The Whitehaven coal mine: July 2024 legal briefing
West Cumbria Mining Ltd (WCM) wants to build the UK’s first new deep coal mine in over 30 years at a former chemical works site in Whitehaven, on the Cumbrian coast. At full production, the mine would produce 2.78 million tonnes a year of metallurgical coal, also known as coking coal, solely for the steel industry, until its scheduled closure in 2049.
The planning application for the mine was submitted to Cumbria County Council. However, following pressure from the Climate Change Committee and campaigners, the former Conservative government decided it would be the decision maker, rather than the council. In 2021 it held a planning inquiry, by which point the council, formerly in favour of the mine, had withdrawn its backing. In late 2022 the then Secretary of State for Levelling Up, Housing and Communities, Michael Gove MP, granted planning permission. This was widely criticised, including by Chris Stark, then chief executive of the Climate Change Committee, who called it “a very bad decision”. Rain Newton-Smith, then chief economist and now Director-General of influential business group the CBI, described it as “a huge step backwards".
Mr Gove’s decision has been challenged in the courts by Friends of the Earth and locally based opponents South Lakes Action on Climate Change. The legal challenges will be heard in the High Court from 16-18 July 2024. The government announced on 11 July that it would not defend the decision to grant permission to the mine and accepts that the planning permission was unlawful. The legal challenges will, however, still be defended by WCM. A judgment is expected in summer or autumn 2024.
So far, no building work has started. WCM's latest position is that construction of the mine will start "no later than early 2025".
Why we oppose the mine
Friends of the Earth opposes the mine because it would have huge and unacceptable climate impacts and the coal won’t even be needed.
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.
Thinktank Ember Climate has written that WCM has significantly underestimated how much methane would be produced by the mine, and overestimated how much of this could be captured. Ember Climate believes that the mine’s methane emissions could be 15 times higher than stated. Methane is a powerful greenhouse gas with a vastly greater warming impact than CO2. This could have a significant effect on the mine’s overall climate impact.
WCM claims that this would be “the world’s first net zero mine,” but this doesn't stand up to scrutiny. Its climate assessment ignores emissions from burning the coal in steelmaking, which are 99% of the mine’s total emissions. Instead, the assessment focuses on the emissions from the mining process itself. In a case brought by Sarah Finch and supported by Friends of the Earth, the Supreme Court recently ruled that combustion emissions do count as part of the environmental effects of a new fossil fuel project. Because of this ruling, the government is no longer defending the legal challenges.
Also, WCM’s so-called “net zero” plans include the purchase of carbon offsets from the Gold Standard Foundation. However, the Foundation has strongly opposed WCM’s plans, calling them “greenwashing nonsense” and likening them to “smoke and mirrors accounting”.
Furthermore, the coal won’t be needed. As explained below, the UK and EU steel industries (the main markets identified by 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”.
West Cumbria desperately needs new investment and new jobs, but Friends of the Earth doesn’t believe that a new coal mine is the right way to do this. A report by Cumbria Action for Sustainability says investing in green solutions could create 9,000 jobs in Cumbria over the next 15 years, in sectors like renewable energy, insulation and waste management.
The legal challenge
The coal mine would be destructive and unnecessary, and Friends of the Earth opposes it in principle. We also believe the decision to grant planning permission was unlawful. That’s why, alongside South Lakes Action on Climate Change, we've challenged it in the High Court. At our July hearing, the court will consider the following grounds:
Carbon offsetting: the Secretary of State treated WCM’s offsetting scheme as relevant to UK climate targets. On that basis, he treated the mine as having a “net zero” impact on UK emissions. However, that was wrong. Virtually all of the offsetting projects in question would happen overseas.
Also, only the emissions from the mining process would be offset under the scheme. These are less than 1% of the total. The other 99% of emissions from the burning of the coal were wrongly ignored by the Secretary of State, when he concluded the offsetting scheme was enough to make the mine “net zero”.
