Photo by Thomas Hassel

In court to defend air quality

As German cities fail to curtail toxic traffic fumes, environmental groups are taking them to court. Roberta Arbinolo speaks to German campaigners about their legal actions, and how they are helping to clear the air.

EU laws grant people the right to breathe clean air, but too often national and local authorities fail to bring these laws from paper to reality. The EU Ambient Air Quality Directive obliges municipalities to draw up action plans for air pollution control, including measures to cut emissions from traffic. Yet EU limits for nitrogen dioxide (NO2) are still exceeded in many German cities.

Since 2015, EEB members Environmental Action Germany (Deutsche Umwelthilfe eV, DUH) and ClientEarth have taken several cities to court for breaching EU air pollution limits. We asked Robin Kulpa, Project Managers on Traffic and Air Pollution Control at DUH, to tell us how their action is speeding up the transition towards cleaner air.

What’s the air quality situation in Germany? Is there any infringement procedure ongoing?

Germany is not doing its job to cut air pollution and enforce EU air quality laws. According to the EEA air quality report 2019, 11.900 people died prematurely due to exposure to nitrogen dioxide (NO2), and 60.000 due to particulate pollution in Germany in 2016.

In June 2015, the EU Commission started an infringement procedure against Germany for persistent violation of the Ambient Air Quality Directive (AAQD) and, in May 2018, the Commission took Germany to the European Court of Justice. Germany risk to have to pay fines for billions € for violating EU air pollution limits. As these infringement proceedings are very lengthy, DUH is also taking legal action against 40 German cities to ensure that they comply with limit values as soon as possible.

Did your lawsuits make a difference, and how?

Yes! In the cities where we have filed a complaint, air pollution has decreased more than in cities where we were not active – even twice as much between 2018 and 2019. This is shown by our latest evaluation of official data from the Federal Environment Agency, and an independent scientific study by the University of Hagen. DUH has so far filed complaints for clean air in 40 cities. In 17 of these cases, we are supported by another EEB member, the environmental law organisation ClientEarth. We have now concluded 31 proceedings, and we have not lost even one. With the complaints, we demand the preparation of air quality plans detailing the necessary measures to comply with air pollution limit values as soon as possible.

Our lawsuits were not only a legal success, they also had a concrete impact on air quality. Numerous measures to promote local public transport and active transport have been put in place and were supplemented by restrictions on private cars. While the NO2 level in other cities decreased by 2.1 µg/m3, the ones we targeted with our lawsuits did reduce NO2 by 4.2 µg/m3.

Thanks to our lawsuits, we managed to make air pollution a priority and promoted access to federal government funding programs, which help cities to strengthen sustainable mobility, including cycling.

Does poor air quality in Germany depend on the fact that EU laws are not strong enough, or on bad implementation?

Germany, just like most European countries, is lagging behind with implementation of EU standards. Current EU limit values are not even as strict as they should be to reflect the latest science, yet Germany is failing to enforce them.

Too many authorities fail to comply with existing air quality limit-values. The fact that we have an increasing number of bigger and heavier cars on German roads, and that the automobile companies have been able to manipulate emission controls for years, is a failure of the German government. Besides, German municipalities have failed to make their cities more livable and sustainable, with less cars and more space for public transport, cycling and walking. Cities can provide clean air in the shortest time possible by introducing Low Emission Zones. Our complaints have opened a constructive discussion and brought all options to the table.

What are the main challenges you faced? And how did the German public react to your action?

We had to stand up to the authorities and the car lobby, which put massive pressure on politicians and launched campaigns to defame DUH and the Clean Air lawsuits. These campaigns have failed, just as much as their attempts to revoke our right to sue them, or withdraw our non-profit status. On the contrary: the more they raged against us, the more support we received from civil society.

Nevertheless, this kind of action requires patience, stamina, and the financial resources to ensure that court proceedings can be continued in further instances, and that implementation of final judgments is enforced. Yet, the improvement of air quality in Germany, and the new discussions about the need for a rapid traffic transition, show that it is worth it.

What can we learn from this story? Could your action inspire other groups advocating for cleaner air across the EU?

The procedure chosen by DUH was particularly effective in Germany, because German courts can oblige competent authorities to draw up an air quality plan, and lay down framework conditions so that compliance with limit values is achieved as soon as possible.

Yet taking legal action for air quality is possible in all member states, as Directive 2008/50/EC on Ambient Air Quality is valid all across the EU. The Aarhus Convention ensures access to justice, even if there are problems of implementation in some countries. For years, we have been focusing on exchange and capacity building with NGOs across Europe, either through umbrella organizations such as the EEB, workshops in other European countries funded by the EU LIFE project Legal Actions – Right to Clean Air, or through our Right to Clean Air website.

We support and encourage NGOs all over Europe to take action in the same way and stand for cleaner air.