Friends of the Earth v. Secretary of State for Levelling Up, Housing and Communities; and South Lakeland Action on Climate Change v. SSLUHC (Whitehaven coalmine)

Summary:

In January 2023, the two environmental organisations Friends of the Earth (FoE) and South Lakeland Action On Climate Change (SLACC) filed public law challenges to the UK Government’s decision to grant planning permission for a new coking coal mine in the UK.

The decision to grant planning permission was made in December 2022 by the Secretary of State (SoS) for Levelling Up, Housing and Communities, on the recommendation of a planning inspector after a planning inquiry held in 2021.

FoE challenged the decision as unlawful on the following grounds:
- The SoS’ conclusion that the mine would be a “net-zero” mine for the purpose of reaching the UK’s Sixth Carbon Budget (covering the period of 2033-37, and as established under the UK’s Climate Change Act 2008) was unlawful. International carbon offset credits, which the mining company undertook to buy to offset the mine’s residual emissions, do not count towards the UK’s carbon budgets.
- The SoS’ failed to lawfully address the international impact of this decision, despite the evidence given on this issue by highly qualified people, like the former chair of the IPCC.
- The SoS erred in his approach to the extent to which the coal would “substitute” for other coal in the global market or be “additional” to it, resulting in the unlawful conclusion that there would be no net emissions increase because of the mine.
- FoE also reserved the right to argue a point on the SoS’ approach to downstream emissions, depending on the UK Supreme Court’s decision in R (Finch) v Surrey County Council & ors, to be heard in June 2023.

SLACC challenged the decision as unlawful on the following grounds:
- The SoS failed to deal with the principal issue of whether or not there would be perfect substitution, which would determine the extent of the climate impact of the mine.
- The SoS failed to deal with the principal issue of the international impact of granting planning consent.
- The SoS incorrectly determined whether downstream emissions are indirect significant environmental effects of the mine.
- The SoS applied a different threshold to the opposing parties’ evidence and arguments at the planning inquiry, and imposed the unlawful burden on the claimant of disproving the mine company’s case.

In April 2023 the High Court refused both claimants permission to proceed to a full hearing. The claimants will ask the court to reconsider that refusal at a permission hearing, likely to be held in May 2023.

At Issue: Whether the decision to grant planning permission for a new coking coal mine was unlawful.