The debate surrounding health damaging air pollution emissions took centre stage following the VW scandal. This article addresses some of the key points in the controversy, and explores the role the law plays at present and how it may develop.
Air pollution regulation is not a new phenomenon. In fact, one of the earliest known pieces of environmental law relates to air quality. In 1273, King Edward I banned the use of smoky sea coal in London following public complaint. The punishment was somewhat extreme – anyone caught burning or selling sea-coal risked torture and execution. Fast forward and the Clean Air Act 1956 – equally dramatic in a different way – was brought in to deal with air pollution such as London’s 1952 Great Smog that was believed to be responsible for the deaths of 1,000 people per day. Since then air regulation has moved on from dealing with London smog, and has worked its way through CFCs and the ozone layer, greenhouses gases and climate change.
It is the general belief that in Europe the days of being injured by simply breathing are gone. We now think that pollution threatens us through its environmental effects such as global warming and ozone layer depletion. However, one of the important effects of the recent Volkswagen (VW) scandal is that it has brought out into the open the problems of present day atmospheric pollution and the realisation that we have not quite put behind us the dark days, literally in the case of smog, of people becoming ill and possibly dying because of the air that they breath.
EU pollution limits
In September 2015 the UK government published a number of documents relating to a consultation process undertaken concerning a draft plan to improve air quality 1 (there are actually a number of specific draft plans). The process was implemented in recognition that nitrogen dioxides (NO2) and particulate matter (PM) emissions from vehicles are a problem. The emissions from vehicles have a mixture of nitrogen oxides (NOx), but the legal limits referred to usually concern NO2. The stimulation for this exploration of the problem which led to the consultation process was a Supreme Court decision in the spring of 2015. London, Birmingham and Leeds are among a number of cities that have been in breach of EU limits on NOx for a number of years.
This led the Supreme Court to order the UK government to make plans for tackling the UK’s air pollution by the end of 2015. The challenge that resulted in the Supreme Court action was made by ClientEarth, a group of environmental lawyers, and the dispute questioned whether the UK had fulfilled its obligations under the EA air quality directive.
The NOx problem
The seriousness of NOx as a problem is indicated by the quote from one of the associated documents 2 :
“The evidence associating NO2 with health effects has strengthened substantially in recent years, as noted by the Committee on the Medical Effects of Air Pollutants (COMEAP). It is estimated that the effects of NO2 on mortality are equivalent to 23,500 deaths annually in the UK. Many of the sources of NOx (NO2 and NO3) are also sources of particulate matter (PM). The impact of exposure to PM pollution is estimated to have an effect on mortality equivalent to nearly 29,000 deaths in the UK. The combined impact of these two pollutants represents a significant public health challenge.”
These Department for Environment, Food and Rural Affairs (DEFRA) draft documents recognise that the UK, along with other EU member states, is not attaining the annual limits of levels of NO2 for the protection of human health. The European Commission has started infraction proceedings against the UK and another five states for not achieving these NO2 limit values.
The VW scandal has further lifted the stone on atmospheric pollution is because it has highlighted how much of the problem is specifically related to cars. Another quote from the aforementioned DEFRA document states:
“On average around 80% of NOx emissions in areas where the UK is exceeding NO2 limits are due to transport, although non-transport sources of NO2 are still considerable contributors. The largest source is emissions from diesel light duty vehicles (cars and vans) where both the emissions standards have had least impact and there has been significant growth in vehicle numbers over the last 10 years.”
Diesel versus petrol
Diesel cars have been far more popular in Europe than the US. This may in part be due to the lower price of petrol in the USA, but if diesel (due to its higher volumetric energy density) causes higher emissions – in the region of about 15% compared to unleaded petrol – why is it still such a popular fuel? This is partly due to favourable taxation; the government has changed the approach to road tax penalising engines that produce high levels of CO2 in an effort to achieve greenhouse gas reductions.
This made diesels more popular with their lower CO2 emissions while ignoring the fact that diesels produce twice as much NOx and 10 times as much PM which have the direct effects on people’s health. This was very frustrating to scientists who at the time of publication had been warning of the NOx problems for a number of years.
Another reason to choose diesel is efficiency; the increased fuel efficiency means a better fuel economy of anywhere between 20 – 40%. Interestingly this actually offsets the higher percentage of emissions, meaning that in the long run diesel cars actually produce less emissions than some less efficient fuels. So why the problem? What damage does diesel do and how does it compare with unleaded petrol and other fuels?
