by Marsha Mildon

LawNow August / September 2001

Getting Bugged: Front Door Law

Imagine you have just walked out your door. A hairy caterpillar with pairs of blue and red spots along its back has fallen off the leaf of your favourite tree smack on to your head! Your first thought is probably "Yuck. Grossss!!!!" not "Wow, this caterpillar has caused hundreds of pages of legislation and court decisions."

But it turns out in this case, the law - and the caterpillar - are right at your front door. This particular caterpillar is a gypsy moth larva, and the law that surrounds it falls generally under the realm of environmental law, but also involves municipal law, administrative law with reviews or appeals to various boards and tribunals, not to mention international trade law. And of course, environmental law is one of those areas where the volunteer and volunteer organizations make a big impact by involving themselves actively in the legal process.

When dealing with front door law, a case study is often only a small episode in a longer story. So in this edition of School's In, I'm suggesting we do a learning web study rather than a case study. When I say learning web, I'm not talking about the World Wide Web; it's more like imagining a spider web with each side being different, but all connected in order to get the whole picture.

While this approach can be somewhat more complicated, it can not only help you hone your critical thinking skills as in a case study, but also to understand the web of relationships between the courts, legislators, and your own life and neighbourhood.

Issues in the Gypsy Moth Learning Web Study

Biology: the life cycle of the gypsy moth; the effect of gypsy moth defoliation on forests; the effect of BtK, a bacteria, on the gypsy moth, other butterflies and moths, other insects, birds, animals, and human health.

Legislation and Regulation: the relationship of federal and provincial legislation; federal approval of the safety of pesticides; complexity of regulations and policies to deal with one type of insect pest.

Trade: the effect of international trade on local decisions.Administrative Law: the use of specialized agencies of government; appeals to Boards and Tribunals by community volunteers.

Court Decisions: The Gypsy Moth in the Supreme Court of British Columbia

Questions to Consider

The choice of a method to control the gypsy moth has become a very controversial issue, and the use of pesticides in general is becoming more controversial. Using the information and the website references provided in the rest of this article, one of your tasks in considering this entire story is to take a position on the issue and indicate your reasons for taking that position. This requires looking at contradictory evidence and weighing its value. Another task is to look at the variety of laws, regulations, official agencies, and community groups involved in attempting to protect the environment and describe how they all affect each other despite their disagreements.

The following questions focus on some of the important issues. How would you answer the questions? What facts and possibilities would you use as the basis for your answers? (You may wish to use one or more of these questions as the basis for an essay or a class debate).

Biology Question: (1 issue) There are several methods of dealing with gypsy moths: aerial spraying, ground spraying, host removal, egg mass removal, mass trapping, and tree banding. After looking at the evidence presented by various groups, which methods do you think are effective in eliminating gypsy moths?

Biology Question: (1 issue) After looking at conflicting statements and studies from government agencies and community groups, what effects do you think BtK has on human health? Give your reasons.

Legislation and Regulation: (1 issue) Do some research on the Internet to find what areas besides British Columbia in Canada have problems with the gypsy moth. See if you can find out about your home region and what is being done if there are gypsy moths there.

Trade or Trees Question: (2 issues) After looking at information from government and community groups, what do you think is the balance between preserving the health of our forests and unique eco-systems and preserving the economic health of forestry and agricultural industries when it comes to eradication of gypsy moths?

Web Question: (relating several issues) It's your job to write legislation to deal with the gypsy moth. Taking into account the issues of trade, eco-system health, and human health, what would your legislation say.

Web Question: (relating several issues) If the government had decided to carry out aerial spraying in your neighbourhood and you were asked to organize a volunteer community group to oppose the spraying, would you do it? If so why? What activities would you organize? Would you go to court? Would you try to find alternative way of resolving the dispute, such as mediation? If you wouldn't volunteer or organize a group, why not?

