Another twist in the saga of the proposed mine in West Cumbria.

I have posted twice before – here and here – on the proposed West Cumbria Mining project in Cumbria, England, and had assumed that the UK government’s approval of the project in December 2022 had brought matters to a conclusion, albeit one which many would regard as unsatisfactory from a climate change perspective.

However, two campaign groups – Friends of the Earth and South Lakeland Action on Climate Change – brought a legal case claiming that the government’s decision to approve the project should be “quashed” (overruled) because it had not correctly followed relevant UK law requiring it, in reaching its decision, to take account of an environmental impact assessment of the proposed mine.  On 13 September 2024 the court upheld the groups’ claim and quashed the government’s decision (1). 

I will not attempt my own summary of the court’s very detailed reasoning.   Those interested in the legal details may wish to look at a report by one of the legal firms involved (2) or the full court judgment (3).  I will however observe that the court’s reasoning centres on consideration of two matters: the emissions that would arise from burning the coal produced by the mine, and the possibility that those emissions would not add to total global emissions but merely substitute for those arising from burning coal that would otherwise be produced elsewhere in the world.  Underlying issues here are which chains of causation are potentially relevant to the process the government should follow in reaching its decision, who is responsible for exploring and gathering evidence on those  chains, and how far along the chains they are expected to go before any causal effects become too remote to be considered relevant. 

While the focus on the substitution argument may have been entirely proper given its emphasis by the defendants and the requirements of the law, it strikes me as rather odd that no consideration was given to two other reasons why the emissions from burning the coal might not be entirely additional.  One is the likelihood that some, perhaps much, of the coal would be used in regions (the EU and the UK) which have established emissions trading (cap and trade) schemes.  Provided that such schemes are administered in such a way that the cap on emissions is effectively enforced, including by fixing the supply of emissions permits, the entry of a new supplier of coal should not increase emissions.  The effect of burning the coal would be to increase demand for emissions permits and therefore to raise the carbon price within the scheme, with the further consequence that some other emissions-generating activities which were only marginally profitable at the previous carbon price would be forced out of business.  The other reason is the possible future use of carbon capture, usage and storage (CCUS) to prevent the emissions reaching the atmosphere.  CCUS is a relatively young technology, but will perhaps become important in future.

I am not suggesting that allowance for these points would or should have led to a different decision.  Even if they are taken into account, the likelihood remains that a significant part of the emissions from burning coal from the mine would be additional.  But they do serve to highlight the less than satisfactory nature of a decision process which, in this case at least, has focused in detail on certain considerations and given no attention to others.  As I argued towards the end of my first post on this mine proposal, a better approach would be to require a proposed mine both to be approved by the local council in respect of normal planning matters (which would exclude consideration of the emissions from burning the coal it produced) and to satisfy the requirements of an appropriate climate change policy (which would be the appropriate framework in which to take account of the emissions).  The big problem remains, however, that an appropriate climate change policy for a mine producing coal for export is difficult without international cooperation.

Is the court’s decision the end of the road for this mine proposal?  Not necessarily, for three reasons.  Firstly, it is open to the government to take its decision again, but this time following the correct process as required by law (4), which would require taking account of the consequences of burning the coal supplied by the mine.  However, this seems unlikely at least at present.  The original decision was taken by the then Conservative government.  The new Labour government generally favours stronger action to address climate change, and did not substantially oppose the case brought by the campaign groups, accepting that the original decision process had been flawed (5).  Secondly, the government could legislate to change the relevant law, but for the same reasons this seems unlikely at present.  Thirdly, the matter could be appealed to a higher court. West Cumbria Mining Ltd, who have already incurred more than £26 miliion on exploration costs and license fees relating to the project (6), would appear to have a strong incentive to do so if they perceive a realistic chance of success.  However, given the government’s acceptance that the original process had been flawed, it appears fairly certain both that the government would not support an appeal and that an appeal would fail.  I conclude that the court’s decision probably is the end for this mine proposal. 

Notes & References

1. BBC 13/9/2024  Coal mine plan quashed by high court  https://www.bbc.co.uk/news/articles/cdrlrkz5k2ro
2. Cornerstone Barristers 13/9/2024 Cumbria Coal Mine Permission Quashed on Four Grounds https://cornerstonebarristers.com/cumbria-coal-mine-permission-quashed-on-four-grounds/
3. High Court of Justice  13/9/2024  Case Nos. AC-2023-LON-000377 & 000387  https://cornerstonebarristers.com/wp-content/uploads/2024/09/FoE-and-South-Lakeland-AC2023LON000377_000387_-for-hand-down.pdf
4. British Institute of Human Rights  What happens at the end of a judicial review case?  https://www.bihr.org.uk/get-informed/legislation-explainers/what-is-judicial-review#:~:text=At%20the%20end%20of%20a%20judicial%20review%20case%2C%20if%20the,needs%20to%20be%20made%20again.
5. High Court of Justice, as (3) above, paras 52-3.
6. Companies House, West Cumbria Mining Ltd, Accounts for a small company made up to 31 December 2023, Note 4 page 9  https://find-and-update.company-information.service.gov.uk/company/07144109/filing-history