Legal challenges against Whitehaven coal mine approval

In December 2022, the UK government approved a 2.78 million tonne a year coking coal mine proposed for Whitehaven, Cumbria. South Lakes Action on Climate Change (SLACC) has started proceedings for a Statutory Review of this decision. At the same time, Friends of the Earth have also filed a legal challenge. This article looks at the grounds for these legal challenges.

While there are at least 11 arguments why the decision is wrong, only the process behind arriving at the decision can be challenged at a Statutory Review, rather than the decision itself.

Below are the 4 grounds that Richard Buxton Solicitors is challenging on behalf of SLACC, followed be the 4 grounds of Friends of the Earth’s case. A public inquiry was held in 2021, run by a Planning Inspector. After it finished, the Planning Inspector wrote up his recommendation to the UK Government in his report. The Secretary of State based his decision to approve the Whitehaven coal mine on this Inspector’s Report.

South Lakes Action on Climate Change legal challenge

Ground 1 – error of law and/ or failure to give understandable reasons concerning substitution.

The Inspector’s report assumes there will be “some degree of substitution” between coal mined abroad, likely from the USA, and coal from Whitehaven. Unless the substitution would be 100%, as in exactly the same amount of coal extracted from Cumbria would be left underground in a permitted mine elsewhere, the mine would still result in increased global emissions. Substitution won't be anywhere near 100%, as the owners of mines elsewhere will simply sell the coal to different steelworks. The Secretary of State decided on an “overall neutral effect on climate change”, despite the increase in emissions.

Ground 2 – error of law in discounting the international impacts of allowing this mine.

Sir Robert Watson, former chair of the Intergovernmental Panel on Climate Change, gave evidence that many other countries will follow suit and approve fossil fuel projects as a result of this decision. A rare letter from Lord Deben from the Climate Change Committee concurred, the decision “gives a negative impression of the UK’s climate priorities in the year of COP26.”

The UK’s international climate reputation was a key reason that the government called in the decision, rather than allowing Cumbria County Council to make it. The Inspector’s report completely fails to deal with both sets of evidence related to this central controversial issue.

Ground 3 – errors of law concerning whether ‘downstream emissions’ caused by the coking coal were indirect significant environment effects of the proposal.

The Inspector concluded that downstream emissions - those resulting in the use of the coking coal, rather than its extraction - “cannot reasonably be regarded as indirect significant effects of the proposed development.” This is incorrect understanding of the law because of the above substitution error – as other coal will not be 100% substituted for mining reduction elsewhere, but also a misunderstanding of the implications of a cited court case (Finch). Without this coal being mined, it wouldn’t be burnt and so there would be significantly fewer downstream emissions.

Ground 4 – unlawful disparity of treatment of the parties and error concerning the approach to the burden of proof.

The Inspector applied different standards to the parties throughout the inquiry. The National Planning Policy Framework (NPPF), paragraph 217, imposes a high threshold of evidence as to the benefits of a coal mine on the applicant rather than those opposing it. The Inspector seemed to do the opposite, imposing a higher threshold upon testimonies against the coal mine development. This might have influenced how the Government later interpreted the testimonies through the Inspector's report.

Friends of the Earth’s legal challenge

Ground 1: Approach to considering the effect of the development on the UK’s Sixth Carbon Budget.

The impact of the mine on the UK’s Sixth Carbon Budget, which covers the years 2033 to 2037, was a key issue in the Public Inquiry.

The mining company had entered a legal agreement requiring it to buy international carbon offset credits to offset residual emissions from the mine. In the decision letter the Secretary of State concluded that this requirement meant the mine would be net-zero for the purposes of the Sixth Carbon Budget. That conclusion was wrong and unlawful. Such offset credits do not count towards the UK’s carbon budgets.

Ground 2: Approach to considering the international impacts of the decision.

Similar to SLACC’s Ground 2 reasoning.

Ground 3: Approach to ‘substitution’ of WCM coal and the global coal market.

Similar to SLACC’s Ground 1 reasoning.

