Earlier this week, four federal agencies released a report on how they intend to improve the pesticide registration and consultation processes. This is a small but noteworthy step toward resolving the debacle over how to ensure that pesticides use complies with the Endangered Species Act (ESA). To date, the story of pesticides and endangered species is mostly one of head on collisions, culminating in litigation by both environmental groups and pesticide registrants. Recently, however, the agencies responsible for implementing federal pesticide and endangered species laws have attempted to work collaboratively to resolve some of their differences. This new report is one such effort.
The report was issued by the U.S. EPA, U.S. Fish & Wildlife Service, National Marine Fisheries Service, and U.S. Department of Agriculture, all of which play a role in administering the ESA and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is the federal law that regulates the registration and use of pesticides. The report describes various process improvements intended to achieve three goals: (1) earlier stakeholder involvement when pesticides are evaluated for registration or re-registration under FIFRA; (2) earlier adoption of conservation measures to reduce the adverse impacts of pesticides on endangered species; and (3) an ESA consultation process that is more focused and efficient because it already incorporates risk-reduction measures.
Defenders believe these are laudable goals, as explained in our comment letter on a draft of the report from October 2012. Our letter also described how the agencies could improve the draft report. Unfortunately many of these recommendations were not adopted. Here are two unresolved issues.
First, EPA will hold focus group meetings to better define the intended uses of pesticides as early as feasible and incorporate early risk reduction measures to minimize the adverse impacts of pesticides on wildlife. We encouraged EPA to allow all interested members of the public to participate in these meetings. The final report, however, does not explicitly indicate that this will happen, instead focusing on “affected registrants and possibly other stakeholders via invitation.” While we realize that registrants and users are in the best position to provide information to EPA at this early stage of the registration process, it remains unclear how the goal of “public participation and transparency” is advanced when participation appears limited by default. Non-registrants may have important contributions, particularly on ways to “adopt risk reduction measures before registration review beings.”
Second, the report describes how the agencies will make greater use of informal consultation in evaluating the risk of pesticides to endangered species. The final report, however, lacks clarity on how the agencies will work together to accomplish this goal. For example, the proposal does not specifically discuss the role of EPA’s 2004 Ecological Risk Assessment Process, which guides the agency’s biological effects determinations for listed species. As a result, it is unclear how that process would fit within the process improvements described in the report.
On the other hand, we are pleased to see some of our comments addressed in the final report. For example, we noted that it was legally inaccurate for the draft report to claim that “Service regulations require that [reasonable and prudent alternatives (RPAs)] be both technologically and economically feasible to the action agency and the applicant.” This sentence implies that both the action agency and the applicant must agree to the feasibility of any RPAs, a requirement that is not explicitly supported by either the Services regulations at 50 C.F.R. §402.14(g) or the Section 7 Consultation Handbook. The final report contains language that fixes this technicality.
Looking ahead, the four agencies must resolve numerous science and non-science issues if they are to fix the problems with the current pesticide registration and consultation processes. The National Academy of Sciences is expected to release a study in a few weeks recommending how the agencies can address six science questions that have plagued them for decades. But science alone cannot save the day. As explained in my book chapter on this topic, the agencies must also address risk-tolerance, funding, and other issues that are fundamental to ensuring that pesticide are used in a manner that does not unduly harming endangered species.