The People vs. Toxic air

Where governments fail to maintain breathable air, citizens turn to the judiciary

Stara Zagora, Bulgaria, the capital of Stara Zagora Province, the heart of Bulgaria’s coal country

Campaign milestone

A five-year battle between a people-powered campaign and the government of Bulgaria reached a milestone in March this year when the Administrative Court in Stara Zagora ruled that exempting Maritsa Iztok 2 – the biggest state-owned coal plant in the Balkans – from meeting the EU’s newer and stricter emission norms was illegal. 

With a capacity of over 1,600 megawatts (MW), in 2018, the plant was permitted to emit up to double the amount of sulphur dioxide and four times the limit for mercury, as per the EU’s 2017 industrial emissions directive

The ruling is significant at a time when the sector and the government are under pressure to delay the energy transition. Greenpeace Bulgaria and Friends of the Earth Bulgaria (Za Zemiata) first filed the case against Maritsa Iztok 2 at the Administrative Court in Stara Zagora in 2018, with the support of ClientEarth.

Given the plant’s transboundary impacts, a Greece-based environmental think tank – Green Tank – and an unnamed Greek citizen joined the case as interested parties in 2019. 

It is extraordinary that the regional court in Stara Zagora, the biggest coal region in Bulgaria, has ruled against a power plant and an industry with such historical and cultural significance for the local identity

Meglena Antonova, Office Director, Greenpeace Bulgaria

Next steps

In 2021, the  Supreme Administrative Court of Bulgaria referred the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling. In March 2023, the EU’s top court ruled that the Bulgarian government violated laws when it allowed plants to pollute above legal limits and that plants cannot be exempted in already polluted regions – as is the case with Maritsa Iztok 2. The latest ruling by the Administrative Court of Stara Zagora was an interpretation and reiteration of the CJEU’s order from last year.

The case is still ongoing, as the power plant and the Executive Environment Agency, the regulatory body responsible for permitting, have appealed the decision to the country’s apex court. “The appeal simply reiterates the agency’s and the plant operators’ arguments in previous court proceedings while completely disregarding the judgement of the CJEU,” said Regina Stoilova, the lead Bulgarian lawyer working on the case. To counter the appeal,  Greenpeace Bulgaria and Friends of the Earth Bulgaria (Za Zemiata) will seek to implement CJEU’s rulings in the matter at the Supreme Administrative Court of Bulgaria.

A CREA health impact assessment (HIA) revealed that delaying Bulgarian coal power plant decommissioning until 2038 would cause: 

  • 5,500 premature deaths; 
  • 4,600 hospital admissions; 
  • 132,000 cases of asthma and 13,600 cases of bronchitis in children; and
  • 1.4 million days of work absences. 

Meglena Antonova, from Greenpeace Bulgaria, one of the organisations that led the legal battle, has emphasised that the regional court did not consider the plant’s health impacts beyond Bulgaria, specifically Greece, due to the transboundary nature of air pollution, which has been documented to extend well beyond shared borders. 

Recognising clean air as a fundamental human right

In 2019, the European Parliament adopted a resolution recognising clean air as a fundamental human need and calling for the adoption of stricter limits on air pollution. In the Green Deal, the EU Commission committed to a zero pollution vision for 2050, with air, water and soil pollution reduced to levels no longer considered harmful to health and natural ecosystems. These political developments happen in the context of the Court of Justice of the European  Union (CJEU) holding that individuals and groups have the right to demand action against air pollution. “In this sense, EU citizens have a legal right to clean air,” according to Ugo Taddei, lawyer at ClientEarth, in a 2020 journal published by Oxford Academic. 

Bulgaria’s case is one of the growing number of lawsuits that citizens have filed against their government for failing to uphold the fundamental right to breathe clean air. 

The number of lawsuits, including cases that have been won, putting the onus on national governments to maintain clean air in the European Union and the United Kingdom is steadily increasing. 

On a global level, in July 2022, the UN General Assembly passed a resolution recognising clean air as a basic human need, stating that “the resolution is not legally binding on the 193 UN Member States. But advocates are hopeful it will have a trickle-down effect, prompting countries to enshrine the right to a healthy environment in national constitutions and regional treaties, and encouraging states to implement those laws”.

However, as of 2021, one-third of all countries in the world did not have any legislation related to air pollution, according to UNEP’s first global assessment of air pollution, which stated that, “just over half (51 per cent) of national air quality regimes have explicit public health or both public and ecosystem health as their main objective. However, the actual content of many of these regimes does not correspond to that goal”. In 49% of the countries listed, the notion of air pollution is confined only to ambient air pollution, while in 43%, there is no clear definition of “air pollution”. 

Why litigation matters

After a seemingly brief respite, air quality in some of the most populated and polluted cities in Asia has returned to its pre-pandemic levels. Between 2020 and 2022, pandemic-induced lockdowns brought transport and industries to a standstill across the globe. This positively affected air quality, with global patterns showing a reduction in PM2.5 levels. However, such improvement was circumstantial rather than a result of policy measures, as shown by how levels increased again in 2023. The increase was more pronounced in capital cities in Asia, as can be seen in a CREA analysis of Indonesia’s air quality, including Jakarta. 

A 2020 Economist Report noted that some 92% of the Asia-Pacific population is exposed to levels of air pollution that violate the human right to live in a clean, healthy, and sustainable environment. Asia is disproportionately affected, with South and East Asia home to 49 of the 50 most polluted cities worldwide.

While most Asian countries recognise the right to clean air, courts and citizen groups in countries like India, Indonesia, Thailand and Bangladesh have been found instrumental in getting their governments to frame and implement better policies and holding officials accountable for failing to act against toxic air. 

The rise in air pollution litigation and subsequent victories provide respite to victims of air pollution and the local ecology and set significant precedence for future litigation.

While climate litigation is growing and rather well known, a lesser-known angle of taking air polluters to court is also bringing results – encouraging more such cases to be filed

Meri Pukarinen, Research Programs Manager, CREA