Environmental and Citizens' Groups File Pesticide Arguments with Supreme Court

On December 7th, 2000 Canada's highest court will hear an appeal by two pesticide corporations, Chemlawn and Spraytech, challenging a by-law passed by the municipality of Hudson, Quebec. The by-law would control local use and application of pesticides by homeowners and businesses in the municipality.

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Subject:   Environmental and Citizens' Groups File Pesticide Arguments with Supreme Court.
Date:       Wed, 18 Oct 2000 17:56:35 -0400
From:        Stephen Tvedten <steve@getipm.com>
Organization:     Get Set Inc. (www.getipm.com)

To:     Paul Helliker <phelliker@cdpr.ca.gov>
          Director, State of California, Department of Pesticide Regulation 

Dear Mr. Helliker, I thought you might like to read the following: Canadian Environmental Law Association - M E D I A R E L E A S E - For Immediate Release - September 26, 2000 - Environmental and Citizens' Groups File Pesticide Arguments with Supreme Court.

Toronto - CELA released today its legal arguments filed with the Supreme Court of Canada in an intervention in the court's upcoming decision concerning the powers of Canadian municipalities to control pesticide use on private property.

On December 7th, 2000 Canada's highest court will hear an appeal by two pesticide corporations, Chemlawn and Spraytech, challenging a by-law passed by the municipality of Hudson, Quebec. The by-law would control local use and application of pesticides by homeowners and businesses in the municipality. Two previous attempts to have the by-law quashed were denied by the Quebec Trial Court and again by the Quebec Court of Appeal. In the fall of 1999 the companies were granted leave to appeal the matter to the Supreme Court of Canada. Last February, CELA, on behalf of itself and ten public interest clients successfully obtained leave from the Supreme Court to intervene in the case and provide a written factum of law as to the validity of the by-law.

CELA's legal arguments conclude that municipalities do indeed have a legitimate and important role to play in imposing controls over pesticide use within their boundaries.

"Control of pesticide use and application is clearly within the municipal realm where pesticide use is primarily for appearance and cosmetics. And further, municipalities must be able to address competing concerns among residents in the municipality because of health concerns, short term and long term, and the legitimate concerns as to environmental impacts from urban pesticide use," said CELA lawyer, Theresa McClenaghan.

"The Supreme Court decision will affect communities across Canada. We are hopeful that the Court will uphold the right of local government to pass by-laws to protect public health and safety," said Janet May with the Toronto Environmental Alliance.

Going to court with CELA are: Toronto Environmental Alliance, Sierra Club of Canada, Parents' Environmental Network, Healthy Lawns - Healthy People, Pesticide Action Group Kitchener, Working Group on the Health Dangers of the Urban Use of Pesticides, Environmental Action Barrie, Breast Cancer Prevention Coalition, Vaughan Environmental Action Committee, and Dr. Merryl Hammond.

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For further information, please contact: Theresa McClenaghan, Counsel, CELA (519)757-5266 (cell) Janet May, Toronto Environmental Alliance, 416-596-0660 (Toronto) www.torontoenvironment.org

Source: http://www.cela.ca/mr000926.htm

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September 26, 2000

Summary of Intervenors Factum of Law to the Supreme Court of Canada

The City of Hudson's by-law (No. 270 Concerning Pesticides) determines where and in what circumstances pesticides may be used within the municipality. It does not prevent agricultural producers from applying agricultural or horticultural pesticides, subject to notification requirements. Otherwise, the by-law prohibits all pesticide use except: in swimming pools; inside buildings; in locations where there are plants or animals which pose a danger to humans; and subject to compliance with its provisions, on golf courses. Nor does the prohibition apply to pesticides used for water purification or as a wood preservative. The by-law also states that "it is permitted to use a biological pesticide to control or destroy insects which constitute a danger or an inconvenience for human beings."

The issues considered in the case include:

1 Did the City of Hudson have the authority under the Cities and Towns Act to pass by-law 270? What is the scope of the municipality's power to pass a by-law such as by-law 270?