Other Activities: (acting on issues) If there is an environmental issue at your front door, you may wish to get involved. Do some research on the Internet to see if there are laws that deal with that particular issue. You may wish to join or to organize a group with your fellow students to deal with this issue. If so, in this issue of LawNow you can read "The First Steps-Organizing a Non-Profit Group" about different legal types of groups that can be organized and "Volunteering for Trouble" about the legal responsibilities of volunteer directors of groups.

Background information for the Gypsy Moth Study

The following section provides some basic information that will give you a start on thinking about those questions, plus URLs for websites with more information on the issues.

Biology

Gypsy moths are a major forest pest found in Europe, parts of Asia, and introduced into North America. The larvae eat the leaves of over 300 types of trees including Alder, Birch, Cherry, Dogwood, Douglas Fir, Hemlock, Juniper, Larch, Pine, Oak, Maple, some Cedars and most fruit trees. A major infestation of the moths can kill trees and devastate forests. In Victoria, there is a small and unique eco-system known as the Garry Oak eco-system, which is already endangered, and the gypsy moth is particularly fond of the Garry Oak leaves.

In 1978 in British Columbia, 40 egg masses (each mass could contain 1000 eggs) were found in Vancouver along with five adults, and this was enough for the government to start a major program of looking for them each year and eradicating them when the numbers increase.

For more information, you could try a general search with a web search engine using the keywords 'gypsy moth'. You could also start by looking at the BC Ministry of Forests' Gypsy Moth Home Page: www.for.gov.bc.ca/hfp/gypsymoth. In addition, there is a page of links to science pages about pest and disease management that you might want to consult: www.studyweb.com.

Monitoring the moths

Since 1978, every year, traps treated with a pheromone (a chemical from the female gypsy moth) are hung in trees (about 1 trap per 2.59 square kilometers) across British Columbia. If any moths are caught, the next year 32 to 64 traps per 2.59 square kilometers are set in that region so that scientists can make more accurate estimates of how big the population is and how widespread it is. Then they decide on a method for treating the area.

Treatments

There are six treatments recommended by various groups to get rid of the gypsy moth:

• aerial spraying of Foray 48B, a biological pesticide containing BtK, a bacteria called Bacillus thuringiensis (variant Kurstaki). This bacteria is a normal resident of the soil and only infects moth and butterfly caterpillars. The Pest Management Regulatory Agency, a part of Health Canada, approves pesticides like Foray 48B for use in Canada.

• ground spraying of BtK

• host removal: if the source of a population of moths is known

  for example, a small population of moths in a school yard - the infected patch of brush and trees can be removed taking the larvae and eggs with it.

• egg mass removal: a program of removing all egg masses from an area from late fall to early spring would eradicate the moths if all the carefully hidden egg masses could be found.

• mass trapping

• tree-banding: burlap strips or sticky bands are wrapped around the trunks of trees to catch larva and protect trees from defoliation.

"In a matter of days, perhaps weeks, planes may be flying over people's homes and gardens...releasing a substance called Foray 48B, containing BtK. They say BtK is a harmless biological pesticide, but BtK is only 2% of Foray 48B. The rest is a secret chemical agent listed as 'hazardous' on the materials data sheet. If the spaying goes ahead, individuals who are sensitive will risk major negative health reactions, most of our native butterflies and caterpillars will be killed, and organic farmers in the spray areas will lose their organic status" (EcoNews, April 1999)

For a thorough discussion of both sides of the controversy on BtK, other methods of control, and the trade and economic issues, you can read the 1998 appeal to the Environmental Appeal Board, but you may want to wait until you reach the discussion of that case in this article www.eab.gov.bc.ca/pest/98pes03b.htm.

