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When Precaution Points Two Ways : Confronting “West Nile Fever”

Published online by Cambridge University Press:  18 July 2014

Dayna Nadine Scott
Dayna Nadine Scott
Affiliation:
Faculty of Law, McGill University, Montreal, QC.Canada, H3A 1W9, dayna.scott@mcgill.ca
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Abstract

This study investigates the role of an emerging legal doctrine, the precautionary principle, in the development of the plan to manage West Nile Virus in the City of Toronto during the 2003 season. Specifically, it asks whether the precautionary principle, widely expected to transform environmental and public health decision-making, operated as a map or guide to officials trying to navigate through the uncertainty associated with both the virus and the “cure.” Although the study focuses on a very particular local context, it also addresses the broader challenges that are gathering for governments hoping to lean on the precautionary principle for policy guidance in the face of controversy. In the case of West Nile Virus, public health officials seemed to confront an intractable problem: taking precaution with respect to the virus, an uncertain public health hazard, meant facing the uncertain environmental and health risks associated with chemical pesticides. The study draws on qualitative empirical data gathered from participant observation sessions in the Toronto city council chamber and comprehensive semi-structured interviews with almost a dozen key policy actors. The purpose of this detailed empirical analysis is to evaluate the potential of the precautionary principle as a policy instrument in light of a common claim of the principle's critics. Can it point the way out of controversy? Or does the precautionary principle, as is argued by legal academics such as Cass Sunstein, “point in no direction at all”?

Résumé

Cette étude examine le rôle d'une doctrine juridique émergente, le principe de précaution, dans l'élaboration du plan de gestion du virus du Nil occidental dans la ville de Toronto, en 2003. Elle soulève la question si le principe de précaution, duquel on s'attend généralement à ce qu'il transforme la prise de décision en matière d'environnement et de santé publique, peut servir de feuille de route ou de guide aux agents responsables au travers les incertitudes associées tant au virus qu'au ‘traitement’. Bien que la recherche se concentre sur un contexte local particulier, elle aborde également des défis plus vastes posés aux gouvernements qui espèrent pouvoir s'appuyer sur le principe de précaution pour guider leurs politiques face à la controverse. Dans le cas du virus du Nil occidental, les responsables de santé publique semblaient se trouver devant un problème insoluble: opter pour la précaution face au virus, une menace incertaine à la santé publique, signifiait s'exposer à des risques pour l'environnement et la santé associés à l'utilisation de pesticides chimiques. La recherche s'appuie sur des données empiriques qualitatives recueillies par observation participante lors de séances du conseil municipal de Toronto et par entrevues semi-structurées avec près d'une douzaine des principaux acteurs politiques. L'objet de cette analyse empirique détaillée est d'évaluer le potentiel du principe de précaution comme instrument politique à la lumière de l'argument couramment invoqué par les détracteurs du principe. Peut-il nous sortir de la controverse? Ou bien, est-ce que le principe de précaution, comme le soutiennent certains chercheurs en droit, notamment Cass Sunstein, «ne mène nulle part»?

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 20 , Issue 2 , August 2005 , pp. 27 - 65
Copyright
Copyright © Canadian Law and Society Association 2005

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References

1 For example, the New York City Department of Health responded rapidly: helicopters blanketed Central Park, Staten Island and large portions of Queens with the pesticide malathion, and “fogging” trucks drove through the streets at night, spraying neighbourhoods, U.S., New York City Department of Health, Adult Mosquito Control Programs, Final Environmental Impact Statement (2001) at S-11, online: New York City website http://www.nyc.gov/html/doh/html/wnv/feis.shtml.Google Scholar

2 The interviewees included: Ronald Macfarlane, Supervisor, Environmental Health Assessment and Policy Branch of Toronto Public Health; Dr. Len Ritter, toxicologist, Executive Director of the Canadian Network of Toxicology Centers; Ted Bowering, Manager of Soil and Water Quality for the Works Department, City of Toronto; Lorraine van Haastrect, co-chair of the Pest Control Safety Council of Canada and spokesperson for the lawn care industry alliance Toronto Environmental Coalition; Katrina Miller, pesticides campaigner for the environmental advocacy organization Toronto Environmental Alliance; Toronto City Councillor Joe Mihevc, past chair of the Toronto Board of Health; Danny Kartzalis, Manager of the WNV Program for Toronto Public Health; Geraldine Graham, Alternative Strategies and Regulatory Affairs Division, Pest Management Regulatory Agency; Caje Rodriguez, Environmental Assessment Division, Pest Management Regulatory Agency; Marc Richard, WNV Steering Committee member, Strategic Communications, Alternative Strategies and Regulatory Affairs Division, Pest Management Regulatory Agency. Geoff Cutten, Senior Pesticides Regulatory Scientist with the Ontario Ministry of the Environment, responded to my questions in writing.

