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‘A pretty big sea change’: EPA says it will consider endangered species when approving new pesticides — without the threat of lawsuits

The EPA administrator, Michael S. Regan, who was appointed by President Joe Biden, speaks in Pennsylvania in December 2021.

Before approving new pesticides for use on crops or around homes, the Environmental Protection Agency is supposed to determine what impact they’ll have on endangered species. But, for decades, usually the only way to ensure the agency would start the process was to sue. 

In January, however, the EPA announced it plans to assess whether new pesticides will harm plants and animals protected by the Endangered Species Act. If it finds the products do, in fact, endanger protected species, the agency said it would prevent the harm.

Essentially, the agency said — for the first time — it will take a systematic approach to regulating pesticides’ harmful effects instead of being forced to comply one-by-one by different lawsuits. The new approach only applies to new pesticides, not ones already on the market.

“Before (the) announcement,” the EPA said in its statement, “in most cases, EPA did not consistently assess the potential effects of conventional pesticides on listed species. This resulted in insufficient protections for listed species, as well as resource-intensive litigation against EPA for registering new (pesticides) prior to assessing potential effects on listed species.”

It’s a sign of progress, said Brett Hartl, government affairs director for the Center for Biological Diversity, which has repeatedly sued the EPA over its enforcement of the Endangered Species Act.

“It’s a pretty big sea change,” he said. “They know they’re violating the law, but here they’re finally saying, ‘You’re right, we have to impose restrictions when there’s potential for harm.’ That is not nothing.”

With more than one million species facing extinction across the globe, the food system is the primary driver of biodiversity loss, according to the United Nations. Pesticides are one of the main drivers of that loss. They are considered to be one of the main factors driving “Insect Apocalypse,” or the severe die-off that is threatening one-third of insect populations. 

The agency’s approach to regulating pesticides has led to lawsuits, which is one reason for the change, EPA spokeswoman Cathy Milbourn said.

In making the announcement, the EPA also gave an example of how it will implement the act in the recent approval of two Enlist weed killers, which contain the herbicide 2,4-D, Milbourn said.

After Corteva Agriscience, one of the largest agrochemical companies and former agricultural unit of DowDuPont, released Enlist soybeans, the use of 2,4-D increased dramatically in recent years. 

The Enlist soybeans are genetically engineered to withstand 2,4-D and glyphosate, the active ingredient in Bayer’s Roundup. Planted on around 26 million acres last year, the soybeans are the second-most planted variety, after Bayer’s dicamba-resistant soybeans. 

Although 2,4-D has not been as controversial as dicamba, the weed killer has a propensity to move off target — it’s been found in damaged trees throughout the Midwest and South — and is a major concern for many forest health experts. 

The two Enlist weed killers are not approved in more than 100 counties where endangered species are present. Enlist Duo (which also contains glyphosate) was banned in 217 counties across 21 states. 

Many farmers were critical of the changes. They contended it created uncertainty, unfairly targeted whole counties and had a significant impact on their operations. A Corteva spokesman told DTN-Progressive Farmer it is continuing to conduct studies to get the EPA to “remove some of these geographic label restrictions while still ensuring protection of listed species and their habitats.”

Croplife America, a lobbying arm of the chemical industry, did not respond to a request for comment. The American Farm Bureau Federation declined to comment.

Dan Snyder, the EPA’s agriculture advisor who formerly worked as a lobbyist for Croplife America and the National Corn Growers Association, told DTN-Progressive Farmer that it is a necessary step toward allowing use of pesticides.

"There is concern that over time, we could actually lose tools altogether as a result of these lawsuits," Snyder said. "We feel we're at a critical moment in time to look for some longer-term solutions rather than reacting on a court-case-by-court-case basis." 

Hartl said the Enlist decision shows that even a small amount of mitigation can have a drastic impact on protecting the environment and human health.

“We can still use pesticides in most areas most of the time,” he said. “We’re not saying we need to abolish all pesticides everywhere, forever, in order to save endangered species.”

The Endangered Species Act has long been a sticking point between industry and conservationists. The Trump administration implemented many rollbacks to the law, some of which have been reversed by the Biden Administration. In the 2018 Farm Bill, House Republicans proposed removing the EPA’s obligation to follow the Endangered Species Act when it comes to pesticides, but that measure did not pass.

"Silent Spring," Rachel Carson’s 1962 book documenting the danger of pesticides, helped spark the modern environmental movement that led to the creation of the EPA in 1970 and passage of many of the nation’s foundational environmental laws in the 1970s. The main pesticide the book focused on, called DDT, caused the thinning of eggshells, which led to significant population declines of bald eagles, peregrine falcons and other bird populations. 

