EHS Administration, Sustainability

Can Sustainable Agriculture and the Endangered Species Act Work Together?

The EPA has struggled, and mostly failed, for many years to meet its obligations under the Endangered Species Act (ESA) to protect endangered species from pesticides.

“EPA has an opportunity and an obligation to improve how it meets its duties under the [ESA] when it registers pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),” states an EPA news release. “For most of EPA’s history, the Agency has met these duties for less than five percent of its FIFRA decisions. This has resulted in over 20 ESA lawsuits against the Agency, which have increased in frequency in recent years, creating uncertainty for farmers and other pesticide users, unnecessary expenses and inefficiencies for EPA, and delays in how EPA protects endangered species.”

To address this decades-old challenge, on April 12, 2022, the Agency announced a comprehensive work plan, Balancing Wildlife Protection and Responsible Pesticide Use.

FIFRA

Under FIFRA, all pesticides distributed or sold in the United States must be registered/licensed by the EPA. One aspect of the registration process requires applicants to show that using the pesticide as specified “will not generally cause unreasonable adverse effects on the environment.”

FIFRA defines ”unreasonable adverse effects on the environment” as:

  • ”[A]ny unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or
  • [A] human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 408 of the Federal Food, Drug, and Cosmetic Act.”

Under FIFRA and other laws, the EPA is required to determine the best way to regulate these products so they control pests without harming human health, the environment, or species listed as endangered.

“EPA currently has over 50 pesticide ingredients, covering over 1,000 pesticide products, with court-enforceable deadlines to comply with the ESA or in pending litigation alleging ESA violations,” the EPA news release says. “Completing this work will take EPA past 2040, yet the work represents less than five percent of all the FIFRA decisions in the next decade for which ESA obligations exist. This is an unsustainable and legally tenuous situation, in which EPA’s schedule for meeting its ESA obligations has historically been determined through the courts. The workplan must provide a path for the Agency to meet those obligations on its own, thus protecting endangered species while supporting responsible pesticide use.”

EPA and the ESA

There are currently more than 1,600 endangered species in the United States. So many species, coupled with the sheer number of pesticides, makes the task of compliance complicated. Additionally, the EPA faces the challenge of the unknown; “information on the vulnerability, biology, and location of many of these species is limited, especially information on how pesticides may impact their survival,” the EPA’s work plan website says.

The EPA began formulating a strategy to meet its ESA responsibilities regarding pesticides in 2021. It utilized past efforts, discussions with stakeholders, and a series of internal and external meetings, which included quarterly ESA-FIFRA meetings with stakeholders and a January 2022 public listening session on improving the ESA-FIFRA process.

“The outcome of these dialogues is a workplan, Balancing Wildlife Protection and Responsible Pesticide Use, which reflects EPA’s experiences, assesses its future ESA workload, and describes administrative and other improvements that EPA will pursue or consider pursuing,” the EPA’s work plan website adds. “The workplan reflects the Agency’s most comprehensive thinking to date on how to create a sustainable ESA-FIFRA program.”

The 74-page work plan “establishes four overall strategies and dozens of actions to adopt those protections while providing farmers, public health authorities, and others with access to pesticides,” the EPA news release continues.

Four strategies

  1. Meet ESA obligations for FIFRA actions.

“Because EPA does not have the capacity or scientific processes in place to meet all these obligations immediately, it has identified the FIFRA actions that are the highest priority for fulfilling its ESA obligations,” adds the EPA news release. Actions under strategy #1 include:

  • Meeting court-enforceable ESA deadlines. This action is the highest priority established by the Agency.

“[W]ith this workplan the Agency expects to reduce the number of deadlines established through litigation and be able to set its own priorities using far more efficient approaches to meeting its ESA obligations,” the work plan says. “Fewer litigation-driven deadlines allow EPA more opportunities to complete the other actions in this workplan and to accommodate ESA assessments for all FIFRA actions that trigger ESA requirements. This is why in the long term, EPA seeks to set deadlines for its ESA obligations based on priorities the Agency establishes on its own.”

  • Meeting ESA obligations for new registrations for conventional pesticide ingredients.

In the future, the EPA will no longer issue new registrations for conventional pesticide active ingredients without first making ESA assessments.

“In phasing in the policy, consistent with its ESA obligations, EPA may need to issue a final registration for a pesticide even if the Agency has initiated but not completed consultation for the pesticide,” the work plan states. “The policy allows the Agency to meet its ESA obligations and to provide regulatory certainty to pesticide registrants and users, and to strive to meet the applicable [Pesticide Registration Improvement Act (PRIA)] deadlines for new pesticide ingredient registrations.”

  • Meeting ESA obligations for new registrations for conventional pesticide ingredients already registered or undergoing registration review.

This action addresses pesticides not covered by any court-enforced deadlines.

The court-enforced deadlines have provided the Agency with a foundation and systems to increase its speed and the number of consultations it can complete for registration review processes.

