Pesticide fight heads for top court in Montreal

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http://www.montrealgazette.com/news/pages/001204/4985889.html

Monday 4 December 2000

Pesticide fight heads for top court

Lawn-care firms challenging municipal ban on controversial chemicals

MICHELLE LALONDE

The Gazette

MARCOS TOWNSEND, GAZETTE / Jean-Dominique Levesque-Rene made headlines six

years ago at the age of 11 when he forced the city of Montreal to admit it

was using pesticides.

When Jean-Dominique Levesque-Rene first stood up at Montreal city hall five

years ago and politely asked if the city used pesticides in public parks, he

was only 11 years old and he had cancer.

The mayor reassured the boy that the city did not use chemical pesticides,

only to be forced to recant several weeks later.

The city did - and, indeed, still does - routinely use at least 16 different

chemical products to control weeds, fungi, insects, rats and other pests on

city property.

The boy's question and the mayor's mistake sparked concern about pesticide

use in the Montreal area. Over the past decade, similar dramas have been

unfolding at city halls and school boards across Canada.

That spark of concern is about to be reignited in Ottawa on Thursday, when

the Supreme Court will hear an appeal by two lawn-care companies against a

nine-year-old anti-pesticide bylaw in Hudson.

Levesque-Rene, now 17, has become a national spokesman against the cosmetic

use of pesticides in cities and suburbs, where no agricultural crops are

threatened by pests or weeds.

" I am 100-per-cent sure that pesticides gave me cancer. They made me sick

when I was young and they continue to make me sick, " said Levesque-Rene, who

still lives on Ile Bizard, just off Montreal Island.

" Each spring when people spray, I get stomachaches, I get very tired, I get

headaches. I know it's related to that. "

It is still not known if Levesque-Rene has beaten his non-Hodgkin's

lymphoma, but he said he will not give up the fight for a federal ban on

pesticides.

Levesque-Rene suffered through 11 months of chemotherapy, missed two years

of primary school and lost a good chunk of his childhood to cancer. He now

knows that the common herbicide 2,4-D had been sprayed on the grass

surrounding his home every summer from the time he was a toddler.

He also now knows this product had been linked to non-Hodgkin's lymphoma in

farmers.

With one more year of tests to undergo before his cancer can officially be

considered in remission, Levesque-Rene is hopeful that he is cured.

But like thousands of Canadians, he is still plagued by multiple chemical

sensitivity, a chronic condition with symptoms that recur in response to low

levels of exposure to multiple unrelated chemicals.

That's why he spends as much time as his high-school schedule and his health

permit lobbying for local, provincial and federal legislation to reduce

pesticide use.

D D D

In recent years, dozens of communities across the country, mostly in Ontario

and Quebec, have passed bylaws to ban or reduce the use of pesticides, as

evidence of possible and proven health risks has mounted. Hundreds of other

city and town councils have spent the past decade holding off concerned

citizens and environmental groups by saying they don't know if they have the

legal power to ban lawn chemicals.

They'll know soon. The anti-pesticide bylaw in Hudson was upheld by Quebec

Superior Court in 1993 and by the Quebec Court of Appeal in 1998; this week

the country's highest court will begin hearing the case.

The court will not rule on the safety or necessity of pesticides; only on

whether a municipality has the power and jurisdiction to enact a bylaw

banning or restricting their use. The court's decision is expected by June,

at the height of spraying season.

Environmental groups believe the decision will have a profound effect on the

use of lawn chemicals across the country. If the town of Hudson wins, many

other jurisdictions that have been poised to act on the issue will go ahead

and enact bylaws. If Chemlawn (now called Greenspace Services Ltd.) and

Spraytech, the two lawn-care companies that are challenging the bylaw, win

this third and final appeal, the resulting legal chill will force the

anti-pesticide movement to abandon local efforts and focus on higher levels

of government.

