Air quality legislation modernisation needed, but Government’s preferred option a “step too far”, says expert

Eluned Watson of Pinsent Masons, the law firm behind Out-Law.com, was commenting as the consultation closed on the Government’s review of the LAQM, part of its ongoing ‘Red Tape Challenge’ review of the compliance burden of various regulatory regimes. The Department for the Environment, Food and Rural Affairs (Defra) will publish its final proposals for the future of the scheme shortly; however, analysis of publicly-available consultation responses by environmental publication The ENDS Report (registration required) has found “almost unanimous condemnation” for repeal or reform of the regime.

“The review in itself is a positive step and delivers a commitment under the Government’s Red Tape Challenge to ensure that air quality measures focus both nationally and locally on what is necessary to deliver EU air quality targets,” Watson said.

“The being said, the Government’s preferred ‘Option 3’ which is to repeal the LAQM regime along with England’s 520 Air Quality Management Areas (AQMAs) in their entirety does seem to be going a step too far and is contradictory to the position being taken by the Scottish Government," she said. "As proposed, local authorities would no longer be required to carry out detailed assessments of local air quality or to make/amend AQMAs, but instead would focus on action planning and reporting of the actual measures taken to improve air quality. Further, the consultation provides that local authorities may take action to address  ‘hot spots’ where there is local concern, but it does not appear that this will be a statutory duty."

The LAQM regime requires all local authorities in England, Wales and Scotland to regularly review and assess air quality in their areas against objectives for several pollutants of particular concern for human health. If any objective will not be achieved by the required date, the relevant local authority must declare an AQMA and produce an action plan outlining how it intends to address the issue.

The current regime was established by the 1995 Environment Act and associated regulations, and its operation in England has not  been reviewed since it began in 1997. In July, Defra set out four options for reform of the LAQM, applying to England only as air quality is a devolved matter. These changes to the current system were limited to; reduced reporting requirements; removing the duty to monitor local air quality or make and amend AQMAs; and scrapping all local air quality management duties entirely.

Responses to the consultation published by professional bodies including the Institute of Air Quality Management (IAQM) and Chartered Institute of Environmental Health (CIEA); and researchers at the Kings College London Environmental Researchers Group (KCL ERG) and Air Quality Management Resource Centre at the University of the West of England (AQMRC, UWE), were opposed to the Government’s preferred option. Option 3. Other  respondents supported a modified version of the second proposed option, which would involve a reduction in some of the reporting requirements, as part of a “reinvigorated” LAQM regime with a stronger focus on the protection of public health.

“Salient among the reasons why past policy has not been implemented more effectively is the need for different authorities and agencies to work cooperatively together,” said the CIEA in its consultation response. “To the extent to which that depends on organisational capacity, it relies on knowledgeable and experienced people and Defra’s aims will come to nothing unless cuts to local capacity are reversed and authorities at all levels are persuaded to give local air quality the attention it needs.”

“Government cannot demand more in terms of air quality management on one hand yet undermine the ability to deliver it on the other and a more coherent approach to the role it sees for local government is required,” it said.

Many of the bodies that have published their responses instead back a strengthened LAQM regime, but replacing current complex reporting requirements with a single annual air quality report from each local authority. In some cases, respondents proposed this could be shorter and more flexible in areas with good air quality. AQMAs should be more flexible, the respondents said; while stronger guidance should be provided at a national level on what are the most effective measures local authorities can take.

“There are real concerns that cutting back on local air quality monitoring will result in less scrutiny of ‘local air pollution hotspots’, and national monitoring often does not pick up such hotspots,” environmental law expert Eluned Watson said.”Bearing in mind that the UK could still face legal proceedings and substantial fines from the European Commission as a result of its failure to meet air pollution limits, the proposals have received little support with many of the view that there should be an increased focus on local air quality monitoring rather than a weakening, or repeal, of the LAQM regime.”

Alongside its proposals for reform of the LAQM regime, Defra is also considering a review of the Clean Air Act (CAA). It issued a call for evidence on the need for a review earlier this month and  is seeking views from businesses that are currently affected by the law; as well as developers, planners and engineers; by 29 October.

“The CAA is now almost 60 years old and it is recognised that a modernised CAA could help local authorities meet current air quality targets whilst reducing burdens for businesses,” Watson said. “The CAA focuses on the control of smoke and the continued control of small-scale combustion will be important in order for the UK to meet its PM2.5 air quality target.”