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Daily News Blog

01
Dec

Federal Court Sets Deadline for EPA to Implement Endangered Species Protections from Toxic Insecticide

(Beyond Pesticides, December 1, 2022) The U.S. Environmental Protection Agency (EPA) must put measures in place to protect endangered species from the hazardous insecticide cyantraniliprole before September 2023. The requirements stems from a recent federal appeals court ruling that found EPA in violation of its statutory obligations under the Endangered Species Act (ESA). The agency originally lost its legal case on this chemical in 2017, but has since done nothing to fulfill the initial court order, necessitating further litigation by conservation groups. “It’s outrageous that the EPA is thumbing its nose at a federal court order even as cyantraniliprole wreaks havoc on our most endangered wildlife,” said Jonathan Evans, environmental health legal director at the Center for Biological Diversity. “The EPA has acknowledged that this pesticide is incredibly toxic to bees and other invertebrates, but the agency is so accustomed to putting the profits of the pesticide industry ahead of its duty to protect human health and our environment that for years it simply ignored a direct court order.”

Cyantraniliprole is a systemic insecticide registered for use in 2014. It presents similar risks to pollinators and wildlife as other widely used systemics, such as the neonicotinoid class of chemicals. Its mode of action works by impairing the regulation of muscle contractions, causing paralysis and eventual death in insects. EPA considers the chemical “highly toxic on acute and oral contact basis” to bees. But despite clear data on the hazards to pollinators, the agency registered the chemical as a seed treatment and on a range of crops whose productivity depends on insect pollination.

Not only did EPA register this chemical with known hazards to pollinators, it also failed to consider, let alone mitigate, any potential impacts the chemical could cause to endangered species. In addition to pollinator impacts, the chemical was found to be “very highly toxic” to certain aquatic species.  It also showed evidence of liver damage in multiple tested species, including rats, mice and dogs, and was found to have the ability to alter the thyroid of laboratory rats. These data indicate a potentially significant threat to a range of aquatic and terrestrial endangered species, as well as human health.

Conservation and food safety groups sued EPA within months after registering cyantraniliprole, citing the agency’s failure to address and mitigate impacts to endangered species. The lawsuit took three years to work through the courts, resulting in a 2017 ruling that EPA violated the ESA when approving cyantraniliprole by failing to consider harm to endangered species. The court mandated EPA conduct required consultations under ESA with federal wildlife agencies (the U.S. Fish and Wildlife Service and National Marine Fisheries Service) in order to evaluate the dangers posed. Yet documents uncovered by the Center for Biological Diversity through a Freedom of Information Act request reveal that EPA took no steps whatsoever to fulfill this federal court order. Follow up legal cases resulted in the agency being ordered by a federal circuit court to fulfill its obligation in 2019. Again, no action was taken.

In 2021, another lawsuit was launched to force the agency to comply with its original legal requirements and the court order requiring it to fulfill its original legal requirements. Now, with the recent ruling in favor of conservation groups, EPA has a court ordered deadline to fulfill its legal obligations. “Today’s decision is a vital victory for endangered species and the planet,” said George Kimbrell, the Center for Food Safety’s legal director and co-petitioner in the case. “As EPA has proven over and over with pesticides, the only way the agency will do its job is when forced by a court.”

It appears as though the courts not only have to force EPA to do its job, but set a clear, unambiguous deadline for the agency to fulfill its order. As with the chemical chlorpyrifos, EPA delayed action on the chemical for years before finally receiving a court mandate to take final action in 2017, which then-Administrator Pruitt reversed, setting up another round of court battles. This resulted in another court deadline, in which the U.S. Court of Appeals for the 9th Circuit in San Francisco in its ruling in May, 2021, in which it mandated EPA action, said, “The EPA has had nearly 14 years to publish a legally sufficient response to the 2007 Petition [filed by environmental and farmworker groups].” The court continued, “During that time, the EPA’s egregious delay exposed a generation of American children to unsafe levels of chlorpyrifos.”

In addition to cyantraniliprole, as recently as 2020, EPA registered the pesticide inpyrfluxam without ESA consultations, resulting in a lawsuit wherein EPA committed to drafting endangered species determinations by the end of this year.

While those sympathetic to EPA may excuse these actions as a result of a lack agency resources, advocates argue that it is not resources, but priority that is most concerning. Throughout these court deadlines, EPA managers continued to direct staff to review and approve toxic pesticides. Instead of fulfilling court ordered requirements, and shifting resources to these projects, the agency has remained focused on keeping pesticides on the market for as long as possible. In the context of understanding EPA as a captured agency beholden to those it is supposed to regulate, rather than the public and environment it is mandated to protect, these actions are unsurprising, yet still profoundly distressing.   

For its part, EPA released a new policy earlier this year indicating that it will follow the law and review the impact of pesticides on endangered species prior it its use. As Beyond Pesticides wrote at the time, “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.”

While the long term efficacy of this directive has yet to be seen, it is important not only for EPA to fix issues in the future, but provide adequate scrutiny to the thousands of active pesticide ingredients already in commercial use. Join us in telling EPA to take meaningful action to protect endangered species.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

Source: Progressive Farmer DTN, Center Biological Diversity press release

 

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