Devolution confusion leads to more coal and a legal challenge

10 Feb 2022

Planning and Environment, Public Law and Judicial Review

During COP26 the UK Government talked about consigning coal power to history and the UK signed up to the Global Methane Pledge. Less than two months later, confusion around the Welsh Ministers’ devolution powers and the legal obligations of the Coal Authority seems to have resulted in the approval of a new licence for underground coal mine in Wales to mine 40 million tonnes of coal until 2039.

In September 2020, Energybuild Ltd applied to the Coal Authority for a Full Underground licence for its Aberpergwm underground coal mine in Neath. The Coal Authority said the Welsh Ministers could intervene to stop the licence; everyone agreed the Welsh Ministers have power of intervention and the Welsh Government indicated it did not want the licence to be granted. However, the Welsh Ministers repeatedly stated they could not exercise their power in this case because the mine was originally granted a licence before licensing powers were devolved. As a result, the Coal Authority took the view it was obliged to approve the licence.

On 8 February 2022, grassroots campaign organisation Coal Action Network sent pre-action correspondence to both the Welsh Government and the Coal Authority inviting them to reverse their decisions on the Aberpergwm colliery extension.

Daniel Therkelsen, Coal Action Network campaigner, said: “Our barrister’s pre-action letter convincingly puts the power to stop the Aberpergwm colliery extension licence firmly in the hands of Welsh Government Ministers. Now those Ministers need to take their rhetoric and put it into swift, decisive action to stop this climate calamity while they still can. Our letter also identifies why The Coal Authority, hosted by BEIS of the UK Government, isn’t bound by the narrow set of criteria it claims to be, and could cite climate change as a reason to refuse this licence and reject future coal mining licence applications, becoming an ally to our climate commitments rather than an undermining force.”

Estelle Dehon is representing Coal Action Network, instructed by Matthew McFeeley of Richard Buxton Solicitors.

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