In January 2022, the UK Coal Authority approved an application to mine up to 40 million tonnes of coal in the Neath valley, south Wales. In the midst of a deadly climate crisis, the decision has sparked anger and disbelief. Welsh Government has publicly supported a move away from fossil fuels, and claimed they were powerless to stop the mine. But a string of emails paints a different story, and reveals a government unwilling to take decisive action against climate breakdown.
By Carys Hopkins, SC Cook and Ben Jones
Fresh emails have emerged showing how Welsh Government ministers declined to object to a new coal mine extension that would authorise the extraction of up to 40 million tonnes of coal by 2039. If combusted, the coal from the new Aberpergwm mine would be expected to release around 100 million tonnes of carbon dioxide (5.5 million tonnes per annum), wrecking Welsh Government’s net zero by 2050 target.
Cover image: Aberpergwm mine extension, via CAN
The Aberpergwm coal mine extension was granted approval by the Coal Authority in January 2022, giving rise to a row over how the extension was given the go-ahead in the middle of a climate emergency. The severity of the environmental crisis was once again highlighted this week as more than a billion people face a relentless and deadly heatwave in India and Pakistan.
But instead of doing everything in their power to stop new fossil fuel extraction, something the IPCC says is essential to tackle climate change, Welsh Government ministers refused on multiple occasions to try to halt the Aberpergwm Coal Mine extension, even as they publicly advocated a move away from carbon.
The exchanges between the Welsh Government and the Coal Authority have been detailed in a pre-action letter against the two bodies by Richard Buxton solicitors, in a legal challenge to the mine extension being crowdfunded by the Coal Action Network (CAN). The pre-action letters, detailed below, show the extent to which the Deputy Climate Change Minister, Lee Waters, appears to not want to use his powers to stop the mine extension going ahead.
And now new emails have been revealed via a CAN Freedom of Information request to the Coal Authority that show how Welsh Government Ministers further declined to object to the mine.
The justification from Welsh Ministers for why they have not opposed the mine has been rejected by the CAN and others.
“Our legal team believes that the Welsh Ministers are wrong that their legal authority to approve coal mining licences in Wales doesn’t apply to the Aberpergwm expansion,” Daniel Therkelsen, a campaigner with the CAN, told voice.wales.
Fresh emails further implicate the Welsh Government.
The Coal Authority is responsible for issuing licences for new coal mining activity in Wales, but to do this it must go through a number of processes, including assessing the applicant’s finances, the nature of the land or property that may be impacted and that the operation will be carried out by properly experienced people.
As part of their assessment, the Coal Authority repeatedly sought direction from Welsh Government over whether the new licence for the Aberpergwm mine extension should be granted.
The FOI shows that on Wednesday 22nd December, the Coal Authority wrote to Welsh Ministers to say that the mine operator [Energybuild Mining LTD] was “now reasonably expecting our final determination in the coming weeks.”
“Legally, we must now be working towards completing our minded determination,” they wrote, “and if we don’t receive a response to our letter dated 11 October 2021 prior to the 10 January 2022, we will have no choice but to issue the licence shortly after.”
In the letter, the coal authority acknowledged that “Public statements made by Welsh Government and by Minister Waters in the Senedd, makes clear they believe s26a cannot be applied in determining the licence at Aberpergwm.”
This is where things start to get a bit complicated, but it’s worth understanding what S26a is, and why it matters.
S26a refers to an updated section of the Coal Industry Act 1994 that states that mining activities in Wales authorised by the Coal Authority can only take effect if the authorisation is approved by Welsh Ministers. In other words, Welsh Government can effectively veto new mining operations, such as Aberpergwm.
However, the deputy minister for climate change, Lee Waters, has said that S26a does not apply in the case of Aberpergwm, rendering him effectively powerless to stop it. His reasoning for this is complicated and it’ll be looked at in more detail later, but it effectively rests on the fact that the original application for the mine was made before Welsh Ministers gained these powers.
A similar argument has been made in relation to the Wales Act 2017, another piece of legislation that gives Welsh Ministers power over mining operations in Wales.
In their December 22nd letter, however the Coal Authority reiterated their position that Welsh Minister could have a say over the fresh Aberpergwm application. The body stated that: “BEIS is clear that this is a matter for Welsh Government.” BEIS is the UK Government Department for Business, Energy and Industrial Strategy, which ultimately oversees the UK Coal Authority.