3 See for example, Goldstein, Bernard D., “The Precautionary Principle also applies to public health actions” (2001) 91 Am. J. Public Health 1358.CrossRefGoogle ScholarPubMed

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5 Ibid.

6 Angela Rickman of the Sierra Club of Canada stated: “The West Nile virus has been quite sensationalized. It's not as big a health threat as a lot of other things that we're affected by. But because there have been such drastic measures taken against it, it's really inspired fear in a lot of people. The reaction to it has been, I think, really overblown”, see Prittie, Jennifer & Bridson-Boyczuk, Karen, “Pesticide Panic: Should we believe the West Nile hype?” Eye Magazine, (16 May 2002), online: Eye Magazine http://www.eye.net/eye/issue/issue_05.16.02/news/westnile.html.Google Scholar Similarly, Edith Smeesters of the Coalition for Alternatives to Pesticides calls the risks associated with WNV “miniscule” and urges the government not to panic at the first sign of disease, see Sibbald, Barbara, “Quebec clears the way for use of aerial pesticides to combat West Nile virus” (2001) 165:4Can. Med. Assoc. J. 463.Google ScholarPubMed

7 Lorraine van Haastrect, representative for a lawn care industry alliance opposed to a pesticide by-law, launched a radio advertisement in spring 2003 leading up to the by-law vote by the Toronto city council. The ad stated: “Imagine the City passing a by-law that will actually increase your chances of contracting West Nile Virus.” On top of the charges that the ad was “false and misleading” and that the alliance was “preying on the public insecurity about West Nile Virus to benefit themselves,” the group arguably took the most heat for the name they attached to the ads: the “Toronto Environmental Coalition.” Interview of Lorraine van Haastrect (6 November 2003) in Mississauga (notes are on file with the author). See also Wente, Margaret “Pesticide panic zaps the facts” Globe & Mail (24 May 2003) A25.Google Scholar

8 In 2002, 392 cases of WNV were reported in humans in Ontario with at least 11 fatalities. In March 2003, during an infectious disease conference held in Quebec City, Dr. Neil Rau of McMaster University accused the Ontario government of misleading the public as to the extent of the risk from WNV, and of under-reporting the number of cases. The Canadian Infectious Disease Society suspects that there were closer to 1000 symptomatic human cases of WNV in 2002 alone. Toronto lawyer Douglas Elliot subsequently filed a class action suit against the government alleging that the government's “downplaying” of the risks led some individuals to become infected unnecessarily, see Eliopolous Estate v. Ontario (Minister of Heath and Long Term Care), 2005 CanLII 18883 (ON S.C.). Neil Rau also made reference to the fact that the government's complacency with respect to the disease derived from their intention to avoid a debate on pesticide spraying, see Evenson, Brad “Ontario kept West Nile cases secret” The National Post (7 March 2003) A4.Google Scholar A seroprevalence study undertaken by the McMaster Institute for Environment and Health for the Ontario government released its report in November 2003. The study, which focussed on the Oakville “hotspot,” found a community infection rate of 3.1% (similar to that found for the Queens outbreak in New York City in 1999). Surprisingly, however, the study also found that severe disease occurred in one out of every 84 cases of infection with WNV. This is nearly double the “rule of thumb” rate of 1 in 150 offered by public health experts throughout 2002, see Susan Elliot et al., “Results of a West Nile Virus Seroprevalence Survey, South Oakville, Ontario, 2003” (November 2003), online: McMaster Institute for Environment and Health http://www.mcmaster.ca/mieh/media/WNv_final_report_2003.pdf.

9 Tickner describes how spraying became the only “politically safe” strategy for the mayor of Boston once New York began the spraying, see Tickner, “Precautionary Principle”, supra note 4 at 72.

10 Dr. Basrur “earned widespread praise” during the fight against SARS. The Ontario government appointed Dr. Basrur as the chief medical officer of health for the province in January 2004 stating that her “steadfast leadership during the SARS outbreak and accomplishments at the helm of Toronto public health demonstrated that she is the right person to strengthen public confidence in our public health system,” see Mackie, Richard “Ontario still risks SARS-like ‘disaster’” Globe & Mail (21 April 2004) A1.Google Scholar

11 See for example the warnings in the recent report by the Ontario College of Family Physicians (OCFP), “Systematic Review of Pesticide Human Health Effects” (23 April 2004), online: OCFP website http://www.ocfp.on.ca/local/files/Communications/Current%20Issues/Pesticides/Final%20Paper%2023APR2004.pdf (and references therein).

