Cumbria Coal Mine Permission Quashed on Four Grounds
Cornerstone Climate, Public Law and Judicial Review, Planning and Environment
Legal challenge to the controversial new underground coal mine at Whitehaven in Cumbria, brought by local community group South Lakeland Action on Climate Change – Towards Transition (“SLACC”) and Friends of the Earth (“FoE”), has been successful on four grounds. The judgment, handed down by Mr Justice Holgate today, is also the first to consider and apply the Supreme Court’s recent judgment in Finch. The judgment is available here.
Summary
The two statutory appeals, brought by SLACC and FoE, were linked administratively and case-managed together. The successful grounds of challenge were:
- The Finch Ground: The Secretary of State’s acted in breach of the Environmental Impact Assessment (“EIA”) regulations by deciding that the greenhouse gas emissions (“GHG”) from the burning of Whitehaven coal were not a significant, likely effect of the proposed development. The Secretary of State consented to judgment on this ground on 10 July 2024, but the developer, West Cumbria Mining (“WCM”), continued to defend the appeal.
- Substitution: The Secretary of State’s conclusion that the proposal would have a neutral or beneficial effect on global GHG emissions was inconsistent with the findings in the decision letter on substitution or alternatively were illogical in the absence of any finding on the degree of substitution, alternatively failed to have regard to the economic evidence on demand before him, alternatively, involved a failure to give legally adequate reasons. The developer had argued that there would not be an increase in GHG emissions (including downstream emissions) because the extraction of Whitehaven coal would result in an equivalent amount of US coal remaining in the ground: Whitehaven coal would be at a competitive advantage over US coal for the UK and European market, and many mines in the US were “swing suppliers”, switching off production in response to changes in demand, so Whitehaven coal would substitute for US coal.
- International Impact: The Secretary of State failed to have regard to evidence and submissions on the impact of a decision to grant planning permission for the coal mine on the ability of the United Kingdom to perform its leadership role in promoting international action to address climate change and/or the reasons given on the subject were irrelevant or illogical and/or there was a failure to give legally adequate reasons.
- Offsetting: The Secretary of State erred in law in the treatment of the issues relating to WCM’s proposed scheme for offsetting GHG residual, mitigated emissions from the coal mine itself.
Key Takeaways
The judgment is particularly important from a climate-change perspective because of the way in which it deals with the substitution argument and the international impact of the grant of permission for the mine.
Substitution
On substitution, the judgment is particularly forthright: it “would be absurd” for the assertion of no net increase in GHG emissions because of substitution to mean that the burning of Whitehaven coal could not be a significant effect for EIA purposes, and hence removing the need for assessment of GHG emissions from combustion of Whitehaven coal [103]. “Instead, the correct analysis is that both are significant matters and, if substitution of US coal would be a likely effect of the proposed project, both effects had to be assessed in accordance with the [EIA] Regulations.”
Holgate J made it clear that the substitution of US coal was not a relevant factor in determining whether the burning of Whitehaven coal would be a likely significant effect of the proposed development, as, self-evidently, it is “not the same chain of causation as that which is involved in the transportation of Whitehaven coal, blending and onward distribution to a blast furnace for combustion” [106-107]. The alleged substitution of WS coal is “a different cause and effect, or causal relationship, from that which results in the burning of the Whitehaven coal” [107]. Accordingly, it was plain that the GHG emissions from the inevitable burning of the Whitehaven coal were significant, likely, indirect effects of the project on the climate [101], of a scale and significance that meant they were an obviously material consideration [102].
Equally importantly, Holgate J held that the EIA Regulations, in light of the Finch judgment, impose an evidential burden on the developer to produce information in its Environmental Statement (“ES”) to demonstrate any claimed substitution effect or that there would be no net increase in GHG emissions, “including legal causation in relation to substitution” [112, 115-116]. It is “the applicant who is responsible for producing information which is legally essential for a compliant ES.” [115] Additionally, Holgate J held that, following the Supreme Court in Finch at [152]-[154], the developer needed to produce full information on those two effects which it claimed balanced each other out (or resulted in some offset). “The public was entitled to participate in a[n] EIA process in which they could respond to such material. It was not for the public to have to produce key components of that information.” [116]
Holgate J held that the ES which WCM has produced was so deficient in this regard that it failed to comply with the EIA Regulations [118]-[124]. WCM had to show (i) a very high degree of substitution not far short of perfect substitution, and, if that was shown, (ii) that there would be no other demand for US coal substituted by that Whitehaven coal. The underlying technical information in the ES, both during and after the inquiry, did not address points (i) or (ii). The claim in the ES that there would be no net increase in GHG emissions was essentially a matter of assertion which was not assessed.
