Could this bill exempt pesticide approval from endangered species requirements?

By MATT KELLY

This is shaping up to be a year to pay close attention to actions by the Environmental Protection Agency on the regulation and use of pesticides in the United States. In the wake of Scott Pruitt’s decision on chlorpyrifos and at the same time the agency is reviewing the registration of five neonic insecticides, there is now a report that the national trade organization representing manufacturers and distributors of pesticides is seeking sponsors on Capitol Hill for proposed legislation that would change the way pesticides are approved by the EPA. This legislation would circumvent the scientific consultation required by the Endangered Species Act and effectively eliminate the prohibition against causing incidental harm to species listed as endangered, such as the rusty patched bumble bee.

On January 25, The Center for Biological Diversity sent a letter to every senator and representative expressing its concern about the proposed legislation. The letter was signed by 258 conservation, consumer, agricultural and public interest groups, and it called on members of Congress to oppose “all efforts to weaken the Act’s ability to protect our environment from toxic pesticides.”

During an interview by phone, the Center for Biological Diversity identified CropLife America as the organization that originated and is now seeking sponsors for the bill.

When contacted by phone, the communication department of CropLife America said that it would email a statement regarding the legislation; that statement had not yet arrived at the time this story was published. On its website CropLife America identifies itself as “the national trade association that represents the manufacturers, formulators and distributors of pesticides”. It also states that the association provides “legislative and regulatory advocacy, legal support and communications outreach” in the interest of its member companies.

Under current law, all pesticides distributed or sold in the United States must be registered by the EPA. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) establishes the EPA’s authority to regulate the distribution, sale and use of pesticides.

Also under current law, the Endangered Species Act requires all Federal agencies to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to ensure that any action authorized, funded or carried out by the agencies “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”

Approval and registration of a pesticide by the EPA is considered an action that is subject to this required consultation. According to the Center for Biological Diversity, the bill being circulated would amend FIFRA and effectively exempt the EPA approval process of pesticides from Endangered Species Act requirements in two notable ways. First, instead of consulting with the Fish and Wildlife Service and the National Marine Fisheries Service, “the EPA Administrator would conduct his own assessment and make unilateral decisions with respect to the impact of pesticides on endangered and threatened species.” Second, “if EPA has determined that a pesticide will not jeopardize the survival of a species or adversely modify its critical habitat under new [legislation] then neither EPA nor presumably the registrant or end user may be held liable for any incidental take resulting from the lawful (label approved) use of the product” as is the case under current law.

Along with its letter of opposition, the Center for Biological Diversity also released a copy of the bill it says is being circulated by CropLife America. The Center’s line-by-line analysis of the bill can be found here.

This year the EPA will be completing its review of registration for five neonicotinoid insecticides. At present, this review process is subject to the consultation requirement of the Endangered Species Act, and incidental harm caused by these insecticides to endangered species (such as the rusty patched bumble bee) is prohibited.