After DDT was banned in 1972, Congress passed the Endangered Species Act in 1973. The act has been praised for helping recover species such as the bald eagle and gray wolf. 

Patti Goldman, a senior attorney at the environmental nonprofit Earthjustice, called the new policy “a down payment” on following the Endangered Species Act. Goldman has worked on Endangered Species Act cases involving pesticides for more than 20 years. This includes successfully suing for protections for endangered salmon. 

“This is the first time they're actually putting some mitigation into place, based on anticipated impacts to endangered species,” Goldman said.

‘Regulatory predictability’

The recent announcement however, still does not follow the correct process under the Endangered Species Act, environmental lawyers told Investigate Midwest.

The EPA is supposed to follow the same process as all other federal agencies when they take an action, such as build a bridge, conduct a timber sale or lease federal land for mining. 

Under that process, the agency first must determine whether a listed species may be affected by the use of a pesticide. 

Then, if the EPA determines a listed species is likely to be adversely affected by the pesticide’s use, the agency must initiate a formal consultation with the Fish and Wildlife Service and National Marine Fisheries Service. 

Those agencies will then determine whether the action will “jeopardize the continued existence” of the species. 

If the services make a “jeopardy” call, they will then decide what mitigations the agency must conduct in order to protect the species. 

For pesticides, that can range from limitations on when the pesticide could be sprayed to an all-out ban in certain areas, such as states or counties.

In its recent change, the EPA is not waiting for the services’ consultation but instead “making a prediction about what it thinks that conclusion will be,” which is not the proper process, Goldman said.  

“It has to do that in consultation with an expert agency,” she said. “It’s skipping over that for now. It’s starting that consultation, but it’s predicting the outcome.”

In a FAQ published with the announcement, the EPA said it’s allowed to issue a registration before formal consultation as long as it will not impact future implementation of alternatives the services recommend. EPA said this process provides “regulatory predictability to registrants, growers, and other pesticide users.”

Many questions remain

Now that the EPA has announced this new policy, many questions remain about how the agency will address the backlog of pesticides that have not yet been assessed for their impact on species protected by the Endangered Species Act.

Milbourn, the EPA’s spokeswoman, said the EPA will release a work plan on the issue in the coming months.

When the EPA has followed the Endangered Species Act — when forced to do so by lawsuits — the agency has found that pesticides have a large impact on many endangered and threatened species. 

Since genetically engineered crops were introduced in the 1990s, the amount of pesticides sprayed have skyrocketed. That is particularly true for glyphosate, the most widely used pesticide in the U.S. 

The EPA found glyphosate is likely to harm 93% of endangered species, including species as wide-ranging from the gray wolf to the whooping crane to the rusty patched bumble bee. A lawsuit forced that analysis. The agency has not taken any action to protect these species from glyphosate exposure.

The herbicide atrazine — the second-most widely sprayed pesticide in the U.S. — is also likely to harm more than 1,000 of about 1,800 endangered species, the EPA found. The EPA and Syngenta reached a voluntary cancellation agreement for atrazine in the state of Hawaii after concerns were raised about its impact on endangered species in that state. Hawaii is home to about 500 endangered species.

Both of those pesticides are widely used on corn and soybeans, which are the two most planted crops in the U.S. More than 428 million pounds of pesticides are sprayed on the two crops each year, according to a report published by the Center for Biological Diversity and World Animal Protection on Tuesday.

Use of pesticides like dicamba and 2,4-D are especially expected to increase in coming years, according to the report.

Under court settlements, the EPA is supposed to assess at least nine different pesticides (chlorpyrifos, malathion, diazinon, carbaryl, methomyl, atrazine, simazine, popazine and glyphosate) and their impact on listed species.

The EPA has progressed the farthest with malathion, a popular insecticide that is commonly used in mosquito spraying and in agriculture. 

However, that pesticide has been the subject of controversy. During the Trump administration, the Fish and Wildlife Service and the National Marine Fisheries Service, the agencies charged with providing an opinion on whether species will be endangered, dramatically decreased the number of species the pesticide is considered to potentially harm. 

This happened after input from David Bernhardt, who later became Secretary of the Interior, according to The New York Times. Last year, the EPA published a draft finding from the services that said the pesticide could potentially jeopardize the continued existence of 78 species.

Milbourn, the EPA spokeswoman, said EPA plans to publish the services’ finalized opinion for malathion “in the coming weeks.”

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Midwest Center for Investigative Reporting

The Midwest Center for Investigative Reporting is an independent, nonprofit newsroom devoted to educating the public about crucial issues in the Midwest with a special focus on agribusiness and related topics such as government programs, environment and energy.

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