Whitehaven coal mine challenge: hearing postponed

• A legal challenge over Levelling Up Secretary Michael Gove’s approval of the mine was scheduled to take place this October  
• It will now follow once the Supreme Court has handed down its judgment on a landmark case over the decision to allow oil drilling at Horse Hill in Surrey
• If successful, the Horse Hill challenge could set a precedent for decisions on approving fossil fuel developments – including the Whitehaven mine

*** UPDATE: The High Court hearing will take place 16-18 July 2024 ***

A legal challenge over the government’s decision to approve a controversial new coal mine in Whitehaven, Cumbria, has been delayed until a separate, but potentially significant, legal case reaches its conclusion.

Friends of the Earth and South Lakes Action on Climate Change (SLACC), the two groups bringing challenges against the mine, were due to appear before the High Court in October, but the hearing has now been postponed.

The court has decided to await the outcome of a landmark challenge to a separate decision to allow oil drilling at Horse Hill in Surrey before setting a new date. Brought by campaigner Sarah Finch on behalf of the Weald Action Group, the Horse Hill challenge was heard by the Supreme Court in June - the court has not yet given judgment.

Lawyers for Ms Finch argued that the environmental impact assessment (EIA) carried out by developers before planning permission was granted should have accounted for the climate impacts from burning the oil extracted at Horse Hill. These are known as ‘downstream’ or ‘Scope 3’ emissions and were not accounted for during the planning process.

Downstream emissions are increasingly being left out of environmental impact assessments when planning applications are made for fossil fuel projects, despite the huge climate impacts these projects will inevitably create, the mounting climate crisis and the UK government’s stated commitment to net zero.

If Ms Finch’s challenge is successful, with the court potentially ruling that decision makers need to take into consideration downstream emissions before approving planning applications, the outcome of the Horse Hill case could have major implications for the future of the Whitehaven coal mine. It could open up new grounds for lawyers to argue against the mine’s approval on the basis that downstream emissions were not considered.

The significance of the Horse Hill case was highlighted by the fact that the company behind the Cumbrian mine - West Cumbria Mining Ltd - and the Office for Environmental Protection (OEP) both intervened. The OEP was set up under the Environment Act 2021 to protect and improve the environment by holding the government and other public bodies to account; this was the first time the OEP intervened in court proceedings. Friends of the Earth was one of the other intervening parties supporting Ms Finch’s claim.

The Supreme Court is not expected to give its judgment until autumn 2023 at the earliest. When that does eventually happen, the High Court will then set a date for the Whitehaven hearing, but there is likely to be a gap of at least ten weeks between judgment and hearing. Lawyers for Friends of the Earth and SLACC therefore believe a 2024 Whitehaven hearing is increasingly likely.

Maggie Mason, coordinator at South Lakes Action on Climate Change (SLACC), said:

“All summer we’ve heard reports of extreme weather around the world, from deadly heatwaves and wildfires across Southern Europe and North Africa, to record-busting ocean temperatures globally. This mine will only increase global emissions and exacerbate these types of weather extremes. What’s more, its coal isn’t needed or wanted, as steelmakers across Europe turn to greener production.

“It’s no exaggeration to say that Cumbrian communities are on the frontlines of the climate emergency. Climate induced flooding has affected towns in our river valleys, destroying bridges and roads, and our coastal areas will increasingly be threatened by rising sea levels. Cumbria needs sustainable, long-term jobs that will refit homes, and protect our ecology and landscapes, and this mine is a retrograde step.”

Friends of the Earth lawyer, Niall Toru, said:

“We’re pleased the court has decided to delay the Whitehaven hearing - the Horse Hill case could set a critical legal precedent. Companies looking to extract fossil fuels shouldn’t be allowed to disregard the full impacts of their actions. It’s like a tobacco company saying it can ignore the health impacts of smoking.

“The government’s decision to approve the mine, like much of its recent rhetoric, is completely at odds with our climate commitments, and has left the UK’s reputation on climate in tatters. We will be following the outcome of the Horse Hill challenge very closely, and look forward to the day our case can go to trial.”

 

Campaigner Sarah Finch, appellant in the Horse Hill legal challenge, said:

“The High Court is right to see that the Horse Hill judgment could have big implications for Cumbria. The present lack of clarity over whether planners have to factor in ‘downstream’ impacts of fossil fuel developments is dangerous. I hope that the Supreme Court will confirm that no fossil fuel production – coal, oil or gas – should be allowed without consideration of its full climate impact.”

ENDS

Notes:

1. High Court agrees to hear coal mine legal challenge | 19 May 2023 – read a previous press release on Friends of the Earth and SLACC’s legal challenges against the mine.

2. Read a short summary  of SLACC's case.

3. View a Friends of the Earth briefing on its Whitehaven mine legal challenge .

4. Climate: Supreme Court to hear landmark legal challenge | 21 June 2023 – read more about the Horse Hill legal challenge.

5. Friends of the Earth has a legal briefing on the Supreme Court hearing. And a previous, and fuller, legal briefing on the court of appeal hearing.

6. For the Whitehaven legal challenge, SLACC is represented by Matthew McFeeley of Richard Buxton Solicitors and by Estelle Dehon KC and Rowan Clapp of Cornerstone Barristers. Friends of the Earth is represented by Rowan Smith at Leigh Day solicitors, and by Paul Brown KC, Alex Shattock (both Landmark Chambers) and Toby Fisher (Matrix Chambers). Friends of the Earth’s lead in-house lawyer on the case is Niall Toru.

7. For the Horse Hill legal challenge, Sarah Finch brought the case on behalf of the Weald Action Group , an umbrella for local groups that campaign against the extraction of oil and gas in the southeast of England. She is being represented in court by Marc Willers KC of Garden Court Chambers, Estelle Dehon KC and Ruchi Parekh of Cornerstone Barristers, and her solicitor is Rowan Smith at Leigh Day LLP. Friends of the Earth Limited is represented in the case by Paul Brown KC of Landmark Chambers, and Nina Pindham of Cornerstone Barristers and by Matthew McFeeley and Hannah Brown of Richard Buxton Solicitors. The lead in-house lawyer at Friends of the Earth is Katie de Kauwe.

** Updated with new court date on 6 July 2024