The Welsh Government has a “clear policy of stopping using fossil fuels” according to Deputy Climate Change Minister Lee Waters MS.

That comment was in response to a question relating to the application made on 16 September 2020 for a licence to extend the Aberpergwm colliery in Neath. An application that was approved by the Coal Authority on 25 January 2022.

The extension will mean the extraction of over 42 million tonnes of coal over the next 18 years that will result in an estimated 100 million tonnes of CO2 and up to 1.17 million tonnes of methane – which is a more powerful greenhouse gas than CO2. 

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The extension would be the antithesis of the countless warnings from the UN’s Intergovernmental Panel on Climate Change (IPCC) that if we do not dramatically scale back our use of fossil fuels over the next few years – we are on a collision course for the kind of climate breakdown that will make past global horrors seem like a tea party.  

Despite repeated warnings from the IPCC it appears Welsh Government have taken no action to prevent the extension. The reason for this apparent lack of action is that ministers, as outlined in a letter by Waters to Jane Dodds MS on 1 March 2022, are of the view that the decision to extend the colliery was made before section 67 of the Wales Act 2017 introduced powers in relation to coal licences for Welsh Ministers.

The powers the Deputy Climate Change Minister is referring to are outlined in section 26A of the Coal Industry Act 1994 (CIA 94). The section states that a licence authorised by the Coal Authority that relates to mining operations in Wales shall only have effect if the relevant Welsh Ministers notify the Authority that they approve the authorisation.

In response to a question by Dodds in Plenary on 16 March 2022, the Counsel General Mick Antoniw MS repeated the line that Welsh Ministers do not have the authority to intervene because the licence was granted before they were given their powers. He added that the recent application by the mine operator sought only to give effect to an authorisation already granted by the Coal Authority in 2013.

So, according to Welsh Ministers they have about as much authority on pre-April 2018 coal-mining matters as Jackie Weaver in a parish town council meeting.

The UK government takes a different view.

They believe that Welsh Ministers have the authority to intervene. They say that ministers did not exercise their powers and the Coal Authority therefore had no choice but to approve the licence because the applicant also met certain ‘tests’ set out in section 2 of the CIA 94.

In short, there’s been a back and forth between the two governments that would make Rafa and Roger proud.

Who’s right? Well…

Coal Action Network (CAN) have sent the Coal Authority and the Welsh Government a letter before action challenging the decision to approve the licence application. They have warned in their letter that if the decision isn’t reversed then they will issue proceedings for a judicial review – which is the fancy way of saying to a public body ‘let’s thrash this out in a courtroom’.   

The legal challenge put to the Coal Authority is twofold. On 10 January 2022 the Welsh Government informed the Coal Authority that they “will not be making a determination in this case” – which suggests there’s been no approval. If this is correct the decision is unlawful because section 26A unambiguously says that ministers must approve authorisation.

The second argument against the Coal Authority is that they misinterpreted their legal powers. This is interesting for climate activists.

The Coal Authority is of the view that if the applicant meets certain tests set out in section 2 of the CIA 94 then they must approve the licence application. However, CAN argues that the decision should have taken account of the potential impact on climate change.

The impact on climate change argument has been successfully deployed in other countries. Last year there was a landmark case in Holland where Shell was ordered to reduce their CO2 emission by 2030 compared to 2019 levels. Other cases in Poland, Australia and other countries have also been litigated – and countless more will follow.

This is relevant because it’s clear the impact on climate change is now a consideration for those in the business of approving the extraction of fossil fuels. It’s therefore difficult to understand how this wasn’t a significant consideration when granting the Aberpergwm licence – especially given that the UK has just hosted COP26. And we still hold the presidency.

As mentioned, a letter was also sent to the Welsh Government. The argument here is sort of straight forward – if they didn’t approve the application it shouldn’t have been authorised. But if ministers have since approved the application or done something amounting to an approval on the basis that they thought they had no choice other than to do so, this represent a legal error and the decision is therefore defective.

CAN have asked the Coal Authority to rethink the decision to approve the licence (taking into account the above mentioned climate considerations) and they have asked Welsh Government to write to the Coal Authority to inform them that they do not approve the decision to authorise the licence.

It’s a fair criticism of the Welsh Government to say, as recent correspondence between them and the Coal Authority has shown, that they have avoided taking ownership of this issue. The lack of action is counter to the rhetoric we continually hear from them on climate change, and it’s contrary to everything the Well-being of Future Generations Act (Wales) 2015 stands for. Pumping that kind of CO2 into our atmosphere will do incredible harm.

It also begs the question: Why, if the Welsh Government are so set against this, did they not at least test the powers set out in S26A of the CIA 94? If they were so steadfastly against the Coal Authority’s decision, they surely would have sought to settle the argument in a court of law – as they did when the issued legal proceedings for a judicial review in relation to the UK Internal Market Act 2020. Instead, there has been metaphorical ‘it’s not our problem’ shrug of the shoulders.

The claim will undoubtedly rumble on to court – if (big IF) Coal Action Network can raise the required £65,000 it will cost to get them there.

Jonathan Williams is a solicitor at Watkins and Gunn.

Disclaimer: This does not constitute legal advice. For more information contact Watkins and Gunn at watkinsandgunn.co.uk

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