The position of Local Authorities — Human Rights Act challenges on environmental grounds

Remit and scope

To understand current attitudes of Local Authorities to environmental pollution and to discuss the scope and range of possible challenges made by individuals or groups against Local Authorities under the Human Rights Act legislation.

Broader issues, governing the types of air pollution, EU limits, current and planned legislation and causation are discussed in the paper “Air Pollution and Diesel Fumes — A Cause For Concern“.

Human Rights Act and Judicial review

Human rights are enshrined in the European Convention on Human Rights (“ECHR”) and set out in a number of Articles.

Bringing an action and remedies

An action can only be brought:

• Against a Public Authority; and
• by a ‘victim’ — defined as someone who is personally affected or likely to be affected. This can include those who are ‘indirect’ victims to include the parents of children — evidenced by R v Environment Agency (2021)

The two remedies open to the ‘victim’, are either financial compensation (though a loss must be proven) or an Order specifying action by a public body. It is, however, not necessary for the applicant to establish ‘causation’ on the standard ‘but for’ basis which applies to the majority of civil personal injury litigation (save mesothelioma or dermatitis where a material increase in risk/material contribution tests are applied). The test applicable is whether there was a real or substantial chance of a better outcome that has been lost because of the breach.

Judicial Review and the Judicial Review and Courts Bill (2021)

In simple terms, Judicial Review involves a challenge to the way in which a decision has been made by a Public Body.

It is not an examination of the conclusions reached, or whether those conclusions were right or wrong. Judicial review is most likely to occur in the context of environmental pollution either if planning decisions are felt to be incompatible with environmental aims or, for example, if the government passes new legislation without proper consultation with relevant bodies. Judicial review applications in non-planning cases must be taken within three months of the decision.

The Judicial Review and Courts Bill [2021] has now received its first reading in the House of Commons. Originally it was feared that this would radically restrict the opportunities for judicial review, though most commentators believe that the reform will be ‘more subtle’ and will still leave the courts with a wide ambit of discretion.

Will poor air quality breach Human Rights Act legislation?

We preface this section by underlining the recent publication (21st September 2021) of new revised World Health Organisation (“WHO”) guidelines covering a range of air pollutants to include PM (2.5) and nitrogen dioxide. In broad terms the WHO guidelines now require a much stricter approach — for example, the ‘end annual target’ for PM (2.5) has reduced from 10 ug/m3 to 5 ug/m3. This will have implications for those setting policies globally, but this will include Local Authorities. It will also inform the limits which are to be set by October 2022 by the government as part of its commitment in the Environment Bill.

Recent litigation suggests that the courts are willing to interpret both Articles 2 and 8 ECHR in a wide sense, in requiring government, public bodies and indeed private companies to act, whether to reduce levels of particulate matter or levels of hydrogen sulphide. We can see this in three cases which are summarised below, alongside the publication by the Coroner of a Prevention of Future Death notice following the second inquest into the death of Ella Kissi-Debrah.

Article 2 “Everyone’s right to life shall be protected by law”.

Article 8: “The right to respect for private and family life, home and correspondence”.

Both articles impose positive and negative obligations on States/Public Bodies.

In an action originally heard in 2015 and brought by the Urgenda foundation — an environmental pressure group alongside 900 Dutch citizens, the Supreme Court of the Netherlands finally ruled in Urgenda v Netherlands [2019] that both Articles 2 and 8 had been breached by the Netherlands government in failing to adopt a more stringent approach to reducing emissions. The Supreme Court ordered the Dutch government to reduce greenhouse gas emissions by 25% by 2020. This decision is also supported by scholarly articles, notably “The Human Right to Breathe Clean Air” — Dr Boyd, Professor in Law, Policy and Sustainability (Annals of Global Health, 2019).

In Friends of the Earth v Royal Dutch Shell (May 2021) the Hague district court ordered Royal Dutch Shell to reduce its carbon dioxide emissions by 45% by 2030 as compared to 2019 levels. Here the applicants relied upon Dutch tort law to construe Shell’s duty of care in line with Articles 2 and 8 ECHR. This finding is significant in that Royal Dutch Shell is a private company not bound by the Paris Climate Agreement, but the court held that Shell had to act responsibly in line with the Paris Agreement.

