The Environmental Protection Authority (EPA) has invited public submissions on some pesticides for potential reassessment of their approvals.
However, New Zealand’s pesticide approval process is a model from the past trying to handle problems of the future. We need more than a review of the pesticides under the current framework; we need an overhaul of the whole system.
One answer could be to modify the Hazardous Substances and New Organisms Act 1996, the primary statute for assessing and approving pesticide use.
But it may be appropriate to recast the Act with a different approach entirely – a more modern one that better fits our increased knowledge about both the state of the environment and measures necessary to safeguard the living systems of the planet.
To address the scope and scale of environmental issues in the 21st century, we need a new way of handling environmental law. Fragmented and piecemeal regulations fail to account for the complexities of the natural world and are unable to respond to interconnected threats. Modern environmental management must be holistic and flexible; it must be able to adapt to changing circumstances while preserving ecological bottom lines.
Pesticide regulation needs to consider a wider range of effects of pesticides on human health and the environment, be more precautionary, and take better account of Māori values and interests.
To start with, there is the excessive value placed on particular types of scientific testing in pesticide risk assessment, which largely override or outweigh other types of evidence.
At the same time, few or no alternatives to chemical use – such as biological controls – are evaluated as part of the weighing up exercise.
One thing nearly all pesticide testing has in common is that, as science advances, more and unanticipated effects become evident, not fewer. There may be lots of good scientific reasons to make the test assumptions that are made at the times they are made, but all testing has been shown to be inadequate in retrospect, even if it was the best reasonably available at the time.
We might not have the luxury of being able to prioritise efficiency in the face of the current destruction of the natural world.
For example, risks are estimated for a single chemical, so chemicals are tested in isolation, when people and the environment are in reality exposed to mixtures of various chemicals, including adjuvant chemicals added to the pesticide active ingredient.
Other significant drawbacks include that existing body burdens of chemicals and cumulative effects are ignored in determining safe exposures and that different individuals react differently to interactions of combinations of chemicals.
In addition to concerns about the testing of adverse effects on human health, there is even less information on adverse effects on other organisms or on the wider environment. That is not the primary focus of the toxicology testing.
Such research on environmental effects may be undertaken but typically only after a pesticide is in use where actual effects can be observed. As with research into effects on human health, there are difficulties with proving causation: with establishing pathways and dose-response levels, and in assessing effects due to a combination of different pesticides.
Because there is uncertainty about environmental and human health outcomes, with the possibility of unanticipated hazards in the future, more precaution needs to be included in the decision-making process.
Precautionary measures may be indirect, such as through the introduction of administrative procedures entailing a more precautionary approach, or they may be explicit and direct, such as requirements for monitoring environmental impacts or establishing compensatory mechanism in the case of environmental harm.
There are considerations, too, under the Treaty of Waitangi.
Treaty interests relevant to the regulation of pesticides include the substantive protection of native flora and fauna, protection of the Māori guardianship – kaitiaki – relationship with flora and fauna in their local territory, and Māori participation in the decision-making process regarding effects on such flora and fauna and the relevant relationships.
The kaitiaki relationship is spiritual as well as physical, so, as a matter of both law and practice, any assessment of the effects of the pesticide must include consideration of effects on such spiritual relationships.
Māori have complained about the lack of appropriate participation in pesticide approval applications. The first type of participation required is the need for appropriate and timely consultation with Māori. While this is clearly stated as a requirement for applicants, and a detailed framework is provided to help applicants do so, the EPA’s Māori advisory committee, Ngā Kaihautū, has, in multiple reports regarding pesticide applications, noted with concern the lack of early engagement with Māori. This prevents applicants from engaging with the potential effects of the pesticide in question on the kaitiaki relationship between iwi and taonga species and hinders comprehensive involvement of Māori in the application process.
In 2017, the EPA expressed its commitment to incorporate mātauranga Māori – Māori knowledge – into its decision-making. This was a welcome step but illustrates how the process does not yet accommodate very well the consideration of a wider range of possible adverse effects of pesticide use.
The requirement for a member of the decision-making panel to be appointed to represent environmental interests that existed for the EPA’s predecessor, the Pesticides Board, was not continued into today’s regime. It was thought that the public role in making submissions, along with the requirement of the Hazardous Substances and New Organisms Act to take account of such matters, would suffice. However, the EPA has been criticised for not paying enough attention to the public views expressed through the submission process.
Under the Hazardous Substances and New Organisms Act, the EPA is also required to “take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects”.
This caution may be weighed with other factors and discretion is left with the EPA to determine how to balance potential adverse effects on human health and/or the environment with, for example, economic efficiency. It is open for a decision-maker to take the risk of finding out in the future that we are harming nature or human health in order to benefit economically from it in the short-term.
A preferable approach would be the stronger one taken in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: “If, in relation to making a decision under this Act, the information available is uncertain or inadequate, the marine consent authority must favour caution and environmental protection.”
Learning from such historical environmental disasters as the introduction of rabbits and gorse means a different thing in today’s New Zealand than it used to: we need to be able to prevent damage we have not even imagined, from substances we have invented but do not necessarily know the limits of.
This requires new perspectives, not just a few new considerations. We need to stand back and look at everything very differently: think globally and act locally; think holistically and act specifically.
We may need some radically different presumptions, such as that no toxic substances are allowed to be used until their effects are more thoroughly proven. We might not have the luxury of being able to prioritise efficiency in the face of the current destruction of the natural world.
The argument in this article is made more fully in ‘Permitting Poison: Pesticide Regulation in Aotearoa New Zealand’.
