ENVIRONMENTAL lawyers who won legal action against UK ministers over levels of pollution have said they are now considering taking the Scottish Government to court over air quality failures.
ClientEarth which regularly uses EU laws to challenge governments across Europe on environmental issues, will today be at the High Court hoping for a ruling that forces the government to take action to combat the air pollution crisis.
READ MORE: Beyond Brexit: Scotland could become 'dirty man of Europe' again
Two weeks ago they inflicted a humiliating legal defeat on UK ministers last week – its second in 18 months – when the high court ruled that ministers’ plans to tackle illegal levels of air pollution in many UK cities and towns were unlawfully poor.
It has emerged that central Scotland including Glasgow and Edinburgh are amongst the cities that they claim had illegal levels of pollution.
Glasgow, which it has described as "the most polluted city in Scotland" was cited as one of four zones with what it called "illegal and harmful levels" of nitrogen dioxide (NO2), which comes mostly from diesel vehicles.
And ClientEarth have revealed that they are considering further action against Scottish ministers over air quality failures.
Some 2000 early deaths are caused every year in Scotland because of polluted air according to the latest medical research, with some 40,000 across the UK.
READ MORE: Beyond Brexit: Scotland could become 'dirty man of Europe' again
Dirty air causes at least £27.5bn in costs very year in the UK, according to the government’s own estimates, and was called a “public health emergency” by MPs in April.
A raft of recent studies and reports have linked air pollution to heart disease and lung problems, including asthma.
The lawyers group say the First Minister should "get a grip" of "illegal levels of pollution" and prevent additional early deaths.
ClientEarth won a separate, Supreme Court ruling against the government in April 2015 in which ministers were ordered to come up with a plan to bring down air pollution to within legal limits as soon as possible.
But ClientEarth was dissatisfied with those proposals, and took the government to the High Court in a judicial review demanding a strike down of air quality plans to be replaced by new ones.
The ruling in the judicial review called the government's plan "woefully inadequate".
Mr Justice Garnham said the 2015 Air Quality Plan (AQP), devised when Liz Truss MP was environment secretary, failed to comply with the Supreme Court judgment and EU directives.
The ruling said the government had erred in law by fixing compliance dates based on over-optimistic modelling of pollution levels.
Mr Justice Garnham said it was “remarkable” that ministers knew they were using over-optimistic pollution modelling, based on flawed lab tests of diesel vehicles rather than actual emissions on the road, but proceeded anyway.
The existing government plan is for clean air zones – in which polluting diesel vehicles are charged to enter city centres – in just six UK cities.
A new plan that meets the legal requirement to cut illegal levels of nitrogen dioxide pollution in the “shortest possible time” is expected to involve clean air zones in many cities and towns across the country.
But the government rejected a proposal by ClientEarth to deliver an effective action plan within eight months.
Today (Monday) ClientEarth return to the High Court hoping for a ruling that insists on a timeframe for the Department of Environment, Food and Rural Affairs to provide a revised plan.
The Scottish Government and the First Minister Nicola Sturgeon have been classed as an "interested parties" in the case because the matters raised are relevant to its existing and future policies over air quality. They chose not to take part.
A ClientEarth source said: "The main case is about 38 zones across the UK, including Glasgow, which fail EU limits on NO2 and so our claim is that the government should do more, but of course the SG could also act on ultra low emission zones and other measures if they wished to.
"Since the Scottish Government has devolved power over air quality a case is possible. We see our case as covering the whole of the UK at this point.
"In addition we’re arguing for something innovative, which would mean much greater oversight of the government’s actions and allow us to take them back to court immediately if the AQP is rubbish and if they stray from the order in any way. If we get this, it’ll be a pretty big deal. Glasgow and Edinburgh are among the cities which breach pollution levels."
Justice Garnham said in the recent ruling: "It seems to me plain that by the time the plan was introduced the assumptions underlying the Secretary of State's assessment of the extent of likely future non-compliance had already been shown to be markedly optimistic."
He said the Secretary of State "fell into error" by fixing on a projected compliance date of 2020 (and 2025 for London).
In particular, he drew attention to the cost implications of bringing in Clean Air Zones no earlier than 2020.
The evidence demonstrates clearly that Clean Air Zones, the measure identified in the plan as the primary means of reducing nitrogen dioxide emissions, could be introduced more quickly than 2020," Mr Justice Garnham said.
READ MORE: Beyond Brexit: Scotland could become 'dirty man of Europe' again
He continued: "I have also seen a document setting out questions for Defra from HM Treasury dated 18 August 2015; one question asks why the money required 'needs to be spent over two years?'
"The answer given is 'spend does not have to be over two years, nine years is more realistic given that London does not need to be in compliance until 2025'."
A Scottish Government spokeswoman said it has published a new national strategy for cleaner air quality, adding it "ensured Scotland was the first country in Europe to adopt the World Health Organisation guideline values for particulate matter 2.5..."
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