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#93 -- REACH Kicks In, 6-Jun-2007

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Rachel's Precaution Reporter #93

"Foresight and Precaution, in the News and in the World"

Wednesday, June 6, 2007..............Printer-friendly version
www.rachel.org -- To make a secure donation, click here.
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Table of Contents...

REACH Kicks in: European Chemicals Policy Is Now in Effect
New EU rules on the chemical industry enter into force but
environmentalists complain that it's not enough
Asian Trauma
The organization La Via Campesina has set itself apart from both
the 'First Green Revolution', which was based on chemical-intensive
agriculture, and the 'Second Green Revolution', which is driven by
genetic engineering (GE). The disastrous environmental side-effects of
the first are well known which means all the more that the
precautionary principle must be rigorously applied to the second, to
avoid negative health and environmental outcomes.
Pesticide Debate Continues Around Owens Sound in Canada
"The committee has been studying pesticides and pesticide controls
since September and seems to be leaning toward the "precautionary
principle," Twaddle said -- if there are doubts about the safety of a
product and it's not necessary, it shouldn't be used."
India Sets Up Special 'Green' Courts for Environmental Disputes
Under the precautionary principle, the statutory authorities must
prevent and attack the causes for environmental degradation where
there are threats of irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent
environment degradation and the 'onus of proof' is on the developer to
show that his action is environmentally benign. Then there is the
public trust doctrine which rests on the ancient Roman belief that
resources like air, sea, water and forests have such a great
importance to the people as a whole that it would be unjustified to
make them a subject of private ownership.

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From: Associated Press, May 31, 2007
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REACH KICKS IN

BRUSSELS, Belgium: Far-reaching rules governing the multibillion-euro
chemicals industry entered into force Friday, but environmentalists
and consumer groups complained the legislation does not go far enough
to protect human health.

The law bans some of the most dangerous chemicals from use in the 27-
nation European Union. Some 30,000 other substances used in products
ranging from detergents to toys will have to be registered in an EU
database.

The law -- known as REACH, for Registration, Evaluation and
Authorization of Chemicals -- is a compromise balancing health and
environmental concerns against fears that excessive red tape would
stifle business. It puts the burden of proof on companies to show that
industrial chemicals and substances used in everyday products are
safe.

"The EU is providing itself with the most progressive chemicals
legislation in the world," said EU Environment Commissioner Stavros
Dimas.

The database will be managed by a new EU chemicals agency, which
opened Friday in Helsinki, Finland. The chemicals industry will pay
for all the tests, while the EU will pay for running the agency.

Businesses are critical of the law, arguing the registration of
products they make will cost up to €5.2 billion (US$7 billion) and
involve excessive bureaucracy.

Environmentalists and consumers, on the other hand, are concerned that
not enough chemicals will get tested, and that many high-concern
chemicals may be allowed onto the market if producers can prove they
can adequately control them.

"Thousands of chemicals will escape any requirement to provide
sufficient health and safety information. And many chemicals that can
cause cancer, birth defects and reproductive illness will still be
allowed in manufacturing and consumer goods," said the World Wildlife
Fund, Greenpeace and other environmental organizations in a joint
statement.

Some 13,000 substances deemed to pose some sort of health or safety
risk will face automatic testing. But almost all tests will be waived
for little-used chemicals of which only 1 to 10 metric tons are
produced or imported into the EU annually.

REACH replaces some 40 different EU rules currently governing the use
of chemicals in the EU. In the past, companies could sell almost any
chemical without being required to provide detailed health and safety
information.

The chemicals industry employs some 1.3 million people in 27,000
companies in the EU.

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From: Frontline, Jun. 2, 2007
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ASIAN TRAUMA

The growing resistance of small farmers has succeeded in stalling the
WTO negotiations.


By Walden Bello

If the Doha Round of negotiations of the World Trade Organisation
(WTO) is stalemated, a great part of it is because of the resistance
of small farmers, including those in Asia. One of the terrible truths
of the 20th century is that it was a blight on small farmers or
peasants everywhere. Before looking at whether it needs protection
from free trade, it is necessary to consider the historical background
of Asia's peasantry, one that is shared by farmers in other parts of
the South and in the North.

In both wealthy capitalist economies and in socialist countries,
farmers have paid a heavy price. Asian industrialisation also was
carried out largely on the backs of the rural population as farm
policies were manipulated in favour of industry. In advanced
capitalist countries like the United States, a deadly combination of
economies of scale, capital-intensive technology and the market led to
large corporations cornering agricultural production and processing,
thus reducing small and medium farms to a marginal role in production
and a minuscule portion of the workforce.

The dynamics of the market in capitalist societies with its bias for
big business has eliminated farmers as a class. In the Soviet Union,
they were transformed into workers on collective farms. Expropriation
of the peasants' surplus production was meant not only to feed the
cities but also to serve as the source of 'primitive accumulation' of
capital for industrialisation.

In Asia, government policies placed the burden of industrialisation on
the peasantry during the phase of so-called 'developmentalist'
industry-first policies. In Taiwan and South Korea, land reform first
triggered prosperity in the countryside in the 1950s, stimulating
industrialisation. But with the shift to export-led industrialisation
in 1965, there was demand for low-wage industrial labour, so
government policies deliberately depressed prices of agricultural
goods. In this way, peasants subsidised the emergence of 'Newly
Industrialising Economies'. Peasant incomes declined relative to urban
incomes, and the resulting stagnation of a once vibrant countryside
led to massive migration to the cities and a steady supply of cheap
labour for factories; this left farmers poor, ageing, and an
increasingly small part of the national workforce.

In the Philippines and Thailand, industry-first strategies led to
similar policies. In Thailand, for instance, a tax on rice exports
insulated the domestic market from price movements in the
international market, depressing the price of rice and reducing the
wage costs of non-agricultural employers. A transfer of real wealth
from the countryside to the city took place every year between 1962
and 1981, except for 1970. Not surprisingly, despite the image of
Thailand as an agricultural superpower, a large percentage of the
rural population remains poor.

In China, peasants died of starvation during the Great Leap Forward as
the grain surplus was requisitioned to finance Mao Zedong's
industrialisation drive. The chaos of the Cultural Revolution allowed
peasants to regain a degree of control over production because the
government was in crisis and following the death of Mao in 1976, Deng
Xiaoping introduced the 'household contract responsibility system'.
Each family was given a piece of land to farm, along with the right to
sell what was left over after a fixed proportion of the produce was
sold to the government at a state-determined price. This led to
peasant prosperity that, as in Taiwan, stimulated industrial
production to fulfil rural demand.

But, as in Taiwan, this golden age of the peasantry came to an end,
and the cause was identical: the adoption of urban-centred, export-
oriented industrialisation. Primitive capital accumulation for
industry took the form of requisitioning peasant surpluses via heavy
taxation. Currently, the various tiers of the Chinese government foist
a total of 269 different taxes on farmers, along with often arbitrary
administrative charges. Not surprisingly, in many places, taxes now
eat up 15 per cent of farmers' income, three times the official
national limit of 5 per cent. Not surprisingly, too, while the economy
has been growing at 8-10 per cent a year, peasant income has
stagnated, so that urban dwellers now have, on average, six times the
income of peasants.

