A controversial decision to approve a new coal mine in Cumbria, England, which will seek to supply coking coal to be used in the steel-making industry, is being challenged. Friends of the Earth ("FOE") and the South Lakes Action on Climate Change have filed separate High Court applications seeking a statutory review of the UK government's approval decision. As their grounds overlap, the claimants have requested the cases are heard together.
This challenge follows a public inquiry in which the Secretary of State, as decision maker, had to consider evidence on a variety of climate change matters, including the acceptability of carbon credits to offset the mine's emissions, the international precedent that opening a new coal mine would set, and the impact of opening the mine on the global coal market. FOE launched its legal challenge on the following four grounds:
Ground 1: Approach to considering the effect of the development on the UK's Sixth Carbon Budget. The mining company had entered into a legal agreement requiring it to buy international carbon credits to offset residual mine emissions. In his decision letter, the Secretary of State concluded that this would mean the mine would be net zero as there would be no net increase in carbon emissions from coking coal as a result of the mine. FOE contends that this conclusion was wrong and unlawful, as offset credits do not count towards the UK's carbon budgets.
Ground 2: Approach to considering the international impacts of the decision. At the public inquiry, FOE argued that granting permission would undermine the UK's global reputation on tackling climate change and damage its ability to influence others to cut emissions, as well as setting a bad precedent that might lead to an increase in global emissions. The decision did not address these international impacts.
Ground 3: Approach to "substitution" of coal and the global coal market. The extent to which the coal extracted from the proposed mine would "substitute" for other coal in the market was a key issue in the public inquiry. The Secretary of State concluded there would be no net increase in carbon emissions from coking coal as a result of the mine, because there would be some degree of substitution for other coal in the market. FOE contends this is wrong.
Ground 4: Finch and downstream emissions. FOE argues that the Secretary of State should have considered the full impact of extracting coal, including downstream emissions (i.e., those created through the distribution, sale and end-use of the product). The Secretary of State decided such an assessment was not required, and his reasoning closely follows the judgment of the Court of Appeal in the case of R (Finch) v Surrey County Council & Ors  EWCA Civ 187. However, the Supreme Court has now given permission for an appeal against the Court of Appeal's decision. If that appeal is successful, it might undermine the lawfulness of the planning decision. As such, FOE has reserved the right to argue this point pending the resolution of that case in the Supreme Court.
Both claimants are now waiting to hear whether the courts will allow their cases to proceed. If permitted and their challenge is successful, the Secretary of State's decision to grant planning permission will be quashed and the matter would have to be redetermined by a new inspector.
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