- International climate impacts: opening the mine would damage the UK’s climate diplomacy and encourage other countries to open their own new coal mines. On this, the Secretary of State took an unlawful approach to the expert evidence, and wrongly thought planning policy stopped him from considering these issues. He also failed to give lawful reasons, among other legal errors.
Substitution in the global coal market: WCM argued the coal would perfectly “substitute” for American or Australian coal, meaning for every tonne of coal mined at Whitehaven, a tonne would stay in the ground elsewhere. While the Secretary of State rightly rejected this “perfect substitution” argument, he also concluded the mine would have a “neutral” or “beneficial” impact on global emissions. This conclusion was illogical, given his failure to quantify both the combustion emissions from the mine, and the degree of substitution that could reasonably be expected. This resulted in errors of law.
Also, having wrongly ignored combustion emissions when assessing the effects of the mine, the Secretary of State concluded they’d be beneficial to the climate in any case. This argument is no better than a drug dealer's defence: the Secretary of State admits that emissions are harmful, but goes on to say that if WCM isn't allowed to cause that harm, someone else will, so there's no harm done. This is irrational.
- Combustion emissions: the Supreme Court has confirmed that before granting planning permission for fossil fuel extraction, it’s a legal requirement to assess the combustion emissions from burning the fuel, as these are “effects” of the development. In this case, the Secretary of State wrongly found that combustion emissions weren't effects of the mine, meaning they weren’t lawfully assessed. The government agrees that the legal challenges should succeed on this basis. WCM continues to defend the challenges.
- Unequal treatment of the parties: the analysis of the parties’ competing cases at the planning inquiry was inconsistent and unfair.
The first ground above is unique to Friends of the Earth’s challenge, and the final ground is unique to South Lakes Action on Climate Change’s challenge. The remaining grounds are advanced by both parties, who'll co-ordinate at the hearing.
The legal errors identified above would have made a difference to the decision. For example, if the Secretary of State had understood his legal duties, he’d have asked WCM to provide information about the quantity and effects of combustion emissions, and that information would have been the subject of early and effective public consultation. The Secretary of State would also have been able to lawfully scrutinise WCM’s claims about substitution, offsetting and this being a “net zero” mine.
It’s unlikely that the judge will make an immediate decision, but a judgment can be expected in the weeks and months following the hearing. Unsuccessful parties can seek to appeal to the Court of Appeal.
Other challenges facing WCM
If not done properly, building and running a new coal mine can pose serious risks to local people and their properties, to nature and wildlife, and to the environment generally. Obtaining planning permission is only one of many ways to manage these risks. WCM will also rightly need to overcome other hurdles, including:
Dealing with the planning conditions
When granting planning permission, the Secretary of State imposed onerous conditions on WCM, some of which must be fulfilled before building works can start. The clock is ticking. Examples are discussed below.
Contaminated land
The main part of the above-ground section of the mine will be on land that was previously a very large chemical factory. At its peak, this was a major producer of sulphuric acid and other chemical ingredients. The land has been described by the respected publication ENDS Report as one of England’s most contaminated sites. It sits right next to 2 former landfills.
There’s a planning condition in place to manage contamination risks and ensure remediation works are done before building can start. Cumberland Council is responsible for overseeing this.
Methane
Mining coal releases methane, a greenhouse gas which is many times more harmful than CO2. A condition of the planning permission is that the mine can't open until Cumberland Council has approved a scheme for managing the capture of mine gas, and that scheme must capture at least 95% of the total methane produced.
This could pose significant problems for WCM. There’s doubt that the technology proposed will be able to capture this level of methane. Analysis by Ember Climate states that the mine could emit up to 15 times more methane than originally estimated by WCM. This is because WCM both underestimated the level of methane that would be produced, and overestimated how much could be captured. There’s also doubt that the equipment needed will fit into the buildings that WCM has planning permission for.
