“Introduction On26 July 2017 the Department for Environment, Food and Rural Affairs ("DEFRA") published the "UK plan for tackling roadside nitrogen dioxide concentrations" and associated documents (hereafter "the 2017 Plan"). This was the third attempt by the UK Government to provide an Air Quality Plan ("AQP") that met its obligations in law. The first AQP, produced in 2011, was quashed by order of the Supreme Court in 2015. The Government was made the subject of a mandatory order requiring the Secretary of State to prepare new air quality plans in accordance with a defined timetable (see R (on the Application of ClientEarth) v The Secretary of State for the Environment, Food and Rural Affairs[2015] UKSC 28 , 4 All ER 724). The second AQP, produced in purported compliance with the order of the Supreme Court, was published on17 December 2015 . In a judgment dated2 November 2016 ([2016] EWHC 2740 (Admin) , ("the November 2016 judgment"), I held that the 2015 plan was also deficient. I made a direction that DEFRA must publish a new AQP, which complied with the relevant EU Directive and domestic Regulations, by31 July 2017 . It was in purported compliance with that order that DEFRA published the 2017 Plan. The Claimant in these proceedings is "ClientEarth", a registered charity, whose objects include promoting and encouraging the "enhancement, restoration, conservation and protection of the environment, including the protection of human health, for the public benefit". By these proceedings, the Claimant challenges the 2017 Plan on the ground that it too failed to meet DEFRA's legal obligation. ClientEarth was also the claimant in the two previous judicial review cases. The Defendants are the Secretaries of State for Food, Environment and Rural Affair, and for Transport, and the Welsh Ministers. The Secretary of State for Food, Environment and Rural Affair has taken the lead for the Defendants in this case (and I refer to him hereafter as "the Secretary of State"). Proper and timely compliance with the law in this field matters. It matters, first, because the Government is as much subject of the law as any citizen or any other body in the UK. Accordingly, it is obliged to comply with the Directive and the Regulations and with the orders of the court. Second, it matters because, as is common ground between the parties to this litigation, a failure to comply with these legal requirements exposes the citizens of the UK to a real and persistent risk of significant harm. The 2017 Plan says that "poor air quality is the largest environmental risk to public health in the UK. It is known to have more severe effects on vulnerable groups, for example the elderly, children and people already suffering from pre-existing health conditions such as respiratory and cardiovascular conditions". As I pointed out in the November 2016 judgment, DEFRA's own analysis has suggested that exposure to nitrogen dioxide (NO2) has an effect on mortality "equivalent to 23,500 deaths" every year.”
“To use your own data quoted in the Evening Standard (https://www.standard.co.uk/news/london/sadiq-khan-ulez-cameras-payment-chargescheme- b1064837.html), you say 27,000 tons CO2 will be saved. That is dwarfed by the 4.7 million tones of carbon emitted by replacing the 200,000 cars that you say will need to come off the road. Please can you therefore: 1. Explain where your 27,000 tonnes figure comes from. 2. Forced replacement of 200,000 roadworthy cars at an average of 30 tonnes CO2 release per manufacture (excluding import, etc) is 6m tons CO2 emitted into the atmosphere. Is this taken into account in your figures? 3. Likewise, have you taken into account the cost of transporting the scrap metal to Turkey, disposal of batterie, or emissions from import transportation? 4. Your own figures suggest only 135kg (200,000/27,000,000) of CO2 savings per scrapped car. How do you square that with the (avg) 30 tonnes CO2 emitted per manufacture?”
