The Coal Action Network is threatening legal action against the UK and Welsh governments over the decision to approve the mining licence at Aberpergwm colliery.
In the latest developments over the controversial coal mine at Aberpergwm near Glynneath, the grassroots campaign last week threatened legal action against both governments over the decision taken last month to grant a new coal mining licence at the site.
The licence will see a further 40 million tonnes of coal mined at Aberpergwm by operator Energybuild Ltd.
Legal representatives for the Coal Action Network notified both the Coal Authority (hosted by BEIS of the UK Government) and the Welsh Government with a letter-before-action challenging the lawfulness of the decision.
The Coal Action Network told The National that it expects formal reponses from both governments by Tuesday 22 February, at which point it will decide whether to push forward with the legal case.
The grassroots organisation argues that both governments are at fault over the approval of the coal mining licence. It says Welsh Ministers could have, and still can, withold the licence for the colliery extension, while the Coal Authority "misinterprets" its own powers.
The Network's legal team argue that the coal board isn't bound by "the narrow set of criteria it claims to be" and could site climate change as a reason to withdraw the licence and reject future coal mining licence applications.
There has been an on-going row for many months between Whitehall and Cardiff Bay over the mining licence as to which body has the authority to block the licence application which was approved on 27 January.
The Coal Action Network and its legal team are challenging the granting of the application on the grounds that Section 26A of the Coal Industry Act 1994 clearly states that a licence only has effect if a Welsh Minister notifies the Authority that they approve the authorisation.
However, earlier this month, a spokesperson from the Coal Authority told BusinessLive Wales that it had previously engaged with the Welsh Government for any input it wanted to give on the application under the Wales Act 2017.
On 10 January, the Welsh Government told the Coal Authority that Ministers would not be making a determination on the case. But, had Welsh Ministers launched an objection to the licence, the Coal Authority said it would have been legally required not to issue the mining licence to Energybuild.
The Welsh Government rebuked the claim and said that, based on its legal advice, any determination it had made on the case would have had no legal status and resulted in a judicial review.
A Welsh Government spokesperson said: "We do not have the powers to make a decision in this case. This license pre-dates our powers on coal licensing. Acting outside of our powers would have resulted in a Judicial Review."
They added: “The fundamental issue is having a Coal Authority whose duty is to maintain a coal mining industry in the UK. We have been calling for the UK Government to change this duty in the Coal Industry Act to reflect the climate emergency.”
However, the Network's legal team argues that, because no approval had been issued, the decision by the Coal Authority to issue the licence was unlawful.
The Network is now requesting for the UK coal board to notify Energybuild that the offer of the licence is of no legal effect unless the Welsh Ministers give their approval.
The mining operator had also secured planning permission to expand the mine in September 2018 from Neath Port Talbot Council — a key step in the approval process of the application which the Coal Action Network's lawyers argue provided an opportunity for the Welsh Government to block the licence.
The Network's legal team is also requesting Welsh Ministers notify the operator and the Coal Authority that they do not authorise the approval of the Aberpergwm application.
The grassroots campaign hopes that, as well as stopping the coal mine extension, a successful legal challenge will dissuade other coal companies with conditional licences to attempt new coal mines.