12 Clinical features of the infection “(…) range from fever accompanied by malaise, headache, myalgia, rash, lymphadenopathy, eye pain, anorexia and vomiting lasting for 3 to 6 days, to severe meningo-encephalitis” see Nosal, Bob & Pellizzari, Rosana, “‘West Nile Virus,’ Practice Notes: Public Health” (2003) 168:11Can. Med. Assoc. J. 1443 at 1443.Google Scholar Paralysis, coma, long-term disability and death are all possible outcomes of a WNV infection, (ibid.).

13 Tickner, “Precautionary Principle”, supra note 4 at 73.

14 Ibid.

15 Ibid., at 75.

16 One of the interviewees, Dr. Ritter, for example, alluded to his frustration with those who adopt the more nebulous conception of precaution under the “guise” of “the precautionary principle.” He told me, incredulously, that most of the individuals writing policy for Toronto Public Health “had never even read the precautionary principle,” and yet they purported to apply it in the context of pesticides regulation. Dr. Ritter, I assume, meant that they had never read the text of the Rio Declaration (infra), or any other international legal instrument setting out the principle. He made an assumption as well: that I, belonging to a law faculty, would share with him the “proper” conception of precaution (that of the formal textual expressions). Interview of Dr. Ritter (30 July 2003) in Guelph, notes on file with author.

17 Rio Declaration on Environment and Development, 13 June 1992, U.N. Doc.A/Conf.151/5/Rev.1, 31 I.L.M. 874.

18 Ibid., principle 15.

19 Raffensperger, Carolyn & Tickner, Joel, eds., Protecting Public Health & the Environment: Implementing the Precautionary Principle (Washington, D.C.: Island Press, 1999) at 353–54.Google Scholar

20 Ibid.

21 Ibid.

22 Katherine Barrett & Carolyn Raffensperger, “Precautionary Science” in Carolyn Raffensperger & Joel Tickner, supra note 19 at 106; MacGarvin, Malcolm, “Precaution, Science and the Sin of Hubris” in O'Riordan, Tim & Cameron, James, eds., Interpreting the Precautionary Principle (London: Cameron May, 1994) 69.Google Scholar

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25 Tickner, “Precautionary Principle”, supra note 4 at 75.

26 Ibid. at 76.

27 Tickner, Joel, “Precautionary Assessment: A Framework for Integrating Science, Uncertainty and Preventive Public Policy” in Tickner, Joel A., ed., Precaution: Environmental Science and Preventive Public Policy (Washington: Island Press, 2003) 265 at 269, 274Google ScholarPubMed [Tickner, Environmental Science].

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31 See, for example, the study of the role of precautionary principle in setting policies within the Canadian blood system: Wilson, Kumanan, et al., “The Application of the Precautionary Principle to the Blood System: The Canadian Blood System's vCJD Donor Deferral Policy” (2003) 17:2Transfus. Med. Rev. 89.CrossRefGoogle ScholarPubMed The authors found that while the precautionary principle influenced risk decision-making, there were significant problems with its implementation. Specifically, difficulty arose in “(…) balancing the risk prevented by a precautionary measure against the risk introduced by the same measure” (ibid., at 89). See also Bobinski, Mary Anne, “Risk and rationality: the Centers for Disease Control and the regulation of HIV-infected health care workers” (1991) 36 St. Louis U. L.J. 213Google Scholar, in which the author explores a situation in which “precautionary” action to prevent the spread of AIDS within hospitals has implications for the equality rights of workers.

32 Quijano, Romeo, “Elements of the Precautionary Principle” in Tickner, , Environmental Science, supra note 27, 21 at 24, 27Google Scholar; Thornton, Joe, “Chemicals Policy and the Precautionary Principle: The Case of Endocrine Disruption” in Tickner, , Environmental Science, supra note 27, 103 at 115.Google Scholar

33 One of the interviewees, Dr. Len Ritter, a toxicologist with the University of Guelph known for a very balanced approach to chemical pesticides with a strict focus on scientific evidence, admitted to me in an interview that the only reason he could support a ban on the cosmetic uses of pesticides is because he can find no benefit associated with the use of 2,4-D (supra note 16). With a similar, although subtle, reference to the lack of benefits associated with lawn pesticides, the breast cancer lobby in the U.S. several years ago adopted the slogan “A Dandelion is Just a Flower,” and the Toronto Public Health department came out with a public education campaign featuring the caption “Relax! It's just a weed” in spring 2004.

