Ministers have been accused of “misleading the public” after documents obtained by Ends Report and the Guardian revealed they ignored their officials’ advice when scrapping key air quality regulations.
On 31 December, two key air quality regulations will drop off the statute book under the Retained EU Law (REUL) Act.
The rules being revoked are regulations 9 and 10 of the National Emission Ceiling (NEC) regulations, which set legally binding emission reduction commitments for five key air pollutants.
Regulation 9 requires the secretary of state to prepare a national air pollution control programme (NAPCP) to limit pollutants in accordance with national emission reduction commitments. Regulation 10 requires that before preparing or significantly revising the NAPCP, the secretary of state must consult the public.
Caroline Lucas, the Green party MP, has asked ministers to “urgently take steps to prevent these regulations from being stripped from our statute book in just a few weeks’ time”, and has asked them to “explain why they felt this decision was in the interests of people and planet”.
Ruth Chambers, from the Greener UK coalition, has also urged the new minister for air quality, Robbie Moore, to “order an immediate rethink”.
The decision to scrap these regulations has also brought strong criticism from the government’s own environmental watchdog, the Office for Environmental Protection (OEP), which warned that revoking these regulations “weakens accountability and transparency and – in the absence of an alternative, comprehensive plan – it has the potential to weaken environmental protection”.
The government has dismissed these concerns repeatedly, stating that its intention in revoking the regulations was to “reduce administrative burden” and “remove duplication”.
In July 2023, the then environment secretary, Thérèse Coffey, reassured the OEP that in revoking the regulations “there [will be] no reduction in the level of environmental protection”, and emphasised that the government “uses expert advice when making provisions that relate to the environment”.
However, it can be revealed that ministers knew this was not the case.
In advice given to ministers in March 2023, and obtained by Ends Report via an environmental information request, officials at the Department for Environment, Food and Rural Affairs (Defra) advised the government to carry out a public consultation before reforming the regulations, and to put two options to the public:
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. Revoke the NAPCP with no replacement, with the environment improvement plan (EIP) becoming the alternative process.
2. Revoke the NAPCP provisions and introduce a new process for assessing policy options, with a new process triggered by a failure or potential failure to achieve a target.
The officials advised that any changes to the regulations should take place in 2024, to allow “sufficient time” for a public consultation.
Coffey ignored the advice to consult and chose option one.
The two options came with a list of pros and cons. For option one, the officials pointed out that by revoking the regulations with no replacement, there would “no longer be a legal requirement to publish a UK wide document on emission policies under consideration by all UK administrations”, which they warned would make “tracking or setting our progress towards UK wide emission targets difficult”. They added there would no longer be clear action after a failure to achieve an emission reduction target.
Emily Kearsey, an environmental lawyer at ClientEarth, said it was “further evidence that the removal of these regulations does constitute a regression of environmental law, and also that the government knew this.
“They might not have been advised on the regression explicitly, but it’s hard to come to any other conclusion when the civil servants are specifically outlining the gaps that would be created by removing these regulations”, she added.
In the document, the officials also warned that the EIP was not an adequate replacement for the NAPCP. They highlighted that the EIP cycle was every five years, meaning that it could be four years between legal air quality limits being exceeded and the government setting out new policies and measures.
“This document shows the broader way in which the government has been basically misleading the public that [revoking these regulations] is in their best interests”, Kearsey said.
“Despite the hollow reassurances about having used expert advice, it is now clear that not only did ministers fail to seek the advice of external experts, but also refused to heed the advice of their own officials when deciding to scrap air quality regulations under the REUL Act,” Lucas added.
“This reinforces the concerns of campaigners that the government’s approach would create dangerous gaps in transparency and accountability. The state of our filthy air is a public health emergency and is associated with the equivalent of up to 40,000 deaths a year in the UK. It’s essential that the government starts treating this issue seriously – first by maintaining existing regulations and second by strengthening their targets, so that another generation of children does not have to grow up breathing dirty air.”
A Defra spokesperson said: “The emissions reduction targets set out in the NEC regulations remain unchanged and as such there has been no reduction in the level of environmental protection. We are committed to achieving these reduction targets and are maintaining the reporting provisions to ensure there is transparency on our progress.”
“When we consulted on the NAPCP, as required by the NEC regulations, a number of stakeholders said the format could be improved. With this in mind, we are considering how we can simplify the process to reduce administrative burdens and improve transparency.”