Laws, Regulations; Agencies and Boards

Federal

Canadian Food Inspection Agency (CFIA): Comprehensive Policy to Control the Spread of North American Gypsy Moth: This directive governs movement both within Canada and between the USA and Canada of nursery stock; Christmas trees; forestry products with bark attached; outdoor household articles; military, recreational, and personal vehicles. There are different rules for movement between areas with established populations of gypsy moths and those without. The CFIA can designate regulated areas and can quarantine goods from areas infested with gypsy moths. CFIA's website can be searched for the keywords gypsy moth: http://www.inspection.gc.ca. Because of the gypsy moths found on Southern Vancouver Island in 1997, the CFIA was considering imposing a quarantine on forests and nursery products.

Pest Management Regulatory Agency (PMRA): Pest Control Products Act and Regulations: PMRA examines and approves pesticides and other pest management approaches: http://www.hc-sc.gc.ca/pmra-arla/

Provincial

Ministry of Forests: This Ministry monitors the presence of the gypsy moth, co-operates with CFIA to eradicate the moth, and provides information to the public especially on its Gypsy Moth Home Page: www.for.gov.bc.ca/hfp/gypsymoth

Ministry of Environment, Lands and Parks: Pesticide Control Act (1997) and Regulation: This Act and Regulation regulates the transport, sale, use, storage, and disposal of all pesticides sold or used in the province. This Ministry under normal circumstances must approve any use of a pesticide. Together, CFIA, the Ministry of Forests, the Ministry of Environment, Ministry of Agriculture, local Health Regions, and municipal governments are working to keep the gypsy moth from establishing a permanent population in British Columbia.

Environmental Appeal Board (EAB): This is one of those Boards, that is established by a particular Act of government to make certain specialized decisions. It operates like a court, so is known as a quasi-judicial board, but it is limited to make those decisions its Act allows. The EAB is set up under the Environment Management Act and (among other things) hears appeals to decisions under the Pesticide Control Act. (www.eab.gov.bc.ca).

The Gypsy Moth Case

Facts:

In 1998, the BC Ministry of the Environment with the Canadian Food Inspection Agency issued a permit for aerial spraying over many urban areas of southern Vancouver Island including Greater Victoria. A group of concerned citizens came together as a Resident Advisory Board and the Stop Overhead Spraying Coalition - along with the Sierra Club, the Ecological Health Alliance, and the BC Branch of the Allergy and Environmental Health Association - they appealed the permit to the Environmental Appeal Board in EAB Appeal No. 98-PES-03(b) (www.eab.gov.bc.ca/pest/98pes03b.htm)

The EAB stated that the basic question to be decided was whether the spraying would have an "unreasonable adverse effect", and used the following questions to make their decision:

1. Whether the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to human health.

2. Whether the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to the environment, and in particular, to non-target species.

3. If the spraying of Foray 48B, as authorized by the Permit, will cause an adverse effect to human health or the environment, does the intended benefit of eradicating the gypsy moth populations in the proposed spray sites outweigh the adverse effects, i.e. is it unreasonable? In determining the answer to this, it is relevant to consider whether alternative methods to spraying Foray 48B are available and effective, either without, or in conjunction with, a spray program.

Your Decision:

Given what you have read above and research you have done on the Internet sites, what would your answers be to these three questions. If you were a member of the Environmental Appeal Board, would you allow the aerial spraying?

1.

2.

3.

The EAB Decision:

1. The EAB found that "on the balance of probabilities and with respect to the site-specific conditions relating to this appeal, the use of BtK in the manner authorized by the Permit will create risk of an adverse effect on the health of at least some of the residents of those populated urban areas to be sprayed."

2. The EAB found that "the Permit will create some damage to non-target species. Thus it will have an adverse effect on the environment."

3. The EAB found that "alternative methods exist and that, at least some of them, can be effective in helping to control gypsy moth populations."

EAB Overall Decision:

On the basis of these answers to the questions, the EAB refused the permit for aerial spraying, allowed ground spraying in three particular areas, and ordered that there be no spraying on school properties and open grassy areas where children play.