While policies that made peasants subsidise industrialisation were
harsh, they were at least mitigated by trade policies that barred
agricultural imports that were cheaper than local commodities. In
practically all Asian countries with agricultural sectors, imports
were tightly controlled via quotas and high tariffs. This protective
shield, however, was severely eroded when countries signed the
Agreement on Agriculture (AOA) and began joining the WTO in 1995.

The AOA forced open agricultural markets by banning quotas, converting
these to tariffs and requiring governments to import a minimum volume
of each agricultural commodity at a low tariff. At the same time,
under the pretext of controlling the heavy subsidisation of
agriculture in developed countries, the AOA institutionalised the
various channels through which subsidies flowed, such as export
subsidies and direct cash payments to farming interests in the
northern hemisphere.

The result was that in the first decade of the WTO, the level of
subsidisation of agriculture actually increased in developed
countries. The total amount of agricultural subsidies provided by
member-governments of the Organisation for Economic Cooperation and
Development (OECD) rose from $182 billion in 1995 to $280 billion in
1997, $315 billion in 2001, $318 billion in 2002, and almost $300
billion in 2005. The US and the EU were spending $9-10 billion more on
subsidies in the early 2000s than they were a decade earlier. For
every $100 of agro-exports from the US, government subsidies accounted
for $20-30. In the case of the EU, the figure was $40-50. While
unsubsidised smallholders in the developing world had to survive on
less than $400 a year, American and European farmers were receiving,
respectively, an average of $21,000 and $16,000 a year in subsidies.

With massive American and European subsidies distorting global prices
in a downward direction, agriculture in developing countries became
'non-competitive' under the conditions of the WTO-mandated trade
liberalisation. As the Food and Agricultural Organisation (FAO) notes,
instantaneous import surges following the adoption of the AOA in a
number of developing countries led to 'consequential difficulties' for
'import-competing industries' and 'without adequate market protection,
accompanied by development programmes, many more domestic products
would be displaced, or undermined sharply, leading to a transformation
of domestic diets and to increased dependence on imported foods.

This historic shift to dependence on food imports was, needless to
say, accompanied by the displacement of millions of peasants. Even
before the AOA took effect, the World Bank was predicting that
Indonesian farmers would be losers under the AOA regime. Indeed, since
1995, the marginalisation of farmers 'in rice and other basic
commodities' has occurred while competitive pressures induced by trade
liberalisation led to the expansion of commercial plantations at the
expense of smallholders.

In the Philippines, corn farmers, chicken farmers, cattle raisers and
vegetable growers were driven to bankruptcy in huge numbers. In
Mindanao, where corn is a staple crop, many were wiped out. 'It is not
an uncommon sight to see farmers there leaving their corn to rot in
the fields as the domestic corn prices have dropped to levels [at
which] they have not been able to compete.' With production stagnant,
land devoted to corn across the country contracted from 3,149,300
hectares in 1995 to 2,150,300 ha in 2000.

In China, tens of thousands of farmers, including those growing
soybeans and cotton, have been marginalised with China's entry into
the WTO. Indeed, to maintain and increase access for its manufacturers
to developed countries, the government has chosen to sacrifice its
farmers. According to the Institute of International Economics, the
challenge of managing the farm sector has grown with China's WTO
commitments in agriculture, which are more far reaching than those of
other developing countries and in certain respects exceed those of
high-income countries. The Chinese government agreed to reduce tariffs
and institute other policies that meaningfully increase market access;
accepted tight restrictions on the use of agricultural subsidies; and
pledged to eliminate all commitments on agricultural export subsidies
that go far beyond those made by other participants in the Uruguay
Round negotiations that led to the WTO's creation.

In Sri Lanka, thousands of small farmers staged street demonstrations
against the import of chicken parts and eggs, claiming they were being
driven out of business. The FAO concurred, noting that import surges
on major food items like chillies, onions and potatoes made local
production precarious, as reflected in the significant drop in areas
of production.

In India, tariff liberalisation, even ahead of the WTO commitments,
has translated into a profound crisis in the countryside. Economist
Utsa Patnaik has described the calamity as 'a collapse in rural
livelihoods and incomes' owing to the steep fall in the prices of farm
products. Along with this has come a rapid decline in the consumption
of food grain, with the average Indian family of four consuming 76 kg
less in 2003 compared to 1998 and 88 kg less than a decade earlier.
Andhra Pradesh, which has become a byword for agrarian distress owing
to trade liberalisation, saw a catastrophic rise in farmers' suicides
from 233 in 1998 to over 2,600 in 2002. One estimate is that some
100,000 farmers in India have taken their lives owing to collapsing
prices stemming from rising imports.

In 2004, a rural backlash against agrarian distress led to the
unexpected defeat of the Bharatiya Janata Party-led ruling coalition
that had campaigned on the vision of 'India Shining'. India's rural
electoral revolt was part of a global phenomenon that put governments
on notice that the countryside would no longer accept policies that
sacrifice farmer interests. In Asia, protests in the form of land
occupations, hunger strikes, violent demonstrations, and symbolic
suicides made rural distress a pressing issue.

In China, what the Ministry of Public Security calls 'mass group
incidents', or in other words, protest actions, increased from 8,700
in 1993 to 87,000 in 2005, most of them in the countryside. Moreover,
the incidents are growing in average size, from 10 or fewer persons in
the mid-1990s to 52 people per incident in 2004. Not surprisingly, the
current leadership increasingly sees the countryside as a powder keg
that needs to be defused.

The political consequences of what trade liberalisation and other
anti-agriculture policies brought to the countryside led to the
formation of the Group of 20 and the Group of 33. The G-20 put the
developed countries on notice that there would be no more concessions
in terms of market access if no significant reductions were made in
unfair domestic support for agriculture. The G-33 demanded that
certain products considered vital to agricultural production and
employment -- special products (SP) -- be exempted from tariff
liberalisation. They also wanted the right to raise tariffs and resort
to other measures -- special safeguard mechanisms (SSM) -- to protect
their products from surges of agricultural imports. When the EU and
the US refused to compromise on these issues, the WTO's Fifth
Ministerial Meeting in Cancun in 2003 collapsed.

The Ministerial Declaration of the Sixth Ministerial Meeting of the
WTO in Hong Kong in December 2005 recognised the right of developing
countries to designate SPs and institute SSMs. However, the US
backtracking on this commitment and refusing to significantly reduce
its domestic subsidies led to the collapse of the Doha Round of
negotiations in July 2006. Developing countries simply could not
provoke more discontent among their peasant populations by opening
their markets even more in exchange for cosmetic reductions in the
massive subsidies provided by the EU and the US to their agricultural
sectors.