34 O'Brien, Mary, “Science in the Service of Good: The Precautionary Principle and Positive Goals” in Tickner, , Environmental Science, supra note 27, 279 at 290.Google Scholar

35 O'Brien calls the precautionary principle, in fact, a “(…) means to achieve positive public and environmental health goals” (ibid., at 279).

36 Tickner, “Precautionary Principle”, supra note 4 at 77.

37 Tickner, Environmental Science, supra note 27 at 14.

38 Nosal & Pellizzari, supra note 12 at 1443.

39 Ibid.

40 Ibid.

41 Ibid. Approximately l out of 150 people infected will develop encephalitis or meningitis, see Petersen, L.R., Roehrig, J.T., & Hughes, J.M., “Outlook: West Nile Virus Encephalitis” (2002) 347 N. Eng. J. Med. 1225.CrossRefGoogle Scholar

42 Ibid.

43 Danny Kartzalis, manager of Toronto Public Health's WNV program, acknowledged that Toronto's plan was based in large part on New York City's management plan and influenced as well by guidelines issued by the U.S. Center for Disease Control. Winnipeg's experience with malathion for nuisance mosquito control was also a factor, interview of Mr. Kartzalis (3 August 2003), notes on file with author.

44 At the time of writing, Summer 2004, the document, West Nile Virus: Using Pesticides to Control Mosquitoes was found online at Health Canada: http://www.hc-sc.gc.ca/english/westnile/pesticides.html, however, at the time of publication, Winter 2005/2006, the same document was found at the Public Health Agency of Canada, online: http://www.phac-aspc.gc.ca/wn-no/pesticides-insecticides_e.html.

45 Ibid.

46 [2002], C.28.

47 Health Canada, “New Pest Control Products Act”, online: Health Canada website http://www.hc-sc.gc.ca/pmra-arla/english/legis/pcpa-e.html. Marc Richard, of the Pest Management Regulatory Agency, told me in September 2003 that he expected the new Act to come into force in “Spring 2004” (notes on file with author). As of August 9th, 2005, the Health Canada website still indicated that the Act will come into force on a date “yet to be determined,” see online: Health Canada website http://www.pmra-arla.gc.ca/english/legis/legis-e.html.

48 The PMRA “Re-evaluation Note” states that the PMRA completed an expedited “occupational and bystander risk assessment” for the use of malathion “(…) in light of interest by provinces and municipalities for possible large-scale application of pesticides for the control of adult mosquitoes” during the upcoming WNV season, see P.M.R.A., REV2003–03, “Re-evaluation of Malathion: Assessment of Use in Mosquito Abatement Programs” (4 June 2003). My interview with officials from the PMRA, on September 11th 2003, confirmed that the re-evaluation of malathion was “accelerated.” The full report on the re-evaluation of malathion was released later, see P.M.R.A., PACR2003–10, “Reevaluation of Malathion” (5 September 2003).

49 Health Canada, P.M.R.A, Fact Sheet on the use of Malathion in Mosquito Control Programs (Ottawa: April 2003), online: Pest Management Regulatory Agency http://www.hc-sc.gc.ca/pmra-arla/english/pdf/fact/fs_malathion-e.pdfGoogle Scholar [P.M.R.A., Malathion].

50 Pesticides Act, R.S.O. 1990, c. P-11.

51 Pesticides Act, R.R.O. 1990, Reg. 914.

52 This declaration was made on the Ontario Ministry of the Environment website, online: http://www.ene.gov.on.ca/envision/land/westnile/index.htm.

53 Health Protection and Promotion Act, R.S.O. 1990, c. H-7 [Health Protection Act].

54 Ontario, Ministry of Health and Long-Term Care, West Nile Virus Preparedness and Prevention Plan for Ontario, (27 May 2003)Google Scholar, no longer available online from the Government of Ontario Central Website Public Information Section, (on file with author).

55 O. Reg. 199/01, under the Health Protection Act, supra note 53, s.2 [Regulation 199/01].

56 Ontario Ministry of the Environment, Fact Sheet: Municipal Adulticiding to Prevent the Spread of West Nile Virus, online: MOE website http://www.ene.gov.on.ca/envision/land/westnile/munadult_fs.htm [OME, Municipal Adulticiding].

