The outcome of longstanding pesticide litigation with the U.S. Environmental Protection Agency (EPA) is considered a win-win for both farmers and endangered species.
This week, the U.S. Department of Justice resolved a drawnout lawsuit covering over 1,000 pesticide products, allowing EPA to fulfill its obligations to protect endangered species while conducting reviews and approvals of pesticides in a safe and protective manner.
In 2011, the Center for Biological Diversity and Pesticide Action Network (Plaintiffs) filed a complaint in Federal Court in California against EPA alleging that it was violating the Endangered Species Act (ESA) when it registered or reevaluated the registration of 382 pesticide active ingredients, which was ultimately reduced to 35 active ingredients covering over 1,000 pesticide products containing one or more of these active ingredients. This became known as the “megasuit” because of the number of pesticides it covered. The settlement entered by the Court this week resolves all outstanding claims.
In 2017, American Farm Bureau President Zippy Duvall criticized the EPA’s intent to ban the use of chlorpyrifos on food and feed crops.
“Farmers and ranchers care deeply about the quality of our crops – nothing is more important than producing safe, nutritious food. So, we must be guided by the most reliable determinant of safety, which is science. This administration has repeatedly made commitments to abide by science, yet the EPA decision on chlorpyrifos strays from that commitment and takes away an important tool to manage pests and insects,” Duvall stated. “We urge EPA officials not to make determinations on pesticides outside of the regular registration review process already underway. The integrity of the registration review process and commitment to using sound science must be prioritized in a decision of such far-reaching consequences.”
Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention Michal Freedhoff said the recent agreement is a ‘win-win-win to protect endangered species, ensure the availability of pesticides needed to grow food across America, and save considerable time and taxpayer expenses required to further litigate this case’.
“This settlement allows EPA adequate time to fulfill its obligations under the Endangered Species Act and adopt key elements from the Agency’s 2022 ESA Workplan, which a wide range of stakeholders support,” Freedhoff said in a news release.
According to the EPA, the agency issued its ESA Workplan Balancing Wildlife Protection and Responsible Pesticide Use in 2022: How EPA’s Pesticide Program Will Meet its Endangered Species Act Obligations, which describes how EPA will address the challenge of protecting ESA-listed species from pesticides. The ESA Workplan was developed with public listening sessions and public comment. This settlement is consistent with EPA’s ongoing efforts to develop a multichemical, multispecies approach to meeting its ESA obligations under the work plan.
EPA’s traditional chemical-by-chemical, species-by-species approach to meeting these obligations has been slow and costly, with ESA work on each pesticide typically taking many years to complete. As a result, EPA has completed its ESA obligations for less than 5% of its actions, creating legal vulnerabilities, the potential for adverse impacts to listed species, and uncertainty for farmers and other pesticide users that use many pesticides. Resolving the remaining claims in this lawsuit and establishing a path forward under the settlement is a significant step to overcoming these challenges.
This agreement and the prior partial settlement include obligations for EPA, many of which are also described in the ESA Workplan. Those actions include:
- Development of mitigation measures for listed species that are particularly vulnerable to exposures from pesticides and determine how to apply these mitigations to future pesticide actions, as well as whether this Vulnerable Species Pilot should be expanded to more species. EPA met its first deadline (June 30, 2023) for this action by conducting public outreach on the mitigation measures identified for the first set of species.
- Development and implementation of an Herbicide Strategy (draft released for public comment), a Rodenticide Strategy, Insecticide Strategy, and Fungicide strategy (the latter three are still under development) which will identify mitigation measures for entire classes of pesticides to address their potential impacts to hundreds of ESA-listed species
- Completion of the ESA work for eight organophosphates and four rodenticides;
- Hosting of a workshop for stakeholders to explore how to offset pesticide impacts on ESA-listed species in situations where eliminating or modifying pesticide use may not be feasible, and how EPA could incorporate those offsets into its process for registering or reregistering pesticides. Offsets could include restoring wetland habitat or funding breeding programs for affected species.