Theresa McClenaghan, a lawyer with the Canadian Environmental Law

Association, will represent about a dozen interveners in the case, mainly

environmental groups from Ontario.

" A lot of community groups have asked their councils for bans or

restrictions and the councils have been reluctant because their legal

departments fear they would be challenged, so the case is being carefully

watched, " McClenaghan said.

If the court upholds the Hudson bylaw, she added, there could be major

implications for other kinds of environmental bylaws, like those against

idling engines and smoking in public.

Either way, attention drawn to the issue by the Supreme Court case might

push the federal government to amend the 30-year-old Pest Control Products

Act. That act was strongly criticized as inadequate in a House of Commons

environment-committee report in May.

" Given what is known or suspected about the harmful effects of these

products and given the purely esthetic purposes they serve, the committee

favours a ban on the use of pesticides for cosmetic purposes, " reads the

executive summary of the report, Pesticides - Making the Right Choice for

the Protection of Health and the Environment.

But the report goes on to say that it is " questionable whether the Canadian

public would accept a country-wide ban at this time. It is therefore

essential to enlist public co-operation by sensitizing people to the risks

of pesticides through an aggressive education campaign. Hopefully, the use

of pesticides for cosmetic purposes will become as frowned-on as smoking

cigarettes in public, thus making a full moratorium a more socially

acceptable solution. "

The committee did recommend that a new act disallow all new registrations of

such chemicals for cosmetic uses and at the same time disallow registration

renewals for those currently on the market, once their registration

certificates have expired. This would amount to a phasing out, over five

years, of pesticides for cosmetic purposes.

Environmental groups cheered the report, but their cheers subsided when the

government responded to it in October. The response, the activists say, was

mainly a defence of current practices of Health Canada's Pest Management

Regulatory Agency, and assurances that further research would be undertaken

and the Pest Control Products Act would eventually be amended.

" It was as though the response was written by the chemical producers; it was

really discouraging, " said Rickman, deputy director of the Sierra

Club of Canada, a national environmental group and an intervener in the

Hudson case.

Last month, federal Health Minister Allan Rock did announce an Action Plan

for Urban Use of Pesticides, as a first step in response to the Commons

panel report.

The minister promised to " work closely with the provinces and territories to

help homeowners reduce their reliance on pesticides, " mainly by developing

educational materials, including a Web site (www.healthylawns.net). He also

promised " priority re-evaluations " of some common chemicals in lawn-care

pesticides (diazinon, malathion, carbaryl, 2,4-D, MCPA, dicamba and

mecoprop), a project targeted for completion in 2001.

" Whoop-dee-doo, " Rickman said. " They have been promising to re-evaluate

2,4-D for 10 years now. "

D D D

Ray Sharits is tired of being painted as a villain in the pesticide wars.

Sharits is senior vice-president (operations) for Greenspace Services Ltd.,

a " lawn-care service provider " that has its headquarters in Toronto. He runs

the Laval operation; the company also has branches in Montreal, Ottawa and

Quebec City.

" I have no ties with the chemical companies, " he said, adding that if the

federal government outlawed chemical pesticides tomorrow, he would be happy

to work with purely organic products.

It's not his responsibility to determine the health effects of pesticides,

he said; he just wants the right to do a job that the provincial and federal

government both explicitly allow in their laws.

" We have the right to work. Can a municipality have the authority to ignore

provincial and federal law and become their own enclave? " Sharits asked.

The mish-mash of municipal bylaws is creating a kind of chaos for pesticide

users and is not necessarily protecting anyone's health, or the environment,

he said. For example, some municipalities on Montreal Island allow spraying

only on certain sides of streets on certain days. Others allow use only from

9 a.m. to 11 a.m. and 1 p.m. to 3 p.m. (when youngsters are in school).

Others allow it in the spring and fall but ban pesticide use all summer.

" If you have a bylaw that says you can't spray after the 20th of June, we

get clients who call the week before and say they want the whole lawn done.