The suicide of the Korean farmer, Lee Kyung Hae, at the barricades in
Cancun in September 2003 was a milestone in the development of
farmers' resistance globally. Committed under a banner that read 'WTO
Kills Farmers', Lee's aim was to draw international attention to the
number of suicides by farmers in countries subjected to
liberalisation. He succeeded only too well. The event shocked the WTO
delegates, who observed a minute of silence in Lee's memory. By adding
to what was already a charged atmosphere, it was certainly a key
factor in the unravelling of the talks.

Farmers' International

In December 2005, invoking Lee's sacrifice, hundreds of Korean farmers
tried to break through police lines in an effort to storm the Hong
Kong Convention Centre. Some 900 protesters were arrested.

Lee and the Korean farmers protesting in Hong Kong were members of Via
Campesina, an international federation of farmers that was established
in the mid-1990s. Since its founding, Via Campesina, literally
translated as the Peasants' Path, has become known as one of the most
militant opponents of the WTO and bilateral and multilateral free
trade agreements.

While there are other international farmers' networks, Via is
distinguished by its position that small farmers must not only fight
to survive in the current global system of corporate-dominated
industrial farming, but also should lead the process to transform or
replace the current system. Commenting on the vision of Jose Bove, the
famous French activist who dismantled a MacDonald's restaurant in his
hometown of Millau, France, and other Via leaders, one progressive
journal has described the aim of the organisation as the creation of a
'Farmers' Internationale' in much the same way that communist and
social democratic groups sought to establish the Communist
International and Socialist International to unite workers in the 20th
century.

The main battle cry of Via Campesina, whose coordinating centre is
located in Indonesia, is 'WTO Out of Agriculture' and its alternative
programme is 'Food Sovereignty'. Food Sovereignty means first and
foremost the immediate adoption of policies that favour small
producers. This would include, according to Indonesian farmer Henry
Saragih, Via's coordinator, and Ahmad Ya'kub, deputy for Policy
Studies of the Indonesian Peasant Union Federation (FSPI), 'the
protection of the domestic market from low-priced imports,
remunerative prices for all farmers and fishers, abolition of all
direct and indirect export subsidies, and the phasing out of domestic
subsidies that promote unsustainable agriculture'.

Via's programme, however, goes beyond the adoption of pro-smallholder
trade policies. It also calls for an end to the Trade-Related
Intellectual Property Rights regime, which allows corporations to
patent plant seeds, thus appropriating for private profit what has
evolved through the creative interaction of the natural world with
human communities over eons. Seeds and all other plant genetic
resources should be considered part of the common heritage of
humanity, the group believes, and not subject to privatisation.

Agrarian reform, long avoided by landed elites in countries like the
Philippines, is a central element in Via's platform, as is
sustainable, ecologically sensitive, organic or biodynamic farming by
small peasant producers. The organisation has set itself apart from
both the 'First Green Revolution', which was based on chemical-
intensive agriculture, and the 'Second Green Revolution', which is
driven by genetic engineering (GE). The disastrous environmental side-
effects of the first are well known, says Via, which means all the
more that the precautionary principle must be rigorously applied to
the second, to avoid negative health and environmental outcomes.

The opposition to GE-based agriculture has created a powerful link
between farmers and consumers who are angry at corporations for
marketing genetically modified commodities without proper labelling,
thus denying consumers a choice. In the European Union, a solid
alliance of farmers, consumers and environmentalists prevented the
import of GE-modified products from the US for several years. Although
the EU has cautiously allowed in a few GE imports since 2004, 54 per
cent of European consumers continue to think GE food is 'dangerous'.
Opposition to other harmful processes such as food irradiation has
also contributed to the tightening of ties between farmers and
consumers, large numbers of whom now think that public health and
environmental impact should be more important determinants of consumer
behaviour than price. More and more people are beginning to realise
that local production and culinary traditions are intimately related,
and that this relationship is threatened by corporate control of food
production, processing, marketing and consumption.

This is why Jose Bove's justification for dismantling a MacDonald's
resonated widely in Asia: "When we said we would protest by
dismantling the half-built McDonald's in our town, everybody
understood why the symbolism was so strong. It was for proper food
against malbouffe [awful standardised food], agricultural workers
against multinationals. The extreme right and other nationalists tried
to make out it was anti-Americanism, but the vast majority knew it was
no such thing. It was a protest against a form of production that
wants to dominate the world."

A class for itself

Small farmers have long been viewed as a doomed class by many
economists, technocrats, policymakers and urban intellectuals. Once
regarded as passive objects to be manipulated by elites, they are now
resisting the 'developmentalist' paradigms that would consign them to
ruin. They have become what Karl Marx described as a politically
conscious 'class-for-itself'. And even as peasants refuse to 'go
gently into that good night', to borrow a line from Dylan Thomas,
developments in the 21st century are revealing traditional pro-
development visions to be deeply flawed. The escalating protests of
peasant groups such as Via Campesina are not a return to the past. As
environmental crises multiply and the social dysfunctions of urban-
industrial life pile up, we realise that the farmers' movement has
relevance not only to peasants, but to everyone who is threatened by
the catastrophic consequences of obsolete modernist paradigms for
organising production, community and life.

Walden Bello is Executive Director of Focus on the Global South, a
Bangkok-based research and advocacy institute, and a Professor of
Sociology at the University of the Philippines at Diliman.

Copyright 2007, Frontline.

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From: Owen Sound Sun Times (Ontario, Canada), Jun. 1, 2007
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PESTICIDE DEBATE NOT OVER

Committee likely to seek more public input

By Doug Edgar

People will likely get another chance to have a say about pesticide
controls in Owen Sound, according to the chair of a city committee
looking into the matter.

Coun. Bill Twaddle said city council first has to accept his
committee's recommendation, reached Wednesday, that Owen Sound create
a bylaw then tell the committee to come up with a draft. He said he
expects that's what council will do.

He believes the committee will want to hear from people again once it
starts to develop a bylaw.

"There's lots of ways we could go," Twaddle said Thursday, noting some
people have called for an outright ban on cosmetic or non-essential
use of pesticides, while others have asked the city to do nothing.

The committee has been studying pesticides and pesticide controls
since September and seems to be leaning toward the "precautionary
principle," Twaddle said -- if there are doubts about the safety of a
product and it's not necessary, it shouldn't be used.

What constitutes a doubt may depend on who you talk to.

Ed Putnoki, owner of the Weed Man in Owen Sound and a member of the
committee, said products he uses are safe if used correctly, while
Anne Finlay-Stewart of Green Owen Sound is of the view pesticides
shouldn't be used unless there's a proven need.

"We're pleased," Finlay-Stewart said of the committee's decision. "Now
it's all about the details."

An outright ban on the cosmetic use of pesticides isn't a forgone
conclusion. Council could insist only people licensed by the province
can apply pesticides in the city, or demand that they have
accreditation in integrated pest management -- an approach that uses
chemicals as part of pest control efforts. It could also ban use, but
with certain exceptions.

