Exide to file judicial review proceedings against Government
Exide to file judicial review proceedings against the Government
Exide Technologies Limited is filing proceedings to sue the Minister of Commerce, the Hon Simon Power in his capacity as the decision-maker for permits to export used lead acid batteries (“ULABs”) up to 30 June 2011. As of 1 July 2011, the jurisdiction transferred to the new Environmental Protection Authority and the Hon Nick Smith as Minister for the Environment.
“The government has international obligations incorporated into New Zealand law to favour New Zealand facilities where ULABs could be disposed of or recycled in an environmentally sound and efficient manner, and to limit the international transport of hazardous waste. We believe the government has failed to meet these legal obligations in exercising its discretion to grant export permits”, said John Cowpe, Exide’s Australasian Managing Director.
The Exide Smelter in Petone, Wellington, is the only battery recycling facility in New Zealand and it meets all of its obligations to be environmentally compliant and efficient. It is currently applying for new resource consent and has voluntarily offered to lower the emission thresholds as part of that application. The consent documents clearly show that Exide is environmentally compliant.
Mr Cowpe said, “We have invested millions of dollars into our Petone smelter to ensure we are environmentally sound. However, we do not have any batteries to recycle because the government has granted permits to export nearly 100,000 tonnes to developing countries like the Philippines and to Korea since 1 January 2008. There remain four outstanding applications for another 17,800 tonnes of ULABs. That is all of the ULABs in New Zealand and more”
In its application for judicial review with the High Court, Exide says that the Crown has failed to meet its legal requirements under:
• Section 3A of the Imports and
Exports (Restrictions) Act 1988; and/or
• Provisions of the Imports and Exports (Restrictions) Prohibition Order (No. 2) 2004, in particular clauses 6 and 11; and/or
• Articles 4(2)(b) and (d) of the Basel Convention; and/or
• Articles 4(b) and (c) of the Waigani Convention.
The law says the Minister “must give effect to” the Basel and Waigani Conventions, and “ensure that the exportation of waste is otherwise in conformity” with New Zealand’s obligations under these conventions.
Instead, the Ministry of Economic Development acting on delegation from the Minister of Commerce, adopted a policy of allowing or encouraging a free market for the sale and purchase of ULABs. This is fundamentally at odds with the Basel and Waigani Conventions.
Mr Cowpe said, “Exide does not want to create a monopoly for recycling used lead acid batteries. We also do not want the Government to ban export permits for the batteries. We just want the Government to meet its international and domestic legal obligations”.
Exide’s lawyers are meeting with the Ministry of Economic Development today to discuss the litigation and will be filing proceedings with the High Court midweek.