20
Jan
New EPA Policy to Comply with Endangered Species Law Leaves Unanswered Questions for Pesticide Uses
(Beyond Pesticides, January 20, 2022) The U.S. Environmental Protection Agency (EPA) has announced it will follow the law and review the impact of pesticides on endangered species prior to authorizing a pesticide for use. While it is not usually news for a government agency to announce it will follow statutory requirements, the agency’s new policy reverses decades of violative practice, whereby the EPA allowed pesticides on to market without a complete understanding of how threatened and endangered species would fare. Advocates are responding favorably to this commonsense reform, but emphasize that this should only be the start, and more significant actions are necessary to fix the long-term failures in EPA’s Office of Pesticide Programs.
According to EPA, “There are over 1,300 endangered or threatened species in the United States today. Endangered species are those plants and animals that have become so rare they are in danger of becoming extinct.” Scientists warn that humanity is causing the sixth mass extinction in the planet’s history. A series of reports from the United Nations Environment Program (UNEP) highlights how human activities threaten the healthy functioning of ecosystems that produce food and water, as well as one million species now at risk of extinction. The UNEP report, Food System Impacts on Biodiversity Loss, identifies the global food system as the primary driver of biodiversity loss. (See Daily News.)
EPA’s announcement pertains to how it registers pesticides in compliance with the Endangered Species Act (ESA). Under Section 7 of ESA, federal agencies are required to ensure that the actions they carry out do not jeopardize the existence of endangered or threatened species. In the context of pesticide use, EPA must consult with U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries Service to determine whether a pesticide may adversely affect an ESA listed species. If the consultation with federal wildlife agencies determines that threatened or endangered species is in jeopardy, EPA must make recommendations to limit use of a pesticide to protect that species.
In practice, EPA rarely conducted these required consultations prior to registering a pesticide. This placed the onus on health and environmental groups to bring EPA to court to force legal compliance. EPA acknowledges this in its press release, stating, “…in most cases, EPA did not consistently assess the potential effects of conventional pesticides on listed species when registering new AIs [active ingredients]. This resulted in insufficient protections from new AIs for listed species, as well as resource-intensive litigation against EPA for registering new AIs prior to assessing potential effects on listed species.”
As part of its new policy, EPA will conduct a formal consultation with wildlife agencies prior to registering a new pesticide active ingredient. If the agency determines that the pesticide is likely to adversely affect endangered species or their habitat, EPA may require additional mitigation measures from the start. EPA may also require pesticide manufacturers to add a link to an online system that alerts applicators to pesticide use restrictions in areas where endangered species and their habitat need protections.
The agency indicates, however, it will phase in this policy to provide “regulatory predictability” to pesticide manufacturers and users, and may initially register some new pesticides without completion of a formal consultation. This phase in process, which the agency indicates is due to resource constraints, will incorporate new uses for existing pesticides, including those on crops genetically engineered to tolerate pesticide use.
Less is clear about how the agency will complete ESA requirements for pesticides already on the market. Biological reviews for many commonly used pesticides, like the highly hazardous neonicotinoid class of systemic insecticides, have taken over a decade to receive a formal consultation with wildlife agencies. Earlier this year, the Center for Biological Diversity sued EPA for registering new synthetic pyrethroid insecticides without any substantive assessment of endangered species risks.
There is also concern as to whether federal wildlife agencies will take on this task. FWS, like EPA, consistently claims lack of resources as a reason for incomplete consultations and endangered species reviews. This likewise results in legal settlements with environmental groups that require FWS prioritize and adopt a timetable for its legal requirements.
EPA does provide some indication that this will not be its only substantive action on pesticide use. “Incorporating ESA assessments into the registration process for new pesticides is a key component of EPA’s larger effort to meet the Agency’s ESA obligations efficiently and effectively,” said Ya-Wei (Jake) Li, Office of Chemical Safety and Pollution Prevention Deputy Assistant Administrator for Pesticide Programs.
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.
While the Biden administration has worked to shift the tone and tenor of EPA, it has continued to reregister some of the most toxic pesticides on the market. While pentachlorophenol is on its way out, another toxic wood preservative, creosote, is set to be reregistered, despite the EPA administrator’s visit to fenceline communities in Houston that experienced the first-hand effects creosote manufacture through decades and generations of suffering. As the agency declared its intent to chart a new path, it reregistered the Parkinson’s-promoting pesticide paraquat with additional allowances for air applications that the Trump administration planned to remove.
Although EPA appears to be listening to advocates, it is imperative that the agency continue to take meaningful actions to protect people and the planet from the unnecessary use of toxic pesticides. Get involved today by calling on EPA to make further reforms, and on Congress to pass new legislation that will shift EPA policy and culture.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
Source: EPA press release, EPA Q&A
