Thinking outside the box: Policies and regulatory measures to address air pollution

Box 1: Examples of regulatory measures addressing NDCs

In 2017, the French Environment Minister announced a plan to ban petrol and diesel vehicles by 2040 and cessation of coal for electricity production by 2022 pursuant to France’s NDCs under the Paris Agreement.[4]

As part of its NDCs, India has cut subsidies and increased taxes on fossil fuels (petrol and diesel).[5]

Papua New Guinea’s NDCs includes the target of 100 per cent renewable energy in the electricity generation sector by 2030.[6]

Box 2: Examples of regulatory measures addressing air pollution

Air quality policies

109 countries have established National Ambient Air Quality Standards, while 73 countries have a specific air quality policy, Act or Rule in place.[8]

The United States Clean Air Act 1970 requires the environmental protection agency to establish national ambient air quality standards to regulate certain common and widespread pollutants based on the latest science.[9] Since the introduction of the legislation the aggregate national emissions of the six common pollutants – particles, ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide – has dropped an average of 73 per cent from 1970 to 2017.[10]

In the European Union (EU), the Ambient Air Quality Directives 2004/107/EC and 2008/50/EC specify limit values for certain air pollutants to be attained by all Member States. If the set limit values are exceeded, Member States are to adopt Air Quality Plans detailing measures to keep the exceedance period to the shortest period possible.[11]

Emission reduction targets for key pollutants

Reduction commitments established by the 1999 Gothenburg Protocol have been transposed into EU law by the Directive 2016/2284/EU which sets national reduction commitments for five key pollutants – sulphur dioxide, nitrogen oxides, volatile organic compounds, ammonia and particulate matter. Member States are to develop National Air Pollution Control Programmes by 2019 to comply with emission reduction commitments.[12]

Emission reduction measures for key sources of pollution

To target emissions standards for key sources of pollution, governments have focused on a number of measures including cleaner fuels for cooking; heating and lighting in the home; reducing vehicle emissions; industrial energy efficiency; reducing emissions associated with combustion of coal, oil, gas bioenergy and waste; and waste burning.[13]  

To tackle industrial emissions, the Malaysian Environmental Quality (Clean Air) Regulations 2014 introduced requirements for industrial projects to use the best available techniques economically achievable to prevent pollution and, where that is not practicable, to generally reduce emissions in the air from the industrial activities and their impact on the environment as a whole in order to minimise emissions from nine major industries.[14]  

Thailand introduced vehicle emission standards and low sulphur fuel standards in 2011, reducing transport-related air pollution.[15]

In order to reduce emissions from power and heat-related sources, tax benefits and subsidies have been utilised in Costa Rica for clean fuels in cooking to reduce indoor air pollution.[16]

The Government of Chile adopted three taxes in 2014, including a carbon dioxide tax on large facilities which cover approximately 40 per cent of the country’s carbon emissions.[17]

In Norway, in line with the Norwegian Parliament’s goal that all new cars sold by 2025 will be zero emission, battery electric cars are exempt from value-added tax, traffic insurance tax and one-off registration tax. These exemptions have resulted in more than a quarter of new vehicle sales comprising electric vehicles.[18]

Box 3: Example of a comprehensive measure to address air pollution

The connection between environmental protection and public health was expressly referenced for the first time in China in 2016.[19] The Law of the People’s Republic of China on Prevention and Control of Atmospheric Pollution which entered into force in January 2016 refers to taking comprehensive measures against the pollution caused by the burning of coal, industrial production, motor vehicles and vessels, dust as well as agricultural activities, to prevent and control atmospheric pollution and calls for joint efforts to be made across regions and coordinated control in relation to air pollutants and greenhouse gases.[20]

China has also implemented a network of air quality monitoring stations in over 400 cities and set targets to increase non-fossil energy use from 12 per cent in 2015 to at least 20 per cent by 2030.[21]

Box 4: Legal challenges to air pollution measures

Constitutionally protected rights

According to the UN Environment, as of 2015 over 100 countries guarantee their citizens a right to healthy environment – the majority of which are constitutionally enshrined.[23]

In 2001, in the case of Farooque v Government of Bangladesh the Supreme Court of Bangladesh noted that by virtue of Article 32 of the Constitution of the People’s Republic of Bangladesh which guaranteed a right to life, this also included the right to a qualitative life free from environmental hazards. Despite environment protection legal provisions in Bangladesh, the Court found that the government had failed to fulfil its duties as evidenced by the lack of improvement in curbing and reducing the hazardous industrial pollution resulting in continuing pollution. The Court ordered the government to ensure adequate and sufficient measures to control pollution were undertaken.[24]

In 2018, in the case of Arjun Gopal and Others v Union of India and Others the Supreme Court of India considered a ban on firecrackers for Delhi and National Capital Region during the Diwali Festival to address air pollution concerns. The Supreme Court judgment highlighted that the right to health enshrined in the Indian Constitution is a fundamental right assuming greater importance to other constitutionally enshrined rights such as the right to carry on business.  However, the Court decided against imposing a ban on the sale and use of firecrackers, instead deciding that imposing conditions on the use and sale of firecrackers balanced the competing interests.[25]

Regional directives

In May 2018, the European Commission referred the UK, France and Germany to the Court of Justice of the European Union for failure to respect limit values for nitrogen dioxide (NO2), largely due to road traffic and industry. The European Commission also referred Hungary, Italy and Romania due to excessive levels of Particulate Matter (PM10), which is mainly present in emissions from industry, domestic heating, traffic, and agriculture.[26]

Legislative standards

In February 2018, on application by ClientEarth, the England and Wales High Court found that the UK’s 2017 Air Quality Plan was unlawful in that it did not contain measures sufficient to ensure compliance with the EU legislation on ambient air quality (Directive 2008/50/EC) and English Regulations, the third unsuccessful attempt by the UK Government to comply with the directive and regulation. The Court was critical of the three failed attempts of the Government to devise an Air Quality Plan in compliance with the Directive and Regulations while ‘in the meanwhile, UK citizens have been exposed to significant health risks’. The Court required the production of a Supplement to the 2017 Air Quality Plan containing measures sufficient to rectify the deficiencies identified by the Court. ClientEarth was also granted ‘continuing liberty to apply’ meaning that they can immediately bring the government back to court without bringing fresh proceedings.[27] On 5 October 2018, the UK government released the Supplement to the 2017 Air Quality Plan as ordered by the High Court. A new government air pollution plan revealed a greater burden of air pollution than expected.[28]

The death of a nine-year old from asthma in London has been the first directly linked by air pollution experts to a spike in air pollution levels around her home, that exceed the limit values set out in EU Directive 2008/50/EC. There are allegations that the governments’ failure to reduce air pollution may constitute a violation of right to life provisions under Article 2 of the European Convention on Human Rights.[29] In January 2019, following a 100-000 signature petition for a new inquest into the nine-year old’s death, the UK Attorney-General announced the family of the nine-year old can apply to the High Court for a new inquest looking at whether unlawfully high levels of air pollution were partially to blame for the child’s death.[30]