“Please find below the information we hold within the scope of your request. The principal aim of the ULEZ is to reduce harmful emissions from road transport by disincentivising the use of older, more polluting vehicles. The ULEZ specifically targets the air pollutants that are most harmful to human health: nitrogen dioxide (NO2) and particulate matter (PM). In addition to incentivising people to use less polluting vehicles, the London-wide ULEZ will also encourage a shift to active, efficient and sustainable modes of transport, thus delivering a reduction in carbon emissions. The evidence base and expected outcomes of the proposals were set out in the key consultation documents, which are available on Transport for London’s consultation page: https://haveyoursay.tfl.gov.uk/cleanair. Modelling was undertaken by Imperial College London working with TfL in order to assess the air quality impacts the ULEZ expansion could have. The result of this work is summarised in the key consultation document (‘Our proposals to help improve air quality tackle the climate emergency and reduce congestion by expanding the ULEZ London-wide and other measures’) and the Integrated Impact Assessment undertaken by Jacobs Ltd. (‘London-wide ULEZ Integrated Impact Assessment (ULEZ Scheme IIA)’). Section 5.2.1 of the ULEZ Scheme IIA summarises the expected carbon impacts of the policy. Appendix B of the consultation document provides information on the modelling methodology in further detail. There is no need to switch to a brand-new or electric vehicle to meet the ULEZ standards. Compliant vehicles have been widely available since 2006 meaning many people are likely to switch to a used, rather than new, vehicle. As set out in the scheme IIA, for scrapped vehicles there is a target for a minimum of 95 per cent recycling and recovery under the “End of Life (ELV)” directive. The Mayor will continue to work with TfL and the boroughs to invest in policies to encourage and enable more walking, cycling and public transport use which will further address carbon and air pollution emissions in London.”
“I spent over an hour preparing a message on your enquiry form, and tried to send it through at least 12 times. But each time received an error message. It is difficult to make complaints when your complaints procedure is not working. Below is the text of the message (your system has also lost all the formatting). Please respond with specific replies to the individual questions.”
“Please be advised we are deliberately trying to avoid answering the question you correctly set out in your various previous communications. The reason is we don’t want you to have the information you’re legally entitled to and so are making it as difficult as possible for you to submit your request. We actually enjoy this. But the underlying issue is that we know that the information we have put into the public domain is incorrect and are very nervous you will all find out. So please keep trying and we will continue to be as obstructive as we possibly can. Good luck!”
“To confirm on the 28 June and 7 July you submitted two requests consisted of in excess for 150 individual questions. Some of your questions were broken down into several further parts making a total of 178 individual parts that required an answer. In the reply of 26 July, it was explained that under regulation 12(4)(b) of the Environmental Information Regulations (EIR), we are not obliged to comply with a request(s) if we believe that it is ‘manifestly unreasonable’ to provide all of the information you have requested in your 2 most recent requests, as it would impose an unjustified burden and significant impact on TfL staff requiring an unreasonable diversion of limited staff resources. Your requests place an onerous burden of cost and staff resource to address when there is already a vast amount of published information available for public scrutiny concerning these issues. To explain further, the EIR allow public authorities to refuse a request(s) for information which is manifestly unreasonable. The inclusion of the word “manifestly” means that there must be an obvious or clear quality to the unreasonableness. The purpose of the applied exception is to protect a public authority from exposure to a disproportionate burden or an unjustified level of distress, disruption or irritation, in handling information requests. This exception can be used when the cost of compliance with the request(s) would be too great or is vexatious. In assessing whether the cost or burden of dealing with a request(s) is ‘too great’, a public authority is required to consider the proportionality of the burden or costs involved and decide whether they are clearly or obviously unreasonable. As advised a large amount of information concerning the ULEZ expansion and emissions is already publicly available either on the TfL website or via published FOI requests. This current line of information and data being sought by yourself would divert staff away from their core functions within the organisation for unjustified amounts of time and impose undue burden onto a small team of subject matter experts to undertake.”
“The Aarhus Convention’s twin protections for environmental and human rights; and its focus on involving the public, provide a mechanism for holding governments to account in their efforts to address the multi-dimensional challenges facing our world today, including climate change, biodiversity loss, poverty reduction, increasing energy demands, rapid urbanisation, and air and water pollution.”
“Taking the position under the EIR first, it must be right that a public authority is entitled to refuse a single extremely burdensome request under regulation 12(4)(b) as “manifestly unreasonable”, purely on the basis that the cost of compliance would be too great (assuming, of course, it is also satisfied that the public interest test favours maintaining the exception). The absence of any provision in the EIR equivalent to section 12 of FOIA makes such a conclusion inescapable.”