EPA hits reset on pesticides and endangered species work

By E.A. Crunden | 04/12/2022 01:34 PM EDT

Pesticide sign.

A sign warns of pesticide spraying risks. jetsandzeppelins/Flickr

This story was updated at 2:15 p.m. EDT.

EPA is switching gears on its approach to protecting endangered species from pesticides with a first-of-its-kind plan announced today, in an effort to address one of the most contentious chemicals-related issues dogging the agency.

In order to honor its obligations under the Endangered Species Act, EPA plans to revise how it handles relevant pesticides issues, releasing a document mapping out a new blueprint for the agency. EPA is seeking to move away from a reactive approach shaped by litigation and court mandates to a more proactive process it hopes will stem an ocean of lawsuits.

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“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,” said EPA Administrator Michael Regan in a statement.

Ya-Wei “Jake” Li, deputy assistant administrator for pesticides programs in EPA’s chemicals office, said the changes will help reset his office’s approach to dealing with endangered species protections. That issue has repeatedly proved contentious and stalled EPA’s pesticides work.

“We are finding ways to ensure that the regulations and requirements we impose on the public are reasonable,” said Li in an interview this morning with E&E News. “It’s about looking at how we protect endangered species in a way that is mindful of the way growers need to rely on pesticides to do their jobs.”

Under the new work plan, EPA will focus on its approach to registrations through the Federal Insecticide, Fungicide and Rodenticide Act. That statute drives U.S. pesticides law, but EPA acknowledged today that the agency has met its endangered species duties under FIFRA “less than 5 percent” of the time.

That trend has led to more than 20 lawsuits against the agency carried out under the ESA and leading to a number of challenges. EPA said the frequency of the lawsuits has both created uncertainty for farmers and pesticide users and delayed the agency’s own actions around endangered species protection. Currently, EPA has over 50 pesticide ingredients with court-enforceable deadlines to comply with the ESA or in a pending status.

That covers over 1,000 pesticide products and would take the agency into 2040 to complete, EPA said. Pesticide reviews can take four to 15 years, yet EPA’s staffing within its pesticides program is only around its fiscal 2013 levels, further hindering the process.

Pointing to that situation as “unsustainable and legally tenuous,” the agency is now hoping to move forward with a new vision for protecting endangered species while approving pesticides for use. Under the work plan, EPA has identified “highest priority” obligations, namely those that have court-enforceable deadlines, as well as new registrations of conventional pesticides. Species of concern include a number of fish and amphibians, like Pacific salmon and the California red-legged frog.

The agency also said it plans to better engage stakeholders, along with committing to “improve approaches to identifying and requiring ESA protections” and “improve the efficiency and timeliness of the ESA-FIFRA process, in coordination with other federal agencies.”

Li said the improvements include steps like incorporating ESA protections earlier in the pesticides review process. EPA will also be launching pilot programs to expand on its goals, including an effort this year that will “identify and implement practical conservation practices across approximately two dozen listed species.” Interagency partners that EPA is consulting with include the Fish and Wildlife Service, Department of Agriculture, and National Marine Fisheries Service.

Martha Williams, Fish and Wildlife Service director, said in a statement that her agency “is eager to help EPA achieve its vision to protect federally listed threatened and endangered species while fulfilling its obligations related to authorizing the safe use of pesticides.”

EPA also plans to create a process for tapping into compensatory mitigation, or “offsets,” to supplement both avoidance and minimization efforts. In instances where pesticide effects on species cannot be avoided, Li said, EPA will seek to counter impacts with conservation actions like habitat restoration. The agency currently lacks a process for incorporating offsets into FIFRA actions, something he cited as a hurdle.

Li said the move tied in with broader actions taken under the Biden administration, which has also flexed its muscle through the Toxic Substances Control Act and other statutes as EPA explores stricter regulations for toxics. But he emphasized the benefits for regulated entities, which currently grapple with vague legal oversight and unclear rules.

“I think that we’re providing more legal certainty to growers and pesticide users,” he said. “Litigation and court settlements are dictating our entire workload. … We want to proactively take control of our own destiny.”

Responsible Industry for a Sound Environment, which represents pesticide users, deferred comment on the announcement to CropLife America. Chris Novak, CLA’s president and CEO, appeared to welcome the workplan in a statement.

“Today’s EPA announcement of a comprehensive workplan to balance wildlife protection and responsible pesticide use is an important step in protecting threatened and endangered species,” said Novak, “ensuring farmers and other pesticide users have needed tools for managing pests, and providing regulatory certainty for the product.”

Years of controversy

The Biden administration’s moves come after decades of uproar and criticism aimed at EPA’s handling of pesticides. Environmental groups have long argued the agency does not appropriately exercise its powers under FIFRA to protect endangered species, resulting in widespread risks for vulnerable populations.

That criticism has ramped up recently as scrutiny has fallen on actions across the chemicals office. Whistleblower complaints and concerns about interference have dogged EPA’s work on toxics, even as the Biden administration has pledged reform (Greenwire, Dec. 23, 2021). Some groups are particularly concerned about the office’s pesticides work, which they say shows a long history of signing off on industry requests and clearing unsafe products.

Last October, a coalition of 37 groups sent a letter to EPA calling on the agency “to re-think its application of current standards in law to meet the crises of the day” presented by pesticides (Greenwire, Oct. 26, 2021). Pointing to specific examples, the groups cited a number of qualms including approved use of Roundup, or glyphosate, a cancer-linked pesticide, as well as Seresto pet collars linked to almost 2,000 animal deaths. Internal staff emails have since shown significant upheaval over the pet collars within EPA, as agency scientists cited concerns with the products (Greenwire, March 25).

Other high-profile controversies include back-and-forth over chlorpyrifos, a neurotoxic insecticide. The Biden administration said in August that it would ban that pesticide’s use on food, but advocates remain concerned about the lack of a full ban. Meanwhile, per- and polyfluoroalkyl substances, or PFAS, have also cropped up in pesticides, further causing problems for EPA (Greenwire, March 5, 2021).

Li said his office is very aware of the concerns raised by advocacy groups and that the work plan would be a “living document” that would guide a number of future steps for the agency. “If we succeed, there will be a lot more we can get done,” he said.

Some advocates felt the work plan left a lot to be desired. Kyla Bennett, who directs science policy for the group Public Employees for Environmental Responsibility, said she appreciated EPA’s honesty around not having the resources to meet its demands in a reasonable time frame. But she pointed to a number of concerns, namely the work plan’s emphasis on pesticide users.

“This document is unduly concerned with flexibility for pesticide users, without giving any consideration to people adversely affected by pesticides,” Bennett said.

Ultimately, she said the document was an acknowledgment of EPA’s failures on pesticides policy while failing to take responsibility for the issue.

“They are doing this because they were sued,” Bennett said. “They are claiming they are unable to do their job because they keep getting sued. But if they did their job correctly, they wouldn’t be sued.”

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