Marine licence
Some of the coal due to be mined is under the sea, so WCM will need a marine licence from the Marine Management Organisation. In fact, it’s a condition of the planning permission that WCM can't start building until either it has a marine licence, or Cumberland Council agrees one isn’t needed. We’ve learned, via information requests, that WCM has secretly lobbied the council to agree that a licence isn’t needed. Fortunately, it appears the council has so far resisted. It’s clear that a licence will be required so that the mine’s marine impacts can be properly considered. WCM is yet to apply for one.
Coal licence
WCM will also need coal mining licences, which are issued by the Coal Authority. They largely consider practicalities. For example, can the mine operate in a way that’s effective and financially underpinned to ensure that any land or property impacted can be compensated? WCM has applied to the Coal Authority for licences, but those applications are yet to be decided. The Labour Party has committed in its 2024 manifesto that it “will not grant new coal licences”. This raises serious questions over the future of the mine.
Finance
In his evidence to the planning inquiry in 2021, WCM’s chief executive said the company had a legal agreement regarding funding for construction of the mine. He said this “would ensure that all the capital expenditure required for the construction activities would be available, post any planning approval, to support the construction of the mine through to full production” (page 26 of this document). At that time, the construction costs were estimated to be £241.7 million (page 105).
It now appears, however, that this finance is no longer available. The latest accounts for WCM for the 2023 calendar year state that:
- “The Company and its immediate Parent Company currently have no income”
- Existing funds will cover its activities until April 2025
- “the Group will require access to additional funds in order to fully develop [the mine]”
- “It is anticipated that additional capital will need to be raised in the second half of 2025 to continue to fund the Group's activities"
- "This represents a material uncertainty that may cast significant doubt on the Group's and Company's ability to continue as a going concern.”
The only funding raised by the parent company, West Cumbria Mining (Holdings) Ltd, in the last 18 months appears to be just under £10 million from private equity firm EMR Capital, which is based in the Cayman Islands and owns 90% of West Cumbria Mining (Holdings) Ltd.
Doubts have been expressed about whether the mine is a good investment. Baron (Adair) Turner of Ecchinswell, chair of the Energy Transitions Commission and former chair of both the Financial Services Authority and the Climate Change Committee, was asked in December 2022 what advice he would give to investors in the mine. He replied that approving the mine “was a really stupid business decision, this is a dying technology [...] I would say to the existing investors ‘try to sell it to another idiot before they’ve realised that this is an absurd asset’. I would say to every banker ‘do not lend money to this absurd asset’”.
Is the coal needed?
One of the main reasons for the approval of the mine was that the UK and European steel industries would need the coal “for decades to come”. That conclusion was reached on the basis there was “no certainty” that greener electric arc furnaces would make a significant contribution to UK steel production in the short (5-10 years) to medium (10-15 years) term, and that “whilst there is a likelihood that its use will increase across Europe, the extent to which this may be the case cannot be predicted with any degree of certainty” (Michael Gove’s decision letter, paragraph 20).
Mr Gove appears to have been writing off electric arc furnaces, which are an alternative to the use of "traditional" blast furnaces, as a technology with an unknown future. However, electric arc furnaces were responsible for 43% of EU crude steel output in 2022. What’s more, his colleagues in the business and energy department had a very different view. Those colleagues, when writing the previous government policy to decarbonise UK steel production by 2035, said behind the scenes that they had “high certainty” in the delivery of this policy. This was “due to the deliverability and confidence in steel-making decarbonisation technologies […] such as using electric arc furnaces" which "have been in use for decades”. This chimes with the Climate Change Committee’s warning that there may be no domestic use for the WCM coal after 2035.
Mr Gove’s scepticism about the use of electric arc furnaces in the UK was proved wrong by his own government, which announced it would invest hundreds of millions of pounds in the construction of such furnaces by Tata Steel in Port Talbot, and that it would likely do the same for the UK’s other main steel plant in Scunthorpe, run by British Steel. British Steel has made it clear that it wasn't lobbying for the mine to be built (see page 10 of these parliamentary records).