The city has the power to control pesticide use, since a similar bylaw
in Toronto withstood a challenge all the way to the Supreme Court of
Canada. The city can stop property owners from using pesticides on
their own land as well as control commercial applicators, but it can't
stop people from possessing them or buying them, or stop stores from
selling them.

About 130 other municipalities have passed pesticide use bylaws and
part of the committee's next job will be reviewing them.

"We're looking for the best ideas that people have had," Twaddle said.

Green Owen Sound has been looking at other bylaws and found many it
likes. The ones they like best are fairly simple and have few
exceptions to allow pesticide use.

"I would want to go as far as we can toward a ban," Finlay-Stewart
said.

She noted Peterborough has stressed public education over enforcement.
Volunteers talk to people who use pesticides about alternatives, she
said.

Putnoki, who wasn't at Wednesday's meeting, said the city's approach
has allowed a dialogue about pesticides, which he said are tested and
regulated in a process similar to that used to approve drugs in the
pharmaceutical field.

"What's frustrating for me is there's no need for this," he said.
"These products are safe when used as directed."

Putnoki noted people use chemicals for many purposes, not just as
pesticides.

For instance a product used to kill white grubs in lawns has the same
active ingredient as a popular flea treatment applied to the neck of
pets, he said, yet people are concerned about its effect on pets when
used on lawns.

Knowing how to use products is important, he said.

"I only use what I have to use," he said. "Moderation is the key."

If the city passes a bylaw restricting or prohibiting the use of
chemical pesticides, he will adapt.

"I will offer what I'm allowed to offer," Putnoki said, but noted
there are some synthetic chemicals that have no organic counterpart.
It will ultimately affect property owners the most, through higher
costs and poorer results if inferior substitutes are used.

Putnoki has a degree in biology and believes in the science behind the
approvals process, he said.

"What is your evidence there is risk?" he asked of those calling for
bans. "You fundamentally decide if you believe the body or you don't."

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From: The Financial Express (Mumbai, India), Jun. 2, 2007
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SPECIAL 'GREEN' COURTS SET UP TO RULE OVER ENVIRONMENTAL DISPUTES

By Dewan C. Vohra

Fifth day of June each year is observed as World Environment Day by
India, among the comity of nations to renew the pledge that economic
development shall follow the environment parameters and regulate human
activity within the limits of eco-systems of the planet.

The Indian Government has now come out with the idea of mooting green
courts to deal exclusively with the adjudication of the disputes
relating to violation of environmental laws. Such Courts were
suggested by the Law Commission during 2003 but no action had followed
till date. This is a part of a bill finalized by the law ministry on a
new scheme under which a national tribunal and regional tribunals will
be set up to adjudicate on all cases under all the laws enacted to
ensure economic development within the eco-systems, aimed at "a
singular regulator for environmental laws so that justice is not
delayed".

In terms of a proviso in the proposed enactment, no other court will
have the power to have any jurisdiction in matters concerning
pollution and environment, though appeals shall lie against the
judgments of these tribunals before their Lordships of the Supreme
Court, as the tribunals shall have status of High Courts.

The proposed two-tier enactment is based on the recommendations of the
Law Commission; while some cases will come directly under the purview
of the national tribunals and its various benches, other cases will be
entertained by the regional tribunals. A tribunal under the new
enactment shall comprise a chairperson from judicial background and
members shall consist of experts from different fields like
engineering, economics and other social sciences, forestry, physics,
chemistry, botany and zoology. The new legislative dispensation when
in place, shall result in the repeal of National Environment Tribunal
Act, 1995 and National Environment Appellant Authority Act, 1977 under
which cases are heard by the High Courts as well as by the subordinate
judiciary. But for the last 12 years, the machinery under the
Tribunals Act of 1995 is hanging fire because of bureaucratic
wrangling over the composition of the Tribunals throwing cases of
relief and compensation to the pollution victims in tracks.

However, the new scheme appears to be stillborn because the exclusion
of High Courts which are constitutional courts with vast writ powers
under Article 226 of the Constitution will not stand the test of
judicial review as has been case in Tribunals in other fields.
Environment laws are an area in which the Government of India has been
indulging in mere platitude because over the past three decades and
three years since the first enactment on water prevention and control
of pollution in 1974, precious little has been done at the ground
level.

Except for the proposed procedure of settling issues, the new scheme,
too, seems only a rehash of the existing legislative set up beginning
with the Water (Prevention and Control of Pollution) 1974. In the
wider legislation titled Environment Protection Act 1986 (29 of 1986),
the State was still indulging in pious hopes as amply reflected in the
statement of objects and reasons of this enactment as to how the
environmental issues were reviewed quarter century ago and the recent
history of their implementation is a testimony of the manner how the
environmental laws they have been violated without any let or
hindrance with total impunity.

The prefatory note to the 1986 Act has said: "Concern over the state
of environment has grown, the world over since the sixties, The
decline in environmental quality has been evidenced by increasing
pollution, loss of vegetable cover and biological diversity, excessive
concentrations of harmful chemicals in the ambient atmosphere and in
food chains, growing risks of environmental accidents and threat to
the support systems. The world community's resolve to protect and
enhance the environmental quality found expression in the United
Nations Conference on the Human Environment held in Stockholm in June
1972.

Government of India participated in the Conference and strongly voiced
the environmental concerns. While several measues have been taken for
environmental protection both before and after the Conference, the
need for general legislation further to implement the decisions of the
Conference has become increasingly evident..." During the past decade
and a half, their Lordships of the Supreme court has in a catena of
judgments evolved principles which help in the implementation of
environmental laws. Under the precautionary principle, the statutory
authorities must prevent and attack the causes for environmental
degradationl where there are threats of irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environment degradation and the 'onus of proof' is
on the developer to show that his action is environmentally benign.

Then there is the public trust doctrine which rests on the ancient
Roman belief that resources like air, sea, water and forests have such
a great importance to the people as a whole that it would be
unjustified to make them a subject of private ownership. The apex
Court held that the trusteeship doctrine "enjoins upon the government
to protect the resources to the enjoyment of the public."

**The author is a Supreme Court advocate

Copyright 2007: Indian Express Newspapers (Mumbai) Ltd.

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Rachel's Precaution Reporter offers news, views and practical
examples of the Precautionary Principle, or Foresight Principle, in
action. The Precautionary Principle is a modern way of making
decisions, to minimize harm. Rachel's Precaution Reporter tries to
answer such questions as, Why do we need the precautionary
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please Email them to us at rpr@rachel.org.

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:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Rachel's Precaution Reporter #93 "Foresight and Precaution, in the News and in the World" Wednesday, June 6, 2007..............Printer-friendly version www.rachel.org -- To make a secure donation, click here. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

Table of Contents...

