Challenge to Welsh coal mining licence

The High Court has granted permission in a claim against the Welsh Government and the Coal Authority in connection with a proposed licence to mine coal at Aberpergwm, south Wales. The claim contends that both defendants have misunderstood their powers in issuing a licence that will authorise the extraction of approximately 40 million tonnes of coal by 2039.

The Coal Authority is the public body responsible for issuing coal extraction licences in Great Britain. Aberpergwm Colliery is currently operated by Energybuild Mining Limited. Energybuild applied for a ‘full underground licence’ in 2020 to allow mining over an extended area. This was necessary to “deconditionalise” the 1996 licence. The licence was granted on 25 January 2022.

We are instructed by the Coal Action Network in the claim against two defendants (which made separate decisions leading to the grant of the licence). First, during the licensing process the Welsh Government decided that its power to refuse licences in Wales did not apply here. It argues that there is a distinction between applications for fresh licences and applications to deconditionalise pre-existing licences, and that its powers do not extend to deconditionalisation. The claimant argues that this is incorrect and that the power to approve any new mining authorisation extends to this decision. Indeed, during the licensing process, the Department for Business, Energy and Industrial Strategy and the Coal Authority both took the view that the Welsh Government did have the power to reject the licence.

The claim also contends that the Coal Authority’s decision to issue the licence was unlawful. The Coal Industry Act grants the body wide discretion to consider any relevant matters when making licensing decisions.  The Act provides that the Authority must “so far as practicable” secure: (a) the maintenance of an economically viable coal-mining industry in Great Britain; (b) that licensees are able to finance the coal mining operation and discharge any liabilities arising from those operations; and (c) that any damage or loss sustained due to subsidence can be compensated by the licensee.  But the Coal Authority appears to have misinterpreted its powers and treated these factors as a set of rigid tests rather than considering these factors when making the decision whether or not to grant the 2022 licence.

Over the 2022 licence’s lifetime, the additional coal mined coal would be expected to release around 100 million tonnes of carbon dioxide.  The mining itself would also potentially release more than a million tonnes of methane, a greenhouse gas dozens of times more potent than CO2. As such, the case has wider environmental implications, particularly in respect of the Government’s climate commitments under the Climate Change Act 2008 and its carbon budgets made under the Paris Agreement.

Estelle Dehon KC of Cornerstone Barristers is instructed as counsel in the case.