Turning to the Inspector and the Secretary of State’s decisions, Holgate J held that parts of their reasoning were internally inconsistent and that, despite the need for perfect or near-perfect substitution being an important controversial issue with which, as a matter of law, the Inspector and Secretary of State had to grapple [140], they failed to come to a conclusion of whether such a level of substitution would be achieved. This was particularly important in light of expert evidence given by SLACC’s witness, Professor Michael Grubb (Professor of Energy and Climate Change at UCL, former member of the Climate Change Committee). His “sensitivity analysis” showed that if there were only 1% net additional GHG emissions from the burning of Whitehaven coal, that would double WCM’s estimate for the mitigated GHG emissions from the mine itself and if only 1.1% of the Whitehaven Coal over the life time of the mine did not substitute for the US coal, the end use GHG emissions from that Whitehaven coal would equal the estimated savings in GHG emissions through the reduction in transport distances to the UK and Europe steel markets.
Key Takeaways – International Impact
At the inquiry, SLACC and FoE argued that the UK opening a new coal mine would have a negative impact on climate change and would diminish the UK’s status and role as a climate leader, leading to reduced global ambition and increasing global GHG emissions. SLACC led evidence on this from Professor Sir Robert Watson, Former Chair of the Inter-governmental Panel on Climate Change, former Chief Scientific Advisor to the UK Department for Environment and Rural Affairs and former Chief Scientific Adviser to the World Bank. His evidence was that permitting the mine would have a negative impact on the UK’s climate diplomacy resulting in reduced ambition and effort from other countries and increased GHG emissions worldwide, and that this would be the case even if, as WCM claimed, the mine would be ‘net zero’. WCM did not have a witness of comparable standing and addressed this part of the case as “virtue signalling”.
In light of the Paris Agreement, the Climate Change Act 2008 and the parties’ cases, Holgate J held that the potential international impact of granting permission for the mine was a principal important controversial issue, attracting a legal duty on the part of the Secretary of State to give reasons explaining in a lawful manner how those issues were resolved [190]-[195]. The signal sent by the planning permission and its effect on the UK’s standing on promoting action to tackle climate change was also a relevant planning consideration [203].
Holgate J held that the Secretary of State failed in his decision to deal with the effect of the mine and, in particular, with the answer to any alleged positive effect of the mine depending on offsetting arrangements which would be undesirable, because offsets are a finite resource.
Other Notable Findings
On the offsetting ground, Holgate J held that the deliverability of the offsetting arrangement proposed by WCM was a relevant planning consideration which the Secretary of State had to take into account and was an obviously material consideration to the assessment of the ‘net zero mine’ case. The Secretary of State had failed to address FoE’s reliance on policies that stated that any offsetting should be within the UK, rather than reliance on offsets from outside the UK.
On discretion to quash, the essential question post-Finch remains the Simplex question, as articulated by the Supreme Court in Champion, which is whether it is inevitable that the decision-maker would still have granted planning permission absent any legal error identified.
Finally, it is interesting to note that the judgment makes clear that, while matters of weight are for the Inspector and the Secretary of State, subject to Wednesbury irrationality, that concept includes not only reaching a decision beyond the range of reasonable decisions open to the decision-maker, “but also a demonstrable flaw in the reasoning leading to the decision. That could involve significant reliance upon an irrelevant consideration, or absence of evidence to support an important step in the reasoning, or reasoning which involves ‘a serious logical or methodological error’ (R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 at [98] approved in Finch at [56]).”
Next Steps
As a result of the judgment, planning permission for the mine has been quashed. It remains to be seen whether WCM will ask the Secretary of State to redetermine the application for permission and, if so, how that redetermination process will be undertaken.
Estelle Dehon KC and Rowan Clapp represent South Lakeland Action on Climate Change – Towards Transition (“SLACC”) instructed by Matthew McFeeley of Richard Buxton Solicitors. The same team represented SLACC at the called-in inquiry in September 2021.
SLACC was established in 2007 after a City Councillor from San Salvador visited Kendal as part of a speaking tour, and explained that mudslides in his city, caused by torrential rain as a result of climate change, had led to deaths. He brought home that climate change would get worse and affect people across the world. SLACC actively opposed the mine proposal, garnering support from experts such as Sir Robert Watson, former chair of the UN’s Intergovernmental Panel on Climate Change and former Chief Scientific Adviser to the Department for Environment, Food and Rural Affairs and to the World Bank and Professor Paul Ekins OBE, Professor in resources and environmental policy at the UCL Institute for Sustainable Resources, University College London.
