Whitehaven coal mine challenge: hearing postponed

• A legal challenge over Levelling Up Secretary Michael Gove’s approval of the mine was scheduled to take place this October
• It will now follow once the Supreme Court has handed down its judgment on a landmark case over the decision to allow oil drilling at Horse Hill in Surrey
• If successful, the Horse Hill challenge could set a precedent for decisions on approving fossil fuel developments – including the Whitehaven mine

A legal challenge over the government’s decision to approve a controversial new coal mine in Whitehaven, Cumbria, has been delayed until a separate, but potentially significant, legal case reaches its conclusion.

Friends of the Earth and South Lakes Action on Climate Change (SLACC), the two groups bringing challenges against the mine, were due to appear before the High Court in October, but the hearing has now been postponed.

The court has decided to await the outcome of a landmark challenge to a separate decision to allow oil drilling at Horse Hill in Surrey before setting a new date. Brought by campaigner Sarah Finch on behalf of the Weald Action Group, the Horse Hill challenge was heard by the Supreme Court in June – the court has not yet given judgment.

Lawyers for Ms Finch argued that the environmental impact assessment (EIA) carried out by developers before planning permission was granted should have accounted for the climate impacts from burning the oil extracted at Horse Hill. These are known as ‘downstream’ or ‘Scope 3’ emissions and were not accounted for during the planning process.

Downstream emissions are increasingly being left out of environmental impact assessments when planning applications are made for fossil fuel projects, despite the huge climate impacts these projects will inevitably create, the mounting climate crisis and the UK government’s stated commitment to net zero.

If Ms Finch’s challenge is successful, with the court potentially ruling that decisionmakers need to take into consideration downstream emissions before approving planning applications, the outcome of the Horse Hill case could have major implications for the future of the Whitehaven coal mine. It could open up new grounds for lawyers to argue against the mine’s approval on the basis that downstream emissions were not considered.

The significance of the Horse Hill case was highlighted by the fact that the company behind the Cumbrian mine – West Cumbria Mining Ltd – and the Office for Environmental Protection (OEP) both intervened. The OEP was set up under the Environment Act 2021 to protect and improve the environment by holding the government and other public bodies to account; this was the first time the OEP intervened in court proceedings. Friends of the Earth was one of the other intervening parties supporting Ms Finch’s claim.

The Supreme Court is not expected to give its judgment until autumn 2023 at the earliest. When that does eventually happen, the High Court will then set a date for the Whitehaven hearing, but there is likely to be a gap of at least ten weeks between judgment and hearing. Lawyers for Friends of the Earth and SLACC therefore believe a 2024 Whitehaven hearing is increasingly likely.

Maggie Mason, coordinator at South Lakes Action on Climate Change (SLACC), said:

“All summer we’ve heard reports of extreme weather around the world, from deadly heatwaves and wildfires across Southern Europe and North Africa, to record-busting ocean temperatures globally. This mine will only increase global emissions and exacerbate these types of weather extremes. What’s more, its coal isn’t needed or wanted, as steelmakers across Europe turn to greener production.

“It’s no exaggeration to say that Cumbrian communities are on the frontlines of the climate emergency. Climate induced flooding has affected towns in our river valleys, destroying bridges and roads, and our coastal areas will increasingly be threatened by rising sea levels. Cumbria needs sustainable, long-term jobs that will refit homes, and protect our ecology and landscapes, and this mine is a retrograde step.”

Friends of the Earth lawyer, Niall Toru, said:

“We’re pleased the court has decided to delay the Whitehaven hearing – the Horse Hill case could set a critical legal precedent. Companies looking to extract fossil fuels shouldn’t be allowed to disregard the full impacts of their actions. It’s like a tobacco company saying it can ignore the health impacts of smoking.

“The government’s decision to approve the mine, like much of its recent rhetoric, is completely at odds with our climate commitments, and has left the UK’s reputation on climate in tatters. We will be following the outcome of the Horse Hill challenge very closely, and look forward to the day our case can go to trial.”

Campaigner Sarah Finch, appellant in the Horse Hill legal challenge, said:

“The High Court is right to see that the Horse Hill judgment could have big implications for Cumbria. The present lack of clarity over whether planners have to factor in ‘downstream’ impacts of fossil fuel developments is dangerous. I hope that the Supreme Court will confirm that no fossil fuel production – coal, oil or gas – should be allowed without consideration of its full climate impact.”