Ground 4: Earlier court case (Finch) and downstream emissions.

The Secretary of State’s reasoning closely follows the judgment of the Court of Appeal in the case of R (Finch) v Surrey County Council, both in terms of whether downstream emissions should have been the subject of environmental assessment, and in terms of the case-by-case assessment of their materiality. It is argued that this is a misinterpretation of the judgement, similar to SLACC’s Ground 3.

As both legal challenges base one of their grounds on the R (Finch) v Surrey County Council court case, and which is subject to a Supreme Court decision going to court in June, it is expected that the challenges against the coal mine will be delayed until after the R (Finch) v Surrey County Council court case is heard. Once a single day hearing has happened, a decision will be given as to whether or not the government has to remake the decision on the Whitehaven case.

The full documents can be read on SLACC’s website

More details on the challenge by Friends of the Earth are available at

Share now:

Notify of

Inline Feedbacks
View all comments

Never miss an update! Sign up to our Newsletter


FINITE: the Climate of change – watch from home

We’re excited to let you know that you can finally watch FINITE online now on Vimeo On Demand, by renting or buying the film.

FINITE: The Climate of Change is an inspiring insider’s view of communities in the UK and Germany putting their bodies on the line to fight back against coal mining. Featuring Coal Action Network alongside local people in the Pont Valley, Durham…

Ffos-y-fran, the UK’s last opencast coal mine finally shut – we’re not celebrating

We are an environmental organisation dedicated to ending coal mining and use in the UK for the sake of our collective climate and ecosystems. So you’d think we’d celebrate the claim by Merthyr (South Wales) Ltd that it will finally stop mining coal today at Ffos-y-fran in Merthyr Tydfil, South Wales. But we’re not. Because the abject failure of Merthyr County Borough Council to stop…

Ditch the dirty dollars – invest in our future!

People hailing from Cumbria to London, and everywhere in between, descended on the Mines and Money Conference in London across two days (28th-29th Nov 2023). We demanded that investors stop pouring cash into the mining sector, and  instead invest in our collective future. Together with Fossil Free London and other groups, we greeted investors with…

5 Insurers Rule Out The West Cumbria Mine

The insurers that have ruled out underwriting the mine are AEGIS Managing Agency, Argenta Syndicate Management, Hannover Re and Talanx. These are the first financial institutions to rule out any involvement with the project, and the win represents a new phase in the campaign to stop the project from going ahead.

EACOP: Global Day of Action against Chinese involvement in the pipeline

Today’s global actions focused specifically on the state-owned China Export & Credit Insurance Corporation (Sinosure), the Export-Import Bank of China (China Exim), and the Industrial and Commercial Bank of China (ICBC). Sinosure is said to be in advanced talks with the Ugandan government about providing credit for the project.

Protesters occupy the offices of City Of London insurers demanding they rule out backing for climate-wrecking projects

On 18th October dozens of protesters staged a sit-in occupation of the plush City of London offices of ten Lloyd’s of  London insurers demanding they rule out insuring the proposed West Cumbria coal mine and East Africa Crude Oil Pipeline (EACOP). 

Protest the Mines & Money conference

Global mining companies are coming to London soon attempting to find investors in their ruinous projects at the Mines and Money Conference (28th to 30th November). Join our protests against it!

Ffos-y-fran: timeline of illegal coal mining

01 September 2022: Merthyr (South Wales) Ltd applies for a S.73 time extension to mine coal from Ffos-y-fran, and to accordingly delay and vary restoration works.
06 September 2022: Planning permission ends for coal mining at the Ffos-y-fran site, after 15 years and 3 months of operations.
12 September 2022: first reports to MTCBC have been made by local residents of coaling beyond the end of planning permission.

Coalition backing a coal mining ban in Wales

Over 30 Welsh NGOs and businesses have signed a letter to Welsh Minister Julie James and Deputy Minister Lee Waters, demanding they draw a line in the sand and announce ban on any further coal mines on Welsh soil. The letter was delivered on 11th October 2023.


Share now:

Would love your thoughts, please comment.x