NAAA eNewsletter - 04/21/2022

Last week the EPA released a comprehensive work plan to mitigate the impact of pesticides on endangered species. The EPA is required by the Endangered Species Act (ESA) to consider the impact a pesticide registered under FIFRA has on endangered species and employ mitigations if necessary to protect species impacted by a pesticide. The EPA has met this ESA requirement for less than 5% of its registration decisions. The EPA’s failure to address ESA concerns for most of its decisions has resulted in numerous lawsuits filed against the EPA. The number of these lawsuits has increased in recent years.

The situation has escalated to the point where EPA now has over 50 pesticide active ingredients that have court-ordered deadlines or are currently in litigation for alleged ESA violations. The workload to meet the demands for these court orders and lawsuits has overwhelmed the EPA’s resources and left it with no ability to meet ESA obligations for other pesticides going through the registration and registration review process. The work plan was developed to allow the EPA to better meet its ESA obligations.

The work plan has four strategies to meet this goal:

Prioritize ESA obligations until the EPA can increase its overall capacity to handle ESA duties.
Improve approaches to identify and require protections for endangered species, especially those at highest risk from pesticides.
Improve efficiency and timeliness of ESA consultation process with other federal agencies.
Better engage stakeholders to understand pest control practices and how to implement endangered species protection measures.

When registering or reregistering a pesticide, the EPA follows FIFRA and ESA, as well as the Federal Food, Drug, and Cosmetic Act (FFDCA), the Food Quality Protection Act (FQPA) and Pesticide Registration Improvement Act (PRIA). FIFRA requires the EPA to consider both the risks and the benefits of a pesticide during the registration process. The Endangered Species Act requires the EPA to consult with the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to evaluate each pesticide’s potential risks to threatened and endangered species and their designated habitat. However, the ESA does not require the FWS and NMFS to consider the benefits the pesticide provides, only the risks to endangered species. The FWS and NMFS do not consider FIFRA, FFDCA, FQPA or PRIA. That means that during the consultation process, only the EPA is considering the benefits a pesticide provides. The EPA is working with agencies that have no agricultural or pest control background or mandate, making the consultation process difficult for the EPA.

The consultation process itself has undergone several iterations in an attempt to improve both its accuracy and efficiency. In 2013, the National Academy of Sciences released a report with its recommendations on how to evaluate the impact pesticides have on endangered species. The suggested approach was first used in 2015 as an interim method to evaluate three pesticides. Based on feedback from the interim method, the EPA, FWS, NMFS and USDA developed a revised method for evaluating the impact a pesticide might have on endangered species. The revised method has been used on five pesticides. The 2018 Farm Bill created an interagency working group consisting of five federal agencies, including the EPA, whose task was to engage with stakeholders and work to further improve the consultation process.

The work plan is the latest development in the ESA consultation process. It follows an announcement in January 2022 from the EPA indicating the agency will meet ESA obligations for all newly registered pesticides.