A recent federal court decision in Utah renews the question of whether defeat device and tampering prohibitions constitute “an emission standard or limitation”.

By Arthur F. Foerster

A non-profit citizen group, Utah Physicians for a Healthy Environment, is seeking nearly US$1.5 million in costs and attorneys’ fees after successfully prosecuting a citizen action in Utah federal court for violations of the defeat device and tampering provisions of the Clean Air Act (CAA, or the Act).[i] Section 304 of the CAA authorizes persons to enforce compliance with “an emission standard or limitation” or an “order” issued by the US Environmental Protection Agency (EPA) or a state with respect thereto, after notice is provided and so long as the EPA or state is not already litigating an action to require compliance with the standard, limitation, or order.[ii]

EU will tax manufacturers for excess emissions and collect individual consumption data from vehicles in order to meet climate change goals.

By Jörn Kassow and Patrick Braasch

The EU is setting stricter CO2 emission standards for new passenger cars and light commercial vehicles (LCVs). A new regulation on CO2 emission standards (Regulation (EU) No 2019/631), replacing the past regulations (EC) No 443/2009 and (EU) No 510/2011, was published in the Official Journal on 25 April 2019 and will enter into force with effect from 1 January 2020. From 2025 onwards, the average CO2 emissions of new passenger cars and LCVs must be reduced by 15% compared to 2021 levels. By 2030, the average emissions must be reduced by 37.5% for passenger cars and 31% for LCVs, in each case compared to 2021 levels.

These average emissions targets apply to each manufacturer’s (or group of connected manufacturers’) EU-wide fleet of new passenger cars and LCVs. The regulation will reward manufacturers with less stringent CO2 targets if they meet benchmarks regarding their respective fleet’s share of zero- and low-emission vehicles (2025: 15% for both passenger cars and LCVs, 2030: 35% for passenger cars and 30% for LCVs). Furthermore, manufacturers may enter into pooling arrangements (subject to competition law restrictions) for meeting their emissions targets. These arrangements will allow leaders in zero- and low-emission vehicles to capitalise on their below-average emissions by pooling with, and effectively selling their emissions savings to, manufacturers of more traditional, i.e., CO2-intensive passenger cars and LCVs. Manufacturers can also apply to the Commission for consideration of CO2 savings achieved through the use of innovative technologies. The Commission may grant temporary derogations from their specific emissions targets to certain niche manufacturers.

The Chinese government and legislature are increasing pressure on local government officials and companies to reduce pollution in China.

By Paul A. Davies and R. Andrew Westgate

China’s legislature is targeting companies responsible for pollution, and has ordered local judiciaries and lawmakers to implement revised rules and enforce penalties against those who break them.

Air pollution, in particular, has been of particular concern. Li Zhanshu, chairman of the National People’s Congress (NPC) Standing Committee, announced that “[e]very provincial-level people’s congress should release or amend regulations on the air pollution prevention law by the end of this year in line with pollution conditions in their areas.” He further urged increased cooperation between public bodies, such as courts and environmental bodies within government. He noted that this cooperation should include both expanded investigation and enforcement efforts, but also issuing regulatory guidance so regulated companies are clear on the standards they are required to meet.

The plan’s stricter and more targeted requirements will impact a broader range of provinces, including the Fen-Wei Plains.

By Paul A. Davies and R. Andrew Westgate

China has released a new three-year action plan for 2018 to 2020 to combat air pollution. The previous air pollution action plan, published in 2013, has played a significant role in improving air quality in major cities. China’s updated plan, which was released on July 3, draws on additional information and research to provide more targeted requirements.

Success of the 2013 plan

The former plan set a coal cap across China with varying limits in different provinces. For example, the plan required Beijing to reduce its coal consumption by half from 2015 to 2018. The plan’s success was due in part to the state’s ownership of a large number of China’s worst polluters, making them easier to control. Furthermore, because half of China’s pollution comes from coal-burning power stations, the country needs a less varied range of policies to order to target pollution compared with other countries.

By Michael Green, Elisabetta Righini, Joern Kassow, Rosa Espin, Eun-Kyung Lee, and Cesare Milani.

On 15 February 2017, the European Commission (the Commission) sent final warnings (a Reasoned Opinion) to France, Germany, Italy, Spain and the United Kingdom for failing to comply with the air pollution limits for nitrogen dioxide (NO2). Under EU law, Directive 2008/50/EC on air quality and cleaner air for Europe (the Directive) sets air quality limits that cannot be exceeded anywhere in the EU and obliges Member States to limit the exposure of citizens to harmful air pollutants.

The Commission stated in its report, “… while it is up to the Member State authorities to choose the appropriate measures to address exceeding NO2 limits, much more effort is necessary at local, regional and national levels to meet the obligations of EU rules and safeguard public health”.  The Commission has therefore urged the five Member States to take action to ensure good air quality and safeguard public health. These “final warnings” may have serious consequences.  If the said Member States fail to comply with the Directive within two months, the Commission may decide to take the matter to the Court of Justice of the EU (the CJEU).

While the Commission’s Reasoned Opinion is focused on levels of NO2, it is widely acknowledged that air quality standards (which generally concern NO2 and particulate matter – especially PM10 – levels) in many parts of Europe are poor.  As air quality gains increasing media attention and demands for improvement, we have briefly summarised the position on air quality standards (whether NO2, particulate matter or more generally) in each of the countries that are the subject of the most recent Reasoned Opinion.

By Michael Green and Paul Davies

The UK will need to revisit its strategy to improve air quality following a recent court judgment determining that the Government’s existing plans are insufficient.  With air pollution reportedly responsible for 9,500 premature deaths in London each year, according to a study commissioned by the Greater London Transport Authority and Transport for London, the implications of this judgment are likely to have significant impact on the country’s transport infrastructure.

By Paul Davies and Andrew Westgate

In advance of the first ever G20 summit to be hosted in China this year, the Shanghai Environmental Protection Bureau issued a revised, short-term air quality plan to improve local air conditions ahead of the summit. China has undertaken similar efforts to achieve a temporary smog lift in advance of other high profile events such as the Olympics in 2008, the Shanghai World’s Fair in 2010 and the Asia-Pacific Economic Cooperation summit in 2014 – during which the rare blue skies experienced were referred to as “APEC blue.”

The G20 summit will be held September in Hangzhou, a city situated 150 miles south-west of Shanghai. As China’s largest city, and a city with significant construction, operational and residential emissions, Shanghai impacts upon the air quality of its neighbouring cities, including Hangzhou.