REACH Kicks in: European Chemicals Policy Is Now in Effect
New EU rules on the chemical industry enter into force but
environmentalists complain that it's not enough
Asian Trauma
The organization La Via Campesina has set itself apart from both
the 'First Green Revolution', which was based on chemical-intensive
agriculture, and the 'Second Green Revolution', which is driven by
genetic engineering (GE). The disastrous environmental side-effects of
the first are well known which means all the more that the
precautionary principle must be rigorously applied to the second, to
avoid negative health and environmental outcomes.
Pesticide Debate Continues Around Owens Sound in Canada
"The committee has been studying pesticides and pesticide controls
since September and seems to be leaning toward the "precautionary
principle," Twaddle said -- if there are doubts about the safety of a
product and it's not necessary, it shouldn't be used."
India Sets Up Special 'Green' Courts for Environmental Disputes
Under the precautionary principle, the statutory authorities must
prevent and attack the causes for environmental degradation where
there are threats of irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent
environment degradation and the 'onus of proof' is on the developer to
show that his action is environmentally benign. Then there is the
public trust doctrine which rests on the ancient Roman belief that
resources like air, sea, water and forests have such a great
importance to the people as a whole that it would be unjustified to
make them a subject of private ownership.

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From: Associated Press, May 31, 2007
[Printer-friendly version]

REACH KICKS IN

BRUSSELS, Belgium: Far-reaching rules governing the multibillion-euro
chemicals industry entered into force Friday, but environmentalists
and consumer groups complained the legislation does not go far enough
to protect human health.

The law bans some of the most dangerous chemicals from use in the 27-
nation European Union. Some 30,000 other substances used in products
ranging from detergents to toys will have to be registered in an EU
database.

The law -- known as REACH, for Registration, Evaluation and
Authorization of Chemicals -- is a compromise balancing health and
environmental concerns against fears that excessive red tape would
stifle business. It puts the burden of proof on companies to show that
industrial chemicals and substances used in everyday products are
safe.

"The EU is providing itself with the most progressive chemicals
legislation in the world," said EU Environment Commissioner Stavros
Dimas.

The database will be managed by a new EU chemicals agency, which
opened Friday in Helsinki, Finland. The chemicals industry will pay
for all the tests, while the EU will pay for running the agency.

Businesses are critical of the law, arguing the registration of
products they make will cost up to €5.2 billion (US$7 billion) and
involve excessive bureaucracy.

Environmentalists and consumers, on the other hand, are concerned that
not enough chemicals will get tested, and that many high-concern
chemicals may be allowed onto the market if producers can prove they
can adequately control them.

"Thousands of chemicals will escape any requirement to provide
sufficient health and safety information. And many chemicals that can
cause cancer, birth defects and reproductive illness will still be
allowed in manufacturing and consumer goods," said the World Wildlife
Fund, Greenpeace and other environmental organizations in a joint
statement.

Some 13,000 substances deemed to pose some sort of health or safety
risk will face automatic testing. But almost all tests will be waived
for little-used chemicals of which only 1 to 10 metric tons are
produced or imported into the EU annually.

REACH replaces some 40 different EU rules currently governing the use
of chemicals in the EU. In the past, companies could sell almost any
chemical without being required to provide detailed health and safety
information.

The chemicals industry employs some 1.3 million people in 27,000
companies in the EU.

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From: Frontline, Jun. 2, 2007
[Printer-friendly version]

ASIAN TRAUMA

The growing resistance of small farmers has succeeded in stalling the
WTO negotiations.


By Walden Bello

If the Doha Round of negotiations of the World Trade Organisation
(WTO) is stalemated, a great part of it is because of the resistance
of small farmers, including those in Asia. One of the terrible truths
of the 20th century is that it was a blight on small farmers or
peasants everywhere. Before looking at whether it needs protection
from free trade, it is necessary to consider the historical background
of Asia's peasantry, one that is shared by farmers in other parts of
the South and in the North.

In both wealthy capitalist economies and in socialist countries,
farmers have paid a heavy price. Asian industrialisation also was
carried out largely on the backs of the rural population as farm
policies were manipulated in favour of industry. In advanced
capitalist countries like the United States, a deadly combination of
economies of scale, capital-intensive technology and the market led to
large corporations cornering agricultural production and processing,
thus reducing small and medium farms to a marginal role in production
and a minuscule portion of the workforce.

The dynamics of the market in capitalist societies with its bias for
big business has eliminated farmers as a class. In the Soviet Union,
they were transformed into workers on collective farms. Expropriation
of the peasants' surplus production was meant not only to feed the
cities but also to serve as the source of 'primitive accumulation' of
capital for industrialisation.

In Asia, government policies placed the burden of industrialisation on
the peasantry during the phase of so-called 'developmentalist'
industry-first policies. In Taiwan and South Korea, land reform first
triggered prosperity in the countryside in the 1950s, stimulating
industrialisation. But with the shift to export-led industrialisation
in 1965, there was demand for low-wage industrial labour, so
government policies deliberately depressed prices of agricultural
goods. In this way, peasants subsidised the emergence of 'Newly
Industrialising Economies'. Peasant incomes declined relative to urban
incomes, and the resulting stagnation of a once vibrant countryside
led to massive migration to the cities and a steady supply of cheap
labour for factories; this left farmers poor, ageing, and an
increasingly small part of the national workforce.

In the Philippines and Thailand, industry-first strategies led to
similar policies. In Thailand, for instance, a tax on rice exports
insulated the domestic market from price movements in the
international market, depressing the price of rice and reducing the
wage costs of non-agricultural employers. A transfer of real wealth
from the countryside to the city took place every year between 1962
and 1981, except for 1970. Not surprisingly, despite the image of
Thailand as an agricultural superpower, a large percentage of the
rural population remains poor.

In China, peasants died of starvation during the Great Leap Forward as
the grain surplus was requisitioned to finance Mao Zedong's
industrialisation drive. The chaos of the Cultural Revolution allowed
peasants to regain a degree of control over production because the
government was in crisis and following the death of Mao in 1976, Deng
Xiaoping introduced the 'household contract responsibility system'.
Each family was given a piece of land to farm, along with the right to
sell what was left over after a fixed proportion of the produce was
sold to the government at a state-determined price. This led to
peasant prosperity that, as in Taiwan, stimulated industrial
production to fulfil rural demand.

But, as in Taiwan, this golden age of the peasantry came to an end,
and the cause was identical: the adoption of urban-centred, export-
oriented industrialisation. Primitive capital accumulation for
industry took the form of requisitioning peasant surpluses via heavy
taxation. Currently, the various tiers of the Chinese government foist
a total of 269 different taxes on farmers, along with often arbitrary
administrative charges. Not surprisingly, in many places, taxes now
eat up 15 per cent of farmers' income, three times the official
national limit of 5 per cent. Not surprisingly, too, while the economy
has been growing at 8-10 per cent a year, peasant income has
stagnated, so that urban dwellers now have, on average, six times the
income of peasants.