“Moving forward, EPA, working with the Services [U.S. Fish and Wildlife Service and the National Marine Fisheries Service], will strive to fulfill its ESA obligations far more efficiently, with priority on early mitigation for vulnerable species (i.e., species at greatest risk of pesticide exposure, as defined later in the mitigation strategy),” states the work plan. “The Agency will do so through a multistep process that includes working with the Services to develop general guidance on using offsets for pesticide consultations including ecosystem-scale and advance mitigation opportunities, working with registrants to identify and adopt offsets for specific pesticides and species, ensuring that adopted offsets are legally binding as a condition of a FIFRA registration, and working with the Services to oversee implementation of offsets.”

  • Meeting ESA obligations for new registrations for conventional pesticide ingredients already registered or undergoing registration review.
  • Meeting ESA obligations for new use registrations, Section 18 emergency use registrations, and other actions on existing conventional pesticides.
  • Meeting ESA obligations for antimicrobial and biopesticide registration and registration review decisions.
  • Improve approaches to ESA mitigation.

A second strategy is to improve approaches identifying and requiring ESA protections, especially for species facing the greatest risk from pesticides.  Planned actions under this strategy include:

  • Identifying and incorporating early mitigation for vulnerable ESA species;
  • Focusing pesticide consultation processes on adopting mitigation for species likely to receive a jeopardy or an adverse modification determination;
  • Identifying flexible mitigation for all ESA species;
  • Coordinating mitigation between registration and registration review decisions;
  • Using compensatory mitigation (offsets) to supplement avoidance and minimization; and
  • Pursuing other policy and program improvements that support mitigation.
  • Improve interagency consultation process.

A third strategy is to improve the efficiency and timeliness of the ESA consultation process for pesticides in coordination with other federal agencies.

“Developing alternatives to the current approach to pesticide consultations will require EPA and the Services to address various logistical and legal issues, all of which take time,” the work plan adds. “EPA, however, sees no choice but to identify more efficient approaches that enable each consultation to cover far more pesticides or that the agencies can complete in far less time than under the current approach.”

  • Improve stakeholder engagement.

The final strategy is to engage stakeholders more effectively to better understand their pest control practices and implement species protection measures. Action items under this strategy are:

  • Obtaining data for ESA assessments by working with registrants and others to obtain the necessary data before beginning an assessment.
  • Expanding engagement with growers through the U.S. Department of Agriculture (USDA) by working with the USDA to identify a better process to increase grower engagement.
  • Expanding engagement with nonagricultural organizations. Existing relationships include environmental, tribal, and public interest organizations, as well as organizations that represent pesticide users.  The EPA plans to incorporate new relationships “with non-agricultural organizations on specific ESA-FIFRA issues and improvements to the ESA-FIFRA process.”

“Today’s workplan serves as the blueprint for how EPA will create an enduring path to meet its goals of protecting endangered species and providing all people with safe, affordable food and protection from pests,” said EPA Administrator Michael S. Regan in an Agency press release. “The workplan reflects EPA’s collaboration with other federal agencies and commitment to listening to stakeholders about how they can work with the Agency to solve this longstanding challenge.”

Biden administration ESA actions to date

  • In November 2021, the EPA worked with the USDA, Department of the Interior, Department of Commerce, and Council on Environmental Quality to reconvene the ESA-FIFRA Interagency Working Group established under the 2018 Farm Bill. In January 2021, the group held its first-ever stakeholder meeting in the form of a public listening session with over 500 participants. The group is evaluating feedback from the event and determining next steps.
  • In January 2022, the EPA renewed the registrations of two herbicide products for the 2022 growing season while incorporating robust measures to protect nontarget plants and animals under FIFRA and the ESA.
  • In January 2022, the EPA announced that before it registers any new conventional pesticide active ingredient, the Agency will meet its ESA obligations, including by evaluating potential effects on ESA-listed species and, where necessary, initiating ESA consultation with the federal wildlife agencies.
  • In March 2022, the EPA announced it will begin taking steps to protect endangered species in response to the U.S. Fish and Wildlife Service’s biological opinion for the insecticide malathion. The opinion represents a major milestone in the EPA’s collaboration with the service on the first-ever completed nationwide consultation between the agencies.

“In addition to these measures, EPA has held numerous internal strategy sessions and workshops to identify practical steps the Agency will pursue under the ESA-FIFRA workplan,” states the EPA news release. “In the coming months, EPA will offer more details on implementing the workplan, especially actions to adopt mitigation earlier in its FIFRA process and to meet its ESA obligations when reevaluating pesticides every 15 years.”

“USDA appreciates the steps EPA is taking today. We are confident that EPA can streamline ESA consultations around pesticides in a way that continues to conserve wildlife while allowing farmers access to the tools they need to produce the food and fiber that all of us rely on,” Robert Bonnie, USDA Under Secretary for Farm Production and Conservation, says.