2. Was the City of Hudson's authority to pass by-law 270 limited or constrained by the words "provided such by-laws are not contrary to the laws of Canada or of Quebec nor inconsistent with any special provision of this act or of the charter" as contained in the said Act such that the by-law is invalid?  The main conclusions of CELA's factum of law in this case are summarized as follows:

1. Use and application of pesticides is controlled, prescribed, and regulated in various ways. Federal registration is required by manufacturers to make and market a pesticide. Provincial permission is required for vendors to distribute or sell a pesticide, or for service companies to apply a pesticide. Municipalities can enact by-laws concerning pesticide application within their boundaries.  Homeowners have bought and used either pesticides or the services of pesticide applicators for thirty years. However, pesticide application is not a common law private property right. While pesticide products have been available they have been controlled and regulated. During the same time frame, local concerns, validly held, have arisen and been appropriately within municipal control.  Significant differences at the local level can lead to valid differences in municipally elected councils making different decisions as to how to control pesticide application in the municipality.

2. Pesticide application that is primarily for cosmetic and aesthetic purposes (cosmetic pesticide use) in home lawns and gardens, is a local concern. Municipalities are empowered by provincial law to enact by-laws. Routinely such by-laws control the appearances of local buildings and lots, parking of vehicles, control of vegetation, tree removal and many other matters. Control of pesticide use and application is clearly within this municipal realm where pesticide use is primarily for appearance and cosmetics. Further, municipalities must be able to address competing concerns among residents in the municipality because of health concerns, short term and long term, and the legitimate concerns as to environmental impacts from urban pesticide use.

3. Different concerns will exist in different municipalities. Variations can occur in terms of daily, seasonal or geographic use of pesticides, in terms of run-off to ground or surface water. Impacts on young children could vary with demographics, location of parks, schools, daycares and recreational facilities.  Municipalities have traditionally been empowered to deal with considerations that reflect these differences, from the ability to zone land use, to the ability to pass by-laws for the control of nuisance uses in a community. The underlying concerns have ranged from health concerns (e.g., safety of drinking water) to that of the peace and enjoyment of their lands by neighbours (e.g., by-laws for noise nuisances or air emission nuisances).

4. Municipal power to set by-laws is often unaffected by federal or provincial laws, regulations or or guidelines. E.g., noise by-laws have nothing at all to do with Ontario Ministry of Environment noise guidelines; both deal with different concerns in different ways. Municipal noise by-laws can and do control much activity that would not breach Ministry of Environment noise guidelines. Provisions allowing for municipal by-laws about nuisances from air pollution emissions are often unrelated to Ministry of Environment air standards. The former may be primarily concerned with nuisance impacts; the latter with short or long term "proven" health or environmental impacts, and even then, they tend to focus only on serious impacts.

5. Municipal pesticide by-laws are among the most recent of a line of such by-laws regulating the activities of property owners and occupiers that impact upon others in the municipality. Such by-laws serve the very purpose of the legislation that provides municipal general health and welfare powers to set by-laws. It is not expected, nor practically useful, to attempt a federal or provincial scheme that would deal with all such concerns and conflicts. Short of a nation-wide ban on cosmetic or urban use of pesticides, local impacts from their use will occur in differing ways in differing locations and giving rise to differing concerns. Since it is ecologically impossible to confine pesticides to their place of application, their use by any owner of private or public property is a legitimate community concern.

6. Enactment of a pesticide control by-law in a municipality, whether by way of control over the types of pesticides, or the location, timing or weather conditions for their application, or other controls is valid as a matter of Canadian municipal law. Such a by-law is compatible with federal and provincial law. Without more specific provincial legislation concerning municipal powers, and unless a province specifically prescribed the manner in which they may thus act, municipalities may act under the "general welfare", "public health" or "nuisance" provisions of the relevant municipal legislation.

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 For the Full text of Factum of Law (PDF) go to http://www.cela.ca

Well Mr. Helliker, People will eventually act to protect themselves when their hired help (the "regulators") fail to adequately protect them from your "registered" POISONS!

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