57 Ibid.

58 Ibid.

59 Ibid.

60 P.M.R.A., Malathion, supra note 49.

61 Ontario, Toronto Public Health, Enhanced WNV Prevention and Control Program (16 June 2003).Google Scholar

62 Health Canada, P.M.R.A., Fact Sheet on the Use of Methoprene in Mosquito Control Programs, (Ottawa: March 2001), online: P.M.R.A. website http://www.pmra-arla.gc.ca/english/pdf/fact/fs_methoprene-e.pdf.Google Scholar

63 Ibid. Health Canada emphasizes, however, that field studies have shown that methoprene has no lasting adverse effects on aquatic ecosystems because the chemical breaks down quickly in the environment and the affected populations are able to recover. The Long Island Sound lobstermen would disagree. They suspect that methoprene applied in 1999 to fight WNV in New York caused the massive die-off of 11 million lobsters beginning in the fall of that year, see “A study of lobster deaths will test pesticide theory” New York Times (31 March 2001), online: NY Times http://www.nytimes.com.

64 For example, one of the interviewees, Ted Bowering pointed to the results of a recently completed study by Environment Canada, the Ontario Ministry of Environment and the City of Toronto Works and Emergency Services had provided evidence that pesticides applied to lawns and gardens in the city enter ecosystems, moving from their site of application into local streams, see Environment Canada, Pesticide Concentrations in the Don and Humber River Watersheds, Interim Report by Struger, J. et al. , (Toronto, 1998–2000).Google Scholar

65 City of Toronto, By-law No. 456–2003, To adopt a new City of Toronto Municipal Code Chapter 612, Pesticides, Use of (22 May 2003) [Toronto By-law].

66 Ibid. Toronto's by-law was modelled after that of the town of Hudson, Quebec. In Spraytech v. Hudson (Town) 2001 SCC 40, the Supreme Court of Canada upheld Hudson's ban on pesticide use for aesthetic purposes. The Court also accepted that the ban was consistent with the precautionary principle, and stated that there is a good argument that the precautionary principle is a principle of customary international law. As noted by Marcia Valiante, the Supreme Court of Canada, “seemingly unaware (…) drop[ped] its decision into the centre of a protracted debate over the future of pesticides regulation in Canada” see Valiante, , “Turf War: Municipal Powers, the Regulation of Pesticides and the Hudson Decision” (2002) 11 J. Envtl. L. & Prac. 325 at 341.Google Scholar

67 Toronto By-law, supra note 65. TPH's conclusions as to the health and environmental impacts of pesticide use were based on their 2002 report “Lawn and Garden Pesticides: A Review of Human Exposure & Health Effects Research”. This report provided a detailed overview of the health effects literature pertaining to the urban use of pesticides. TPH acknowledges uncertainty as to the risks, but states that “(…) the data do support the position that precaution is warranted”, see Report to the Board of Health on the proposed Pesticide By-law by Dr.Basrur, (25 March 2003) at 5.Google Scholar

68 Debra Conlon, Executive Director, Urban Pest Management Council, explained the reasoning behind the slogan: “Property owners are worried that with the bans their properties will look as disgusting, unkempt and weed infested as City parks and boulevards. Toronto homeowners take pride in their lawns and gardens. With this bylaw, the City wants to make gardening a crime.” Interview of Debra Conlon (22 May 2003) at City Hall, Toronto (notes on file with author).

69 As Sunstein notes, “[a]ll over the world, there is increasing interest in a simple idea for the regulation of risk: In case of doubt, follow the precautionary principle”, see Sunstein, Cass R., “Beyond the Precautionary Principle” (2003) 151 U. Pa. L. Rev. 1003 at 1003CrossRefGoogle Scholar [Sunstein, “Precautionary Principle”].

70 Frank Cross, for example, offers a well-documented critique arguing that the precautionary principle points in the wrong direction, see Cross, Frank B., “Paradoxical Perils of the Precautionary Principle” (1996) 53 Wash. & Lee L. Rev. 851.Google Scholar See also Holm, Soren & Harris, John, “Precautionary principle stifles discovery” (1999) 400 Nature 398.CrossRefGoogle ScholarPubMed On the other hand, Cass Sunstein, for example, has argued that the precautionary principle, instead of offering guidance, is literally paralysing: “forbidding inaction, stringent regulation, and everything in between” (ibid. Sunstein, “Precautionary Principle”).

71 Tickner, Joel A., “Guest Editorial” (2002) 117:6Public Health Rep. 493 at 496.CrossRefGoogle Scholar

72 Ibid., at 495.

73 Jane Hunt, “The Social Construction of Precaution” in O'Riordan & Cameron, supra note 22, 117 at 118.

74 Elliot et al., supra note 8 at 13 and accompanying text. See also the discussion accompanying note 9.

75 Ibid.

76 Ibid., at 17.

77 Ibid., at 9, 19.

78 Dr. Sheela Basrur, “Protocol for the Control of Mosquito Larvae to Prevent and Control West Nile Virus”, Report to the Board of Health (20 January 2003), online: City of Toronto website http://www.city.toronto.on.ca/health/pdf/boh_wnv.pdf at 2 [Basrur, “the Protocol”].

