Friends of the Earth Limited v Secretary of State for Levelling Up, Housing and Communities, West Cumbria Mining Limited, Cumbria County Council

Case Summary

Key Takeaways

• Environmental impact assessments (EIAs) must consider a development's likely significant indirect effects, as well as direct effects.
• Downstream emissions can constitute such significant indirect effects. Downstream emissions can include the release of greenhouse gasses (GHG) caused by the combustion of products originating from extraction developments;
• The scope of what constitutes a downstream emission is not clear and varies between developments;
• A developer can attempt to argue that the release of GHG is not a downstream emission emanating from their development and should not be included in an EIA if their extracted products replace or substitute products being extracted elsewhere, thereby leading to no net increase in emissions (Substitution Argument). However, the evidential bar for successfully establishing this argument is very high and potentially insurmountable;
• Even if the Substitution Argument is capable of being established, the analysis developers would need to conduct to prove that releasing GHG is not a downstream emission of their extraction development would be akin to completing an EIA in any case.

Background

This case (Whitehaven Coal Mine) considers the application of the Supreme Court's landmark decision in R (Finch on behalf of the Weald Action Group) v Surrey County Council and others [2024] UKSC 20 (Finch).

Finch established that EIAs should consider the likely downstream emissions of developments. The release of GHG caused by using products extracted from a development can constitute a downstream emission. The Supreme Court held in Finch that as burning oil would be an inevitable consequence of an oil extraction development, the release of the GHG caused by such combustion was a downstream emission of the development that should have been considered in the EIA.

The Whitehaven Coal Mine case considered the scope of downstream emissions, in light of Finch.

Facts

Friends of the Earth sought to quash the Secretary of State's decision to grant planning permission to build a coal mine in Cumbria. Their challenge focused on the way GHG had been addressed.

The developer, West Cumbria Mining Limited, argued that if the release of GHG emissions was an indirect effect of their development, it did not need to be considered in their EIA. They argued that the coal extracted in their development would substitute coal being extracted elsewhere, particularly in the US. It was argued that this meant the downstream emissions of the development could be considered to be neutral.

Decision

While not entirely dismissing the Substitution Argument as a matter of legal principle, the High Court set a high evidential bar for establishing such an argument. Developers cannot simply assert a substitution effect. Rather, they must comprehensively demonstrate the substitution through a detailed assessment. Such a detailed assessment had not been completed on the facts of the Whitehaven Coal Mine case. For example, the fact that the US coal allegedly being substituted could have been sold on the global commodities market, rather than remaining in the ground, had not been considered.

As such, Friends of the Earth's challenge succeeded on this ground, as well as other pleaded grounds.

Practical Implications

Developers should:

• Comprehensively assess potential downstream emissions of their proposed development;
• Include the development's likely significant indirect environmental effects in the scope of their EIAs, particularly for extractive projects, developments involving resources that will be burned and other projects with potential GHG emissions; and
• Not assume that the Substitution Argument can be made out to exclude GHG emissions from the scope of their EIA given that:
  
  • no case has yet successfully made the Substitution Argument; and
  • even if the Substitution Argument were to be successful, demonstrating that it applies would involve providing detailed evidence on GHG emissions akin to the analysis of an EIA in any case.

Note

If you have any questions about the potential implications of this case, please don’t hesitate to contact Tom Oldroyd or any member of the DLA Piper Planning team for advice.  Also, make sure to watch our case law update which includes further commentary on this case on YouTube here.