Climate impact of coal mining in court

15 Mar 2023

Public Law and Judicial Review, Planning and Environment, Cornerstone Climate

Today the Administrative Court in Cardiff will consider a judicial review challenge by the Coal Action Network concerning proposals for the extraction of up to 42 million tonnes of coal from Aberpergwm Colliery. If combusted, this coal would release up to 100 million tonnes of carbon dioxide by 2039.

Energybuild Mining Ltd, the operator of Aberpergwm mine, holds a licence which already authorises some coal mining, but postpones authorisation for mining of an extended area. The operator applied to the Coal Authority in September 2020 for authorisation to mine 1,131 hectares of the extended area. The Coal Authority approved the application on 25 January 2022. The Coal Action Network will argue that the Welsh Ministers had the power to block the new authorisation and that the Coal Authority should not have approved the application, particularly in light of the climate impact of the additional mining.

The grounds of challenge raise important points of statutory interpretation regarding the extent of the Coal Authority and the Welsh Ministers’ powers. The hearing is set to last for one and a half days.

The Challenge in Detail

  • Coal Action Network challenges the decision by the Welsh Ministers that they had no power to refuse to approve the authorisation under section 26A of the Coal Industry Act 1994 (CIA 1994), because it was not an application for a new or extended licence, but rather an application to “deconditionalise” an existing licence. Coal Action Network argues that the statute is broadly worded and, on a natural reading of section 26A, it applies to decisions that bring into force an authorisation that has been postponed.
  • Coal Action Network also challenges the view taken by the Coal Authority that it had no discretion to refuse to grant the application once the operator demonstrated that it had complied with certain conditions in the licence. Coal Action Network argues that the Coal Authority has misinterpreted its duties under section 2 CIA 1994 as a series of rigid ‘tests’, whereas in fact it has a broad discretion to consider any relevant matters when making licensing decisions.

Estelle Dehon KC appears for Coal Action Network, instructed by Matthew McFeeley of Richard Buxton Solicitors.