13
May
As EPA Oversight of Pesticides Shrinks, Workload Doubles—Raising Safety Concerns
(Beyond Pesticides, May 13, 2022) The Midwest Center for Investigative Reporting has covered a report, released days ago by the U.S. Environmental Protection Agency (EPA), that acknowledges the agency’s failures to meet its responsibilities under the Endangered Species Act (ESA) and sets out a plan for improving its performance and meeting its obligations. The report, Balancing Wildlife Protection and Responsible Pesticide Use: How EPA’s Pesticide Program Will Meet Its Endangered Species Act Obligations, 2022, notes that these failures have resulted “not only in inadequate protections for listed species, but also, litigation against the Agency that has increased in frequency in recent years” — to the tune of more than 20 lawsuits covering 1,000+ pesticide products. Beyond Pesticides has covered the many chemical assaults on ESA species, as well as a number of lawsuits brought on their behalf — most recently, the Center for Biological Diversity’s (CBD’s) suit about the threats of synthetic pyrethroid insecticides to fragile species.
Beyond Pesticides reported on a 2019 CBD lawsuit seeking to force the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) to initiate rulemaking to prevent most pesticide use in critical habitat for endangered species — an aspect of the ESA that is too frequently not protected. Under ESA, federal agencies (such as EPA) are required to consult with the U.S. Fish and Wildlife Service (FWS) and U.S. National Oceanic and Atmospheric Administration (NOAA) Fisheries Service (of which NMFS is an office) to ensure that any agency actions are unlikely to jeopardize the continued existence of any ESA-listed species or result in the destruction of or negative impacts on critical habitat of such species.
The Midwest Center extracted a startling metric from the recent EPA report: “Since 2005, the number of completed pesticide registrations has more than doubled, while the number of employees overseeing the process has dropped by a quarter.” The Pesticide Registration Improvement Act (PRIA) of 2004 (and its subsequent iterations) aimed to expedite the pesticide registration process, and funnel funds to the agency through fees charged to applicant pesticide manufacturers (though with plenty of exemptions). Despite that, the number of applications in the years since then has far outstripped the ability of agency staff to keep up.
According to the report, for example, in 2005 EPA’s Office of Pesticide Programs (OPP) completed 1,098 PRIA actions (reviews, evaluations, approvals) with 809 staff FTEs (full-time equivalents). With massively reduced staff capacity in 2021 — 603 FTEs — OPP completed 2,556 actions. But that 2,500+ figure came nowhere near addressing what is now a nearly-20-year backlog of Endangered Species Act decisions. The report’s Executive Summary opens with this: “In past decades, the Agency has met those obligations [under the Endangered Species Act] for less than 5% of the thousands of pesticide actions it completes annually under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),” the federal law that regulates the registration, sale, and use of pesticides in the U.S.
The report also notes that, “EPA’s current ESA priorities are driven almost entirely by litigation settlements and other court-enforceable deadlines. Over the next six years [those] deadlines will require EPA to complete ESA reviews for 18 pesticides — the most the Agency estimates it can handle during this period based on its current capacity and processes. And ongoing litigation and settlement discussions for other lawsuits cover dozens of additional pesticides and will likely fill the Agency’s ESA workload beyond 2030. Even though these litigation deadlines have determined most of the ESA workload for the next decade, that workload is estimated to cover less than 5% of EPA’s future pesticide actions that trigger ESA obligations. Because the Pesticide Program currently lacks the capacity and efficient processes to fully meet its ESA obligations on those remaining pesticide actions, it remains vulnerable to additional lawsuits.”
This May report from EPA follows on a January 2022 EPA announcement of a new “ESA protection policy” in the agency’s evaluation of any new pesticides looking to be registered. In its coverage of that policy shift, The Midwest Center wrote, “The agency said — for the first time — it will take a systematic approach to regulating pesticides’ harmful effects instead of being forced to comply one-by-one by different lawsuits.” In January, EPA said that previously, “in most cases, EPA did not consistently assess the potential effects of conventional pesticides on listed species. This resulted in insufficient protections for listed species, as well as resource-intensive litigation against EPA for registering new (pesticides) prior to assessing potential effects on listed species.” This, of course, does nothing to address the legion of currently registered pesticides that are harming species and habitats across the U.S.
That said, of that EPA announcement, CBD’s Governmental Affairs Director Brett Hartl commented in January: “It’s a pretty big sea change. They know they’re violating the law, but here they’re finally saying, ‘You’re right, we have to impose restrictions when there’s potential for harm.’ That is not nothing.”
An opinion piece in The Revelator places the identified failings of EPA and other federal agencies in an historical context of failures to protect the public, and environmental justice communities, in particular, from “environmental harms caused by corporate polluters, lax oversight, and poor enforcement of existing laws.” It notes broad neglect of monitoring and enforcement activities that are supposed to identify and hold accountable those who perpetrate violations of environmental regulations, and the anemic penalties often meted out to the guilty — historically, “little more than a slap on the wrist — if they’re prosecuted at all.”
