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Dow seeks arbitration in pesticide bans

A pesticide manufacturer has pushed back against the provincial bans on so-called cosmetic pesticides.

Dow AgroSciences has filed a notice with the Canadian government seeking arbitration on the impact of a pesticide ban imposed by Quebec in 2006. That action breached Canada’s obligations under NAFTA, the company says. Through the Chapter 11 investor protector provisions of the agreement, Dow is seeking compensation of not less than $2 million, plus legal costs and yet-to-be specified damages.

If the parties can’t negotiate a settlement, a panel of three arbitrators could be appointed to decide whether the Quebec ban runs afoul of Canada’s NAFTA commitments.

Dow manufactures the herbicide 2,4-D, which is included in the ban even though Health Canada says it is safe to use. Dow says Quebec officials told the province “there was no scientific basis for this ban and despite numerous attempts by Dow AgroSciences to work with the Government of Quebec in using a science-based, transparent policy-making framework for the decision affecting 2,4-D,” Jim Wispinski, president and CEO of Dow AgroSciences, said in a statement Oct. 22.

“This challenge is aimed at ensuring that important public policy decisions are based on scientific evidence, predictability and a clear set of principles, and are managed within a transparent framework,” he said. “The actions of the Government of Quebec are tantamount to a blanket ban based on non-scientific criteria, and we are of the view that this is in breach to certain provisions of NAFTA. We don’t welcome this step, but feel it is necessary given the circumstances.”

Years of study

Federal officials declined comment saying the matter was in a legal process. Last May, Health Canada and the Pest Management Regulatory Agency, after years of study and review, approved the use of 2,4-D for a variety of lawn, turf and agricultural applications as long as label directions were followed.

However, a spokesman for Quebec Environment Minister Line Beauchamp said the province won’t change its stance on 2,4-D. “Our position on this is very clear; it’s on our banned product list,” said Phllippe Cannon. “This is based on prevention for the welfare and health of the population.”

Federal approval for 2,4-D was widely condemned by health and environment groups that view pesticides as a threat to human health. They reacted quickly to news of the Dow suit.

Kathleen Cooper, a senior researcher with the Canadian Environmental Law Association, said in a statement that the Quebec ban enjoys wide support in public-opinion surveys. She says she is troubled that chemical producers can invoke NAFTA in an effort to “undermine the decisions of democratically elected governments.”

Rick Smith, executive director of Environmental Defence, said in a statement that Dow is “quite transparently” trying to stop pesticide bans from spreading around the country and he predicts the company will face a public backlash.

Bans elsewhere

The timing of the Dow action is also interesting because the province of Ontario is in the process of banning so-called cosmetic pesticides used on lawns, gardens and parks and municipalities elsewhere in the country have enacted pesticide bans.

The Dow action could help an Ontario-based group fighting the provincial pesticide restrictions by forcing the provincial government to rethink its ban, says Jeffrey Lowes of M-REP Communications. The group of pesticide applicators wants the law based on ensuring “that proper science and not the court of public opinion govern good environmental stewardship and policy development,” he said in an interview.

M-REP was leading a campaign to overturn municipal pesticide bans, but has turned its attention to the Ontario initiative because it strips municipalities of the right to bring in bans. He says Ontario based its ban on false medical reports and individuals that posed as medical experts. “Right now the Ontario government has a law that is unsupportive by fact and has underlining tones of fraud.”

The Dow action isn’t first under NAFTA Chapter 11 and critics allege companies are trying to use the trade deal to stop governments from taking actions to protect public health or the environment.

The federal government is defending against a claim filed by U. S.-based Chemtura Corp. over the Pest Regulatory Management Agency’s ban on the use of Lindane-based seed treatments. The company is seeking $100 million in damages.

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