Successful Challenge to Cumbria Coal Mine

On 13 September, 2024, Mr Justice Holgate handed down judgment quashing the planning permission for a new coal mine in Whitehaven, Cumbria.  The mine would have extracted approximately 2.8 million tonnes of coal per year until 2050, generating approximately 220 million tonnes of carbon dioxide emissions. Despite this, permission was granted by then-Secretary of State Michael Gove on the basis that the mine was “carbon neutral”.  Richard Buxton Solicitors represents South Lakes Action Against Climate Change – Towards Transition (“SLACC”), one of two claimants challenging the decision, along with Friends of the Earth (“FoE”).

In summary, the Court held that the permission was unlawful because:

• It was unlawful to grant permission without requiring an assessment of the emissions from the use of the coal that would be produced by the mine (SLACC ground 3 and FoE ground 4);
• The Secretary of State’s conclusion that the mine would be “carbon neutral” was illogical and/or inconsistent with his findings on whether there would be “substitution” by steel makers of Whitehaven coal for other coal from elsewhere (SLACC ground 1 and FoE ground 3);
• The Secretary of State had failed to consider evidence that granting permission for the mine would harm the UK’s diplomatic efforts to promote international action to address climate change (SLACC ground 2 and FoE ground 2);
• The Secretary of State misunderstood the effect of the offsetting arrangements the mine had proposed and erred by assuming that these would necessarily affect the UK carbon budgets (FoE ground 1).

(For our summary of the history of the planning process and the public inquiry relating to the mine prior to the court challenge, see here.)

A more complete summary of each of the issues as dealt with by the Court is as follows:

Issue 1: Assessment of end use emissions (Finch)

In June of this year, the UK Supreme Court handed down the judgment in R (Finch) v Surrey County Council, a landmark decision which held that environmental impact assessment of fossil fuel projects must include an estimate of the emissions from burning the fossil fuel (in that case, oil).  On 10 July, the Secretary of State accepted that, having considered Finch, the Cumbria decision was unlawful because the Environmental Statement had not contained any assessment of the emissions from using the coal from the mine.  The Secretary of State therefore accepted that the decision should be quashed, but West Cumbria Mining, the applicant for the mine (“WCM”) continued to resist the claim.  (A 3-day hearing therefore went forward on 16-18 July 2024, with only WCM defending the case)

The High Court judgment holds that, properly applying Finch, the decision was unlawful.  WCM had argued that there was no need to assess the emissions because they were purportedly offset entirely by reduced emissions from the use of other coal.  This contention was termed “perfect substitution” – i.e. (it was asserted) there would be no change to the global supply of coal from opening the mine and that for every tonne of coal produced in Whitehaven, precisely one fewer tonne would be produced elsewhere, meaning there would be no change to global greenhouse gas emissions.  However, the judgment lays out clearly that if this claim is to be made in an environmental statement, this cannot be a mere assertion.  There must first be an assessment of the greenhouse gas emissions which will inevitably arise from the use of the Whitehaven coal.  There could then be a separate assessment of the potential for emissions reductions from the use of other coal, but this assessment must be based on proper evidence (as with any other portion of an environmental statement, which must be prepared by qualified individuals) and must consider whether this substitution effect is sufficiently certain to cause an offsetting reduction to some or all of the previously-assessed emissions. The approach taken, which did not involve an initial assessment at all on the purported basis that any emissions would be balanced out by offsetting effects, was not lawful.

Issue 2: Perfect Substitution

Under this ground, SLACC and FoE contended that the Secretary of State erred when concluding that the climate impacts of the mine were “neutral or at worst slightly beneficial” (this unclear phrasing is from the decision letter) because there would be “potential for a significant degree of substitution” (i.e. for some of the coal from the mine to displace coal which otherwise would have come from other mines).  In fact, the evidence before the Inquiry which SLACC had put forward (from Professor Michael Grubb), and which was not contested, had shown that if even 1.1% of the coal was not subject to substitution, the emissions from the use of the coal would lead to a net increase in greenhouse gas (GHG) emissions.  Indeed, even that figure was based on purported savings in transportation emissions which the Secretary of State had found could not be relied upon.  Given the finding that transport emissions might in fact be worse because of potential transport to Asian markets in later years, the coal mine could only be ‘carbon neutral’ if substitution were completely perfect.  Even 99% substitution (as opposed to 100%) would lead to substantial additional emissions.

The Court agreed.  The judgment highlights (para 170) that the Secretary of State (and the Inspector who advised him) repeatedly found that substitution would not be perfect, but that there would be “a significant degree” of substitution or that substitution would occur “to some extent”.  The Court found that although there were other passages that seemed to indicate contrary findings, it was “impossible to reconcile the inconsistencies and muddle in this reasoning”.  The Secretary of State had failed to reach any consistent view or to give a legally adequate explanation for whatever view he had taken (which did not accord with any case put to him in the Inquiry).

Issue 3: Impact on UK’s leadership role in encouraging international efforts to combat climate change

The claimants argued that the Secretary of State erred in failing to address or even mention undisputed evidence before the inquiry that permitting the new coal mine would have a negative effect on the UK’s climate diplomacy and would send a signal that the UK is not serious about its climate ambition, resulting in reduced ambition from other countries and increased global GHG emissions.  Again, the Court agreed.  This was directly raised in the inquiry by SLACC’s evidence (primarily by Sir Robert Watson, formerly IPCC chair and Chief Scientific Advisor to DEFRA and the World Bank) as well as by other parties and was therefore a “principal controversial issue” at the inquiry which required consideration.  The Secretary of State did not deal with this evidence or the case put forward that (even if the mine was carbon neutral on WCM’s understanding of that term) it would harm the UK’s efforts to encourage other countries to reduce their reliance on fossil fuels.

Other points:

SLACC had also argued that the Inspector applied disparate standards to the evidence of the applicant coal mining company and the objectors, consistently resolving matters of uncertainty or evidential gaps in the applicant’s favour despite it being for the applicant to produce evidence to a standard to satisfy the Inspector that relevant policies were met.  Whilst the Court agreed that it was for the applicant to satisfy certain evidential burdens, it considered there was not an unlawful inconsistency of approach, and therefore rejected this ground.

FoE also succeeded on a ground in relation to offsetting of the operational emissions of the mine (i.e. the greenhouse gas emissions from the actual mining operations themselves.)  At the inquiry, FoE had argued that offsets from outside the UK should not be relied upon under Government policy.  The Inspector and the Secretary of State had both found that, because of offsetting, the coal mine would not have an impact on the UK’s statutory Carbon Budgets.  This was because (they said) the offsets that WCM would purchase would balance out the emissions from the operation of the mine.  However, this was wrong: they had not appreciated that international offsets would not lead to reductions in the UK.  Therefore it was wrong to have found that the UK’s Carbon Budgets would not be affected by the mine.  Whilst WCM had lately (during the course of the litigation) provided a legal agreement which would require offsets to be sourced domestically, there was an evidential dispute about whether this would use up scarce offsets that were needed elsewhere and/or whether there would even be enough offsets in the UK to make the commitment deliverable.  The Court agreed with FoE that it was for the Secretary of State to make a judgment on this issue (which he had not previously, having not required domestic-only offsets), and so this was another reason the decision to grant permission was unlawful.

Instructed counsel are Estelle Dehon KC and Rowan Clapp of Cornerstone Barristers.