As for the EU, Mr Gove’s views on the roll-out of electric arc furnaces have been proved wrong. Figures from German thinktank Agora Industry show that three-quarters of the EU’s blast furnace steel production capacity needs major reinvestment by 2030. Steelmakers have made announcements for low-carbon steelmaking, mainly through electric arc furnaces, that would cover all of the blast furnace capacity needing reinvestment by 2030. Although most of these projects haven't reached the stage of a final investment decision, the direction of travel is set. And if the current trend continues, blast furnace steelmaking in the EU could be ended by the mid-2030s.
The bottom line is clear. Coal won’t be needed.
What about jobs?
WCM says that the mine will create 532 direct jobs and that it hopes 80% of these will go to local people, but it can't guarantee that will happen. The company has said that previous relevant experience will be needed for the majority of the jobs. However, as the last mine in the area closed in 1986, it’s unlikely many local people will have such experience. And how long-term and secure will these jobs be, given the dwindling market for coal?
West Cumbria has been let down by successive governments and desperately needs investment to create new business opportunities and new jobs. Friends of the Earth believes these jobs should be for the long-term and that areas like West Cumbria should be at the heart of investment in the green economy. This view was echoed by Keir Starmer on a visit to Cumbria in 2022: "I'm a big supporter of anything that generates jobs, particularly jobs in Cumbria […] but a new coal mine is not the way forward."
There are clear opportunities to create green jobs. Friends of the Earth calculated that a programme to insulate homes in West Cumbria could create as many jobs as the mine and could also save households hundreds of pounds a year in energy bills. Recent analysis by Friends of the Earth also shows that Cumbria is one of the top 3 areas in England with the potential for the development of onshore wind. This again could create many jobs.
Politics: what does Labour think?
Labour HQ has been clear in its opposition to the mine. Responding to the previous government’s decision to approve the mine, Ed Miliband, then shadow energy secretary, said: “A Labour government will leave no stone unturned in seeking to prevent the opening of this climate-destroying coal mine, and instead ensure we deliver the green jobs that people in Cumbria deserve."
This was echoed by shadow justice minister Alex Cunningham, who in 2023 told the BBC: “We’ll be in government before they get to that stage and believe you me – we will not allow that project to go ahead."
Locally, Labour’s new MP Josh MacAlister won by a landslide in the 2024 general election, with 53% of the votes in Whitehaven and Workington. MacAlister didn't make support of the mine part of his election campaign. The only candidate who gave the mine full-throated support was the Conservative candidate Andrew Johnson, who finished in a distant third place.
Our hope for the future
Friends of the Earth believes this unnecessary and destructive mine must be stopped.
Our legal grounds of challenge show the Secretary of State either fudged or ignored difficult questions raised at the inquiry. This resulted in a fundamentally confused approach to climate impacts and contributed to the absurd conclusion that such impacts are somehow “neutral”.
We hope the 2 challenges succeed and the court strikes down the planning permission. That's what Friends of the Earth and South Lakes Action on Climate Change have urged, and what the government now agrees should happen. If the planning permission is struck down, ministers will need to reconsider the WCM’s application. When doing this, they could re-open the inquiry and hear updated evidence. Such evidence only points one way: against the grant of permission. It would include:
- Recent developments in climate science, which put beyond doubt that the window for preventing the worst of climate breakdown is fast closing and that no further fossil fuel projects should go ahead.
- Evidence that the mine has been a “disaster globally” for UK climate diplomacy.
- Evidence showing that the UK and European markets for the coal are fast drying up with the move to green steelmaking.
But the new government’s role mustn't stop there. It must also ensure that West Cumbria and areas like it are at the forefront of building a clean and green future and get the investment, the business opportunities and the new jobs that are so desperately needed.
Further information
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.
For further information and for media enquiries, please contact the Friends of the Earth press team.