79 Ibid.

80 Audrey Their, for example, points to research on dengue in the Caribbean which ultimately judged long standing mosquito control programs to have been futile with respect to the course of outbreaks. Thier, “Balancing the Risks: Vector Control and Pesticide Use in Response to Emerging Illness” (2001) 78:2 J. Urban Health 372 at 374.

81 Interview of Ted Bowering (25 July 2003), at Toronto City Hall (notes on file with author).

82 Shapiro, H. & Micucci, S., “Pesticide use for West Nile virus” (2003) 168 Can. Med. Assoc. J. 1427 at 1429.Google ScholarPubMed

83 Ibid.

84 Ibid.

85 Lauren Vanderlinden, “Considerations of Toxicity, Ecotoxicity and Public health in ULV Applications of malathion for Mosquito Control”, Toronto Public Health (June 2003), attachment B to Dr. Sheela Basrur, “Enhanced Mosquito Control Activities to Prevent and Control West Nile Virus”, Report to the Board of Health (12 June 2003), online: City of Toronto website http://www.city.toronto.on.ca/health/pdf/wnv_enhanced_mosquito_control.pdf at 23 [Basrur, “Mosquito Control”].

86 As well as speaking briefly with Katrina Miller on May 22, 2003 at City Hall, I also conducted a more comprehensive interview with her at the Toronto Environmental Alliance office on August 5, 2003 (notes on file with author).

87 See for example, the Council of Scientific Affairs, American Medical Association, “Educational and informational strategies to reduce pesticide risks” (1997) 26 Prev. Med. 191CrossRefGoogle Scholar (stating that “particular uncertainty exists regarding the long-term health effects of low-dose pesticide exposure”, ibid., at 197.

88 New York State, Department of Health, “Information Sheet: Malathion and Mosquito Control”, online: NY Dept. of Health website http://www.health.state.ny.us/nysdoh/westnile/education/2740.htm.

89 Ibid.

90 Vanderlinden, supra note 85 at 15.

91 Ibid.

92 Ibid.

93 Ibid., at 21.

94 Interview of Dr. Len Ritter (30 July 2003) in Guelph (notes on file with author).

95 Ontario Public Health Association, Environmental Health Workgroup, OPHA Resolution on the Non-Essential Use of Chemical Pesticides on Public and Private Lands (2001) at 4, online: OPHA website http://www.opha.on.ca/ppres/2001-02_res.pdf.Google Scholar

96 As Sheila Jasanoff has noted, our “(…) techniques for assessing chemical toxicity have become ever more refined, but they continue to be based on the demonstrably faulty assumption that people are exposed to one chemical at a time” see Jasanoff, “The Precautionary Ideal in American Law” in Tickner, Environmental Science, supra note 27, 227 at 239.

97 Ibid.

98 Dr. Fran Scott, Associate Medical Officer of Health, taking questions from council (22 May 2003), notes on file with author.

99 Basrur, “Mosquito Control,” supra note 85 at 8.

100 Ibid., at 15.

101 Toronto Public Health, Health Promotion & Environmental Protection Office, Playing it Safe: Healthy Choices about Lawn Care Pesticides by Dr.Basrur, Sheela, Medical Officer of Health (April 2002) at 11, online: City of Toronto website http://www.city.toronto.on.ca/health/hphe/pesticides_playingitsafe.htmGoogle Scholar [Basrur, Lawn Care Pesticides].

102 Ibid., at 12.

103 Basrur, “the Protocol”, supra note 78 at 4.

104 Interview of Ronald Macfarlane (8 December 2003) in Toronto. The interview was taped and notes were taken (on file with author).

105 William C. Sugg & Matthew L. Wilson, “Overkill: Why pesticide spraying for West Nile Virus may cause more harm than good” Toxic Action Center and the Maine Environmental Policy Institute, online, http://www.meepi.org/wnv/mass.htm. This report argues that, essentially, the “cure” in this case is worse than the disease. It states that pesticides present grave risks to human health that they have not been proven effective against mosquitoes in urban areas, and that spraying may have a perverse effect by fostering resistance in mosquito populations and eliminating their natural predators. Angela Rickman, of the Sierra Club of Canada, commented that an aerial spray campaign would be “(…) like hitting a mosquito with a mallet instead of a flyswatter. It's overkill,” see Prittie & Bridson-Boyczuk, supra note 6.

