Global Environmental Law at a Crossroads

The Integration of European Air Quality Standards in Spatial Planning: New Avenues for More Sustainable Urban Planning

Room 302

In spite of the strict air quality standards which are imposed by the European Air Framework Directive (2008/50/EC) and its predecessors, the air quality in large parts of Western Europe remains poor. Although emissions haven fallen over the last two decades in the European Union (EU), this has not always led to a corresponding drop in pollutant concentrations in the air. This is particularly true in the case of particulate matter. As much as 20% of the urban population in the EU lives in areas where the European daily limit values for particulate matter are not met (EEA 2010). In most urban areas limit values for particulate matter (PM₁₀ and PM_2,5) are exceeded. In 2010, the European Commission started infringement proceedings against 5 Member States – amongst others, Belgium – for failing to comply with the EU's air quality standard for PM₁₀. These particles, emitted mainly by industry, traffic and domestic heating, can cause asthma, cardiovascular problems, lung cancer and premature death. To improve air quality further not only measures at source, but also a better urban planning to reduce people’s exposure it required (EEA 2011). Until recently, air quality issues only received minor attention spatial planning systems. Although the European Court of Justice had to deal with some interesting cases with respect to air quality (e.g. ECJ, 25 July 2008, C-237/07, Janecek) a clear decision as to the link between EQS and spatial planning has not yet been given. As the European Air Framework Directive (Directive 2008/50/EC) contains no specific provisions with respect to the relationship with urban planning, the spatial translation of air quality standards differs strongly from one member state to another.

I will discuss the status of the integration and application of air quality standards in spatial planning processes and decision-making within Belgium. My presentation will be focused on a recent Belgian court case concerning the construction of a new road in the urban area of Ghent, which would lead to a further exceedance of the limit values for particulate matter. In its provisional decision in 2008 the Belgian Council of State simply upheld the validity of the building permits for the contested road by stating that there is no clear obligation to respect air quality standards within spatial planning. Yet, whilst acknowledging that air quality standards must be achieved primarily by executing new national programmes that have a direct influence on the sources of pollution, the Council of State stressed in its final decision in 2010 that in some cases, for instance when the standards are manifestly transgressed, air quality standards still have to be applied within the spatial planning framework. Hereby, the Belgian Council of State seemed to adopt an approach which was quite similar to the reasoning, applied by the European Court of Justice with respect to the application of the national emission ceilings for the pollutants of the NEC-Directive (ECJ, 26 May 2011, Joined cases C-165/09 to C-167/09, Stichting Natuur en Milieu). The above mentioned decisions of the Council of State will be placed against the broader canvas of the management of air quality in Belgium and Europe. In the end, it will be shown that a better integration of air quality standards in spatial planning decision-making is quintessential to avoid further health problems caused by air pollution in urban areas.

Main references

• DE GIER, T., GROOTHUIJSE, F., VAN RIJSWICK, H.F.M.W., ROBBE J., “The influence of Environmental Quality Standards and Safety Standards on Spatial Planning”, Journal for European Environmental and Planning Law 2007, 23-36
• EUROPEAN ENVIRONMENT AGENCY, The European Environment. State and Outlook 2010: Synthesis, 2010, 222p.
• EUROPEAN ENVIRONMENT AGENCY, Air quality in Europe – 2011 report, 84p.
• GÖRGEN, R., LAMBRECHT, U., “Particulate Matter in Ambient Air”, Journal for European Environmental and Planning Law 2007, 4, 278-288
• FLEURKE, F., KOEMAN, N., “The Impact of the EU Air Quality Standards on the Planning and Authorisation of Large Scale Infrastructure Projects in the Netherlands”, Journal for European Environmental and Planning Law 2005, 375-383
• SCHOUKENS, H., “Leuvense rechtbank verwerp ‘fijn stof-klacht’: géén vuiltje aan de lucht?” (noot onder Rb. Leuven 10 maart 2010), Tijdschrift voor Omgevingsrecht en –beleid 2012/1, 50-52.
• SCHOUKENS, H., “NEC-plafonds als toetsingsnorm bij milieuvergunningen: neen, tenzij” (noot onder HvJ 26 mei 2011, gevoegde zaken C-165/09 tot en met C-167/09, Stichting Natuur en Milieu”), Tijdschrift voor Omgevingsrecht en –beleid 2012/1, 30-32.