NAFTA pesticide ban challenge settled without money

The settlement of a NAFTA dispute that challenged Quebec's pesticide ban has both a U.S.-based chemical giant and environmentalists claiming victory in the case.

Environment advocacy groups say the settlement reinforces the right of municipalities and provinces to ban pesticides — while DowAgroSciences says Quebec has now acknowledged that a popular weed killer can be used properly without health risks.

DowAgroSciences launched its $2-million challenge in 2008, alleging Quebec's pesticide bylaw violated Chapter 11 of the North American Free Trade Agreement, because it outlawed the company's herbicide ingredient 2,4-D. 

NAFTA's Chapter 11 allows investors of one member country to sue other NAFTA countries for actions or measures deemed to hurt their trade interests. 

Dow based its claim in part on a 2008 Health Canada ruling that said 2,4-D can be used safely when label directions are followed.

In a settlement reached May 25, Dow received no financial compensation from its NAFTA claim.

The settlement includes a statement from the Quebec government, in which it agrees with Health Canada that 2,4-D is safe when used according to the product label directions.

The herbicide is still included on Quebec's list of 20 chemical compounds banned for lawn use. 

Federal International Trade Minister Ed Fast said the agreement "confirms the right of governments" to regulate the use of pesticides.

"This right will not be compromised by Canada's participation in NAFTA or any other trade agreement," he said Monday.

Settlement sends notice to Canadian jurisdictions, say groups

That conclusion was echoed by prominent environment advocacy groups, including Quebec's Équiterre.

"This is a very strong message to all jurisdictions that the precautionary arguments for the defence of Quebec's lawn pesticide ban are strong and can be used for other substances," said Équiterre executive director Sidney Ribeaux.

Dow said it was pleased the settlement includes Quebec's agreement with Health Canada's risk assessment of 2,4-D.

"What was most important to Dow AgroSciences is that they [Quebec] clarify their perspective on 2, 4-D," Brenda Harris, Dow's regulatory and government affairs manager, said by telephone from the company's Canadian head office in Calgary.

"We always believed that there was no basis for their decision, their decision had nothing to do with science," Harris said.

Quebec is entitled to regulate, but "that ban is not based on science, it's on something else," Harris said.

Lisa Gue, an environmental health policy analyst with the David Suzuki Foundation in Ottawa, pointed out that while Quebec has supported the Health Canada advisory, "Quebec is not saying that 2, 4-D is safe."

Gue said environmentalists suspected Dow brought the suit to dissuade other provinces from following Quebec's lead and banning the cosmetic use of pesticides like 2, 4-D. 

"That wasn't successful."

Gue said environmentalists are pleased that Quebec will continue to ban the product and that the settlement acknowledges the rights of provinces to regulate pesticides as Quebec has done.

"We see that as an important signal also to other provinces."

Quebec leads way for pesticide restriction

Quebec began banning pesticides in 2003  and prohibits the use and sale of 20 ingredients in lawn pesticides. It also restricts pesticide use outside daycares and schools.

Several jurisdictions including Ontario, Nova Scotia, New Brunswick and Prince Edward Island  have banned 2,4-Ds in certain capacities.

Alberta  has banned it in pesticide-herbicide mixes.