Wartels et al v. Administrator

EAB-IPM-23-A002(b), A003(b), A005(b)-A015(b)
No description
Final judgment

Dr. Tynan, Mr. Wartels, Dr. Franguou.
No description

Other, Insecticid
To cancel the authorisations to spray Foray 48B and recommend the use of alternative solutions to control gypsy moths.
Environmental Appeal Board, Canada
No description

September 22, 2023
Appeals are rejected, either because they are irrelevant or because they do not fall within the Commission's jurisdiction, as described above.
No description

On September 22, 2023, the Environmental Appeal Board rejected a request to cancel the authorization to spray Foray 48B, a bacillus thuringiensis insecticide, in the British Columbia region in June 2023.

The Environmental Appeal Board is an appeal tribunal established by the Government of British Columbia in Canada. It has jurisdiction to hear appeals against administrative decisions in environmental matters, taken on the basis of a limited and defined number of legislative acts.

On March 13, 2023, the administrative authority responsible for pesticide spraying approvals issued three permits authorizing the Ministry of Forests to spray Foray 48B to combat "spongy moths", a species of defoliating butterfly. These authorizations provoked a reaction from several citizens, who petitioned the Environmental Appeal Board to prohibit all or part of the spraying of Foray 48B in the British Columbia region, and to recommend that the administrative authority adopt alternatives that are less hazardous to human health for the control of spongy moths.

In a decision dated May 31, 2023, the Environmental Appeal Board had already rejected an initial request for suspension of the authorization decrees pending its decision on the merits. As a result of this first refusal, the Foray 48B spraying operations did take place in June 2023, before the Board issued its decision on the appeal.

The question before the Board was therefore to what extent it is competent to decide to annul the application authorization decrees or to recommend the use of alternative solutions, and whether, since the application has already taken place, the appeals are moot.

The Board can only act within the limits of one of the 9 legislative texts on which its competence is grounded. In this case, the relevant text is the Integrated Pest Management Act, and more specifically Section 14(8), which delimits the Board's jurisdiction to rule on appeals lodged in relation to pesticide regulation. In its decision of September 22, 2023, the Board states that Section 14(8) of the Integrated Pest Management Act gives it jurisdiction to "make any decision that the authority whose decision is being appealed could have made". In other words, the Board's jurisdiction over pesticide regulation is delimited by the jurisdiction of the authority that made the decision under appeal. In the present case, considering that it was not for the administrative authority to prohibit the spraying of Foray 48B in British Columbia, the Board is not competent to judge the appropriateness of such a prohibition.

Similarly, as the administrative authority is not competent to suggest alternative solutions, the Board cannot comment on this aspect either. Furthermore, the Board also considers that, as the spraying has already taken place, any decision it might render would have no effect on the rights of the Parties, so that the appeal is moot.

The Board's reasoning for rejecting the appeal is limited to procedural considerations of jurisdiction, but is silent on the merits of the decisions adopted.