High Court rules planning permission for Cumbrian coal mine was unlawful

• Friends of the Earth and SLACC win legal challenges
• Decision to grant planning permission for the mine is quashed
• Photos of Friends of the Earth campaigners celebrating the historic win outside the High Court this morning can be downloaded here
• 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.”