UK Coal Mine Planning Consent Quashed

In December 2022, planning permission was granted by the secretary of state for Levelling Up, Housing and Communities ("SoS") to extract coal from a coal mine in Whitehaven, Cumbria, England. The project would have been the UK's first new deep coal mine in more than 30 years. 

Following the grant of permission, Friends of the Earth and South Lakes Action on Climate Change filed court applications seeking statutory review of the UK government's decision (as discussed here). In September 2024, the High Court quashed the permission, ruling that the statutory challenge was successful on four grounds. 

The decision comes after the groundbreaking Supreme Court ruling in Finch vs Surrey County Council ("Finch"), which found that the grant of a planning permission for oil production in Surrey was unlawful for failing to assess the "downstream" greenhouse gas ("GHG") emissions that would inevitably arise from the combustion of fuel (as discussed here). Following a similar rationale, the High Court in this case found that the SoS, as decision-maker, did not lawfully address the GHG emissions resulting from the extraction and burning of coal and their effects on climate change, thereby acting in breach of the Environmental Impact Assessment ("EIA") Regulations. The new UK government, and importantly the new SoS, had accepted that the breaches had occurred and so consented to the previous government's decision being quashed on that basis.

The successful grounds of challenge were the following:

1. The Finch Ground. The SoS breached EIA impact assessment requirements by concluding that downstream GHG emissions from burning the coal were not a significantly likely effect of the proposed development that needed to be taken into account. Following Finch, the burning of the Whitehaven coal was found to be an inevitable consequence of its extraction from the mine, meaning that the GHG emissions from combustion were a significant likely indirect effect of the project that should have been taken into account in issuing the initial planning permission.

2. Substitution. The SoS incorrectly concluded that the coal mine would have a neutral or beneficial overall effect on GHG emissions. The coal mine developer argued that there would not be an increase in global GHG emissions because the extraction of coal at this mine would result in an equivalent amount of U.S. coal (which it sought to replace) remaining in the ground, and the Whitehaven coal would be at a competitive advantage over U.S. coal for the UK and European market. However, the High Court found that the developer could not show: (i) a very high degree of substitution; or (ii) that there would be no other demand for U.S. coal that was supposedly being substituted for the Whitehaven coal; thus, not addressing substitution in a correct and substantial manner.

3. International Impact. The SoS failed to consider the global international ramifications of granting this planning permission. There was no consideration of the UK's international climate leadership and how that would be undermined by the approval of the plan, as well as the impact on global climate change initiatives as a whole. 

4. Offsetting. The SoS erred in law in treating the coal mine developer's scheme for mitigating and offsetting GHGs as a means of mitigating emissions from the development. There was a failure to properly consider the deliverability of finite UK carbon credits to make the mine "net zero." The offsetting scheme dealt solely with the GHG emissions from production, including machinery and transportation, without addressing the actual combustion of coal. The High Court considered the impact of such a "net zero mine" would set a precedent for similar projects to be developed on the basis of offsetting arrangements, which is ultimately undesirable, as offsets are a finite source.

The High Court's decision is likely to change decision-makers' approach to evaluating substitution in connection with GHG emissions. Substitution cannot be evaluated without evidence and without the need for assessment of GHG emissions from combustion of the coal (or indeed other fossil fuel) being mined. Both are significant matters to be individually considered and assessed in accordance with the EIA Regulations. 

As the first case to apply the Finch judgment, it provides greater clarity and transparency on the requirements to obtain planning permission for such fossil fuel projects. It is interesting to note that the High Court also focused on the decision-maker's need to consider the project's impact on wider climate change policy. The consideration of the UK's role as a climate leader was a significant factor assessed in the High Court's decision. The grant of planning permission for the coal mine was deemed to have a negative impact of the UK's role in climate advocacy which was likely to reduce international efforts and increase GHG emissions worldwide, and this should have been a factor in the decision-making process. Any future fossil fuel projects in the UK will have to consider not only the downstream GHG emissions resulting from the use of the fuel, but also the impact of the project on the UK's role in combating climate change.

Read the full Climate Report.