A controversial coal mine at Aberpergwm near Glynneath, which last week was given approval to mine a further 40 million tonnes of coal, could have been blocked by the Welsh Government, the Coal Authority insists.
In a statement to BusinessLive Wales, a spokesperson from the authority (part of the UK Government) said it had previously engaged with the Welsh Government for any input it might have wanted to give under the Wales Act 2017 as part of the application’s determination process.
The spokesperson said: “On 10 January 2022, the Welsh Government informed the Coal Authority that Welsh ministers will not be making a determination in this case.”
When asked more specifically what would have happened had the Welsh Government launched an objection to the licence, the Coal Authority confirmed that it would have been legally required not to issue the mining licence to Energybuild, the company that owns the mine.
The spokesperson said: “Under the Wales Act 2017, if Welsh Ministers had directed us not to licence the mine’s expansion, we could not have issued a full licence to the operator.”
The coal board did not expand further on which devolved powers under the Wales Act 2017 would have prevented it from issuing the licence had the Welsh Government objected.
As part of the application process to operate a coal mine, the operator needs relevant rights and permissions, including planning permission.
Energybuild 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.
By September 2020, Energybuild applied for a full operational licence for the expanded area from the Coal Authority. Having planning consent, along with a viable business plan, are needed for any license to be approved.
A spokesperson from the Coal Authority said: “The operator has demonstrated that they have met the requisite tests under current legislation which includes planning permission from the relevant Welsh authorities.
“The Coal Authority, having consulted the Welsh Government on the application, has a legal duty to approve the licence application. This was done on 25 January 2022.
“The approved licence has now gone to the operator for final checks and confirmation. If appropriate confirmation is received within two months then the licence will be granted and issued. This is the final step in allowing expansion of the existing mine.”
However, the Welsh Government, based on its legal advice, said that any determination it could have made on January 10th would have had no legal status.
The Welsh Government through the license process had expressed its opposition to the new licence. In 2020 the Welsh Government announced a climate change emergency in 2019.
Following its legal advice, the Welsh Government said it had no formal options to oppose the licence as it pre-dates the devolved powers under the Wales Act 2017.
The licence for coal extraction at Aberpergwm was originally issued by the Coal Authority in 1996, and then altered in 2013 to expand the mineable area, subject to satisfying certain conditions.
A Welsh Government spokesperson said: “These decisions followed UK Government policy, within the remit the UK Government set for the Coal Authority, to secure an economically-viable coal mining industry.
“Our position is that Section 26A of the Coal Industry Act 1994, the requirement for the Welsh Ministers to approve a Coal Authority licence, did not apply to the Aberpergwm application.”
They added: “The application submitted to the Coal Authority sought confirmation that conditions attached to the licence had been satisfied, thereby giving effect to the mining authorisation already granted by the Coal Authority in 2013.
“As the original licence was issued before powers in relation to coal licences were devolved, Welsh Ministers are not able to intervene in the licencing process and appropriately apply Welsh policy.”
Responding to the Coal Authority’s claim that it would not have been legally required to issue the mining licence had the Welsh Government objected to it, they said: “The Aberpergwm colliery lawfully acquired the necessary licence before the Wales Act 2017 introduced powers in relation to coal licences for Welsh Ministers.
“The decision to approve this licence was a matter for the Coal Authority to consider against the duties imposed on it by the Coal Industry Act 1994.”
BusinessLive Wales also asked the Welsh Government why it didn’t call in planning to expand the mine and overturn Neath Port Talbot Council’s approval, in effect stopping one of the provisions needed to approve Energybuild’s application.
Plans for a new mine in England in Cumbria are now on hold following a UK Government inquiry which has since closed.
Cumbria County Council had originally backed plans for the new mine, but decided in February 2021 to review its decision. A final decision will be determined by Michael Gove, Secretary of State for Levelling Up, Housing and Communities.
The Welsh Government spokesperson said: “The Welsh Government considered a related call-in request in 2018, and determined the proposal was not in conflict with the relevant policy contained in Planning Policy Wales Edition 9, the version in effect at that time.
“Since then, the Welsh Government has established a Notification Direction for Coal and Petroleum Development, declared a climate emergency, become a signatory of the Beyond Coal and Gas Alliance at COP26, and published coal policy with a strong presumption against further extraction."
Going forward, the only real challenge the Welsh Government has to oppose the licence now is to get the coal board to query whether Energybuild is financially viable or not, but that potentially has its own legal implications.
The Welsh Government are concerned that the approval of this licence may set a precedent for other mining companies to come in.
It’s understood that they are talking to the Department for Business, Energy and Industrial Strategy about working together to tighten the restrictions on licence applications, because currently the devolved government has no powers to set conditions.
It is also working with Energybuild to move away from mining coal for thermal uses and instead move to low carbon options. The company is said to be receptive, especially as low carbon options are more profitable than sales to Tata Steel in Port Talbot for blast furnace fuel.
