Planning permission for Whitehaven mine ruled unlawful

• Friends of the Earth and SLACC win legal challenges
• Decision to grant planning permission for the mine is quashed
• Government will need to reconsider planning permission for controversial mine

Planning permission to build a controversial new coal mine in Cumbria has been quashed following today’s High Court ruling that the approval was unlawful. Unless the developer withdraws its application, the government will now have to reconsider whether to allow the mine to be built. 

The judgment follows legal challenges by Friends of the Earth and South Lakes Action on Climate Change (SLACC) to a December 2022 decision to grant planning permission by the then Secretary of State for Levelling Up, Housing and Communities, Michael Gove. Friends of the Earth’s case succeeded on all grounds.

In making its judgment, the High Court agreed with Friends of the Earth and SLACC that the climate-changing emissions from burning the extracted coal – 99% of the emissions from the mine – were not properly considered during the planning process. It dismissed the arguments to the contrary made by the developer, West Cumbria Mining Ltd, which persisted in defending the court case even though the government had pulled its defence.

In a dramatic twist, shortly before the legal challenges were heard, the government conceded that planning permission had been unlawfully granted and withdrew its defence of the legal challenges. This followed a Supreme Court judgment (Finch v Surrey County Council; with Friends of the Earth intervening) a few weeks before that planning applications for fossil fuel projects must consider the environmental impact of burning the fossil fuels, not just of extracting them.

Today’s judgment sends a powerful signal about the importance of the Supreme Court ruling for fossil fuel projects. It shows unequivocally that the process for seeking permission for these climate-wrecking projects has fundamentally changed.

The Supreme Court ruling wasn’t the only reason why the Whitehaven planning permission was quashed. In making his ruling:

• The Hon. Mr Justice Holgate agreed with Friends of the Earth that the Secretary of State acted unlawfully in accepting WCM’s claim that the mine would be ‘net zero’ and have no impact on the country’s ability to meet the emissions cuts required under the Climate Change Act 2008 (CCA). The mining company had claimed it would ‘offset’ the emissions from its mine through purchasing carbon credits from abroad (these credits finance projects which aim to remove carbon from the atmosphere, such as tree planting for example). However, UK government policy does not allow reliance on international offsets to meet carbon budgets under the CCA.
  
  
• The Judge also agreed with both claimants that the Secretary of State’s approach to substitution was legally flawed. WCM had argued that Whitehaven coal would simply ‘substitute’ for coal that would otherwise be extracted elsewhere in the world, so there would be no net increase in global carbon emissions. That assertion was strongly opposed by both Friends of the Earth and SLACC. The Judge concluded that it was “impossible to reconcile the inconsistencies and muddle” in the Secretary of State’s reasoning on this issue.
  
  
• The Judge further agreed with both claimants that the Secretary of State’s finding that the mine would not have a negative international impact was incorrect in law. It was based on the flawed premise that the mine would be net zero. Even if that assumption had been correct, the Judge held that the Secretary of State had failed to grapple with Friends of the Earth’s further argument that it was fundamentally inappropriate to use carbon offsets, which are a finite/limited resource to justify a new coal mine.
   
• Today’s ruling means that Communities Secretary Angela Rayner, who is also the Deputy Prime Minister, will now have to reconsider the planning application – taking into account its full climate impact. In doing this, she could call for new evidence or even re-open the planning inquiry. Of course, WCM could also choose to withdraw its application altogether.

Friends of the Earth is urging the government to put areas like West Cumbria at the forefront of its plans to accelerate the transition to a green economy to give them the long-term jobs and opportunities they so urgently need.

Friends of the Earth senior lawyer Niall Toru, said:

"This is fantastic news and a huge victory for our environment and everyone who has fought against this climate-damaging and completely unnecessary coal mine.

"It is the first fossil fuel case to be decided after the landmark Supreme Court judgment on oil drilling at Horse Hill. That the ruling today has gone against the mining company could have ramifications internationally, as there are cases abroad where challenges are being made against fossil fuel projects on a very similar basis.

"This mine should never have been given permission in the first place.  The case against it is overwhelming: it would have huge climate impacts, its coal isn’t needed and it harms the UK’s international reputation on climate. Any reconsideration of the planning application can surely only reach one conclusion – and reject this harmful mine once and for all.  We believe that the writing is on the wall, and that WCM should withdraw its application for this climate-wrecking project.

"We have to leave fossil fuels in the ground and build the cleaner, brighter future that will slash emissions, cut bills and create the well-paid jobs of tomorrow that areas like West Cumbria so urgently need.”

Duncan Pollard, South Lakes Action on Climate Change Trustee, said:

“Today's ruling is a huge relief for SLACC and our supporters who have spent years trying to expose the truth about West Cumbria Mining's proposal and Michael Gove's decision to approve it. It is now doubly clear that fossil fuel companies cannot ignore the combustion emissions caused by the use of their oil, gas or coal, or rely on simplistic claims that a new coal mine will have zero impact on global emissions.

“We sincerely hope that any re-examination of the coal mine proposal considers all relevant issues and this ill-conceived idea is permanently shelved. Central and local government need to concentrate on secure and sustainable jobs for west Cumbria.”

Friends of the Earth are represented by solicitors Rowan Smith and Julia Eriksen from Leigh Day's environment team, and by barristers Paul Brown KC, Toby Fisher and Alex Shattock. Rowan Smith said:

“Our client is delighted that planning permission for the new coal mine in Cumbria has been overturned in the High Court. This follows the government's decision not to defend the development, which was made in light of the landmark Finch judgment from the Supreme Court in June. This judgment made it clear that the impact of the inevitable release of emissions from burning fossil fuels must be assessed before they are extracted. We are glad to see the continued departure from the reliance on fossil fuels being upheld in the courts.”

ENDS

For more information and interviews you can contact: Friends of the Earth press office on 020 7566 1649 or email [email protected]. 

Notes to editors:

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 

A Friends of the Earth legal briefing on the Horse Hill judgment is here: https://friendsoftheearth.uk/climate/supreme-court-judgment-horse-hill-oil 

Friends of the Earth was represented in the legal challenge by barristers Paul Brown KC, Alex Shattock (both of Landmark Chambers) and Toby Fisher (Matrix Chambers), 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.

Friends of the Earth opposes the mine for numerous reasons:

• It would have a huge impact on our climate.

The Climate Change Committee, the government’s independent experts, have said opening the mine “will increase global emissions and have an appreciable impact on the UK’s legally binding carbon budgets”. The mine’s total lifetime emissions, including from the burning of the coal, will exceed 220 million tonnes of carbon dioxide (CO2) equivalent. That’s more than half of the UK’s total emissions for 2022.  

• The coal won’t be needed.

UK and EU steel industries (the main markets identified by West Cumbria Mining (WCM) are planning to move away from coal-based steelmaking. At the global level, the International Energy Agency has said that if the world is to reach net zero by 2050, “No new coal mines […] are needed [...] existing sources of production are sufficient to cover demand through to 2050”.

• It would damage UK leadership on climate change.

If the UK gives the go-ahead to a new coal mine it makes it hard to argue that other countries shouldn’t follow suit. Coal is one of the dirtiest fossil fuels and new developments have to be stopped if we are to tackle the climate crisis. UN Secretary General Antonio Guterres has said that opening new fossil fuel infrastructure would be "moral and economic madness”.