NOx is created during combustion, and diesel engines produce more than petrol due to higher combustion temperatures. As well as the respiratory problems NOx contributes to (along with other harmful substances such as sulphur dioxide (SOx)), NOx has a wide variety of health and environmental impacts, including:
• Acid rain – occurs when NOx and SOx react with substances in the air to form acid
• Ground level ozone or smog – caused by NOx reacting with volatile organic compounds (VOCs)
• Global warming – as it is a greenhouse gas
• Deterioration of water quality due to nutrient overload
‘Test mode’ calibration
In September 2015, the USA’s Environmental Protection Agency (EPA) discovered that VW was using software that could detect test conditions and switch the engine to different calibrations that run below the normal power and performance, thereby minimising emissions. Once no longer in ‘test mode’ the engines switch back to full power. Having done tests on three light-duty diesel vehicles under more realistic conditions, scientists from the Center for Alternative Fuels Engines and Emissions at West Virginia University (commissioned by the International Council on Clean Transportation (ICCT) in Washington DC) revealed that levels of NOx emitted by a Volkswagen Jetta were, depending on road conditions, 15 to 35 times greater than the US standard of 31 mg per km. Likewise, those from the Volkswagen Passat were five to 20 times greater.
Following this, VW issued a recall for its 482,000 cars in the US and halted sales of its affected Audi A3 and VW Jetta, Beetle, Golf and Passat diesel models. The EPA has the power to fine a company up to $37,500 for each vehicle that breaches standards; a maximum fine of about $18 billion. The UK, Italy, France, South Korea, Canada and Germany also started investigations.
In the UK there is a culture of self regulation. The UK Environment Agency (EA) and courts trust companies to conduct their own supervision of compliance. If discovered, companies can face significant fines for breaches of their permitted limits, and fines are likely to be increased if aggravating features such as deception exist. A break down in the relationship of trust between companies and the regulators, may affect the attitude to self-regulation in the future.
The air pollution annual limits are part of a complex environmental legal framework for atmospheric pollution control at EU and UK level. There is regulation of both general ambient air quality and specific regulation of particular industries. The EU side of the coin includes legislation that obliges member states to maintain ambient air quality standards, or to reduce their overall air emissions (for example, the EU Emissions Trading Scheme). In the UK at least, this has resulted in Part 4 of the Environment Act 1995, which requires the government to produce a National Air Quality Strategy. The documents referred to above show that the UK’s ‘Air Quality Strategy’ is something that needs constant attention.
The VW scandal provides a window through which to view the above described regulation of air pollution. It has identified that sometimes certain types of pollution are not taken seriously until something significant happens. As stated previously, the NOx problem has not been a secret. Scientists have for a long time been trying to bring the issue of NOx pollution to the fore, describing the proven detrimental health effects of the gas and associated particulates, all the while the rise in use of diesel vehicles has continued unchallenged. EU legislation aims principally to reduce the emission of greenhouse gases, lead and sulphur. This is primarily done through the regulation of both vehicle and fuel production. The focus on carbon based greenhouse gases has to some extent shielded the problems of NOx.
As early as 1998, EU directives (including the Fuel Quality Directive 1998) have set limits on the sulphur content of fuel, and banned the marketing of leaded petrol. In 2009 the EU went further with the Renewable Energy Directive 2009, which included a target that at least 10% of EU transport energy consumption must come from renewable sources by 2020.
Likewise, vehicle production and sale in the EU includes strict air emission requirements. Regulations 510/2011 and 443/2009 (which are directly effective in the UK) set emission standards for all new light commercial vehicles and cars. The regulations are specifically targeted at the reduction of CO2 emissions. The introduction of the Regulation itself explains that the EU has specifically recognised the Intergovernmental Panel on Climate Change (IPCC) findings on climate change, and that reducing vehicle emissions is central to reducing greenhouse gas emissions by at least 20% by 2020. The Regulations also accept that the vehicle market must be able to commercially survive and acknowledges the research and development cost of new technology. It is clear, however, that constant improvement on emissions is a non-negotiable aim.
