Cumbria Coalmine – Deep Dive – Part 2

22 May, 2023

On 7 December 2022, the Department for Levelling Up, Housing & Communities released the Secretary of State, Michael Gove’s, highly anticipated called-in Decision Letter on a coal mine located in Whitehaven, West Cumbria. The decision granted planning permission to West Cumbria Mining Ltd under s 77 of the Town and Country Planning Act 1990 for a metallurgical coal mine. The mine will produce “coking” coal, which is used for steel production (as opposed to thermal coal which is used for power generation).  

Cumbria Coalmine – Deep Dive – Part 2

On 7 December 2022, the Department for Levelling Up, Housing & Communities released the Secretary of State, Michael Gove’s, highly anticipated called-in Decision Letter on a coal mine located in Whitehaven, West Cumbria. The decision granted planning permission to West Cumbria Mining Ltd under s 77 of the Town and Country Planning Act 1990 for a metallurgical coal mine. The mine will produce “coking” coal, which is used for steel production (as opposed to thermal coal which is used for power generation).  

The mine would be the first new deep coal mine in the UK in over 30 years and will produce 2.78 million tonnes of coal per annum until 2049.

The Decision Letter was immediately subject to controversy and wide-reaching domestic and international criticism, including by Friends of the Earth (“FoE”) and local environmental group, South Lakeland Action On Climate Change (“SLACC”). Both charities filed separate requests for Statutory Review at the High Court challenge in January 2023, arguing the decision was unlawful (see further on FoE’s and SLACC’s claims).  In mid-April, the High Court refused permission on the papers for both claims. The claims were due to be heard at a renewal hearing on Tuesday 23 May, however in a recent turn of events, the High Court (Mrs Justice Thornton DBE) decided to cancel that hearing and instead order a 3-day “rolled-up hearing” for the two claims (see here and here).  The case will be heard after the Supreme Court hears the Finch case in June (on which see further below).  

Considering the public backlash regarding a new coal mine in the UK, this blog continues on from Part 1 and contextualises some of the key points from Mr Gove’s called-in decision and looks at some of the related grounds of the legal challenges. Together these issues may have broader implications for environmental and climate change litigation.

Key Points from the Decision Letter 

The Decision Letter is 15 pages long, but the underlying Inspector’s Report is a hefty 280 pages. It is impossible for us to cover all the points raised, or to go into too much detail. In short, we look at how the following are considered by the Secretary of State: 

(a)    the need for a new mine
(b)     climate change impacts, including,

(i)    the ‘net zero’ nature of the mine, 
(ii)    import substitution arguments and 
(iii)    downstream emissions, and 

(c)    any impact of the decision on the UK’s international reputation as a world leader in tackling climate change were considered. 

Due to the number of issues raised, we have divided this blog into two parts. Part 1 covered points (a), (b) (i) and (ii). In this post we cover points (b)(iii) and (c) and offer some concluding thoughts.
References to the Decision Letter and Inspector’s Report are in the format “DL” and “IR” respectively, along with the paragraph number.

(i)    Downstream emissions

The Applicant’s GHG assessment did not include an assessment of GHG emissions associated with downstream emissions (i.e. emissions arising from the end-use of the coal, also known as “scope 3 emissions”).  There was significant debate at the inquiry as to whether such downstream emissions should be taken into account generally, as an effect of the proposed development on climate change, and more specifically as part of the Environmental Impact Assessment (“EIA”) process.

Notably, the Court of Appeal’s judgment in R (Finch) v Surrey CC [2022] EWCA Civ 187 - which considered whether such emissions could be seen as indirect effects of, and therefore included in an EIA for, a crude oil extraction project  (for an analysis of  this case, see Flora Curtis’ blog post here) - was handed down 6 months after the inquiry had closed, which led to further representations from the parties.  

