High Court hears legal challenges to Cumbrian coal mine

• Government won’t defend case after admitting planning permission unlawfully approved
• The move follows landmark Supreme Court ruling last month
• Images of campaigners ('Coal is a zombie, Don’t bring it back from the dead’') outside the Royal Courts of Justice can be downloaded here – b-roll to follow shortly in the same folder
• Media briefing: https://friendsoftheearth.uk/climate/whitehaven-coal-mine-destructive-and-unnecessary 

Two legal challenges to the government’s decision taken in December 2022 to give the go-ahead to a huge new coal mine in Cumbria [2] will be heard by the High Court today [Tuesday 16 July] [3]. 

The three-day hearing will examine two separate – but related – legal challenges by Friends of the Earth and South Lakes Action on Climate Change (SLACC), who will argue that the decision by the then Secretary of State for Communities, Michael Gove, to grant planning permission for the mine was unlawful [4].

The case against the mine was given a significant boost last week when the government conceded that the planning permission was unlawful following a landmark ruling in the Supreme Court last month. Consequently, government lawyers will not now defend the legal challenges. However, the hearings will still proceed as West Cumbria Mining, the mine’s developer, confirmed on Friday that it will defend the legal challenges.

The government’s move follows a landmark Supreme Court judgment (Finch v Surrey County Council) last month which ruled that the environmental impact from burning fossil fuels must be considered in planning applications for new extraction projects – not just the impacts of the emissions produced in extracting them [5]. The mine’s total lifetime emissions, including from the burning of the coal, will exceed 220 million tonnes CO2 equivalent. That is more than half of the UK’s total emissions for 2022. 99% of these emissions are from the use of the coal. Less than 1% are the emissions from the mining process itself.

The climate changing emissions caused by burning the coal produced by the Cumbrian mine were not included in the developer’s climate assessment, and this is one of the grounds for both Friends of the Earth’s and SLACC’s legal challenges. 

SLACC and Friends of the Earth also contend that Mr Gove failed to account for the significant climate impacts of the mine, including the acceptability of carbon credits to offset the mine’s emissions, the international precedent that opening a new mine would set and the impact of opening the mine on the global coal market.

When the mine was approved, one of the principal markets earmarked for the Cumbrian coal was given as the UK steel industry. However, since then - and entirely predictably - the UK market has diminished with manufacturers announcing plans to switch to greener steel production [6].

Friends of the Earth senior lawyer, Niall Toru, said:

"Justification for this polluting and unnecessary coal mine is rapidly evaporating, and even the government now concedes that the decision to allow it to proceed was unlawful. We hope the court agrees and quashes planning permission.

"This zombie coal mine would be a huge mistake for our environment, economy and international reputation. Rather than trying to breathe new life into a dying industry, coal should be left in the ground where it belongs, given the climate emergency.

"The new government must now focus on growing the green economy, with priority given to areas like West Cumbria to ensure they get the investment, jobs and opportunities they so urgently need.”

Maggie Mason of SLACC, said:

"West Cumbria Mining are apparently ready to argue the recent Supreme Court's judgment makes no difference to their case in the High Court this week. They have repeatedly used a "get out clause" called "substitution" that claims that the coal from the Cumbria mine would not add to the global tonnage of coal being used, no additional carbon emissions, and no impacts on the world's climate.

“SLACC will vigorously oppose any claim that other coal mines elsewhere in the world would either close or reduce their production to keep the global use the same. It flies in the face of logic, basic economics and the fact that there are alternative ways to make steel which require little or no coal at all. We cannot let this go unchallenged. New coal mines are not climate neutral."

Sarah Finch, whose successful legal challenge led to last month’s landmark Supreme court ruling, said:

“I'm overjoyed that our efforts in Surrey are helping to defeat this climate-wrecking coal mine in Cumbria. We always knew that our case was about more than just one site in Surrey. It's good to see it having ripple effects across the fossil industry."

Rowan Smith, solicitor at Leigh Day (assisted by solicitor Julia Eriksen), said:  

“The law is now crystal clear: the climate change impact of the inevitable release of greenhouse gas emissions from burning fossil fuels must be assessed before they are extracted. That did not happen when planning permission was granted for the Whitehaven coal mine. The government now accepts that omission was unlawful, but the Mining Company disagrees. Therefore, the hearing this week will go ahead. 

“Any claims that the mine would be net zero, which our client argues was wrong in any event given a misunderstanding by then Secretary of State as to how carbon credits could offset emissions, are now completely unsustainable. We look forward to presenting these arguments to the Court this week.”

ENDS

For more information and interview requests contact the Friends of the Earth press office on 020 7566 1649 or email [email protected]. 

Notes:

1. Friends of the Earth and SLACC launched their legal challenges in January 2023 after Michael Gove, Secretary of State for Levelling Up, Housing and Communities, gave planning permission to the new coking mine in December 2022. The organisations were the two main parties opposing the coal mine at the planning inquiry which took place in September 2021.
    
2. The three-day ‘rolled up’ hearing will take place at the Royal Courts of Justice Tuesday 16 - Thursday 18 July. In a 'rolled up' hearing the question of permission is often heard in tandem with the substantive case itself. In practice, this is effectively the same as a trial, in that the court is expected to allow the claimant to argue its case in full and issue a judgment. 
    
3. Friends of the Earth briefing on the coal mine: https://friendsoftheearth.uk/climate/whitehaven-coal-mine-destructive-and-unnecessary 
    
4. On Thursday 20 June 2024, the Supreme Court ruled that Surrey County Council acted unlawfully by giving planning permission for oil production at Horse Hill in the Surrey countryside without considering the climate impacts of when the oil is inevitably burned. The landmark judgment followed a legal challenge brought by former Surrey resident Sarah Finch, on behalf of the Weald Action Group, and supported from the start by Friends of the Earth as a legal intervener: https://friendsoftheearth.uk/climate/horse-hill-historic-win-supreme-court-upholds-landmark-climate-case 
    
5. Case for coal mine rapidly evaporating: https://friendsoftheearth.uk/climate/anniversary-cumbrian-mine-decision-govt-urged-withdraw-support 
    
6. Friends of the Earth is represented in the legal challenge by barristers Paul Brown KC, Toby Fisher and Alex Shattock, and by Rowan Smith and Julia Eriksen at the law firm Leigh Day. The in-house lawyers at Friends of the Earth are Niall Toru and Katie de Kauwe. SLACC is represented by barristers Estelle Dehon KC and Rowan Clapp, of Cornerstone Barristers, and by Matthew McFeeley and Holly Law at Richard Buxton Solicitors.