In other words, the Coal Authority, who ultimately granted the licence, were saying to the Welsh Government that this was an issue under their control and were asking for direction otherwise they would “have no choice but to issue the licence.”
But a Welsh Government official wrote back just 30 minutes later saying they didn’t have anything to say on the matter.
“It was a very useful discussion yesterday, and the information below is clear,” they write. “I do not anticipate us having more to share before 4 January, but we will undoubtedly be in touch that week.”
When they did get back in touch that week, however, Welsh Government ministers simply reiterated their position that they were powerless to stop it.
According to the Coal Authority, in an account not denied by Welsh Government: “On the 10 January 2022 the Welsh Government informed the Coal Authority that Welsh ministers will not be making a determination in this case. 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 Welsh Government on the application, has a legal duty to approve the licence application. This was done on 25 January.”
But the December exchange was not the only time Welsh Ministers had been offered a chance to oppose the mine extension.
A catalogue of missed opportunities
On 26th May last year the Coal Authority wrote to Deputy Minister for Climate Change Lee Waters saying it was “appropriate for us to offer the Minister the opportunity to express a view on this licence application as we understand they can make a direction on this under 26A [section 26A of the Coal Industry Act 1994].”
In response, Welsh Ministers said that whilst section 26A was “a relatively new provision, with little in the way of precedent to draw from” their view was that they were powerless to act, and that the s26A provision didn’t apply to Aberpergwm because the original authorisation was granted in 1996, before the powers came into effect.
But they then noted that the proposal at hand was to replace the old licence with a new one.
This is where things get a little complicated again, but the distinction is an important one.
There are two types of licences for coal extraction issued by the Coal Authority, a conditional and a full licence. As the Coal Authority states, “a conditional licence does not allow coal extraction whilst a full (deconditionalised) operational licence does.”
In other words, Energybuild Mining Ltd, in order to extract coal from Aberpergwm, needed to gain a full operational licence. The application for this was made on 16th September 2020, after Welsh Government gained their new powers. .
Upon learning of the distinction in the type of application, Welsh Ministers say: “However, your letter refers to the grant of a full operational licence to replace the existing conditional licence. That is a different proposition. It would be helpful if the Coal Authority could provide the Welsh Government with a copy of the application and of any new licence it proposes to grant. This will be critical to our reaching a shared understanding as quickly as possible.”
On 30th July 2021, the Coal Authority responded to Welsh Government, ratifying this:
“I can confirm that the Operator is seeking to deconditionalise their current conditional licence…In this instance the deconditionalising of the licence, or moving from a conditional to a full operational licence, would allow additional coal mining to take place at Aberpergwm until 2039.”
Crucially, they then say again that they believe that the Welsh Government can make a decision on whether fresh coal mining should go ahead.
“We believe that section 26A of the Coal Industries Act does provide sufficient discretion for the Minister to be consulted and that it would be appropriate in this case.”
From these early exchanges, it appears that Welsh Ministers are considering how to use their powers to stop the mine extension, and a fresh 100 million tonnes of carbon dioxide emissions, going ahead.
But according to pre-action letters submitted on behalf of the Coal Action Network, Welsh Government Ministers responded at the end of August declining to make a determination on the mine extension. Instead, they asked the Coal Authority to provide them with all the relevant documents and notify them of their recommendation so that they could make a decision under section 26A CIA 1994.
Then, in October 2021, without any opposition from the Minister, the Coal Authority informed Welsh Government that they had come to the recommendation that the application was in line with their licensing function.
“The licensee [Energybuild] has demonstrated that they have met these tests and therefore, in accordance with the duties on us under the Coal Industry Act 1994, we would need to grant a full licence.”
But they then said that before they could issue the new licence, the Coal Authority again asked the Welsh Government for a position. They say they “need clarity on the position of Welsh Government, and the Welsh Minister’s views as we have been discussing over past months.”
According to the pre-action letters, “the Coal Authority again set out that it considered the Minister could make a determination under section 26A CIA 1994 and invited the Minister to do so.”
Then, in late October, Welsh Ministers appeared to give up any idea that they were going to try and use their powers to halt the mine extension. They wrote to the Secretary of State for Business, Energy and Industrial Strategy (BEIS), the department which oversees the Coal Authority, asserting that s26A did not apply, and therefore the Welsh Government could not oppose it. BEIS did not agree with this assessment, stating their view that Welsh Ministers could exercise their power over the Aberpergwm 2020 Application.
