Risk managers must continue to consider potential pollution exposures

The detrimental effect of air pollution is a significant emerging risk, which was brought to public attention in the UK following the death of Ella Kissi-Debrah in London in 2013.

An inquest in 2020 found that air pollution from the South Circular Road had made a material contribution to the girl’s death and the coroner’s Report to Prevent Future Deaths, published in April, called on national and local government to properly publicise air pollution levels and for medical professionals to better communicate the adverse effects of air pollution to their patients.

Since then, in a recent landmark ruling, the English High Court has shown that it is prepared to hold the regulators to account for the consequences of air pollution. In Richards, R (On the Application Of) v The Environment Agency [2021], the judge ordered the Environment Agency (EA) to take further regulatory action to reduce emissions of hydrogen sulphide at a landfill site in Silverdale, Staffordshire. The judgement was also critical of the measures adopted by the EA to date.

The Richards case was brought by the family of a five-year-old boy who suffers from breathing difficulties caused by underlying health conditions, which doctors say are being worsened by his exposure to emissions from the nearby Walleys Quarry landfill site (WQLS).

Mr Justice Fordham was not satisfied that the EA was complying with its legal duty to protect the life of Mathew Richards and granted a declaration compelling the EA to take action to reduce hydrogen sulphide emissions from the privately-owned landfill site to levels recommended by Public Health England (PHE) by January 2022.

The case was advanced on the assertion that the emissions had placed “the local community in crisis and living in unbearable conditions”. For Mathew himself, this had prevented his lung development and ability to recover, raising the likelihood of him developing chronic obstructive pulmonary disease (COPD), with the consequential effect of shortening his life expectancy.

It was further contended that the EA was failing in its obligations to discharge its statutory duties under Section 6 of the Human Rights Act to protect Mathew’s right to life (Article 2) and right to respect for private and family life (Article 8), as well its common-law duties to act reasonably and take reasonable steps to acquaint itself with relevant information.

The High Court decision in the Richards case goes one step further than the inquest in Ella Kissi-Debrah’s case, by forcing a state regulator to take action. Specifically, Mr Justice Fordham held that in the scope of industrial activities, there was an overlap in the positive obligations on the part of the state in respect of Article 2 and Article 8 of the European Convention on Human Rights (ECHR). In environmental cases, the responsibility can fall on state authorities where private industry fails to be regulated.

The usual route for human exposure to hydrogen sulphide is via inhalation, and agencies such as PHE and the US Environmental Protection Agency have set out guideline levels. Various respiratory, ocular and neurologic effects can be experienced, depending on the intensity of exposure; however, the court identified that there was “an information gap in relation to the human health implications of long-term (chronic) exposure to low-concentration hydrogen sulphide, especially in relation to children”.

What was apparent from submissions made by the residents of Silverdale was that hydrogen sulphide emissions from WQLS had been intolerable throughout 2021. A number of statements from adults, and on behalf of children, detailed various symptoms and health effects.

In failing to regulate the reduction of emissions from WQLS to the levels recommended by PHE, the court considered that the EA had failed to discharge its positive obligations under Article 2 and Article 8 of the ECHR. Severe environmental pollution affecting the family and private life of an individual was enough to trigger a positive obligation on the part of the state under Article 8. Where the adverse effects of that environmental pollution attain a minimum level, the state (in this case, the EA) was required to take reasonable and appropriate measures which balanced the rights of the individual and community.

Regarding Article 2 and the right to life, Mr Justice Fordham noted that while Mathew’s bronchopulmonary dysplasia (BPD) was not caused by hydrogen sulphide exposure, the “very inevitability” of BPD evolving into COPD was “attributable to the ongoing exposure to hydrogen sulphide”. The judge recognised that the EA has powers to protect against this, but that this positive operational duty was “being breached in the present case”. The court did not identify the steps that the EA should compel the owner of WQLS to take but was unequivocal in stating that “the current levels of hydrogen sulphide from WQLS constitute a breach by the EA of its positive operational duty under Article 2”.

As with many other emerging risks, risk managers will increasingly need to ensure they have considered the potential exposures presented by air pollution. Although the case did not address the issue of civil liability to victims of air pollution, it opens the door to further legal action both against the polluters and the regulators, concerning air pollution where a threat to life is identified.

Contributed by Toby Scott, equity partner in the disease team at Clyde & Co