Even more recently in R v The Environment Agency [EWHC 2021] the Administrative Court considered a judicial review application on behalf of a five-year-old vulnerable boy affected by hydrogen sulphide emissions from a landfill site. The court held that exposure was likely to cause serious illness which reduced life expectancy, and this triggered both Articles 2 and 8, as the pollutants had a direct effect on the mother’s right to family life. The Environment Agency was ordered to implement the advice and recommendations of Public Health England — to take measures to ensure offsite odours will be reduced in line with WHO Guidelines.

Following the second inquest into the death of Ella Kissi-Debrah, in the publication of the Prevention of Future Deaths notice the coroner called for levels of air pollutants to be reduced in line with WHO Guidelines. In its response, published on 17 June, the government confirmed it would bring forward legislation in line with the WHO Guidelines and announced further funding to be given to Local Authorities to promote awareness.

We perceive the main risk for Local Authorities lies in circumstances where through evidence of its own and Defra’s air monitoring readings demonstrate a consistent pattern of levels whether Nitrogen Dioxide or PM 2.5 above EU limits and WHO Guidelines. We note that over 8,000 schools are currently situated in areas where air pollution levels exceed WHO guidelines.

The current approach of Local Authorities

We note firstly that reports suggest over 90% of Local Authorities have already declared ‘climate change emergencies’, but few have taken positive steps to address the root causes, essentially leaving themselves open to potential claims.

A snapshot of analysis of the public domain websites of three Councils (Sheffield, Birmingham and Nottingham) reveals common themes notably:

• An acceptance that pollution has and continues to breach legal limits, particularly for Nitrogen Dioxide in some areas within the authorities’ boundaries.
• Air pollution is a contributory, if not a direct cause, of premature deaths within their regions.
• That further action generally set out in the form of “Air quality plans” are needed to remedy the situation.
• That there is no safe level of Nitrogen Dioxide or PM 2.5 (the approach taken by the WHO).

The implications for Human Rights Act challenges

The open and transparent recognition by Councils of “excessive” levels of pollution combined with daily test readings at a number of locations within regional boundaries, means that in most cases, targeted legal challenges would require only a low evidential bar to establish a prima-facie right to bring an action in the first place. We also suggest that the revised WHO Guidelines (September 2021) will make it easier for that evidential bar to be achieved.

The two routes of legal redress

The first is whether an individual or a group of individuals may seek financial redress on the basis that they could establish a link (through medical evidence) that such exposure has caused or exacerbated respiratory or cardiovascular conditions.

Whilst the risk of such challenges cannot be ignored, Local Authorities would be entitled to draw into any litigation central government, arguing that the absence of guidance, instructions or monetary support was a causative or contributory factor.

In London, this would also include the body, Transport for London.

In civil personal injury litigation, the multifactorial nature of causation can make it difficult for the claimant to show a clear and unique link to fault or inaction on the part of Local Authorities, rendering any litigation potentially messy, costly and time-consuming. For actions brought, invoking breaches of Human Rights legislation, causation tests are more relaxed, with the HRA interpreted very flexibly. In terms of financial redress, the broad requirement is to put the claimant in the position it would have been but for the loss.

The second route, which in our view is more likely to eventuate, is for applicants to request an Order requiring Local Authorities to reduce pollution levels in the worst affected geographical areas, by a specified period.

Such action is more likely to be brought by activists or environmental pressure groups and has a track record of success given the decisions in Urgenda v The Netherlands and R v The Environment Group.

However, the likelihood of action is tempered by:

• The approach of Local Authorities in accepting that air pollution causes/contributes to premature deaths and adverse health outcomes.
• The stated aims and commitment of local authorities — if not to achieve “net zero” but to come close to it.
• Recognition that Local Authority funding is ‘pinched’ and that to achieve the authorities’ ‘environmental aims’ will require funding and guidance from central government.
• That broader policymaking should be made/directed by central government.
• The contribution of the pandemic in reducing vehicular traffic and temporarily reducing pollution levels alongside more pressing areas of concern.

Until the progress of individual air quality plans can be measured and evaluated, we suggest that Local Authorities are unlikely, at the present moment, to be the primary focus of either individual or group actions under Human Rights Act legislation. We suspect that many will simply wait and see both the substance behind the short and long-term commitments the government is required to announce by the end of 2022 in The Environment Act before legal challenges are commenced.

We do however believe that in future years, and absent real, meaningful and positive changes to improve air pollution, Local Authorities will face public law challenges to its decision making, claims for environmental damage alongside claims for personal injury arising from exposure to substances deemed hazardous to health.