UK faces Heathrow legal action

Controversial plans to build a third runway at Heathrow may fall foul of EU pollution regulations wi

The European environment commissioner has warned he intends to take enforcement action if Britain breaches legally binding pollution limits by allowing Heathrow airport to expand.

Local councils are also threatening to launch legal challenges if ministers go ahead with expansion plans that are already opposed by many Labour MPs.

The warning from EU Commissioner Stravros Dimas comes after it emerged that Department for Transport (DfT) officials doubted their own proposed measures to reduce pollution. The DfT’s consultation paper on Heathrow expansion concealed concerns that mitigation measures might be “too costly or impractical to implement, or politically unacceptable”.

Environment secretary Hilary Benn has promised not to “fudge” pollution limits in the new EU air quality directive but has confirmed that he intends to seek permission to delay their implementation for up to five years from 2010. Last month, Environment Agency chairman (Lord) Chris Smith criticised the government for seeking to increase flights at Heathrow during this time.

The DfT wants to use “mixed mode” operation – using both existing runways for takeoff and landing at the same time – to achieve 60,000 extra flights a year by 2015 in advance of a third runway. It has admitted that nitrogen dioxide (NO2) limits in the directive would be breached before 2015 but has pledged to deal with anticipated breaches after that date.

But the DfT’s September 2007 risk register for Heathrow expansion shows that officials assessed as “high” the risk that measures to achieve this might not be deliverable. The document, obtained by Greenpeace under the Freedom of Information Act, also shows that officials doubted whether “radical mitigation measures might be justified for a relatively short period before things improve over time.” This refers to disputed assumptions that cleaner aircraft and road vehicles will eventually provide the “headroom” for additional flights.

Commissioner Dimas has made clear that he expects Britain to comply with the directive as soon as it is implemented. His spokesperson told newstatesman.com: “We expect Member States to fully respect EU legislation. We will assess compliance [with] the NO2 limit value at the actual attainment date, and enforce it if necessary.”

The DFT document also shows that officials intentionally gave a misleading “narrative” of measures to deal with anticipated breaches after 2015. It states that “possible mitigation measures are addressed as a narrative within condoc”, a reference to the official consultation document, published two months later.

The consultation acknowledged that around 30 homes could experience illegally high levels of nitrogen dioxide during full mixed mode operation but listed possible mitigation measures, including lower speed limits, traffic management measures and surface treatments. It stated: “Although the improving trend in road vehicle emissions beyond 2015 means that any residual problems would be fully resolved by 2020, the air quality Directives will require the relevant limits to be met before then.”

The consultation concluded that full mixed mode by 2015 would achievable within pollution limits if traffic management or other measures were implemented. Although it acknowledged that the effectiveness of surface treatments was “unproven”, it did not reveal officials’ belief that other measures might have to be ruled out for financial or political reasons or the suggestion that breaches of the directive might be ignored in the short term. Instead, it referred to “Government’s overriding legal obligation to meet air quality limit values.”

In March, the Environment Agency criticised the DfT’s claims that “potential alternative measures” would bring pollution within legal limits. It stated: “Without firm plans and agreed measures we contend that the conclusion that the limit values can be met with full mixed mode cannot confidently be made.” It is now clear that DfT officials also saw their own conclusion as wishful thinking.

Hillingdon Council, whose area includes Heathrow, is one of a number of councils that is preparing to challenge any decision in favour of expanding the airport, on the grounds that the DfT’s environmental claims are flawed. Hillingdon councillor Keith Burrows, Cabinet member for Planning and Transportation said: "We will fight expansion at Heathrow all the way - if that means legal action then that's what we'll do. We do not believe that expansion, which will generate one million extra vehicle movements on roads around Heathrow, can go ahead within EU limits on nitrogen dioxide. The opposition to this expansion is overwhelming - enough is enough."