The Regulations operate by setting a benchmark for emissions (via a complicated formula based on historic emissions), which must then be reduced year on year by each manufacturer. Manufacturers must monitor and report their own emissions, but can effectively earn credit towards their emission output by producing and selling low emissions vehicles. Excess emissions are penalised by the payment of a premium calculated with reference to the number of new cars built and the total amount of excess emission. For a large manufacturer, this can rapidly become a costly business. The problems at VW may affect how these schemes are regulated in the future.
The EU has also set historic hard limits on emission of certain pollutants. These are historically referred to as Euro 1 in 1993, through to the most recent Euro 6 in 2014. The Standards apply differently to car and light commercial vehicles, and differ for petrol and diesel engines, but allowable emissions have fallen rapidly across the board.
Over the past 20 years, allowable levels of NOx and PM have fallen dramatically. Allowable levels of carbon monoxide (CO) are more than 80% lower, NOx is now more than 90% lower than 1993, and PM is 95% lower. Due to changes in how PM is actually calculated, some automotive bodies have estimated that its reduction is closer to 99%. Again, the investigation into the VW affair may affect how the above limits and their effectiveness are viewed.
EU Regulation even foresaw, to a degree, the VW emissions scandal. Regulation 715/2007 defines the now well known “defeat device” as any device that senses engine parameters for the purpose of delaying or deactivating emission control systems, and specifically prohibited their usage.
Following the NOx related admissions, VW disclosed that there had been manipulation of CO2 emissions in about 800,000 VW cars sold mainly across Europe. This has deepened the hole that the company had already created for itself – the BBC reported a 20% drop in sales in the UK in November 2015 3 . VW disputes the causes of the drop in sales, but commentators are coming to their own conclusions. Further information released described CO2 manipulation as actually affecting more petrol-fuelled vehicles than previously disclosed. Reputation can be a company’s strongest asset and Corporate Social Responsibility is at the forefront of that today. Many people care about what they are buying and the green credentials of those they are buying from.
It is not just diesel-fuelled cars that are a problem – power stations are a large contributor to NOx in the atmosphere. Toxic fumes from coal plants are recognised as responsible for premature deaths each year. It is estimated that costs from damage related to respiratory systems have been as high as £2.7bn a year. Aberthaw power plant in Wales was found to be emitting twice the permitted level of toxic nitrogen dioxide earlier this year and is having to invest considerably to meet future limits set by the EU.
SOx emissions have declined over the years, which was partly due to the reduction of sulphur content in diesel. Fuel combustion accounted for more than 83% of UK SOx emissions in 2013 with the main source being the combustion of solid fuel, which relative to other fuels has a high sulphur content.
When comparing diesel to unleaded petrol it still has to be kept in mind that petrol causes pollution at every stage, from recovery and refining, to transport and use.
It is thought that the decline in the use of coal and fuel oil will assist the UK in meeting the Gothenburg Protocol target in 2020. Many believe that this and other targets will not be achieved without more resources being provided for research into cleaner alternative fuel sources.
So does this mean the end of the diesel car? Islington Borough Council is charging its residents a surcharge of £96 per annum on parking if they have a diesel car. Similar discriminatory actions are in operation in other European cities. The Science Minister of the last Labour government put forward the idea of a trade-in scheme for diesels to encourage the purchase of ‘cleaner’ petrol driven cars. This was rejected probably as much for the outcry it would cause (after the years of ‘encouraging’ diesels) as for the huge expense and difficulties in implementation.
The approach set out in the DEFRA consultation documents is to incentivise the uptake of Ultra Low Emission Vehicles (ULEVs) such as electric, hydrogen fuel cell and plug-in hybrid vehicles. This initiative will take the form of grants, support for local authorities and transport operators to change transport systems and taxis to ULEVs, match funding for Hydrogen stations and support for initiatives such as Transport for London’s Ultra-Low Emission Zone (ULEZ).
A striking example is of the Bristol and Bath “poo bus” which runs on human and household waste. Powered by bio methane gas, the splendidly named “Number 2” bus uses waste from more than 32,000 households along its route. Although this isn’t viable for use in private cars in the foreseeable future – will this type of innovation be something that will be common in years to come? For all this, however, it seems diesels are with us for a while yet, but at least now there does seem to be a real intent by European governments to tackle the NOx and particulate matter problem.
Perhaps we should be grateful to VW for its part in moving things forward more quickly than would have otherwise been the case.
Published: 16th Feb 2016 in AWE International