This is the second Perspective in our series on air pollution where we examine the legal and regulatory measures available to governments to address air pollution. The first Perspective looked at the urgent need to recognise and address air pollution as a non-communicable disease (NCD) risk factor. And the final perspective will examine the challenges to recognition of air pollution as a NCD risk factor.
In recent years, governments around the world have adopted a range of regulatory measures to combat air pollution. These measures have ranged from those adopted as part of country commitments under climate change frameworks to comprehensive measures targeting air pollution specifically. However, progress in air pollution reduction has been mixed, in part due to the disjointed governing framework.
There is no single global treaty outlining universally agreed upon regulatory measures to combat air pollution or imposing binding obligations on countries specifically in relation to air pollution. The governing framework is a fragmented array of regional agreements such as the United Nations Economic Commission for Europe Convention on Long-Range Transboundary Air Pollution (CLRTAP) and the Association of Southeast Asian Nations (ASEAN) Agreement on Transboundary Haze Pollution; regional policies and directives; national laws and regulations; and multilateral agreements governing climate change more broadly. In recent years there have been calls for an air quality convention.
There is considerable divergence in the regulatory measures adopted by countries to mitigate the sources and impact of air pollution. For example, on a global level, the United Nations Framework Convention on Climate Change (UNFCCC) entered into force in 1994. With 197 parties, the UNFCCC aims to achieve stabilisation of greenhouse gas concentrations to prevent dangerous human interference with the climate system. The Paris Agreement was adopted in 2015 within the context of the UNFCCC framework and aims to strengthen the global response to the threat of climate change. Nationally Determined Contributions (NDCs) are central to the Paris Agreement, with each country determining, planning and reporting every five years on NDCs that it undertakes to mitigate global warming. Around the world, regulatory measures to address country NDCs have varied considerably (see Box 1 for examples).
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.
As part of its NDCs, India has cut subsidies and increased taxes on fossil fuels (petrol and diesel).
Papua New Guinea’s NDCs includes the target of 100 per cent renewable energy in the electricity generation sector by 2030.
Regulatory measures for air pollution
Broadly speaking, regulatory measures targeting air pollution comprise those relating to air quality standards and emission reduction for key pollutants and sources of pollution. Air pollution reduction may also be an important co-benefit of regulatory measures targeting broader sustainable development priorities, such as renewable energy. The United Nations Environment Program (UN Environment) outlines a number of interventions to help tackle or prevent air pollution including:
- Development of air quality policies and strategies at subnational, national and regional levels to comply with WHO air quality guidelines;
- Reduction of emissions from major industrial and manufacturing sources;
- Adoption and enforcement of advanced vehicle emissions;
- Development and adoption of electric and hybrid vehicles;
- Increased investment in renewable energy and energy efficiency;
- Improved access to clean cooking fuels and green technologies for residential heating;
- Protection and restoration of ecosystems to avoid erosion, fires and dust storms; and
- Reduction of emissions of ammonium and methane from agriculture.
See Box 2 for examples of regulatory measures adopted by countries to address air pollution.
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.
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. 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.
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.
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.
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.
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.
Thailand introduced vehicle emission standards and low sulphur fuel standards in 2011, reducing transport-related air pollution.
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.
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.
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.
In addition to targeting specific instances of air pollution, a number of countries have adopted comprehensive air pollution measures (see Box 3 for an example).
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. 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.
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.
Despite a number of progressive initiatives, the fragmented and ad-hoc nature of air pollution regulation has impeded progress globally and accountability mechanisms are limited due to the absence of state responsibility and liability under multilateral and regional agreements. Yamineva and Romppanen cite the example of Article 8(f) of the CLRTAP which notes that the Convention ‘does not contain a rule on state liability as to damage’, while neither the ASEAN Agreement on Transboundary Haze Pollution, nor the Paris Agreement contain provisions on state responsibility and/or compensation for loss or damage due to air pollution.
Legal challenges to air pollution measures
Accountability has been invoked by virtue of constitutional protections, regional and domestic directives and legislation enabling action by civil society to combat air pollution (see Box 4 for examples).
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.
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.
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.
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.
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. 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.
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. 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.
While many countries have made commendable efforts to address air pollution through regulatory measures relating to air quality standards and emission reductions for key pollutants and sources of pollution, progress has been impeded by the fragmented and ad-hoc nature of governance frameworks and the absence of state accountability mechanisms. This has resulted in reliance on civil society to undertake legal challenges to hold governments accountable by virtue of constitutional protections of rights to life and healthy environments and regional and domestic legislative provisions.
