Legal challenge to controversial new coal mine in Whitehaven, Cumbria

16 Jan 2023

Planning and Environment

A small community group, South Lakes Action on Climate Change – towards transition (“SLACC”), today served grounds for statutory review of the controversial decision of the Secretary of State to grant permission for a new underground coal mine and associated development at Whitehaven, Cumbria. Estelle Dehon KC and Rowan Clapp represent SLACC.

At full production, the proposed mine would extract 2.78 million tonnes per annum of metallurgical coal for use in steelmaking, which would result in downstream emissions in the range of 220 million tonnes of CO2e between 2023 and 2050. That is roughly equivalent to burning 788 million litres of petrol over that period.

The Secretary of State’s decision followed a four-week called-in inquiry held in September 2021 which was widely reported in the UK and international press. SLACC appeared as a Rule 6 party at the inquiry.

The inquiry followed the publication by the Climate Change Committee of the UK’s Sixth Carbon Budget, and by the Intergovernmental Panel on Climate Change of its Sixth Assessment Report which the UN Secretary General identified as “a Code Red for humanity.” At the time, the UK was preparing to host COP 26 and Alok Sharma remained its President until the weeks immediately prior to the Secretary of State’s decision.

SLACC challenges the Secretary of State’s decision to approve the mine on four grounds.

First, that the decision failed to grapple with or adequately explain how the mine’s coal would ‘substitute’ for existing coal used in steelmaking in the UK, as claimed by the developer. Accordingly, the result of opening the mine will simply result in a greater amount of coal being produced at a time when emission reductions are paramount. The Inspector and Secretary of State failed to grapple with SLACC’s unchallenged evidence that, if 100% substitution did not occur, the projected emissions from the mine would be multiple times greater than assessed.

Second, that the Secretary of State failed to grapple with key evidence from experts in climate diplomacy that opening the proposed mine would seriously undermine the UK’s reputation as a global leader on climate change and its ability to secure agreement on reducing and addressing emissions moving forward.

Third, that the Secretary of State engaged in a series of legal errors arising from a misunderstanding of the Court of Appeal’s decision in R(Finch) v Surrey County Council [2022] such that he failed to take into account the proposed mine’s ‘downstream emissions’ (effectively the combustion of the coal) as a significant indirect effect.

Fourth and finally, that the Decision disclosed a disparity of treatment in respect of the parties’ cases in that an uneven standard was applied to the evidence and submissions of the parties, with SLACC’s case being required to be proved to an unfairly high standard (and associated errors).

The other Rule 6 Party that appeared at the Inquiry, Friends of the Earth, has also brought a statutory review of the Secretary of State’s decision.

 

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 has actively opposed the mine proposal, garnering support from experts such as the Materials Processing Institute and Professor Paul Ekins OBE, Professor in resources and environmental policy at the UCL Institute for Sustainable Resources, University College London.

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