press release

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) - press release

complaint

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) - complaint

order

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) - order

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) - Other

judgment

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) - judgment

Filing Year For Action

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.

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)

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

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A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

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Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

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) - press release

Policy instrument

Just transition

Fossil fuel

Greenhouse gas

Economic sector

Finance