Perspective three in our air pollution series will examine the major systemic challenges that must be addressed to ensure that air pollution is firmly recognised and addressed as a Non-Communicable Disease (NCD) risk factor, particularly in light of recognition in the Outcome Document of the Third United Nations High-Level Meeting of the General Assembly on the Prevention and Control of NCDs of air pollution as the fifth NCD risk factor.
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 World Health Organization, ‘Clean Air For Health: Geneva Action Agenda – First WHO Global Conference on Air Pollution and Health’ (Summary Report, 1 November 2018).
 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 2; United Nations Climate Change, Status of Ratification of the Convention (2018).
 Paris Agreement, opened for signature 13 December 2015, C.N.92.2016 (entered into force 4 November 2016) art 2(1).
 Chloe Farand, France will 'ban all petrol and diesel vehicles by 2040' (6 July 2017) Independent.
 Government of India, India’s Intended Nationally Determined Contribution: Working Towards Climate Justice (2015), 7.
 Government of Papua New Guinea, Intended Nationally Determined Contribution (INDC) Under the United Nations Framework Convention on Climate Change (2015), 1.
 United Nations Environment Programme, ‘Towards a Pollution-Free Planet’ (Background Report No 978-92-807-3669-4, UN Environment, September 2017) 52.
 United Nations Environment Programme, ‘Actions on Air Quality: Policies & Programmes for Improving Air Quality Around the World’ (Report, UN Environment, 2016).
 United States Environmental Protection Agency, Progress Cleaning the Air and Improving People's Health (14 August 2018).
 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe  OJ L 152/1.
 Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC  OL J 344/1; European Commission, ‘A Europe that protects: Clean Air for all’ (Communication No COM/2018/330, European Commission, 17 May 2018) 2.
 United Nations Environment Programme, above n 7.
 Environmental Quality (Clean Air) Regulations 2014 (Malaysia).
 United Nations Environment Programme, above 8.
 United Nations Environment Programme, above n 7, 68.
 United Nations Environment Programme, above n 8; Camilla Knudsen and Alister Doyle, ‘Norway’s electric cars zip to new record: almost a third of all sales’, Reuters (online), 3 January 2019.
 Cai Jingjing and Joyce Tang, ‘Will China’s New Air Law Solve its Pollution Crisis?’ on NewSecurityBeat: the blog of the Environmental Change and Security Program (25 November 2015).
 Law of the People’s Republic of China on the Prevention and Control of Atmospheric Pollution 2015 (China) Art 2.
 Philip J Landrigan et al, ‘The Lancet Commission on Pollution and Health’ (2018) 391 The Lancet 462, 493; Alvin Lin, ‘How China’s 13th Five Year Plan Climate and Energy Targets Accelerate its Transition to Clean Energy’ on NDRC (13 March 2016).
 Yulia Yamineva and Seita Romppanen, ‘Is Law Failing to Address Air Pollution? Reflections on International and EU Developments’ (2017) 26 Review of European, Comparative and International Environmental Law 189, 192.
 United Nations Environment Programme, above n 7, 36.
 Farooque v Government of Bangladesh, WP 891 of 1994 (2001) Supreme Court of Bangladesh.
 Arjun Gopal and Others v Union of India and Others, Supreme Court of India, No. 728 of 2015, 23 October 2018.
 European Commission, ‘Air Quality: Commission Takes Action to Protect Citizens from Air Pollution’ (Press Release, 17 May 2018).
 R (on the application of ClientEarth) No. 3 v Secretary of States for Environment, Food and Rural Affairs; Secretary of State for Transport; Welsh Ministers  EWHC 315, 104, 105, 108; ClientEarth, ‘Legal History Made in ClientEarth Case as Judge makes ‘Exceptional’ Ruling’ (News, 21 February 2018).
 ClientEarth, ‘New Pollution Plan Reveals Toxic Air in England Worse than Feared’ (News, 5 October 2018).
 Claire Marshall, ‘Illegal Levels of Air Pollution Linked to Child’s Death’ (3 July 2018) BBC.
 United Kingdom Attorney General, ‘Family of Ella Kissi-Debrah can Apply for Fresh Inquest’ (Press Release, 11 January 2019); Claire Marshall, ‘Ella Kissi-Debrah ‘Pollution Death’ Backing for New Inquest’ BBC News (online) 11 January 2019.