While policies that made peasants subsidise industrialisation were
harsh, they were at least mitigated by trade policies that barred
agricultural imports that were cheaper than local commodities. In
practically all Asian countries with agricultural sectors, imports
were tightly controlled via quotas and high tariffs. This protective
shield, however, was severely eroded when countries signed the
Agreement on Agriculture (AOA) and began joining the WTO in 1995.

The AOA forced open agricultural markets by banning quotas, converting
these to tariffs and requiring governments to import a minimum volume
of each agricultural commodity at a low tariff. At the same time,
under the pretext of controlling the heavy subsidisation of
agriculture in developed countries, the AOA institutionalised the
various channels through which subsidies flowed, such as export
subsidies and direct cash payments to farming interests in the
northern hemisphere.

The result was that in the first decade of the WTO, the level of
subsidisation of agriculture actually increased in developed
countries. The total amount of agricultural subsidies provided by
member-governments of the Organisation for Economic Cooperation and
Development (OECD) rose from $182 billion in 1995 to $280 billion in
1997, $315 billion in 2001, $318 billion in 2002, and almost $300
billion in 2005. The US and the EU were spending $9-10 billion more on
subsidies in the early 2000s than they were a decade earlier. For
every $100 of agro-exports from the US, government subsidies accounted
for $20-30. In the case of the EU, the figure was $40-50. While
unsubsidised smallholders in the developing world had to survive on
less than $400 a year, American and European farmers were receiving,
respectively, an average of $21,000 and $16,000 a year in subsidies.

With massive American and European subsidies distorting global prices
in a downward direction, agriculture in developing countries became
'non-competitive' under the conditions of the WTO-mandated trade
liberalisation. As the Food and Agricultural Organisation (FAO) notes,
instantaneous import surges following the adoption of the AOA in a
number of developing countries led to 'consequential difficulties' for
'import-competing industries' and 'without adequate market protection,
accompanied by development programmes, many more domestic products
would be displaced, or undermined sharply, leading to a transformation
of domestic diets and to increased dependence on imported foods.

This historic shift to dependence on food imports was, needless to
say, accompanied by the displacement of millions of peasants. Even
before the AOA took effect, the World Bank was predicting that
Indonesian farmers would be losers under the AOA regime. Indeed, since
1995, the marginalisation of farmers 'in rice and other basic
commodities' has occurred while competitive pressures induced by trade
liberalisation led to the expansion of commercial plantations at the
expense of smallholders.

In the Philippines, corn farmers, chicken farmers, cattle raisers and
vegetable growers were driven to bankruptcy in huge numbers. In
Mindanao, where corn is a staple crop, many were wiped out. 'It is not
an uncommon sight to see farmers there leaving their corn to rot in
the fields as the domestic corn prices have dropped to levels [at
which] they have not been able to compete.' With production stagnant,
land devoted to corn across the country contracted from 3,149,300
hectares in 1995 to 2,150,300 ha in 2000.

In China, tens of thousands of farmers, including those growing
soybeans and cotton, have been marginalised with China's entry into
the WTO. Indeed, to maintain and increase access for its manufacturers
to developed countries, the government has chosen to sacrifice its
farmers. According to the Institute of International Economics, the
challenge of managing the farm sector has grown with China's WTO
commitments in agriculture, which are more far reaching than those of
other developing countries and in certain respects exceed those of
high-income countries. The Chinese government agreed to reduce tariffs
and institute other policies that meaningfully increase market access;
accepted tight restrictions on the use of agricultural subsidies; and
pledged to eliminate all commitments on agricultural export subsidies
that go far beyond those made by other participants in the Uruguay
Round negotiations that led to the WTO's creation.

In Sri Lanka, thousands of small farmers staged street demonstrations
against the import of chicken parts and eggs, claiming they were being
driven out of business. The FAO concurred, noting that import surges
on major food items like chillies, onions and potatoes made local
production precarious, as reflected in the significant drop in areas
of production.

In India, tariff liberalisation, even ahead of the WTO commitments,
has translated into a profound crisis in the countryside. Economist
Utsa Patnaik has described the calamity as 'a collapse in rural
livelihoods and incomes' owing to the steep fall in the prices of farm
products. Along with this has come a rapid decline in the consumption
of food grain, with the average Indian family of four consuming 76 kg
less in 2003 compared to 1998 and 88 kg less than a decade earlier.
Andhra Pradesh, which has become a byword for agrarian distress owing
to trade liberalisation, saw a catastrophic rise in farmers' suicides
from 233 in 1998 to over 2,600 in 2002. One estimate is that some
100,000 farmers in India have taken their lives owing to collapsing
prices stemming from rising imports.

In 2004, a rural backlash against agrarian distress led to the
unexpected defeat of the Bharatiya Janata Party-led ruling coalition
that had campaigned on the vision of 'India Shining'. India's rural
electoral revolt was part of a global phenomenon that put governments
on notice that the countryside would no longer accept policies that
sacrifice farmer interests. In Asia, protests in the form of land
occupations, hunger strikes, violent demonstrations, and symbolic
suicides made rural distress a pressing issue.

In China, what the Ministry of Public Security calls 'mass group
incidents', or in other words, protest actions, increased from 8,700
in 1993 to 87,000 in 2005, most of them in the countryside. Moreover,
the incidents are growing in average size, from 10 or fewer persons in
the mid-1990s to 52 people per incident in 2004. Not surprisingly, the
current leadership increasingly sees the countryside as a powder keg
that needs to be defused.

The political consequences of what trade liberalisation and other
anti-agriculture policies brought to the countryside led to the
formation of the Group of 20 and the Group of 33. The G-20 put the
developed countries on notice that there would be no more concessions
in terms of market access if no significant reductions were made in
unfair domestic support for agriculture. The G-33 demanded that
certain products considered vital to agricultural production and
employment -- special products (SP) -- be exempted from tariff
liberalisation. They also wanted the right to raise tariffs and resort
to other measures -- special safeguard mechanisms (SSM) -- to protect
their products from surges of agricultural imports. When the EU and
the US refused to compromise on these issues, the WTO's Fifth
Ministerial Meeting in Cancun in 2003 collapsed.

The Ministerial Declaration of the Sixth Ministerial Meeting of the
WTO in Hong Kong in December 2005 recognised the right of developing
countries to designate SPs and institute SSMs. However, the US
backtracking on this commitment and refusing to significantly reduce
its domestic subsidies led to the collapse of the Doha Round of
negotiations in July 2006. Developing countries simply could not
provoke more discontent among their peasant populations by opening
their markets even more in exchange for cosmetic reductions in the
massive subsidies provided by the EU and the US to their agricultural
sectors.