As to whether downstream emissions from the mine could be seen as such indirect effects, the Secretary of State agreed with the Inspector that “the impacts of GHG emissions from the subsequent use of the coal, as part of a blended coke product, at indeterminate proportion and in an indeterminate quantity, with no knowledge at this stage of the nature and efficiency of the particular blast furnace and any GHG mitigation measures that may be installed, cannot reasonably be regarded as indirect significant effects of the proposed development" (DL35 (emphasis added), referring to IR21.123). This finding, which meant that such downstream emissions did not need to be considered as part of the EIA, appears to have led the Inspector to attach “little weight to this matter” (IR21.123).  It is not altogether clear from the Secretary of State’s stated agreement with the Inspector “on this matter and in the application of the Finch judgment (IR21.123)” (DL35) whether he also agreed with the Inspector’s conclusion on weight, but it seems arguable that he did.

Nevertheless, the Secretary of State still went on to consider the downstream emission impacts as a matter to be considered more generally (i.e. outside of the EIA context and irrespective of the fact that he concluded they were not “indirect significant effects”) (DL36), relying on the Inspector’s further conclusions on this issue.

Overall, the Inspector felt able to reach, from the evidence available, a factual finding that “substantial” carbon emissions would arise from the end use of the extracted coal, and concluded that “the release of these emissions at this scale and intensity are likely to be significant” (IR21.115).  The Inspector drew on the substitution argument in his analysis of downstream emissions (at 21.120) to conclude that “the GHG emissions arising from the use of the coal in the steel making process would likely be the same whether it is partly supplied by WCM coal or from elsewhere” (IR21.120) and, ultimately concluded that such downstream emission would be “considered neutral or at worst slightly beneficial when compared with other extractive sources” (IR21.121). Again, the Inspector’s reasoning on this issue highlights the importance of the substitution argument, notwithstanding the uncertainty surrounding it:

“I have identified that emissions associated with the end use of the coking coal are likely to be significant. However, having regard to the nature of the product and relevant demand, set out earlier in this report, I consider that in absence of the proposed development, equivalent emissions would also likely occur from extraction and use of substitute coking coal sources from other origins. Uncertainty will remain as to the likely origin of any replacement products, however there could well be benefits from providing a coking coal source closer to the most likely European market consumers. Taking this into account, I consider that whilst the effects of the downstream emissions are significant, they may well be considered neutral or at worst slightly beneficial when compared with other extractive sources.”

The Secretary of State concluded similarly at DL36, which again highlights the interaction between the substitution arguments and the assessment of emission impacts:

“The Secretary of State has gone on to consider the impacts of using coal from WCM. He agrees with the Inspector that to some extent the emissions from the use of coking coal are inevitable whether coal from the proposed development or other sources is used (IR21.122), and further agrees for the reasons given at IR21.121 that the effects of downstream emissions may well be considered neutral or slightly beneficial when compared with other extractive sources. He has concluded at paragraph 21 above that it is highly likely that there is the potential for a significant degree of substitution to occur. He agrees for the reasons given at IR21.120 and IR21.129 that the proposed development would have a broadly neutral effect on the global release of GHG from coal used in steel making, whether or not end use emissions are taken into account, and would enable some of the coal used to be sourced from a mine that seeks to be net zero (IR21.129).”

Whilst somewhat impenetrable, it seems that both the Secretary of State and the Inspector broadly concluded that since the mine would not result in any additional coal being used in steel making, but would instead simply substitute for less economical production elsewhere in the world, any related downstream emissions from the mine would have a neutral effect on global emissions. They appear to have reached this conclusion generally, regardless of where in the world the mine’s coal is exported to (see in particular DL36 and IR21.120 quote above, as well as IR21.129).

Again, both FoE’s and SLACC’s challenges have raised issues with the Secretary of State’s consideration of downstream emissions and his understanding of the Finch case, with FoE reserving the right to argue that the Secretary of State’s position on end-use emissions and EIA was incorrect, depending on the outcome of the Supreme Court appeal in that case (due to be heard in June).

