R (Coal Action Network) v. Welsh Ministers and Coal Authority

In 2020, private company Energybuild Ltd applied to the UK Coal Authority to deconditionalise the remaining conditional part of a coal mine licence, relating to a site in Aberpergwm, Wales. The purpose of the application was to expand mining operations. Emissions relating to the proposed expansion were estimated at approximately 100 million tonnes of CO2 from combustion of the coal and 1.17 million tonnes of methane gas, until the license expires in 2039. In January 2022, the Coal Authority approved the application, resulting in a public law challenge by Coal Action Network, a group that aims to end coal use within the UK. The challenge was heard by the High Court in March 2023. In May 2023 the claim was dismissed. The judge dismissed ground 1. Whilst Welsh Ministers now have the power to approve or decline authorisations for coal mining in Wales, that power was not applicable. The licence in question was granted before the power came into force, and there was a presumption against legislation having retrospective effect which was applied here. The judge dismissed ground 2, which alleged the Coal Authority had interpreted its statutory powers too narrowly and, as a result, ignored relevant considerations concerning climate policy and climate impacts. The matters relied on by the claimant were not material to the Coal Authority’s task, which was to determine whether the conditions precedent in the conditional licenses had been fulfilled. The Coal Policy Statement, relied on by the claimant, only expresses what the Welsh Ministers’ intend to do, or not do, in future with respect to coal extraction. The statement was not relevant to the Coal Authority’s limited task of determining whether the conditions precedent were satisfied. Nor were the adverse climate change impacts, and the effect on the Welsh Ministers’ ability to meet their climate change targets, relevant to whether the conditions precedent were satisfied. Coal Action Network appealed the ground 1 findings, relating to the powers of the Welsh Ministers. The grounds of appeal focussed on whether the legislation had retrospective effect, and on the scope of the mining company’s property rights under the European Convention on Human Rights. The Court of Appeal held, however, that these matters did not arise. The legislation, properly interpreted, did not grant functions on the Welsh Ministers in relation to licences granted prior to the relevant devolution legislation, enacted in 2018. In reaching this conclusion the Court of Appeal saw no proper basis for inferring that the meaning of the devolution legislation was affected by the background against which it was enacted of increased national and international recognition of the importance of efforts to address climate change. There were no legitimate aids to statutory interpretation which indicated that the extent of the devolution powers conferred were to be judged by reference to the national or international context in this way (judgments paragraphs 27, 34 and 47). It is not known whether Coal Action Network intend to apply to the Supreme Court for permission to appeal.