By Sofie Vereycken - On 10 October 2018, in vzw Greenpeace Belgium v Flemish Region, the President of the Dutch-Speaking Court of First Instance of Brussels orders the Flemish Government to draft a comprehensive air quality plan for the entire region, subject to a penalty payment of 1.000 EUR per day of delay. Insufficient data communication as well as frequent and permanent annual limit value exceedances for NO2 violate the Air Quality Directive 2008/50/EC.
The harmfulness and risks posed by air pollution, both on the human health and the environment, have become incontrovertible. Annually, between 5.5 and 7 million people die prematurely from air pollution exposure. Billions more are harmed, with research showing that 91% of the world's population live in areas with air pollution above WHO limits. Air pollution takes a toll on the health of the most vulnerable populations, whereby, for example, the risk for asthma in children increases with 15% every time exposure to nitrogen dioxide (NO2) increases by 10 µg/m³ per annum. Although the need to combat air pollution can clearly not be understated, Dr Tedros Adhanom Ghebreyesus, the WHO’s director general, stated last week that “despite this epidemic of needless, preventable deaths and disability, a smog of complacency pervades the plant”. Considering this urgent need to respond to this challenge, the WHO Global Conference on Air Pollution and Health, the first-ever global event to focus on both air pollution and health, is currently taking place in Geneva.
Within the EU, Directive 2008/50 on ambient air quality and cleaner air for Europe (“Air Quality Directive”) aims to improve the air quality status by combatting emissions of pollutants at the source and identifying and implementing the most effective emissions reduction measures at all relevant levels. The Air Quality Directive is geared towards a unified approach to the assessment of ambient air quality by employing common assessment criteria, combining obligatory fixed measurements with other possible techniques (such as modelling), supplementing general reductions of hazardous pollutant concentrations with limit values and requiring Member States to communicate their monitoring results to the European Commission.
As for Member State Belgium, the three Regions of this federal State (Flemish Region, Walloon Region and Brussels Capital Region) hold the majority of competences related to the environment, including the protection of the air against pollution and thus the implementation of Directive 2008/50/EC. Alleging “an overall lack of decisiveness to improve ambient air quality and inadequate measurements on both sides of the language boundary” and, in particular, violations of the NO2 air quality standards under Air Quality Directive, Greenpeace took the Flemish Region (equating to roughly the northern half of Belgium) to court. A parallel procedure is still pending for the southern, French-speaking Walloon Region. On 10 October 2018, the president of the Dutch-speaking Court of First Instance of Brussels issued its order in the case of Greenpeace Belgium v Flemish Region, partially accepting Greenpeace’s claims.
The first point of contention concerned the way in which air quality is measured and to what extent this information must be communicated to the European Commission. According to the applicant, the Flemish Region violated its obligations under the Air Quality Directive due to its failure to communicate the information obtained through modelling techniques and detailed studies to the European Commission. Particularly cumbersome was the fact that these additional measurements, carried out by the Flanders Environment Agency and the Department for Environment of the Flemish Region, showed far greater exceedances of NO2 in the region compared to the fixed, automatic measurements on which it did report. The latter only indicated one zone exceeding the limit value of 40 µg/m³, namely Antwerp. The respondent, however, maintained that in providing the EC with the data collected by the automatic monitoring stations, the minimum requirements of the Air Quality Directive were met. In his order, the President rejected the government’s claim. While the directive indeed holds that fixed measurements shall be used to assess the ambient air quality as a minimum requirement, those techniques may be supplemented by modelling techniques and/or indicative measurements to provide adequate information on the spatial distribution of the ambient air quality. Although not an absolute requirement, it is self-evident that when data is collected through other (trustworthy and in accordance with the conditions laid down in the Directive) techniques, that information must be taken into consideration when drawing up policy, implementing the Directive 2008/50/EC and during the actual assessment of the air quality. A finding to the contrary would run counter to the Directive’s objective as well as undermine the basic assumption that a fixed measurement is the optimal, most stringent technique for assessing the ambient air quality. Therefore, if the facultative methods indicate that the limit values were not respected, this amounts to a violation of the Air Quality Directive. Similarly, a violation is established when a Member State has applied indicative measurements and modelling techniques but has not passed this information onto the European Commission. Given the lack of reporting to the European Commission of any data obtained outside of the fixed monitoring stations, the Flemish Region was ordered to provide all information to the European Commission within a time frame of 3 months.
