Use of evidence and expertise in UK climate governance : The case of the Cumbrian Coal Mine

Use of evidence and expertise in UK climate governance: The case of the Cumbria Coal Mine - Response to editor & reviewers

Reviewer 1

I think this is a great paper, interesting, challenging – it wouldn’t make it into one of the top law journals, but that is clearly not necessary. I should say that I agree with the author on the principle around the coal mine. I don’t think that the evidence points are the most interesting part of the paper – the question of linking (in law / policy) climate targets with individual decisions / projects is crucial.

I am glad that this paper is interesting and challenging! As I am not a lawyer I am not surprised that it wouldn’t work for a law journal, but it is intended as a more general comment on policy and legislation.

It isn’t accurate to say that it is clear / uncontested that new fossil fuel / coal developments are incompatible with the Paris Agreement. That gives the impression that everyone agrees this would be a breach of international law, whilst actually the status of the different parts of Paris (legally binding, and on whom, or not) is extremely complex. Better would be to say that many respected scientists agree that they would make meeting Paris’ 1.5 degree target impossibly difficult on current technology or even would / may be incompatible with meeting the 1.5 target set out in Paris. (This point recurs throughout.)

I have adjusted the text to make clear that the Paris Agreement does not explicitly prohibit new fossil fuel developments.

P 4 para at line 138 doesn’t cover all of the points expanded on in this section (misses the planning point).

Thanks, amended

A few points on section 3.2 (which I think leads into a crucial critique).

1. 1. I wouldn’t cite the NPPF as 2012 – it’s been updated multiple times, and presumably we’re working with the 2021 version here?
   2. The decision in Finch (cited and relied on by the SoS) is significant re downstream emissions. It’s a complex decision, but essentially leaves the inclusion of those emissions in the evaluative discretion of the planning decision maker. (And note that the appeal will be heard by the Supreme Court in June.)
   3. I’m not sure it’s quite nuanced enough to say that the inspector’s job is (solely) about compliance with planning law. The decision is one of evaluative planning judgment. The decision must be lawful of course, and it must comply with all law, not just planning law. The point (and the criticism in this paper as I read it) is that as currently interpreted, no single decision can readily be argued to be unlawful in respect of climate targets. (This point recurs)
   4. Line 198-99 – yes.

I think that the claim at 314-315 might be softened – not convinced all of these points are planning matters in law.

1. The NPPF document is on the government website with a 2012 publication date and subsequent revisions – I have made this clear in the text and references now.
2. This judgement is now mentioned but, given the complexity of the case, not explained in full.
3. Agreed – I have amended accordingly.

I do not agree here – whilst not all of these points are not planning matters in law, this is not the claim I am making. I am saying that for Michael Gove’s statement that the development would “support the transition to a low carbon future” and “would have an overall neutral effect on climate change” to be true, all these points would have to be true. Gove is making points wider than questions of planning, about the mine’s overall contribution to climate change

Line 353-55 – this is a matter of evaluative judgment I think rather than technical evidence? The law on material considerations in planning is fairly complex – the courts (the law) tell us what is and is not capable of being a material consideration, but the decision maker decides what weight to give to those material considerations, including giving them no weight as long as that is not irrational.

Agreed – but the text here merely states that experts (Grubb / Barrett) disputed this point – ie that they claimed they were material and asked the Inspector to regard them as material.

I take the point and I don’t disagree with the author, but the arguments about neutrality and evidence are going to cut in both directions – climate campaigners, NGOs and local people will also have their own values and beliefs, and we’ll see that challenged in other cases. Similarly with the credentialling that goes on in the table – usually going to help developers rather than under resourced local campaigners. But it’s a really good challenge.

Agree – though I think there is a difference between those who claim to be ‘expert’ witnesses, passing judgement on technical matters; and local people, community groups etc who have a different status, and whose views and values are material for different reasons. I have added a couple of sentences to make this point, in section 6.

The suggestions in 6.1 re the legislation are good, but potentially ever so complex in law.

Agreed – then again I am not a lawyer! These are drafted as policy proposals which would then need to be considered in legal terms.

Reviewer 2 – Franz Baumann

The author is explicit about her opposition to the Woodhouse Colliery, a declaration that is refreshing and certainly not a detraction from the quality, logic or conclusion of her analysis.

Thanks for this comment. I agree that being explicit about my own positionality is important here, as is the independent and transparent peer review process.

Line 89 reads: “The 2015 Paris Agreement on Climate Change, signed by 196 countries …”  Correct would be to say: “… signed by 195 parties …”

Correction made

Lines 98 – 100 read: “… limiting warming to 1.5°C (Intergovernmental Panel on Climate Change, 2021). This is the remaining ‘carbon budget’ that can be emitted if we are to have a fair chance of stabilising global emissions.”  Correct would be to say: “… stabilising global temperature.”

Correction made

Lines 149 – 150 read: “… The targets for emissions reduction in the CCA are economy are not broken down by sector of the economy …”  Correct would be to say: “…in the CCA are economy are not broken down by sector of the economy …”

Correction made

Lines 518 – 520 read: “ … doubt about climate science still has a strong foothold in media and politics, particularly in the US, where many Republican politicians openly express doubts (Dunlap, McCright and Yarosh, 2016).”  This reference is seven years old.  It is not hard to find more up-to-date evidence and sources.

I have added a more recent paper which, in turn, summarises more recent evidence

Line 621 reads: “international organisations such as UN organisations, the Intergovernmental Panel on Climate Change …” This is a bit awkward.  Better would be to say: “… international organisations, such as the European Union’s Copernicus Climate Change Service (C3S) https://climate.copernicus.eu/about-us, the United Nations Environment Programme, the World Meteorological Organization or the Intergovernmental Panel on Climate Change …”

Changes made

Line 734 reads: United Nations (2022a) Emissions Gap Report 2022, Emissions Gap Report 2022.  Available at: https://www.unep.org/interactive/emissions-gap-report/2019/ why 2019? This might be changed to United Nations Environment Programme (UNEP), The Emissions Gap Report 2022, 27 October 2022; Available at: https://www.unep.org/resources/emissions-gap-report-2022

Correction made