106 Basrur, “the Protocol”, supra note 78.

107 Ibid.

108 Shapiro & Micucci, supra note 82 at 1428.

109 Basrur, “the Protocol”, supra note 78 at 6–7.

110 Miller interview, supra note 86.

111 Basrur, “the Protocol”, supra note 78 at 6–7.

112 Ibid. at 7.

113 Ibid.

114 Calamai, Peter “Natural-born mosquito killer” The Toronto Star (11 May 2003) A14.Google Scholar

115 Basrur, “the Protocol”, supra note 78 at 8.

116 The references to labour costs raise an interesting question. Tickner's model is not clear as to whether the comparison of costs between alternatives is appropriate. He does comment that alternatives assessment, particularly when trade-offs exist, requires skills “not always found in public health agencies” see Tickner, “Precautionary Principle”, supra note 4 at 76). One of those skills, according to Tickner, is “full cost accounting.” So, in a sense, Tickner seems to sanction the consideration of costs on a long-term time horizon. The debate over whether the “precautionary principle,” in its formal expressions, should include a “cost-effectiveness” check on the positive obligation to take action is hotly debated.

117 Toronto Board of Health, Report to City Council by the Chief Administrative Officer of the City of Toronto (24 February 2003)Google Scholar constituting App. D to Toronto Board of Health, An Update on the Toronto Public Health West Nile Virus Program for 2003 by Dr.Basrur, (31 March 2003) at 4, online: City of Toronto website http://www.city.toronto.on.ca/health/pdf/boh_apri17_wnv_program_update_for_2003.pdf.Google Scholar

118 Basrur, “the Protocol”, supra note 78 at 9.

119 Their, supra note 80 at 374.

120 Audrey Their makes a similar point, ibid., at 373.

121 Shapiro & Micucci, supra note 82.

122 Their, supra note 80 at 373.

123 Regulation 199/01, supra note 55 at s. 4(d), Table 1.

124 Basrur, “Mosquito Control”, supra note 85 at 5. In fact, in New York in 2000, even the detection of the virus in birds and mosquito pools was not found to be a reliable indicator of wider local transmission of the disease.

125 Ibid.

126 Ibid., at 4.

127 Interview of Councillor Mihevc (28 July 28 2003) at Toronto City Hall (notes on file with author).

128 Basrur, “Mosquito Control”, supra note 85 at 6.

129 Dr. Sheela Basrur, “Program Update and Budget Implications for an Enhanced West Nile Virus (WNV) Prevention and Control in 2003,” Report to the Board of Health (16 June 2003) at 4, online: City of Toronto website http://www.city.toronto.on.ca/health/pdf/wnv_2003_program_update_and_budget_implications.pdf.

130 The WNV information line, for example, received a total of 6,011 calls in May 2003 (ibid.).

131 Ibid., at 5 [emphasis added].

132 Tickner, “Precautionary Principle”, supra note 4 at 77.

133 Toronto Public Health, “Enhanced 2003 WNV Program,” constituting Attachment E to Basrur, “the Protocol”, supra note 78 at 11.

134 Ibid., at 21.

135 Ibid.

136 Bricker, John, “Pesticide trucks blocked from Winnipeg street” National Post (22 July 2002) A6.Google Scholar

137 Ibid.

138 Lopez, Wilfredo, “West Nile Virus in New York City” (2002) 92:8Am. J. Public Health 1218.CrossRefGoogle ScholarPubMed The United States Court of Appeals Second Circuit denied the injunction on June 5, 2001, see No Spray Coalition Inc. v. The City of New York (2001) 252 F.3d 148.

139 Ries, Nola, “Risk Trade-offs in Public Health Action: The West Nile Virus Example” (2004) Ontario Public Health Promotion E-Bulletin 344.Google Scholar

140 Kriebel, David & Tickner, Joel, “Reenergizing Public Health Through Precaution” (2001) 91:9Am. J. Public Health 1351 at 1353.CrossRefGoogle ScholarPubMed

141 Toronto Board of Health, Meeting Minutes (7 April 2003), App. D, attachment D at 11, online: City of Toronto website http://www.toronto.ca/legdocs/2003/minutes/committees/hl/h1030407.pdf.

142 Their, supra note 80 at 372.

143 Basrur, “the Protocol”, supra note 78 [emphasis added].

144 Centers for Disease Control and Prevention Epidemic/Epizootic West Nile Virus in the United States, Revised Guidelines for Surveillance, Prevention and Control (April 2001), online: Centers for Disease Control http://www.cdc.gov/ncidod/dvbid/westnile/resources/wnv-guidelines-aug-2003.pdf.Google Scholar

145 Vanderlinden, supra note 85 at 25.

146 Ibid.

147 See for example the Open Letter by Concerned Physicians and Scientists, “Stop the Indiscriminate Spraying of ‘Friendly Fire’ Pesticides”, online: Canadian Coalition for Health and Environment <http://www.cche-info.com/pdf/wnvopenletter2001gilka.pdf>.

