More climate in the courts: UK

Two further cases relating to potentially high greenhouse gas emissions projects are to be reviewed by the Courts in the UK. Both have potential implications for how developers, investors, regulators, the Government and the courts approach how climate change should be factored into projects which, if permitted, may lock-in emissions for decades. An added interest factor is the political dimension. In one instance the Government intervened, and in the other it did not, but nonetheless both ended up in court.

Coal: Cumbria, England

In March 2019 we reported on coal mines in New South Wales, Australia, and South Wales, UK, which did not obtain necessary planning permission (based in part at least on climate grounds). At about the same time, the Development Control and Regulation Committee of Cumbria County Council recommended the granting of planning permission to West Cumbria Mining for a new coal mine (metallurgical coal) at the Woodhouse Colliery, Cumbria. The planning permission was subsequently granted by the Council. If this Cumbrian mine proceeds it is said that it will be the first new deep coal mine in the UK in approximately 30 years and may produce up to 2.1 million tonnes of coal per annum for 50 years.

The Council’s Development Control and Regulation Committee recommended approval of the decision on the basis of considerations such as: the economic benefit and creation of highly skilled jobs; the need for coking coal by the steel industry; the environmental impact of the development being offset due to the reduction of imports of coking coal via ship from overseas and the use of rail to transport the coal; investment in rail infrastructure; and the remediation of contaminated land at the brownfield site. It is to be noted that the responses to the public consultation on the proposed development were mostly favorable, with nearly three-quarters of all respondents supporting the application. However, there was also climate-based opposition.

The Committee quoted the arguments presented to it by Greenpeace and other environment NGOs to the effect that the proposed mine is inconsistent with the 2015 Paris Agreement and the UK Climate Change Act 2008, as well as with the UK’s [then] pledge to reduce its carbon emissions by 80% from their 1990s levels [now 100%]. Without engaging in a substantive discussion of these arguments, the Committee noted that they “have some validity” but stated that “[climate change] issues are far broader than can be addressed or influenced through consideration of this planning application.” The Committee was also influenced in its decision by its belief that, if the application was refused, “it is highly likely sources of coal will continue to be found in the US and other parts of the world as they are now”.

The Secretary of State for Housing, Communities and Local Government declined to intervene and call in the application, stating that he was content that the application should be determined by the local planning authority.

As reported in environment periodical, ENDS Report, on 7th February 2020, the High Court granted permission in February 2020 to a campaign group for a judicial review of Cumbria County Council’s decision to grant planning permission. A number of climate change arguments are to be raised and no doubt the related evidence and reports submitted and relied upon by West Cumbria Mining will be contested.

A date for the hearing of the judicial review is yet to be set. Whilst it is likely to be rare in the UK to have judicial decisions relating to climate arguments against new (or extensions of) coal mines or coal powered generating stations, nonetheless if this case goes to judgment it will be very interesting to hear the arguments, together with the judge’s decision and reasoning.

Gas: Yorkshire, England

Power company, Drax, secured planning permission to build large scale gas power generation (combined cycle gas turbines) at its site in Selby, Yorkshire. Campaigning environment lawyer group, Client Earth, objected to the original planning application on various climate grounds. The matter went to the Planning Inspectorate which refused permission on climate grounds. However, subsequently the then Secretary of State for Business, Energy and Industrial Strategy approved permission for the project.

As a result of the Secretary of States’ intervention and approval, Client Earth subsequently commenced judicial review proceedings against the decision of the Secretary of State. This was again on climate change grounds. The hearing of the case began this week. We imagine that it may take some time before the decision is handed down by the judge. Nonetheless, the decision is likely to be awaited with much interest.

Comment

These cases appear to fall squarely on a major fault line between the promotion of contemporary business activities and the drive to curtail greenhouse gas emissions. The Government has set a trajectory to net zero greenhouse gas emissions by 2050 and signed the UK up to the Paris Agreement. The EU has done the same. As projects such as these have the potential to lock-in emissions for many years to come, technical and other solutions in respect of emissions will need to be found and assessed in the individual circumstances. Otherwise, it is not difficult to imagine that legal challenges will continue to be made against high-emission projects. In light of the nature of judicial review proceedings, if the challengers are successful then the projects end up reverting back to the developer and government to consider again.

Readers may also be aware of the UK case on the Airports National Policy Statement which is proceeding in the Supreme Court (being the appeal against the recent Court of Appeal judicial review judgment relating to a third runway at Heathrow Airport). The decision of the Supreme Court on this may have wider ramifications for future decisions where climate change is an issue and consequently many will like to see the Supreme Court’s decision as soon as possible.

Article co-authored by Isabel Stones.