Friends Of The Earth Limited v Secretary Of State For Levelling Up, Housing And Communities & Ors

In environmental impact assessment, inevitable greenhouse-gas emissions from the eventual combustion of extracted coal are likely significant indirect effects of the extraction project. They must be assessed in the environmental statement and taken into account by the decision-maker.

Substitution of other coal is a distinct causal issue. It cannot be used to avoid assessing combustion emissions, and a claimed offset requires adequate evidence addressing both the extent of substitution and alternative demand. A decision-maker must give legally adequate reasons on principal controversial issues, including climate-leadership consequences and the deliverability of proposed offsetting arrangements.

The Secretary of State granted planning permission for an underground metallurgical coal mine at Whitehaven. Friends of the Earth Limited and South Lakeland Action on Climate Change – Towards Transition challenged the decision under section 288 of the Town and Country Planning Act 1990.

The claims concerned greenhouse-gas emissions from burning the extracted coal, the alleged substitution of United States coal, the United Kingdom’s climate-leadership role, offsetting arrangements, and the treatment of the parties’ evidence. The challenges followed the Supreme Court’s decision in R (Finch on behalf of the Weald Action Group) v Surrey County Council, which had been handed down after the planning inquiry.

1. Issues (i) and (ii). Applying R (Finch on behalf of the Weald Action Group) v Surrey County Council, the inevitable combustion of the extracted coal was a significant likely indirect effect of the proposed mine. The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 therefore required the environmental statement and EIA process to assess those emissions, and required the Secretary of State to take that information into account.
2. Substitution of United States coal was a separate causal relationship. It could potentially offset combustion emissions, but it did not determine whether combustion emissions were effects of the project. The applicant had to provide evidence addressing the degree of substitution and whether displaced coal would remain unmined rather than being sold into other markets.
3. The environmental statement did not assess combustion emissions or substantiate the asserted near-perfect substitution. The Inspector and Secretary of State made inconsistent findings on partial and perfect substitution, failed to address evidence of Asian demand for United States high-volatile coal, and gave inadequate reasons. The Secretary of State also could not treat downstream emissions as slightly beneficial consistently with the other findings.
4. The court could not conclude under Simplex that the decision would inevitably have been the same without those errors. The public had been deprived of material EIA information and participation rights.
5. Issue (iii). The decision-maker failed to lawfully address the material issue of the effect of granting permission on the United Kingdom’s ability to promote international climate action. The asserted net-zero status of the mine could not cure the earlier errors, and the alternative concern about the finite availability of offsets was also left unanswered.
6. Issue (iv). The Secretary of State failed to address the policy objection to relying on non-UK offsets. The later unilateral undertaking and disputed evidence on deliverability were matters for the Secretary of State, not for the court to determine on fresh evidence.
7. Issue (v). The challenge alleging unequal treatment of the parties’ evidence was rejected. References to certainty reflected degrees of evidential uncertainty and did not impose an impermissible burden on the claimants.
8. Permission was granted under section 288 to the extent of Issues (i)–(iv), refused on the remaining grounds as unarguable, and the planning decision was quashed.

First-instance statutory challenges under section 288 of the Town and Country Planning Act 1990. The judgment records the earlier decisions in the Finch litigation but does not state any appellate history for these claims.