The UK and Welsh governments are facing a legal challenge over the recent decision to grant a new coal mining licence in south Wales.
Legal representatives acting for the Coal Action Network have notified the Coal Authority and the devolved Welsh administration that the group plans to challenge the lawfulness of the decision to permit an expansion of the existing Aberpergwm site in the Neath Valley. Their pre-action letter sets a deadline of 14 February before the organisation will look to file for judicial review proceedings.
Amid a continuing row between Whitehall and Cardiff Bay, the full licence for Aberpergwm was awarded just weeks after Boris Johnson’s government called on other countries to “consign coal to history” at Cop26. The deconditionalised permit could allow the firm Energybuild Ltd to extract up to 40m tonnes of high-carbon anthracite (or “hard coal”) over the coming two decades.
Devolved ministers maintain that, since the granting of Energybuild’s conditional licence preceded new devolution powers that came into force in 2018, they have been unable to intervene. But the Coal Action Network’s legal team argues that planning permission for the mine extension was consolidated in 2018 by the Neath Port Talbot local authority, which in effect provided an opportunity for the Welsh government to act under the new powers.
The Coal Action Network’s lawyers have asked the Coal Authority to withdraw the licence it granted Energybuild last month, while Welsh ministers have been asked to notify the operator and the Coal Authority that they do not authorise the approval of the Aberpergwm application.
The legal letter also argues the Coal Authority’s stated position up to now – that essential criteria for the mine expansion were met and, in the absence of external intervention, it therefore had no choice other than to grant the full licence – is a “clear misunderstanding” of its legal powers under the 1994 act that established the body. This, the letter contends, is a narrow misreading of the statute “and thus represents an error of law which independently infects the decision to grant the licence”.
The 1994 legislation also states that the Coal Authority has the discretion to consider other factors – of which climate change can be one – when awarding new licences.
It has been estimated that the new Aberpergwm scheme may emit more than 100m tonnes of CO2 over its lifetime, while the Global Energy Monitor research group believes the mine expansion could emit somewhere between 200,000 and 1.17m tonnes of methane.
The Conservative MP Jacob Rees-Mogg last month defended the colliery expansion, as Whitehall is expected to rule on plans for a major new coalmine in west Cumbria over the coming weeks.
A Welsh government spokesperson told the Guardian: “We do not have the powers to make a decision in this case.
“This licence predates our powers on coal licensing. 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.”
A UK government spokesperson said: “The UK government’s view is that the Coal Industry Act 1994 states, where a coal operator wants to mine in Wales, it must seek the approval of the Welsh ministers as part of its application for a licence to do so.
“Our net zero strategy makes it clear that coal has no part to play in our future power generation which is why we’re phasing it out of our electricity by 2024 – a year earlier than planned.”
Daniel Therkelsen, a Coal Action Network campaigner, said: “As ministers refuse to respond to the public’s and civil society’s concerns, we must resort to a legal challenge. This is a terrible climate injustice, it must be stopped, and those responsible must be held to account. Granting a licence for this coal mining could open the floodgates to other coal companies that hold conditional coal licences with the Coal Authority. We cannot afford to mine more coal for any purpose.”