The newly released emails obtained by the Coal Action Network via an FOI show that there was then a further occasion where the Welsh Government was invited to respond, when on 22nd December the Coal Authority stated: “BEIS is clear that this is a matter for Welsh Government.”
A full response was given on 10th January 2022, which was that Welsh Government would not be making a determination on the application and on 25th January 2022, the Coal Authority approved the 2020 Application for Energybuild Mining Limited to extract 40 million tonnes of coal from the Neath Valley.
In total, Welsh Government officials working under the Deputy Minister for Climate Change, Lee Waters, declined on at least five occasions to object to the mine extension, even though they were told they had the power to do so.
This flies in the face of their public statements on the climate crisis, not least from Waters himself, who in December last year said: “Net Zero Wales reaffirmed our commitment for a significant transformation of energy generation moving away from fossil fuels to sustainable renewable generation.”
Earlier in 2021, Waters said: “The science is clear: we can stop this [climate catastrophe], we can manage it. Some of the changes are baked in but the worst of it is preventable if we take action now.”
The deputy minister also wants the entire Welsh public sector to achieve net zero greenhouse gas emissions by 2030, ahead of Wales as a whole being net zero by 2050.
Aberpergwm mine extension would make these targets impossible to achieve, and contribute to deadly levels of global warming.
So why didn’t Welsh Government object?
In their statements, they have claimed that they were powerless as the all-important Section 26A of the Coal Industry Act 1994, granting Welsh Ministers the power to intervene, did not apply.
voice.wales asked both Lee Waters and the minister Julie James if they had received legal advice on whether or not they could act, but they did not respond.
According to the solicitors Richard Buxton, however, s26A applies if a licence “authorises coal-mining operations in relation to coal in Wales.”
“On its face, the power in section 26A applies in the instant case,” they say.
They also point out that, in contradiction with Welsh Government, that there is no retrospective barrier to prevent Mr Waters objecting because the original 1996 licence was replaced by a full licence. Because the 2020 application was a fresh bid by Energybuild mining for a ‘full licence,’ it meant that Welsh Ministers did have the power to act.
However, even without this, the solicitors say the retrospective argument is redundant. They say that the fact that the original licence was granted before the Wales Act 2017 came into effect, another argument made by Waters and Welsh Government to justify their position, does not prohibit the Welsh Government from taking decisive action against the coal mine extension.
“Nothing in the… Wales Act 2017 prevents the application of section 26A CIA 1994 to deconditionalisation decisions,” they write.
According to the Coal Action Network: “The fact that there is a connection to a 1996 licence is not a prohibiting factor. The Wales Act 2017 was broadly drafted to capture any authorisation for new coal mining,”
So there appears to be little legal basis for the Welsh Government’s insistence that they were powerless.
Taken all together, it’s hard not to come to the conclusion that the Welsh Government were looking for any way to not oppose the coal mine extension, even as they publicly declare that we are in the midst of a climate emergency that Wales will be a world leader in tackling.
“The Welsh Government has made clear that new coal extraction is contrary to Welsh Policy,” says Daniel Therkelsen of the Coal Action Network ahead of the group’s legal challenge to the mine. If we’re successful, it will render the licence for the expansion invalid unless a Minister of the Welsh Government subsequently approves it.”
Instead of taking bold action, which may have been unpopular with some energy bosses and even some sections of the public, Waters has instead sought to deflect blame onto the Coal Authority, saying the body’s mission has to be scrapped. No doubt many climate campaigners would agree, but this doesn’t prove that the extension of Aberpergwm was inevitable.
Waters has hinted at the possible real reason why he didn’t object to the mine, saying in relation to Aberpergwm that: “Properly managed, anthracite can be part of a low-carbon future.” He also said that Energybuild had made a “very reasonable” case.
Perhaps Welsh Ministers never wanted to stop the mine in the first place and were looking for a way out all along. If so, it would put any claim to being ‘green’ into a very cold light.
“It is critical for our future generations that this expansion is stopped and 100 million tonnes of CO2 is prevented, along with up to 1.17 million tonnes of methane leaked from the mine itself,” says Daniel Therkelsen of the Coal Action Network.
“If governments can’t step up to this task, we must – even when that task is daunting for a small grassroots organisation like us. This case is expected to cost us up to £65,000 – that isn’t easy to crowdfund!”
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