BACK TO TOP

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 https://slacc.org.uk/cumbria-coal-mine/

More details on the challenge by Friends of the Earth are available at https://friendsoftheearth.uk/climate/legal-challenge-filed-over-cumbrian-coal-mine

Share now:

Subscribe
Notify of
guest

0 Comments
Inline Feedbacks
View all comments

Never miss an update! Sign up to our Newsletter

OTHER STORIES

Bedwas coal tips: Key facts and impacts
April 17th 2024

Mining company, ERI Ltd, is applying to mine nearly half a million tonnes of coal from two coal tips dumped in Caerphilly, South Wales, by the mining industry last time it operated in the area. It’s vital we stop this shameless attempt to exploit the mess left behind by the mining industry to justify yet more mining. If the coal tip mining were to go ahead, it would…

Ffos-y-fran opencast coal mine quietly becomes a massive reservoir
March 27th 2024

Coal Action Network’s drone footage on Monday 11th March raised the alarm bell about the rising water levels. With this footage, a local resident informed Merthyr Tydfil County Borough Council of the rising water levels, only to be told…

Global Week of Action: Putting Insurance Industry in the Hot Seat
March 13th 2024

The insurance industry found itself in the spotlight last week as a Global Week of Action blossomed across the world. From February 27th to March 3rd 2024, a wave of protests, both online and in the streets, swept through the doors of insurance giants, demanding accountability over their support for polluters and decisive action on climate change.

Protesters walk with banner reading 'Insure Our Futures Not Polluters'

Success: Yet another major insurer rules out coal and oil projects
March 5th 2024

After a week of peaceful protest around the world, alongside hundreds of groups, our efforts have paid off. Yet another leading insurance company, Probitas, has ruled out insuring the proposed West Cumbria coal mine and the East African Crude Oil Pipeline (EACOP).

Bedwas coal tip: a new frontier for coal in South Wales?
February 26th 2024

‘Energy Recovery Investments Ltd’ is proprosing to extract the coal from 3 large coal tips in Bedwas, Caerphilly, South Wales. The company claims that it would use some of the sales of the coal to restore those coal tips later. The coal tips lie above a coal seam, which the company claims it would coincidentally have to dig into to create ‘lagoons’ for processing the coal from the coal tips…

Charges dropped for activists blocking Ffos-y-fran coal mine
February 26th 2024

The Crown Prosecution Service has dropped all charges against the four Extinction Rebellion (XR) activists who blockaded the entrance to the UK’s largest open-cast coal mine, last summer with a pink boat. While removing the immediate burden of legal confrontation for the defendants, the decision has left a “crater of unfinished business” in the fight for climate justice and accountability for local residents…

Coal clings on in Aberpergwm appeal
February 26th 2024

Citing different grounds to the High Court, the Court of Appeal has nevertheless found against our appeal. The Court of Appeal judges disagreed with the judge in the High Court, and decided that current statute limits Welsh Ministers to only deciding whether a new conditional licence may be issued…

Aberpergwm coal mine extension debated in court
February 6th 2024

Today, 6th February 2024, Coal Action Network was back in court, this time appealing last year’s decision by the court that the Welsh Government couldn’t prevent an extension at Aberpergwm coal mine.

✌🏿Victory!✌🏼 Leading Global Insurers Rule Out East African Crude Oil Pipeline
January 23rd 2024

After months of campaigning, five more major insurance companies have announced they will not support the East African Crude Oil Pipeline (EACOP)!

CONNECT WITH US

Share now:

0
Would love your thoughts, please comment.x
()
x