Other Pesticide Cases and Legislation

If you wish to look at other cases and pesticide legislation for an essay or debate, here are some suggestions:

Dieter Eisenhawer, David White and Jessica White v. Attorney General of BC, Deputy Minister of Environment, Lands and Parks, and Project Team (1999)

This case carries on the gypsy moth fight in Victoria in the British Columbia Supreme Court in 1999. The BC Supreme Court decided to allow aerial spraying: (www.courts.gov.bc.ca/jdb%2Dtxt/sc/99/09/s99%2D0992.txt)

This issue was also argued once again in 2000 in front of the Environmental Appeal Board and you could compare that case, the evidence and the result with the 1998 decision and analyze why different decisions were made: www.eab.gov.bc.ca/pest/00PES001_014.htm

Se114957 Canada Ltée (Spraytech, Société d'arrosage) and Services des espaces verts Ltée/Chemlawn, v. City of Hudson (Supreme Court of Canada, June 28, 2001)

Here is another case of front door law that you could use for a case study or learning web study.

Facts:

In 1991, the City of Hudson, Quebec, passed By-law 270 regulating where and when pesticides could be used within its boundaries. The two landscaping and lawn care businesses used pesticides in their business and in 1992, the City of Hudson charged them with using pesticides and violating the by-law. The two companies appealled the charge to the courts.

Unlike the gypsy moth case where the question was the "adverse effect", in this case the basic question was whether passing a by-law to prohibit pesticide use was beyond the power (ultra vires) the city, because the federal and provincial government dealt with pesticides.

The companies argued that because the pesticides they used had been approved for use by the federal Pest Control Products Act, and the companies themselves were licensed under the Quebec Pesticides Act, the municipality couldn't interfere.

The City of Hudson argued that the by-law was within its power because the Quebec Cities and Towns Act (CTA) gave it the power to "secure peace, order, good government, health, and general welfare in the territory of the municipality".

Question:

If you were on the Supreme Court, what would you decide? Do the federal and provincial laws mean the city has no power over pesticides? Or does the the Cities and Towns Act give the City power to deal with pesticides among other things? Why?

Decision of the Supreme Court

This appeal was heard by the Supreme Court of Canada on December 7, 2000, and the decision was issued on June 28, 2001. The Supreme Court Justices unanimously decided that the by-law was within the power of the city to pass. The Justices decided that the purpose of the by-law fell "squarely within the 'health' component" of the CTA.

Second, the Justices decided that although the Pest Control Products Act "allowed" the use of certain pesticides, it didn't insist on their use. Similarly, the licence received by the companies only gave them the opportunity to use pesticides; it didn't make it mandatory to use the chemicals.

On the other hand, the city did have the ability to pass by-laws that provide stronger protection for their citizens than the federal and provincial legislation, as long as they didn't contradict the legislation. Justice L'Hereux-Dubé wrote that being able to "regulate pesticide use is consistent with principles of international law and policy. The interpretation of By-law 270 ... respects international law's 'precautionary principle'. In the context of the precautionary principle's tenets, the Towns concerns about pesticides fit well under their rubric of preventive action"

If you would like to read more about the reasoning of the Justices in this case, and some of the other issues of law that it raises, you can find the decision at http://www.canlii.org/ca/cas/scc/2001/2001scc40.html

The Canadian Environmental Law Association, among others, intervened in this case and has information about it on its website: www.cela.ca. On their site, they also have many publications about a wide variety of environmental law issues and you may find it a useful site for many environmental law studies.

Halifax By-law

The Halifax Regional Municipality has passed an anti-pesticide by-law that creates a phased-in approach to prohibiting pesticides on residential and municipal property. To see more about this decision, try a search using the Excite search engine with the keywords +Halifax +pesticides.

Do you think pesticide by-laws are a good idea? Find out if your city or town is thinking about banning some of the used of pesticides by calling your city government or checking your city's website. Do you think it should? What can you do about the issue?

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