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Environment & Energy Report

Practitioner Insights: It’s Déjà Vu All Over Again for EPA’s Pesticide Program

Feb. 17, 2017, 8:04 PM

On Feb. 2, the U.S. Court of Appeals for the Ninth Circuit finally decided a lawsuit challenging EPA’s decisions during re-registration for failure to consult under the Endangered Species Act (ESA) about pesticide products containing 31 different active ingredients. Although the Ninth Circuit upheld the District Court’s dismissal of most of the Center for Biological Diversity’s claims, the Ninth Circuit still allowed the case to go forward, potentially for all 31 pesticides. The litigation will continue, and the Environmental Protection Agency may eventually face court deadlines to consult about these and many more pesticides—an outcome that would massively reorder how EPA’s pesticide resources are spent.

Deja Vu

Haven’t we seen this movie before? EPA, environmentalists, and the agricultural business sector are locked in lawsuits ultimately resulting in a stalemate that leaves the government severely constrained in how it does its job.

The parallels between 1986 and 2017 are striking. Then, it was the Delaney clause, which prohibited any amount of residue in processed food of certain carcinogenic pesticides; now it is the ESA. Just as it was 30 years ago, EPA’s program for regulating pesticides is today struggling to discern a rational and practical way to implement a strict statute deliberately designed to be highly protective. Both then and now, a report by the National Academy of Sciences found the science underlying EPA’s work to be flawed and called for reforms. A federal court has derailed EPA’s efforts to chart a path forward. On the horizon looms the prospect of protracted administrative processes that could ultimately cost agriculture access to needed pesticides and would delay for years the implementation of the protections sought by the law. Nobody is happy; everyone predicts disasters.

What’s Adequate?

Like all civil servants, EPA staff pledge to “faithfully execute the laws of the United States,” including the ESA. But meeting the ESA requirement to consult with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) about regulatory actions affecting pesticides has proven practically impossible since the ESA passed in 1973. EPA should be evaluating whether its decisions to register new pesticides and to allow continued use of older pesticides will adversely affect any of the 1,596 listed threatened and endangered species. If so, EPA should then consult with FWS and NMFS and receive a formal Biological Opinion. But, despite multiple efforts over the last four decades, the Services and EPA cannot agree on what constitutes an adequate evaluation. Even a lengthy 2013 report from the National Academy of Sciences failed to end the disputes among the agencies.

Environmental advocacy groups, understandably outraged by EPA’s failure to fulfill the ESA consultation requirements and worried about pesticides’ effects on fragile species, have repeatedly sued EPA. Their lawsuits have forced EPA and the Services to commit to schedules for conducting ESA evaluations of seven pesticides—a tiny fraction of the nearly 1,100 pesticides in use. Currently, a consultation requires several years, at least, to finish before any additional protections for endangered species could go into place. Meanwhile, whatever harm pesticides may cause continues.

The agricultural sector also is understandably outraged. The advocacy groups’ ESA litigation may well shut down the approval of new pesticides until EPA and the Services complete required consultations. The pesticide industry argues that this is a concern not just for business reasons. They say, and EPA agrees, that newer pesticides are generally safer for people and the environment than the older products they would replace. Letting them into the market would reduce any risks that exist. Further, the industry says additional ESA work will certainly slow—if it does not stop altogether—the approval of new products that would contribute to increased agricultural productivity.

Budget in Jeopardy

Finally, conducting more, and more extensive, ESA assessments and consultations looks like a budget buster. This year, EPA’s pesticide program is asking the Services for more consultations on three pesticides than the Services conducted for every other federal agency in an entire year. EPA, FWS, and NMFS would need to grow more than 10 times larger to handle the workload.

Fortunately, we know what to do. As they did in the early 1990s, smart, well-intentioned, and flexible people can straighten out this mess. Two decades ago, working together in a “Keystone Dialogue,” environmentalists, chemical company representatives, growers, congressional staff, academics, and agency personnel worked out the principles that became the Food Quality Protection Act of 1996 (FQPA). FQPA passed Congress unanimously, and for the last 20 years FQPA has raised the bar for protection of human health while ensuring growers have the pest control products they need.

Prioritize

Although new regulations, or even new laws, may be needed, the first step should be to set reasonable priorities. It is impossible to do everything at once, and the “perfect” should not be the enemy of the “good.” The warring factions need to get together and identify what are likely to be the greatest risks that pesticides pose to endangered species, and then EPA and the Services should assess them as quickly and efficiently as resources allow.

From my years of contact with all of the interested stakeholders, I believe neither growers nor the chemical industry wants pesticides to hurt endangered species, but they want to keep running their businesses. I also believe that environmentalists do not want to stop the introduction of safer pesticides or to destroy agriculture, but they do want to save endangered species. And I believe that the Services and EPA want to do their jobs in a way that advances the interests of all of these groups. Everyone just has to stop fighting and get together to figure out what to do first and how to do it. Then everyone needs to get to work.

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