Government may countermand Boris Johnson over air quality fears

Ministers could challenge London mayor as concern mounts that failure to meet European directives on air quality may lead to £300m of fines
Hélène Mulholland
guardian.co.uk, Tuesday 14 April 2009 12.24 BST

The government could overturn Boris Johnson's decision to suspend the third phase of London's low emission zone amid fears over EU air quality standards, it emerged today.
The Department for the Environment, Food and Rural Affairs (Defra) has instructed lawyers to consult existing legislation that gives the government powers to override the London mayor.
The move follows concerns that UK taxpayers could be fined up to £300m if strict European directives on air quality are not met.
It would be the first time the government has directly challenged the mayor by exercising its powers of direction, enshrined in the Greater London Authority Act 1999. The measure allows ministers to reverse a mayoral decision where policies for the devolved government clash with national decision making.
Defra's yet to be submitted application to the European commission for an extension on meeting EU air quality limits by 2011 was based on the assumption that the western extension of the London congestion charge, and the third phase of the low emission zone, would go ahead.
The low emission zone – first introduced by Johnson's predecessor, Ken Livingstone – was seen as a key measure for lowering harmful emissions in London, which suffers from some of the worst pollution levels in Europe.
However, Johnson last year announced plans to scrap the western extension of the congestion charge, and in February suspended the third phase of the low emission zone because of its "detrimental impact" on small businesses in the economic downturn.
In February, Johnson described the zone as a "totally senseless piece of policy" which he said would have been another tax on hard pressed businesses in the midst of a recession.
"I have absolutely every pride in defending what we did," he told the London assembly at the time. "It was completely right for the London economy."
With the threat of national embarrassment and multimillion pound fines in the longer term if Defra fails to have its air quality extension plans accepted, the department said Johnson would now have to deliver "equal, if not greater, benefits to improve air quality" in his air quality strategy, due this summer.
The European commission began "infraction" proceedings against 10 EU member states, including the UK, earlier this year for failing to comply with levels of particulate matter (PM10) – dangerous airborne particles emitted by industry, traffic and domestic heating.
The Rogers review into local authority regulatory services, published in 2007, noted that poor air quality contributes to between 12,000 and 24,000 premature deaths each year.
Defra's own figures show that average life expectancy is reduced by up to eight months due to pollution from particulates.
The Campaign for Clean Air in London claims the third phase of the low emission zone would have protected 107,000 Londoners at risk of high nitrogen dioxide levels.
The scheme currently targets buses, coaches and the most polluting lorries over 3.5 tonnes.
Failure to meet the required emissions standards leads to a £200 daily charge, or a £1,000 daily fine if the charge is not paid.
Phase three of the scheme was scheduled to start in October next year and would have affected 90,000 much smaller vehicles, including vans and minibuses.
A daily £100 charge was due to be imposed on those that did not meet the emissions standards. Failure to pay would have incurred a £500 fine for each day that the vans entered the zone, which covers the Greater London area.
Defra declined to comment on whether lawyers had been instructed to look in detail at the department's powers under the act, but highlighted a specific government power of direction on air quality it could use to force the mayor to ensure measures in place at least compensate for the scrapping of the low emission zone.
A spokesman said: "The secretary of state can give directions under section 363 of the GLA Act, 'about the content of the London air quality strategy'.
"We would expect the mayor to put in place other measures that would deliver equal, if not greater, benefits to improve air quality if, after consultation, the third phase of the low emission zone is not implemented," the spokesman added.
Asked about other powers at its disposal, Defra pointed to the Air Quality Standards Regulations 2007 that would allow the secretary of state "to direct the mayor to implement alternative measures to meet the air quality limits set out in the directive".
Defra said it remained "confident of complying with European commission PM10 air quality limits by 2011" and confirmed that the UK's application would be submitted "shortly".
Simon Birkett, from the Campaign for Clean Air in London, warned that the measures put in place so far by Johnson "fall far short" of what is needed to reduce air pollutions in London.
Birkett said there was a worrying disparity of duty between the government, which is legally bound to reach air quality standards, and the mayor and local authorities, which merely have to show they are "working towards" targets.
He called on the government to work with the mayor to provide necessary funding to introduce one or more additional low emission zones in London and enable him to launch a major campaign to improve public understanding of poor air quality as part of a "win-win" for Londoners' health and the government's application.
Birkett said: "If a 'win-win' outcome is not within easy reach, the government should not hesitate or delay in issuing directions to the mayor to maintain implemented and planned air quality improvement measures and adopt new ones by specific deadlines."
Darren Johnson, a Green party member of the London assembly and the chair of the assembly's environment committee, which is looking at air quality measures for London, has written to Defra, urging it to consider its powers over the mayor in light of decisions he said had "seriously messed up" the government's own strategy.
"Unless the government and the London mayor can implement a big new idea to dramatically slash pollutants within the next twelve months, the government must be prepared to use its powers of direction," he said.
"The mayor's decisions to weaken both congestion charging and the low emission zone have been irresponsible and disastrous for London's environment."
The assembly report into air quality is expected later this month.