The provision of adequate information on the spatial distribution of the ambient air quality and the actual air quality assessment go hand in hand, bringing us to the second problem. When a Member State does not attain the limit values of the Air Quality Directive, an air quality plan must set out measures to reduce the exceedances within the shortest possible period for the zone where those values are not met. When assessing such an air quality plan, the Court must also determine whether the measures therein can indeed lead or have led to keeping the exceedance period as short as possible. Contrary to the claims of Greenpeace, the Flemish Region held that it had complied with the Directive, given that it devised an air quality plan for the Antwerp agglomeration, i.e. the only zone where the automatic monitoring stations showed a few exceedances of the annual NO2 concentrations beyond the annual limit value of 40 µg/m³. From the information obtained by the air quality modelling techniques, however, frequent and permanent annual limit value exceedances for NO2 spread over various locations in all six zones and agglomerations in which the Flemish Region was delimited. In other words, it is clear the obligation imposed by the Air Quality Directive regarding the annual limit value of NO2 was violated in the entire Flemish Region. The President of Dutch-speaking Court of First Instance of Brussels went on to find that “the measures taken by the Flemish Region and the policy pursued are not sufficient to avoid these exceedances, nor are they of a nature to be able to reduce air pollution below the annual limit value within the shortest possible period”. Consequently, the Flemish Region was ordered to reassess the existing air quality plan for the Antwerp agglomeration, to expand its scope to the entire territory of the Flemish Region and to formulate measures taking into account all the data obtained, not solely those of the fixed measurements. The respondent must do so within a period of one year, subject to a penalty payment of 1.000 EUR per day of delay, with a maximum of 5.000.000 EUR.
Given that the annual limit value for NO2 entails an obligation of result, the mere exceedance thereof equals a violation of the Air Quality Directive and entails a clear obligation for the relevant authority to create the aforementioned air quality plan. The Member State does still retain its margin of discretion with respect to the precise implementation and the measures to be adopted. As long as the exceedances are reduced to values below the annual limit within the shortest possible period, the Member State’s government can weigh the interests between the objective of reducing the risk of pollution and the public and private interests, technical difficulties and budgetary constraints. Moreover, the judiciary cannot take over policymaking of the legislative and executive powers. Rather, the Court must exercise restraint when imposing policy measures onto the government. The regulatory freedom of the authorities must be respected, so that no judge can oblige the government to take this or that particular measure if said measure is not the sole way in which the government can restore the legality of the situation. Therefore, the gamut of the remaining claims put forth by Greenpeace were to no avail. They included requests to ban diesel cars in the Flemish Region by 2035 (as NO2 originates mainly from diesel engines), to gradually introduce ultra-low emission zones (ULEZ) in all Flanders, to increase subsidies for public transport, to create a new “smog alarm” that includes not only fine particulate matter but also NO2 and requires additional measures when activated, to further introduce kilometer charges and to prohibit any other measure that statistically would cause NO2 exceedances.
It can be concluded that Greenpeace gained a win (at least partially), but the order clearly has its limits. Although the President of the Court found the Flemish Region to be in breach of the Air Quality Directive and ordered it to draw up a comprehensive air quality plan for the entire territory, the separation of powers prevents any remarks as to the actual measures to be encompassed therein. The cabinet of the Flemish Ministry for Environment, Nature and Agriculture has since stated that the draft air quality plan was agreed upon by the Council of Ministers and no problems for timely compliance with the order are expected. Greenpeace, however, is sceptical as to its content, finding it doubtful that the measures listed in the draft will suffice to meet the relevant international and EU goals on ambient air quality and pollution reduction.
PhD researcher at the Center for Environmental and Energy Law of the Faculty of Law and Criminology, Ghent University, Belgium and the United Nations University Institute on Comparative Regional Integration Studies, Belgium