Pointedly, John Platt’s editorial specifies the need for “more investigators to detect and stop corporations from poisoning our air, water and bodies,” calls out the Trump administration’s decimation of EPA staff and draconian reductions in enforcement activities, and asserts that all those staff losses at EPA need to be restored ASAP. The “country desperately needs new eco-detectives — trained employees and citizens [sic] who can identify and uncover pollution, poaching and other eco-threats that harm people, wildlife and the planet.” Of EPA’s capacity, and the goals of the new EPA report, he writes, “Under Trump the EPA shed thousands of staff members and dramatically reduced its enforcement of existing laws. Those people need to be back on the beat. President Biden’s 2023 budget proposal aims to create the equivalent of more than 1,900 new full-time positions. That’s a start, but it barely makes up for the 1,500 jobs the EPA shed during the first year and a half of the previous administration. Let’s double that number of new hires.”
In the face of threats from corporate malfeasance, climate change, and wildlife poaching, among other factors, The Revelator piece also advocates for the need for more staffing at a variety of federal agencies. It calls, variously, for more investigators, scientists and researchers, public health specialists, wildlife inspectors (at ports and borders), and environmental prosecutors — across EPA, FWS, the Bureau of Land Management, U.S. Forest Service, U.S. Park Police, and the Department of Justice. Mr. Platt does note that President Biden’s 2023 budget proposes increases in staffing for some of these agencies. He also identifies the need for boosts in staffing at the state level, more environmental journalists, and courage among public employees to whistleblow when the public’s needs are not being served.
In the Balancing Wildlife Protection report, EPA says it is creating a new “vision of success” for its ESA–FIFRA work that would mean the agency “is protecting ESA species and their habitats from pesticide effects to an extent that fulfills its obligations under all federal laws. EPA would be achieving this goal while minimizing impacts to pesticide users, supporting the development of safer technologies to control important public health and agronomic pests, and completing timely pesticide registration decisions. EPA would also become a trusted expert in protecting listed species through its pesticide decisions, using real-world, up-to-date information.”
The agency identifies six challenges to achievement of this vision:
- the large (and growing) number of necessary FIFRA actions (largely, requests for new registrations and required 15-year review of existing registrations), given OPP’s current staffing at 2013 levels
- the current ESA-FIFRA process, which tends not to yield protections for listed species that are both practical for pesticide users to implement and sufficiently timely re: the at-risk species
- the broad geographic spread of FIFRA registrations, which cover many pesticide uses and affect many types of listed species
- the need to harmonize the FIFRA process with the ESA process: e.g., the current FIFRA process assesses each pesticide on a chemical-by-chemical basis, but this approach is unsustainable across hundreds of pesticides, many of which affect hundreds of listed species
- the tension among the need for better, more-granular data (which would extend the length of the ESA–FIFRA process), staff capacity, and timely protection
- the need for strong working relationships among EPA, FWS, NMFS, and the Department of Agriculture; “All four agencies are working toward this goal but still have room for improvement.”
EPA’s proposed workplan is described as a “living document” that will be reviewed and updated, and its progress evaluated, over the next two years. The plan will employ numerous strategies, including a prioritized approach, given time constraints, staffing limits, and the legally mandated ESA–FIFRA protection processes. Per the report: “The top tier includes actions with existing and future court-enforceable deadlines and the registrations of new conventional pesticide active ingredients. The second tier includes the large number of remaining conventional pesticides, without court-enforceable deadlines, that EPA reevaluates every 15 years (i.e., FIFRA registration review). The third tier includes all other FIFRA actions for conventional pesticides (e.g., new uses of existing pesticides) and FIFRA actions for non-conventional pesticides (e.g., biopesticides).”
It is difficult to understand how EPA will enact this new plan absent a significant influx of new funding that could expand staffing. As the report notes, “EPA’s capacity to fully meet its ESA obligations at this time is limited and continues to place listed species at risk and the Agency at considerable risk of ESA lawsuits. Further . . . any future court decision or legal settlement to complete an ESA determination during that time will stretch the Agency’s already very thin program capacity and may undermine EPA’s ability to meet its other ESA commitments. EPA is striving to increase the number of ESA determinations it can complete annually, partly through process improvements described in this workplan and the FY2023 President’s proposed budget that includes an additional $4.9 million and 10 FTE to integrate ESA requirements in conducting risk assessments and making risk management decisions.”
In January 2022, Beyond Pesticides wrote about the emerging changes emanating from EPA in relation to its OPP ESA efforts: “Beyond Pesticides joined with Public Employees for Environmental Responsibility (PEER) and three dozen allied groups to lay out what a ‘larger effort’ to reform the Office of Pesticide Programs should resemble. The current action, if properly implemented, would begin to address a single problem within the scope of systemic failure. Reform advocates are urging EPA to focus on holistic reforms that confront climate change, biodiversity collapse, and environmental racism. To rout out industry influence by rejecting corrupt data from pesticide companies and promote alternative assessments that embrace safer pest management systems that do not require toxic chemical use” would be a robust approach.
The new report provides some hope that broad advocacy is having an impact on the current administration’s approach. It would seem to signal a shift in direction, but the proof, as always, will be in “on the ground” changes in agency function that would result in meaningful actions to protect people and the planet from the unnecessary use of toxic pesticides.
Sources: The Midwest Center for Investigative Reporting, EPA’s Balancing Wildlife Protection report, and The Revelator
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
