Summary
Last month, the High Court ruled that planning permission previously granted for a coal mine in West Cumbria was unlawful (Friends of the Earth v West Cumbria Mining [2024] EWHC 2349 (Admin) ("West Cumbria Mining")). West Cumbria Mining is the first English case to be decided on fossil fuel development since the Supreme Court's ruling in Finch v Surrey County Council [2024] UKSC 20 ("Finch") earlier this year.
The West Cumbria Mining judgment applies Finch and is a continuation of a growing trend in the UK, EU and US of interested stakeholders looking beyond the immediate impact of a target company or government entity's decisions (whether it be investment or planning based) to the consequential, downstream or end-user impact of an investment decision or project.
We expect that the decision in Finch and now the recent judgment in West Cumbria Mining will further encourage NGOs and other interested parties to challenge and seek to overturn planning permissions for projects that will ultimately have a detrimental downstream environmental impact.
Background
Our previous Legal Update analysed the Finch judgment and summarised its background facts.
As in Finch, the Claimants in West Cumbria Mining sought a judicial review of planning permission that, this time, was granted for the development of a large underground metallurgical coal mine. The claim alleged that the permission had failed to correctly apply the Town and Country Planning EIA Regulations 2011 (the "Regulations"), which, following Finch, may include having to consider end-use (or Scope 3) emissions.
Very shortly after the Finch decision was published, the new Secretary of State for Levelling Up, Housing and Communities informed the court that the planning permission for the mining project should be quashed. The case nonetheless proceeded as West Cumbria Mining ("WCM") wanted to defend the original decision.
The High Court's Decision
Mr Justice Holgate held that the Claimants were successful on four out of five grounds, namely:
- Ground 1: Applying Finch, the Court held that the Secretary of State breached the Regulations by deciding that greenhouse gas ("GHG") emissions from the burning of Whitehaven coal were not a significant, likely effect of the proposed development. As we now know from Finch, either "but for" or "intervening act" tests of causation should be applied to indirect or downstream emissions (and presumably, other environmental impacts) when determining whether or not they need to be considered as part of an EIA. On the present facts, it was held that GHG emissions will, as a matter of fact, be released when the mined coal is burned and "because that burning is inevitable, legal causation is established" (at paragraph 108). Hence, when the Finch test was applied, the emissions in this case were not so indirect at all but, in any event, should have formed part of the EIA.
- Ground 2: The Secretary of State erred in accepting WCM's submission from its original planning application that there would be no net increase in GHG emissions, or alternatively that there would be some lesser offsetting effect because the Whitehaven coal would replace more expensive coal otherwise being supplied from US coal mines such that a broadly equivalent amount of coal will remain in the ground in those mines.
- Ground 3: The Secretary of State failed to consider the impact that the granting of the planning permission would have on the UK's reputation and its ability to continue being an international leader for climate change, as a signatory of the Paris Climate Accords signed in 2016. The Court held that the Claimants would succeed on ground 3 because they had succeeded on grounds 1 and 2.
- Ground 4: The Secretary of State erred in accepting WCM's submission from its original planning application that it would offset GHG emissions by purchasing credits in the voluntary carbon market, ultimately reducing the net change in emissions from the mine to zero. Most notably, the Secretary of State had failed to apply the Climate Change Committee's statutory guidance in relation to the legal regime for carbon accounting under the Climate Change Act 2008, which clearly states that the UK's GHG emissions should be tackled without relying upon offsets from outside the UK (see paragraphs 217 and 221).
However, the Court declined to uphold the fifth ground, instead finding that the Secretary of State had not acted unlawfully by subjecting one of the claimants' evidence to alleged higher scrutiny than WCM because there was no inconsistency in approach or error of law.
Comment
The West Cumbria Mining judgment was highly anticipated as the first post-Finch case for guidance on how the Supreme Court's principles from that decision will be applied.
It is particularly noteworthy that the judgment placed significant emphasis on the UK's global reputation as one of the reasons underpinning its decision – which may result in the UK's leadership role in promoting international action on climate change becoming a relevant planning consideration going forward.
As we noted in our Legal Update on Finch, the floodgates may not yet be open, given that there are considerable evidential and procedural steps to take before a decision can be overturned by judicial review, but the Court's recognition of climate issues both nationally and globally may encourage environmental groups to continue to push on them to achieve their aims.
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