The company behind a controversial coal mine in West Cumbria and the UK environment regulator are both intervening in a separate court battle over plans to pump oil in the Surrey countryside.
Next month’s Supreme Court case about whether to extract about three million tonnes of oil from Horse Hill is regarded as a test case that could bring the “beginning of the end” of new fossil fuel production in the UK.
The site, near Gatwick, was first approved by Surrey County Council in 2019 but has faced a legal challenge by campaigners ever since, and will next month go before the UK’s highest court.
Unusually, the Supreme Court has permitted four extra bodies to intervene – meaning they can make written or oral submissions to aid the court’s understanding, reflecting the public importance of the case.
One of those weighing in is West Cumbria Mining, whose plan to develop the UK’s first new coal mine in 30 years in Whitehaven was controversially approved by the government in December.
WCM did not respond to a request to comment on why it had intervened.
But if the campaigner’s appeal against the Surrey oil site wins next month, it could be “that you have to completely reassess whether that coal mine in Cumbria can happen at all”, according to barrister Sam Fowles.
“It is extremely difficult to overstate the significance of this case,” said Mr Fowles, who specialises in planning and environment law at Cornerstone Barristers.
It has the potential trigger the “beginning of the end of … new fossil fuel extraction in the UK going forward”, he added.
The government is due to make a decision imminently on the giant Rosebank oil and gas field in the North Sea.
Charles McAllister, director of industry group UK Onshore Oil and Gas, called it “incontrovertible” that the UK needs some oil and gas beyond 2050, “even with huge growth in renewables”.
“It’s a case of where we got it from, not if we need or not.”
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‘Clear ramifications’ for future projects
Both the Cumbria coal mine and the Surrey oil case hinge on the same thorny issue plaguing planning authorities presiding over fossil fuel projects.
The question is whether their assessments of the project’s damage to the environment have to factor in only the emissions from getting the fossil fuel out of the ground, or also from when it’s used or burned later “downstream”.
These are known as “scope 3” emissions and tend to make up the majority of a project’s or company’s greenhouse gases. Fossil fuels are the main cause of climate change, which is already threatening the UK via things like rising sea levels and last summer’s intense drought.
Both the Cumbria coal mine and the Horse Hill oil site were approved partly on the basis that these “downstream” emissions need not be taken into account, and therefore overall emissions would be low.
Sarah Finch, the lead campaigner challenging the oil decision, told Sky News: “More than 10 million tonnes of carbon dioxide could be released when the oil from Horse Hill is ultimately burned.”
Katie de Kauwe, a lawyer at campaigning group Friends of the Earth, which is also intervening, said: “It can’t be right that the biggest impacts of fossil fuel projects on people and our planet can effectively be left out when planning decisions are made.
“This is a hugely consequential legal challenge that could have clear ramifications for other fossil fuel developments, including the new coal mine planned in West Cumbria and the legality of the Secretary of State’s decision to approve it.
“West Cumbria Mining is clearly concerned, which is why they’re intervening.”
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Ms Finch’s initial challenge in the High Court was thrown out. But she took it to the next court, the Court of Appeal, where the three judges were split, with one agreeing she had a point but the majority saying it was a matter for planning authorities rather than the court.
But that creates a huge problem, according to the Office for Environmental Protection (OEP) – the UK environment watchdog set up after Brexit in 2021 – which is, for the first time, intervening in a Supreme Court case.
“It means that local planning authorities could reach entirely different conclusions on an important issue of principle on essentially the same facts,” it said in its submission to the court, leaving the law “in an unpredictable state with potentially capricious results”.
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“If it is successful, which I don’t think it will be, it will set a precedent,” said Charles McAllister from UKOOG.
If the campaigners win, it would have “far-reaching implications beyond the onshore oil and gas industry, ranging from the offshore oil and gas industry, mining, metals, manufacturing, aviation”, he warned.
The Horse Hill site would extract around 200,000 barrels of oil over 25 years, which could be used to power jets, create electricity or heat homes. The UK produces about one million barrels of oil a day.
Independent government climate advisers from the CCC have said the UK will need some oil until 2050, though it is “not clear-cut” whether it should produce more domestically.
The International Energy Agency has said no new fossil fuel project is compatible with the globally accepted goal of limiting warming to 1.5C.
UK Oil and Gas, the main developers of Horse Hill, declined to comment.
A spokesperson for Surrey County Council said it is “required to determine planning applications in accordance with the Development Plan, the National Planning Policy Framework, national policy and other material considerations, as set out in legislation and case law.
“The County Council will present its case to the Supreme Court, which will issue a decision in due course.”
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