The suicide of the Korean farmer, Lee Kyung Hae, at the barricades in
Cancun in September 2003 was a milestone in the development of
farmers' resistance globally. Committed under a banner that read 'WTO
Kills Farmers', Lee's aim was to draw international attention to the
number of suicides by farmers in countries subjected to
liberalisation. He succeeded only too well. The event shocked the WTO
delegates, who observed a minute of silence in Lee's memory. By adding
to what was already a charged atmosphere, it was certainly a key
factor in the unravelling of the talks.

Farmers' International

In December 2005, invoking Lee's sacrifice, hundreds of Korean farmers
tried to break through police lines in an effort to storm the Hong
Kong Convention Centre. Some 900 protesters were arrested.

Lee and the Korean farmers protesting in Hong Kong were members of Via
Campesina, an international federation of farmers that was established
in the mid-1990s. Since its founding, Via Campesina, literally
translated as the Peasants' Path, has become known as one of the most
militant opponents of the WTO and bilateral and multilateral free
trade agreements.

While there are other international farmers' networks, Via is
distinguished by its position that small farmers must not only fight
to survive in the current global system of corporate-dominated
industrial farming, but also should lead the process to transform or
replace the current system. Commenting on the vision of Jose Bove, the
famous French activist who dismantled a MacDonald's restaurant in his
hometown of Millau, France, and other Via leaders, one progressive
journal has described the aim of the organisation as the creation of a
'Farmers' Internationale' in much the same way that communist and
social democratic groups sought to establish the Communist
International and Socialist International to unite workers in the 20th
century.

The main battle cry of Via Campesina, whose coordinating centre is
located in Indonesia, is 'WTO Out of Agriculture' and its alternative
programme is 'Food Sovereignty'. Food Sovereignty means first and
foremost the immediate adoption of policies that favour small
producers. This would include, according to Indonesian farmer Henry
Saragih, Via's coordinator, and Ahmad Ya'kub, deputy for Policy
Studies of the Indonesian Peasant Union Federation (FSPI), 'the
protection of the domestic market from low-priced imports,
remunerative prices for all farmers and fishers, abolition of all
direct and indirect export subsidies, and the phasing out of domestic
subsidies that promote unsustainable agriculture'.

Via's programme, however, goes beyond the adoption of pro-smallholder
trade policies. It also calls for an end to the Trade-Related
Intellectual Property Rights regime, which allows corporations to
patent plant seeds, thus appropriating for private profit what has
evolved through the creative interaction of the natural world with
human communities over eons. Seeds and all other plant genetic
resources should be considered part of the common heritage of
humanity, the group believes, and not subject to privatisation.

Agrarian reform, long avoided by landed elites in countries like the
Philippines, is a central element in Via's platform, as is
sustainable, ecologically sensitive, organic or biodynamic farming by
small peasant producers. The organisation has set itself apart from
both the 'First Green Revolution', which was based on chemical-
intensive agriculture, and the 'Second Green Revolution', which is
driven by genetic engineering (GE). The disastrous environmental side-
effects of the first are well known, says Via, which means all the
more that the precautionary principle must be rigorously applied to
the second, to avoid negative health and environmental outcomes.

The opposition to GE-based agriculture has created a powerful link
between farmers and consumers who are angry at corporations for
marketing genetically modified commodities without proper labelling,
thus denying consumers a choice. In the European Union, a solid
alliance of farmers, consumers and environmentalists prevented the
import of GE-modified products from the US for several years. Although
the EU has cautiously allowed in a few GE imports since 2004, 54 per
cent of European consumers continue to think GE food is 'dangerous'.
Opposition to other harmful processes such as food irradiation has
also contributed to the tightening of ties between farmers and
consumers, large numbers of whom now think that public health and
environmental impact should be more important determinants of consumer
behaviour than price. More and more people are beginning to realise
that local production and culinary traditions are intimately related,
and that this relationship is threatened by corporate control of food
production, processing, marketing and consumption.

This is why Jose Bove's justification for dismantling a MacDonald's
resonated widely in Asia: "When we said we would protest by
dismantling the half-built McDonald's in our town, everybody
understood why the symbolism was so strong. It was for proper food
against malbouffe [awful standardised food], agricultural workers
against multinationals. The extreme right and other nationalists tried
to make out it was anti-Americanism, but the vast majority knew it was
no such thing. It was a protest against a form of production that
wants to dominate the world."

A class for itself

Small farmers have long been viewed as a doomed class by many
economists, technocrats, policymakers and urban intellectuals. Once
regarded as passive objects to be manipulated by elites, they are now
resisting the 'developmentalist' paradigms that would consign them to
ruin. They have become what Karl Marx described as a politically
conscious 'class-for-itself'. And even as peasants refuse to 'go
gently into that good night', to borrow a line from Dylan Thomas,
developments in the 21st century are revealing traditional pro-
development visions to be deeply flawed. The escalating protests of
peasant groups such as Via Campesina are not a return to the past. As
environmental crises multiply and the social dysfunctions of urban-
industrial life pile up, we realise that the farmers' movement has
relevance not only to peasants, but to everyone who is threatened by
the catastrophic consequences of obsolete modernist paradigms for
organising production, community and life.

Walden Bello is Executive Director of Focus on the Global South, a
Bangkok-based research and advocacy institute, and a Professor of
Sociology at the University of the Philippines at Diliman.

Copyright 2007, Frontline.

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From: Owen Sound Sun Times (Ontario, Canada), Jun. 1, 2007
[Printer-friendly version]

PESTICIDE DEBATE NOT OVER

Committee likely to seek more public input

By Doug Edgar

People will likely get another chance to have a say about pesticide
controls in Owen Sound, according to the chair of a city committee
looking into the matter.

Coun. Bill Twaddle said city council first has to accept his
committee's recommendation, reached Wednesday, that Owen Sound create
a bylaw then tell the committee to come up with a draft. He said he
expects that's what council will do.

He believes the committee will want to hear from people again once it
starts to develop a bylaw.

"There's lots of ways we could go," Twaddle said Thursday, noting some
people have called for an outright ban on cosmetic or non-essential
use of pesticides, while others have asked the city to do nothing.

The committee has been studying pesticides and pesticide controls
since September and seems to be leaning toward the "precautionary
principle," Twaddle said -- if there are doubts about the safety of a
product and it's not necessary, it shouldn't be used.

What constitutes a doubt may depend on who you talk to.

Ed Putnoki, owner of the Weed Man in Owen Sound and a member of the
committee, said products he uses are safe if used correctly, while
Anne Finlay-Stewart of Green Owen Sound is of the view pesticides
shouldn't be used unless there's a proven need.

"We're pleased," Finlay-Stewart said of the committee's decision. "Now
it's all about the details."

An outright ban on the cosmetic use of pesticides isn't a forgone
conclusion. Council could insist only people licensed by the province
can apply pesticides in the city, or demand that they have
accreditation in integrated pest management -- an approach that uses
chemicals as part of pest control efforts. It could also ban use, but
with certain exceptions.