It will be interesting to see how the Supreme Court grapples with this important issue. Taking a step back, there does appear to be some inconsistency in the Secretary of State’s decision between the weight to be given to the planning benefit of meeting a “need” for the coal, discussed above (which ultimately reflects the economic value of the coal’s end use) and the view taken that any emissions associated with the end-use of the coal (i.e. the meeting of that “need”) are not “indirect significant effects” of the development.

(a)    International impacts?

There was a debate before the Inquiry as to whether (and, if so, how) the decision might affect the UK’s international reputation as a climate leader, or more generally have international impacts on efforts to combat climate change. As the former chair of COP26, the UK has championed itself as a global leader on climate change and the environment. Objectors raised concerns that the grant of consent for a new coal mine would undermine the UK’s position as such a leader and risked setting a dangerous precedent, by encouraging similar action elsewhere in the world. For example, FoE’s closing submissions argued that the UK’s global reputation was an important material consideration and that there would be “a substantial negative impact of granting consent on the UK’s global climate leadership” (see IR10.94-103, IR10.116-10.117). Similarly, SLACC argued that the international impacts of granting permission on the likelihood of the world meeting the temperature targets in the Paris Agreement was “plainly a material consideration to be weighed against the grant of planning permission” (see IR12.50-12.54). 

The Inspector’s Report acknowledged the discussion in the Inquiry regarding, as he referred to it, “virtue signalling” in the context of the UK’s climate leadership and the approval of a new coal mine (IR22.16). However, the Inspector concluded that planning policy “did not provide any restrictive approach to coal extraction” and that the balancing act based on current planning policy simply fell in favour of granting planning permission for the proposal (IR22.17, emphasis added): 

“There is no justifiable basis for finding that the benefit of maintaining a sufficient supply of minerals, which does not exclude coal, as set out in paragraph 209 of the Framework should necessarily be reduced as a consequence of climate change policy provided that proposed development addresses such policy. In this regard, the granting of planning permission for the proposed development would only signal that the planning balance here, given current policy, fell in favour of the proposal. As such I do not consider that the granting of planning permission would set an undesirable planning precedent.” 

The Secretary of State does not explicitly address this issue in the DL. 

This issue is an interesting one and the decision highlights the difference of views surrounding it. As noted below, the legal challenges both argue that the Secretary of State acted unlawfully in his approach to international impacts, including the impacts on the UK’s position as a climate leader. It will be interesting to see whether, and if so, how the court considers these points in due course. 

Concluding thoughts

Pertinent questions linger about the Secretary of State’s decision and the future of the above legal challenges. An ongoing demand for steel production, in a “hard-to-abate” sector, creates further complexities for decision-making. Although the UK continues to champion itself as a global climate leader, the nature of steel decarbonisation means that there will continue to be further disputes regarding how to power this industry. 

The decision further highlights some of the difficulties in assessing the climate change impacts, particularly as uncertainty remains regarding the mine's material level of GHG substitution for imported coal and the potential export to international markets. In light of the Finch case, it is also debateable the extent to which the need for new coal should be balanced against the end-use emissions. The Supreme Court’s forthcoming decision on Finch may provide some much-needed clarity as to how these legal issues should be interpreted.

Public backlash about the Secretary of State’s decision and resultant legal challenges also signal the contentious nature of approval a new coal mine and affording it “net zero” status given the UK’s carbon budget, net zero ambitions and climate leadership. 

The outcome of claims will be of great interest to those watching from the side-lines. Those on-lookers will no doubt also be watching the progress on the Energy Bill, which is currently making its way through Parliament. The bill was amended on 17 April 2023 by the House of Lords (through a narrow majority of just three votes) to require the Secretary of State to prohibit the opening of new coal mines and the licensing of new coal mines within six months of the act being passed (see more here and here). These developments are important ones to follow, as they will likely determine the future of new coal in the UK.  

Merrow Golden is a barrister at FTB specializing in environmental, public and planning law.

Dr Hannah Blitzer recently completed a PhD in environmental law and works as a Senior Researcher (Fossil Fuel Transitions) at E3G, an independent climate change think tank, and is a member of the Executive Committee at Action4Justice. 

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