Maybe the year before they would only call us to treat a spot problem

sometime during the summer. So we end up putting a lot more product down

because of the bylaws, " Sharits said.

He also doubts that local bylaws are being enforced. He noted that lawn-care

pesticides are still selling well in a Hudson hardware store: " I know the

local store still sells (pesticides) and people still have weed-free lawns. "

In fact, the town of Hudson called Sharits's company this past summer to

treat a poison-ivy problem at some of the town's bus stops and parks.

(Hudson's bylaw exempts golf courses and allows pesticide use for any

infestation that threatens human health. Residents can also get permits from

the town to use pesticides if they can get a professional like Sharits to

certify that they have an infestation.)

Sharits said he would welcome clear federal legislation that sets out

exactly what, when and how pesticides should be used, as well as by whom.

Like all members of the Association of Horticultural Service Companies of

Quebec, he advocates what is called integrated pest management, which means

putting the emphasis on pest prevention and using reduced-risk products.

His company offers organic methods, but they are less effective, more

labour-intensive and therefore more expensive for his clients, Sharits said.

Unless there are clear rules for lawn-care companies, the public will always

opt for the quicker, cheaper route of using stronger chemical pesticides, he

said.

Lawyer Gerard Dugre, who represents Chemlawn and Spraytech in the case, said

he expects to win the appeal, which is based on the argument that Hudson

overstepped its regulatory powers by adopting the bylaw.

- - -

Anti-pesticide activist Merryl Hammond says going the municipal-bylaw route

to fight for bans has its pros and cons.

A nurse with a doctorate in community health and a West Island resident who

founded Citizens for Alternatives to Pesticides, Hammond has sold about

1,000 copies of her self-published book, Pesticide Bylaws: Why We Need Them

and How to Get Them, across Canada. She is the only individual intervening

in the Supreme Court case.

She said the federal government is overly influenced by the economic clout

of the chemical companies. It is harder for the pro-pesticide lobbyists to

influence each and every town or city councillor to stop a ban, just as it

is difficult work for environmentalists to go town by town trying to win

bans, Hammond said.

But a combination of local legislation and, more important, public education

has proven to be very effective in reducing pesticide use, she said.

She believes the court case will " put fire in the bellies of people who will

say, 'If they can do it there, we should do it here.'

" I think it will be amazing. Then maybe someone at the federal level will

say, 'Why not save everybody the agony and enact federal legislation?' " to

ban cosmetic use of the chemicals in cities and suburbs.

- - -

People are beginning to make a link between health and the environment,

between soaring childhood cancer and asthma rates over the past 20 years and

the sheer number of chemicals to which children are exposed every day in

food, water, air, soil and grass.

" Most people believe toxins in the environment have a negative impact on

health, " said Rickman of the Sierra Club. " If they realize they are

deliberately exposing themselves to something that is toxic and they can

stop, they will. "

The Commons committee report made it clear that the Pest Management

Regulatory Agency's testing procedures for pesticides are inadequate, she

said.

" We do the testing by looking at exposure to one chemical at a time, or two

or three. But that's not taking into consideration that there are pesticides

on the lawn, that your workplace got sprayed for cockroaches, that you ate

an apple or drank juice that had been exposed to pesticides in the fields

and maybe a fungicide in the warehouse where it was stored for six months.

" That combined exposure isn't considered, and until it is, we don't know if

it is safe. So we say, be logical and stop exposing yourself to chemicals to

get rid of dandelions. It's just dumb. "

Meanwhile, back in Hudson, the doctor who got the ball rolling on the town's

pesticide ban said it doesn't really matter whether Hudson wins or loses at

the Supreme Court.

What matters, said Joan Irwin, is that the case will bring public attention

to what she calls a scandal.

" Whichever way it goes, it should be the beginning of a public inquiry into

our own contamination by pesticide products. This is a scandal bigger than

tobacco. There should be a public inquiry. "