148 Jasanoff, Sheila, “The Precautionary Ideal in American Law” in Tickner, , Environmental Science, supra note 27, 227 at 230.Google Scholar

149 Kriebel & Tickner, supra note 140 at 1351.

150 Often, also, the benefits of the risky action will accrue to different groups or individuals than the costs of the same action. For experts, or policy analysts to weigh these costs and benefits, and for them (as they often do) to make the judgment that a community's assessment of the risk is irrational or unfounded, ignores the critical distributional effects of risk management.

151 The Ontario Human Rights Commission has recently found that chemical or environmental sensitivity constitutes a disability, and that accommodation, or special treatment, is required under the Ontario Human Rights Code, R.S.O. 1990, c. H-19 Keith Norton, Chief Commissioner of Human Rights for Ontario wrote Pat Vanini, Executive Director of the Association of Municipalities of Ontario (AMO) on April 16, 2003 requesting that she notify her members of the Commission's findings with respect to the accommodation of individuals with chemical sensitivities under the Ontario Human Rights Code. The letter was posted to the AMO's website, online: http://www.municom.com.

152 Tickner, “Precautionary Principle”, supra note 4 at 76.

153 Their, supra note 80 at 374.

154 See Epstein, P.R., “West Nile Virus and the Climate” (2001) 78:2J. Urban Health 372CrossRefGoogle ScholarPubMed & Woodward, Alistair, “Uncertainty and Global Climate Change: The Case of Mosquitoes and Mosquito-Borne Disease” in Tickner, , Environmental Science, supra note 27, 127.Google Scholar

155 Basrur, “Mosquito Control”, supra note 85 at 8.

156 Ibid.

157 Basrur, “the Protocol”, supra note 78 at 3.

158 Shapiro & Micucci, supra note 82.

159 Toronto Public Health, “Enhanced 2003 WNV Program”, Attachment E to Dr. Sheela Basrur, “Program Update and Budget Implications for an Enhanced West Nile Virus (WNV) Prevention and Control in 2003”, Report to the Board of Health, June 16, 2003 at 14, online: City of Toronto website http://www.city.toronto.on.ca/health/pdf/wnv_2003_program_update_and_budget_implications.pdf.

160 Ibid.

161 Ibid. at 15.

162 Tickner, “Precautionary Principle”, supra note 4.

163 Ibid.

164 Cross, supra note 70; Stewart, Richard B., “Environmental Regulatory Decision Making Under Uncertainty” in Zerbe, R. O. & Swanson, T., eds., An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design (Oxford: Elsevier, 2002) 71CrossRefGoogle Scholar; Sunstein, “Precautionary Principle”, supra note 69.

165 Sunstein, “Precautionary Principle”, ibid., at 1004.

166 Ibid., at 1003.

167 Tickner, “Precautionary Principle”, supra note 4 at 78.

168 Here, I find Bourdieu, Pierre, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977)CrossRefGoogle Scholar very helpful. In particular, his concept of “doxa”—by which he means, roughly, the taken-for-granted, the “unspoken”; those things that go undisputed because they go undiscussed—invokes the same idea of slowly changing background rules which come naturally and go without saying that I envision as being part of the explanation for how precaution, in this instance, may have been implemented without being invoked.

169 Tim O'Riordan & James Cameron, “The History and Contemporary Significance of the Precautionary Principle” in O'Riordan & Cameron, supra note 22, 12 at 26 [O'Riordan & Cameron, “Contemporary Significance”].

170 Basrur, Lawn Care Pesticides, supra note 101.

171 Personal communication with Danny Kartzalis, West Nile Virus Manager, Toronto Public Health (November 2004), notes on file with author.

172 Ontario, Ministry of Environment, “Summary Report of Activities to Control West Nile Virus 2003”, online: OME website http://www.ene.gov.on.ca/envision/gp/4637e.htm.

173 None of this is intended to imply that the actions of TPH caused the reduction in WNV cases in 2003. There is, of course, tremendous uncertainty around the question of why WNV may hit hard in one season and not the next—weather patterns such as mild winters and spring droughts have been implicated; a theory of built-up immunity is also popular.

174 Jasanoff, supra note 148 at 237.

175 Ibid.

176 Ibid.

177 O'Riordan & Cameron, “Contemporary Significance”, supra note 169.