxide had been missed was that European vehicle
emissions standards for diesel vehicle emissions failed
to deliver the expected emissions reductions.45 Thus, as
one thread of the rich tapestry of air quality regulation
unravels, so follow other threads. Accordingly, the
ClientEarth case is a reminder of the difficulty of man-
aging and legislating for large-scale, transboundary
environmental problems.
CONCLUSION
In spite of the woeful antecedence of the case, the final
judgment is of huge practical importance: air pollution
poses a significant threat to public health, and the judg-
ment recognizes the need for the courts to protect the
public with regards to illegal nitrogen dioxide limits.46
Given the public health implications of the ClientEarth
case, Pedersen may be right to claim that it reintroduces
the environmental justice narrative into the jurispru-
dence of the UK courts.47 In particular, the CJEU’s
emphasis on the need to provide an effective remedy
supports this view; justice, after all, requires remedies.
This emphasis on the need for an effective remedy is
also likely to have implications for environmental cases
beyond the specific realm of air quality control, as
courts are required to provide remedies in relation to
other pressing environmental challenges, such as
climate change.
Dr Emily Barritt is a Research Associate at the Centre for
Environment, Energy and Natural Resource Govern-
ance, University of Cambridge, and a Legal Research and
Project Officer at The Dickson Poon School of Law,
King’s College London.

39
ClientEarth, n. 1 above, at paragraph 24.
40
Ibid., at paragraph 6.
41
See R. García Antón, n. 36 above, at 39.
42
See V. Heyvaert et al., n. 4 above, at 413.
43
The CJEU appears to be putting increasing pressure on national
courts to make preliminary references. See, e.g., CJEU, Case C-160/
14, Ferreira da Silva e Brito v. Portugal, [2014] OJ C175/30; and
Joined Cases C-72/14 and C-197/14, X v. Inspecteur van
Rijksbelastingdienst/T.A. van Dijk v. Staatssecretaris van Financiën,
45
[2014] OJ C142/16. For a commentary on this development, see E. ClientEarth, n. 1 above, at paragraph 21.
46
Ruiz Cairó, ‘Joined Cases C-72/14 and C-197/14 X and Case For example, according to a report published by King’s College
C-160/14 Ferreira da Silva: Is the ECJ Reversing its Position on the London in July 2015, 9,500 people die early each year in London due
Acte Clair Doctrine?’, European Law Blog (23 September 2015), to long-term exposure to air pollution. See H. Walton et al., Under-
found at: <http://europeanlawblog.eu/?p=2905>. standing the Health Impacts of Air Pollution in London (King’s College
44
For a fuller discussion of these complexities, see E. Fisher, B. London, 2015).
47
Lange and E. Scotford, Environmental Law: Texts, Cases and O. Pedersen, ‘What Happened to Environmental Justice?’, 16:2
Materials (Oxford University Press, 2013), at 603–636. Environmental Law Review (2014), 87.
© 2015 John Wiley & Sons Ltd

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