No appeal of aerial pesticide spraying in BC

If you live in Richmond then, from today (April 15th) until June 30th, you may see planes flying overhead, spraying you with a pesticide, known as Foray 48B, to attack Gypsy Moths that might be hiding in your backyard.  Foray 48B contains a naturally occurring bacteria, known as Bacillus thuringiensis var. kurstaki (BtK). 

The Ministry of Forests, which is spraying the stuff, says that it’s safe and necessary.  The Ministry of Environment has given them a permit to do the spraying under the Integrated Pest Management Act (IPMA).  But despite the government’s confidence, many residents of Richmond are not convinced that the pesticide will not harm their health.  Some people are strongly critical of the spraying, while others are actually leaving the city during the spraying. 

richmondspray.jpgAs a non-scientist it can be difficult to know who to believe.  I was interested to read that Dr. Otto Langer, formerly of the David Suzuki Foundation, is not opposed to the spraying.  Other environmentalists warn of possible risks.  I was also interested to learn from the federal government’s registration label for Foray 48B that, in addition to BtK, Foray 48B contains the “allergen sulfite” and is considered a “potential sensitizer” – which may be a legitimate concern for people with a history of allergies. 

Regardless of the science, however, the situation in Richmond has given a face to a serious problem with BC’s Integrated Pest Management Act: members of the public have no right to appeal a decision to allow pesticides to be sprayed from planes over their residences.  They can only appeal the conditions associated with the spraying – perhaps related to the amount of pesticide to be sprayed or how public notice of the spraying is to be given. 

Until 2004 BC regulated pesticides in the province under the Pesticide Control Act, and people affected by a permit allowing aerial spraying had a right to appeal that permit to the Environmental Appeal Board (EAB).  There were several cases of aerial spraying of BtK being appealed to the EAB.  Many of the appeals were unsuccessful, but on some occasions residents managed to convince the EAB that there were unacceptable health risks: 

Taking into consideration the risks and intended benefit of the spray program authorized by the Permit, the Panel [of the EAB] finds that aerial spraying of Foray 48B over the proposed, heavily populated areas is unreasonable in this case. The Panel finds that aerial spraying will create an unacceptable risk of health problems among the residents of these densely populated areas. In particular, the Panel agrees with the Appellants that there is a risk to the health of children, people of all ages who have allergies, asthma, and other respiratory ailments, people with immuno deficiencies, chemical hypersensitivities, and the elderly. It also poses an unreasonable adverse effect to the environment (non-target species).

Although the Ministry of Environment assured British Columbians in public consultations around the then proposed Integrated Pest Management Act that the appeal provisions would remain largely unchanged, and Joyce Murray, then the Minister of Water Land and Air Protection, assured the Legislature that “anyone can appeal a decision,” the Act that was passed says that only certain decisions about permits are “decisions” that can be appealed, including the following:

  • terms and conditions of a permit;
  • refusing to issue, amend or renew a … permit;
  • revoking or suspending a licence, certificate, permit or confirmation;

This list includes just about anything that companies, government agencies or people that are applying for a pesticide permit might want to appeal, but from the public’s perspective the key decision – the decision to issue a permit – is missing.  Under the IPMA and its regulations the requirement to get a permit is limited to certain politically contentious or high risk pesticide uses – aerial spraying of urban areas is one of only a few activities that require this level of government oversight. But it seems that the public can’t appeal the issuance of a permit even in these situations. 

I am not aware of anyone trying to appeal a pesticide use permit under the new Integrated Pest Management Act since it was introduced, until now.  Two residents of Richmond have filed an appeal of the Ministry of Forests gypsy moth spraying.  In response, the EAB has confirmed, in a letter that they may only appeal the terms and conditions of the permit. 

The Board agrees that the Board’s jurisdiction under [section 14 of the IPMA] is limited in subsection 14(1)(b) to hearing an appeal against the terms and conditions of the Permit, not the permit itself.  Accordingly, the Board does not have jurisdiction to grant one of the remedies sought by the Appellants; that is, the rescission of the Permit itself. 

That being said, the EAB ruled in its decision in this appeal released yesterday, that it can consider fundamental terms and conditions – such as whether aerial spraying is to be allowed under the permit.  In this case the EAB decided to allow the spraying, making only a few recommendations that the Ministry of Forests keep the Appellants up to date about the spraying.  But the decision raises the possibility that the EAB might amend a permit to effectively prevent the spraying that the permit originally allowed. 

While I agree that the wording of the IPMA suggests such a result (West Coast Environmental Law said as much in 2007 in our Citizen’s Guide to Pesticide Use and the Law), the result is confusing and contradictory.Eliminating the right to appeal a permit does not mean that a permit cannot be challenged.  It means that it can only be challenged in court.  So we have a situation where conditions and terms are supposed to be challenged by appealing to the Environmental Appeal Board, but the permit itself needs to be challenged by going to court. 

  • Courts are an expensive process, beyond the reach of many members of the public.  It was precisely to address the costs and complexity of the court process that tribunals, like the EAB, were created. 
  • How can the terms and conditions of a permit, put in place by the Ministry of Environment when the permit was issued, be considered separately from the question of whether or not the permit should have been issued in the first place?  These are two inextricably linked issues.  That’s the reason for the EAB’s ruling that it can alter terms that are “fundamental” to the original permit. 
  • Companies and people who want to use pesticides can appeal any and all decisions that affect them, while members of the public cannot appeal the most important decision that affect them. 

At this stage, anyone seeking to challenge a permit issued under the Integrated Pest Management Act should seriously consider challenging it in court if they can possibly afford it (possibly with the support of West Coast Environmental Law’s Environmental Dispute Resolution Fund).  In my view a court is likely to agree to hear arguments related to both the permit itself, and its terms and conditions.  The EAB, meanwhile, has a confused role; limited to considering details, possibly able to undermine the purpose of the permit, but not actually able to examine whether it should have been issued in the first place. 

But the more fundamental question is – why has the government eliminated the public’s right to appeal the aerial spraying of pesticides over their houses and yards?  That’s truly objectionable, and we hope that the province will amend the Integrated Pest Management Act to restore the public’s right to appeal. 

Andrewblogphoto.jpgBy Andrew Gage

Disclosure: Early in his career Andrew represented opponents of BtK aerial spraying in Victoria.