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)

In January 2023, two environmental organizations, 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 Whitehaven, Cumbria. 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 various experts, such as 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 ("Finch"), which was 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 initially refused both claimants permission to proceed to a full hearing. The claimants exercised their right for that decision to be reconsidered. In May 2023, in the days leading up to the permission hearing, the High Court ordered a ‘rolled-up’ hearing of the two challenges. This means the applications for permission would be considered in court with the substantive hearing to follow immediately if permission was granted. At the rolled-up hearing, the judge heard argument on permission and the substance together, giving a single judgment. A three-day hearing was then set for October 2023. However, in July 2023, the High Court vacated the October hearing and stayed the challenges pending the judgment in Finch. In October 2023, the High Court heard and rejected a disclosure application by Friends of the Earth. The document sought was the advice received by the SoS, from his officials, on whether to grant or refuse planning permission for the mine. In February 2024 the Court of Appeal refused Friends of the Earth permission to appeal against this disclosure decision. Finch was handed down on 20 June 2024: it held that downstream emissions did need to be considered as part of any environmental impact assessment under the relevant Environmental Impact Assessment Regulations. Although it was the 2017 Regulations and not the 2011 Regulations that applied in Finch, all parties accepted that the principles laid down in the Finch decision applied equally to the Whitehaven case. The High Court, therefore, applied the Supreme Court’s majority decision in Finch and found that the decision to grant approval for the coal mine was unlawful. The full list of successful grounds of challenge were: (1) Finch: The SoS erred in deciding that the gemissions from the burning of Whitehaven coal were not a significant, likely effect of the proposed development. (2) Substitution: It "would be absurd" to argue that substitution of different sources of coal and corollary emissions meant that the emissions from Whitehaven coal did not need to be assessed. Further, insufficient evidence had been provided to support this substitution argument and evidence to the contrary had not been sufficiently considered. (3) International Impact: The SoS failed to consider the impact of a decision to grant planning permission on the ability of the UK to be a leader on climate action and / or the reasons given on the subject were insufficient / irrelevant / illogical. (4) Offsetting: The SoS had erred in failing to give sufficient consideration to the applicants' arguments that any offsetting arrangements instituted by the mining company needed to rely on UK offsetting, rather than offsetting outside the UK, per domestic legislation and various policy documents.