Whitehaven Coal Mine High Court judgment – first application of Finch decision

On 13 September 2024, The Hon. Mr Justice Holgate handed down an eagerly anticipated High Court judgment in respect of the Whitehaven coal mine in Cumbria following challenges to planning brought by Friends of the Earth and South Lakes Action on Climate Change (SLACC).

The judgment was the first indication of how courts are to interpret the landmark Supreme Court case, Finch v Surrey CC (Finch) in the context of other fossil fuel projects. Following the Finch decision, the government announced that it plans to consult on new guidance for oil and gas firms to “provide stability for industry, support investment, protect jobs, deliver economic growth, and meet its climate obligations, as the North Sea transitions to its clean energy future” (https://www.gov.uk/government/news/certainty-for-oil-and-gas-industry-in-light-of-landmark-ruling). This decision highlights the importance of such consultation to provide certainty going forward and demonstrates that it may need to be broadened to encompass coal projects.

In Finch (in which Friends of the Earth was a legal intervener), the Supreme Court held that the approval of an onshore oil field development was invalid because the environmental impact assessment submitted by the developer did not include downstream scope 3 emissions (i.e. GHG emissions from combustion of fuel refined from the oil produced -see our earlier update here). Following Finch, the new Secretary of State, Angela Rayner, conceded the Whitehaven claim a matter of days before the hearing commenced on the basis that the effect of downstream combustion emissions from burning the coal to be extracted had not been properly assessed in this case but the mine’s developer, West Cumbria Mining Limited (WCM), continued to resist judgment on this ground.

In a careful and detailed judgment stretching over 50 pages, Holgate J. has agreed with Friends of the Earth and SLACC’s view that the grant of planning permission in respect of the Whitehaven coal mine was unlawful and should be quashed and agreed on the following grounds:

1. The Finch Ground: In light of Finch, the decision to grant planning permission without first assessing the effect of downstream combustion emissions was an error of law.
2. Substitution: The developer had argued that there would be no increase in GHG emissions (including downstream emissions) because the extraction of coal from the Whitehaven mine would result in an equivalent amount of US coal remaining in the ground. Holgate J. found that if such an argument is to be made and “if substitution of US coal would be a likely effect of the proposed project” then both effects (being the GHG emissions from Whitehaven and impact on US emissions) would need to be “assessed in accordance with the 2011 Regulations”. As neither had been so assessed “it was for WCM to produce information in its ES to demonstrate that point, including legal causation in relation to substitution”.
3. Impact of a grant of permission on the ability of the UK to perform its leadership role in promoting international action to address climate change: Holgate J. upheld this legal challenge on the basis that the Secretary of State (due to their reliance on the erroneous net zero mine approach) failed to have regard to evidence on the impact of granting the planning permission on the UK’s international climate leadership and failed to give legally adequate reasons. [It is noted (at least in respect of this ground 3) that if the Secretary of State had considered the impact on the UK’s leadership role and had decided, as a matter of policy, that the leadership role should take second priority to (for example) national security (and set out reasons), then from a domestic point of view Holgate J. may have come to a very different conclusion on this particular challenge.]
4. Offsetting: Holgate J. upheld the argument that the Secretary of State had erred in law in the treatment of issues relating to proposed scheme for offsetting GHG emissions via purchase of carbon credits on the international voluntary carbon market.

The judgment is an important plank in UK jurisprudence on decision-making in the context of fossil fuel extraction. All eyes are now on ongoing challenges relating to the Rosebank and Jackdaw oil fields and the proposed government consultation.

For more information, please contact:

Christopher Thomson, KPMG Law

Christopher Leigh, KPMG Law

Rebecca Melia, KPMG Law