The city has the power to control pesticide use, since a similar bylaw
in Toronto withstood a challenge all the way to the Supreme Court of
Canada. The city can stop property owners from using pesticides on
their own land as well as control commercial applicators, but it can't
stop people from possessing them or buying them, or stop stores from
selling them.

About 130 other municipalities have passed pesticide use bylaws and
part of the committee's next job will be reviewing them.

"We're looking for the best ideas that people have had," Twaddle said.

Green Owen Sound has been looking at other bylaws and found many it
likes. The ones they like best are fairly simple and have few
exceptions to allow pesticide use.

"I would want to go as far as we can toward a ban," Finlay-Stewart
said.

She noted Peterborough has stressed public education over enforcement.
Volunteers talk to people who use pesticides about alternatives, she
said.

Putnoki, who wasn't at Wednesday's meeting, said the city's approach
has allowed a dialogue about pesticides, which he said are tested and
regulated in a process similar to that used to approve drugs in the
pharmaceutical field.

"What's frustrating for me is there's no need for this," he said.
"These products are safe when used as directed."

Putnoki noted people use chemicals for many purposes, not just as
pesticides.

For instance a product used to kill white grubs in lawns has the same
active ingredient as a popular flea treatment applied to the neck of
pets, he said, yet people are concerned about its effect on pets when
used on lawns.

Knowing how to use products is important, he said.

"I only use what I have to use," he said. "Moderation is the key."

If the city passes a bylaw restricting or prohibiting the use of
chemical pesticides, he will adapt.

"I will offer what I'm allowed to offer," Putnoki said, but noted
there are some synthetic chemicals that have no organic counterpart.
It will ultimately affect property owners the most, through higher
costs and poorer results if inferior substitutes are used.

Putnoki has a degree in biology and believes in the science behind the
approvals process, he said.

"What is your evidence there is risk?" he asked of those calling for
bans. "You fundamentally decide if you believe the body or you don't."

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From: The Financial Express (Mumbai, India), Jun. 2, 2007
[Printer-friendly version]

SPECIAL 'GREEN' COURTS SET UP TO RULE OVER ENVIRONMENTAL DISPUTES

By Dewan C. Vohra

Fifth day of June each year is observed as World Environment Day by
India, among the comity of nations to renew the pledge that economic
development shall follow the environment parameters and regulate human
activity within the limits of eco-systems of the planet.

The Indian Government has now come out with the idea of mooting green
courts to deal exclusively with the adjudication of the disputes
relating to violation of environmental laws. Such Courts were
suggested by the Law Commission during 2003 but no action had followed
till date. This is a part of a bill finalized by the law ministry on a
new scheme under which a national tribunal and regional tribunals will
be set up to adjudicate on all cases under all the laws enacted to
ensure economic development within the eco-systems, aimed at "a
singular regulator for environmental laws so that justice is not
delayed".

In terms of a proviso in the proposed enactment, no other court will
have the power to have any jurisdiction in matters concerning
pollution and environment, though appeals shall lie against the
judgments of these tribunals before their Lordships of the Supreme
Court, as the tribunals shall have status of High Courts.

The proposed two-tier enactment is based on the recommendations of the
Law Commission; while some cases will come directly under the purview
of the national tribunals and its various benches, other cases will be
entertained by the regional tribunals. A tribunal under the new
enactment shall comprise a chairperson from judicial background and
members shall consist of experts from different fields like
engineering, economics and other social sciences, forestry, physics,
chemistry, botany and zoology. The new legislative dispensation when
in place, shall result in the repeal of National Environment Tribunal
Act, 1995 and National Environment Appellant Authority Act, 1977 under
which cases are heard by the High Courts as well as by the subordinate
judiciary. But for the last 12 years, the machinery under the
Tribunals Act of 1995 is hanging fire because of bureaucratic
wrangling over the composition of the Tribunals throwing cases of
relief and compensation to the pollution victims in tracks.

However, the new scheme appears to be stillborn because the exclusion
of High Courts which are constitutional courts with vast writ powers
under Article 226 of the Constitution will not stand the test of
judicial review as has been case in Tribunals in other fields.
Environment laws are an area in which the Government of India has been
indulging in mere platitude because over the past three decades and
three years since the first enactment on water prevention and control
of pollution in 1974, precious little has been done at the ground
level.

Except for the proposed procedure of settling issues, the new scheme,
too, seems only a rehash of the existing legislative set up beginning
with the Water (Prevention and Control of Pollution) 1974. In the
wider legislation titled Environment Protection Act 1986 (29 of 1986),
the State was still indulging in pious hopes as amply reflected in the
statement of objects and reasons of this enactment as to how the
environmental issues were reviewed quarter century ago and the recent
history of their implementation is a testimony of the manner how the
environmental laws they have been violated without any let or
hindrance with total impunity.

The prefatory note to the 1986 Act has said: "Concern over the state
of environment has grown, the world over since the sixties, The
decline in environmental quality has been evidenced by increasing
pollution, loss of vegetable cover and biological diversity, excessive
concentrations of harmful chemicals in the ambient atmosphere and in
food chains, growing risks of environmental accidents and threat to
the support systems. The world community's resolve to protect and
enhance the environmental quality found expression in the United
Nations Conference on the Human Environment held in Stockholm in June
1972.

Government of India participated in the Conference and strongly voiced
the environmental concerns. While several measues have been taken for
environmental protection both before and after the Conference, the
need for general legislation further to implement the decisions of the
Conference has become increasingly evident..." During the past decade
and a half, their Lordships of the Supreme court has in a catena of
judgments evolved principles which help in the implementation of
environmental laws. Under the precautionary principle, the statutory
authorities must prevent and attack the causes for environmental
degradationl where there are threats of irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environment degradation and the 'onus of proof' is
on the developer to show that his action is environmentally benign.

Then there is the public trust doctrine which rests on the ancient
Roman belief that resources like air, sea, water and forests have such
a great importance to the people as a whole that it would be
unjustified to make them a subject of private ownership. The apex
Court held that the trusteeship doctrine "enjoins upon the government
to protect the resources to the enjoyment of the public."

**The author is a Supreme Court advocate

Copyright 2007: Indian Express Newspapers (Mumbai) Ltd.

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Rachel's Precaution Reporter offers news, views and practical
examples of the Precautionary Principle, or Foresight Principle, in
action. The Precautionary Principle is a modern way of making
decisions, to minimize harm. Rachel's Precaution Reporter tries to
answer such questions as, Why do we need the precautionary
principle? Who is using precaution? Who is opposing precaution?

We often include attacks on the precautionary principle because we
believe it is essential for advocates of precaution to know what
their adversaries are saying, just as abolitionists in 1830 needed
to know the arguments used by slaveholders.

Rachel's Precaution Reporter is published as often as necessary to
provide readers with up-to-date coverage of the subject.

As you come across stories that illustrate the precautionary
principle -- or the need for the precautionary principle --
please Email them to us at rpr@rachel.org.

Editors:
Peter Montague - peter@rachel.org
Tim Montague - tim@rachel.org

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