NI diesel pollution legal challenge resumes

​The landmark #CleanAirNI legal challenge returns to court today (01 March 2024), as Northern Ireland’s latest Infrastructure Minister is settling into their new job.

Friends of the Earth Northern Ireland, represented by The Public Interest Litigation Support (PILS) Project, and supported by the NI Commissioner for Children and Young People (NICCY) are challenging the long-running failure of the Department for Infrastructure to carry out the legally required emissions test on diesel cars in Northern Ireland.

On 21 September 2023, Friends of the Earth NI’s legal team set out their arguments that not only has the Department breached its vehicle testing duties, but it is also failing to protect our public health, biodiversity and wildlife habitats.  

In advance of the judicial review’s second – and final – day in court, the human rights organisations involved in the case have a joint message for Minister for Infrastructure John O’Dowd:  

Our case gives you a clear roadmap of what needs to happen.  

Bring back testing.  Eradicate the triple threat to public health, natural habitats and biodiversity.  Allow us all to breathe clean air.  

This challenge is making history as one of the first cases to rely on the Climate Change Act (Northern Ireland) 2022 in court.

PILS’ Director Maria McCloskey is instructed in the case, as Friends of the Earth’s solicitor: “17 years – and counting - is a long time to wait for the legally required checks to be carried out on Northern Ireland’s diesel cars. We return to court this morning and our demands remain unchanged. We hope that the new Minister will protect public health, biodiversity and air quality by reintroducing the test without further delay.”  

Friends of the Earth Northern Ireland Director James Orr said: “We welcome a second day for this judicial review as it’s imperative to hear what the Department for Infrastructure has to say for itself having failed for over 17 years to protect air quality from car diesel fumes. This should be top priority in Minister O’Dowd’s in-tray. Human health and the health of our biodiversity and habitats must be protected.”  

Northern Ireland Commissioner for Children and Young People, Chris Quinn, said: “I hope after today’s hearing we start to see some real progress on this issue given the restoration of the Executive and Minister O’Dowd now being in post. Environmental harm is a significant threat to children’s rights, urgent changes are needed across the board. In August last year, the UN Committee published General Comment 26, - informed by 16,000 children – in this they advised that States should immediately improve air quality, by reducing both outdoor and household air pollution, to prevent child mortality, especially among children under five years of age. It is long past time that this was addressed, and that action was taken to combat the problem. The Department of Infrastructure have not been carrying out their legal obligations for 17 years which is simply unacceptable. We want to hear what they have to say and the reasons behind why this issue has been neglected for so long."    

#CleanAirNI  

*** ENDS  

Notes for editors:  

1. The case is listed for hearing at the Royal Courts of Justice (in the Judicial Review Court) on Friday 01 March 2024 at 11.00. 
2. The experiences of the lawyers and campaigners involved in the judicial review has now been documented by The PILS Project in their podcast mini-series. ‘Holding our Breath’ is available to download/stream now, taking listeners behind the scenes of this landmark case: https://pilsni.podbean.com/ 
3. Friends of the Earth is an environmental justice charity with a regional office in Belfast that undertakes campaigning and other work including legal interventions in furtherance of its objectives to ensure that each generation enjoys an environment that is getting better, a safer climate, abundant nature, healthy air water and food. It encourages people to come together to transform our environment into one which is flourishing, sustainable and socially just: www.friendsoftheearth.uk/northern-ireland    
4. The Public Interest Litigation Support (PILS) Project is Northern Ireland’s first and only legal project dedicated to helping local NGOs and legal professionals to build public interest litigation. These are life-changing legal cases that create positive impact, not just for one person, but for communities across Northern Ireland: www.pilsni.org   
5. NICCY was established through the Commissioner for Children and Young People (Northern Ireland) Order 2003 to ‘safeguard and promote the rights and best interests of children and young people’. The age remit includes those up to the age of 18 and those up to 21 years if they have a disability or have experience of being in the care of the State. The Commissioner has an advice service for children and young people and their families if they feel they are not being treated fairly, or have a complaint about the services they receive, or are meant to receive: www.niccy.org   
6. FOE NI successfully applied to PILS for legal assistance and financial support to initiate this air pollution challenge. More information on PILS’ free services is available here: https://pilsni.org/services-provided/   
7. Judicial review is a particular type of court action where an individual/group with legal standing may challenge the lawfulness of a decision or action (including failure to act) of a public body. Judicial review is a remedy of ‘last resort’.  
8. Friends of the Earth NI is represented by Ms Monye Anyadike-Danes KC and Mr Aidan McGowan BL, instructed by solicitor (and PILS Director) Maria McCloskey.   
9. Friends of the Earth NI lodged their application for leave to judicially review the Department for Infrastructure’s ongoing failure to adequately test diesel car emissions on 03 February 2023 and leave was granted on all grounds by the Court a few days later on 08 February 2023.   
10. In May 2023, NICCY applied for permission (‘leave’) to intervene as a third party in the Clean Air NI case. A third-party intervention means involving an individual or group, who is a “stranger” to a particular set of legal proceedings, in the case. If the court grants the individual or a group permission to become a third party to the proceedings, the individual or group is able to provide written or oral representation before the court. NICCY will highlight its human rights concerns and the adverse health impacts that air pollution has on children and young people in Northern Ireland.  
11. The landmark legal challenge, which demands that the Department for Infrastructure re-introduces the legally required test for diesel emissions 17 years after it suspended the practice, was originally scheduled to last for one day. On 21 September 2023, when it was clear that not all of the legal arguments and submissions would be heard that day, the matter was listed by Mr Justice Adrian Colton for a second day.   
12. During today’s hearing, it is expected that the Department’s legal team will conclude their arguments. Friends of the Earth NI’s barristers will then have an opportunity to respond. Once the formal proceedings have concluded, Mr Justice Colton will consider the arguments and evidence, and then write his decision.