Dow AgroSciences’ threat to sue Quebec over a cosmetic pesticide ban has been called an effective way to discourage other jurisdictions from trying to protect their citizens from chemicals.
Dow used Chapter 11 of the North American Free Trade Agreement last year to put the Canadian government on notice that it would be seeking $2 million in compensation plus lost profits because of potential lost sales of the pesticide 2,4-D due to the ban.
The NAFTA rule allows companies to challenge government policy changes that affect profits from their investments.
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William Amos, a lawyer from the Quebec environmental group Equiterre, said the threatened lawsuit is to discourage other governments from moving to control chemical use.
“The uncertainty that is generated by these claims, just the mere filing of a notice of intent, really does have an effect on other jurisdictions, provincial and municipal,” he told the House of Commons international trade committee March 24.
“I don’t want to be too negative about it, but the reality is provinces and municipalities are nervous when they think about enacting regulatory measures like pesticide bans because they don’t want to face the consequences of a NAFTA Chapter 11 tribunal,” he said.
“Certainly the Canadian government faces those same restrictions.”
Amos urged the federal government to announce that it will “vigorously defend Quebec’s ban on 2,4-D lawn pesticides” and “acknowledge the appropriate precautionary basis for Quebec’s actions.”
Ontario is also banning cosmetic use of pesticides this month, and the environmental lawyers appearing before the committee noted the movement is spreading.
Conservatives and Liberals on the committee insisted that the right of companies to sue for what they consider discrimination against their investment in another NAFTA country is important.
New Democrat Peter Julian, who called for the hearing, said Chapter 11 is an affront to national sovereignty.
Amos said the issue is the ability of a sovereign government to take action on behalf of its citizens.
“It’s obvious that the Quebec government felt they had a strong argument via the precautionary principle to say, ‘we need to protect our children from these pesticides and even in the absence of absolute scientific certainty, that we’re going to move forward and protect them,’ ” he said.
“They went for it and I agree with them on the strongest basis possible.”
Dow AgroSciences declined to appear, citing the litigation against Quebec and Canada. However, the company wanted to make a point.
“If we could kindly highlight one theme, it is that Dow AgroSciences fully supports the responsibility of Canadian governments to establish effective regulations to protect Canadian’s health and safety and Canada’s environment,” the company wrote to the committee.
“Furthermore, we believe that Canadian governments have a responsibility to enact effective health and safety regulation that follow established science-based, risk assessment-risk management principles.”
Dow claims the ban is not based on science.
