High Court Quashes Whitehaven Coal Mine Permission

Friends of the Earth’s challenge to the grant of planning permission for the Whitehaven coal mine has succeeded on all grounds. Friends of the Earth’s co-claimant South Lakes Action on Climate Change (SLACC) succeeded on all of its grounds but one. The decision to grant planning permission has been quashed.

The Secretary of State conceded the claim on 10 July 2024, shortly before the trial commenced. She did so in light of the Supreme Court’s judgment in Finch and in recognition of the fact that the effect of downstream combustion emissions from burning the coal to be extracted from the Whitehaven mine had not been properly assessed in this case. However, the mine owner – WCM – chose to defend the claim on its own.

Friends of the Earth’s challenge succeeded on all its pleaded grounds. In light of Finch, the High Court held that the decision to grant planning permission without first assessing the effect of downstream combustion emissions was an error of law. The High Court judgment also found as follows:

1. First, the decision was found to be unlawful because the Secretary of State’s approach to the issue of substitution was inconsistent and irrational. WCM claimed that the mine would not cause any net increase in global GHG emissions because every tonne of coal mined in Cumbria would replace or “substitute” coal that would otherwise have been extracted elsewhere. FoE disputed that claim and produced evidence to refute it. The High Court agreed with FoE that the Secretary of State failed to resolve this dispute adequately in his decision letter, giving inconsistent and irrational conclusions on the degree of “substitution” that might take place.
   
2. Second, the decision was found to be unlawful because the Secretary of State wrongly accepted WCM’s claim that the development would represent zero percent of UK carbon budgets. That claim was based on WCM’s legal commitment to purchase carbon credits on the international voluntary carbon market to “offset” the mine’s operational emissions. However, the High Court agreed with FoE that WCM’s legal commitment did not have the claimed effect. Carbon credits purchased on the international voluntary carbon market do not count towards the UK carbon budgets so the legal commitment did not ensure that the mine would be “net zero” for the purposes of UK carbon budgets.
   
3. Third, the decision was found to be unlawful because the Secretary of State’s conclusion on the international impacts of granting consent erred on two bases. First, the Secretary of State’s conclusion that the Whitehaven mine would set a positive precedent to which other mineral extraction projects could aspire was premised on the erroneous conclusion that it would be a net zero mine. Second, even if that conclusion was not erroneous, the Secretary of State did not grapple with FoE’s alternative contention that it was fundamentally undesirable to encourage the use offsets (a finite resource) to justify the expansion of fossil fuel extraction internationally.

The judgment is an important plank in UK jurisprudence on decision-making in the context of fossil fuel extraction. It may also stand as persuasive authority in other jurisdictions, in particular in relation to issues of substitution and offsetting.

The mine owner, WCM Limited, has not sought permission to appeal and must now decide whether to abandon the project or insist on a redetermination.

Friends of the Earth was represented in these proceedings by Paul Brown KC, Alex Shattock (both of Landmark Chambers) and Toby Fisher (Matrix Chambers). Instructed solicitors were Rowan Smith and Julia Eriksen of Leigh Day. Friends of the Earth’s in-house lawyers were Niall Toru and Katie de Kauwe.

SLACC was represented by Estelle Dehon KC and Rowan Clapp, of Cornerstone Barristers, and by Matthew McFeeley and Holly Law at Richard Buxton Solicitors.

The Secretary of State was represented by Richard Moules KC, Nick Grant (both of Landmark Chambers) and Richard Honey KC ( Francis Taylor Building).

A copy of the judgment can be found here.