October 22, 2023, is the last day to submit comments on the Environmental Protection Agency’s (“EPA”) Draft Herbicide Strategy Framework to Reduce Exposure of Federally Listed Endangered and Threatened Species and Designated Critical Habitats from the Use of Conventional Agricultural Herbicides (“Draft Herbicide Strategy”). The document is one component of EPA’s new policy on how to satisfy its responsibilities under the Endangered Species Act (“ESA”) when carrying out actions pursuant to the Federal Insecticide, Fungicide, Rodenticide Act (“FIFRA”). The policy shift comes in part as the result of multiple lawsuits that have been filed against EPA over the past several years by environmental groups claiming that EPA violated the ESA by failing to engage in mandatory consultation when carrying out FIFRA actions. Although the policy is still under development, the Draft Herbicide Strategy is expected to be finalized in 2024.
Endangered Species Act
The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) are responsible for administering the ESA. The Services work to identify species at risk of extinction and then list those species as either “threatened” or “endangered” under the ESA. Once a species is listed, it receives ESA protection. However, the Services are not the only federal agencies tasked with carrying out the ESA. All federal agencies are required to further the purposes and aims of the ESA by consulting with the Services any time they carry out an agency action to ensure that the action will not jeopardize the existence of listed species. 16 U.S.C. § 1536(a)(2).
Under the ESA, an agency action is defined as any activity that a federal agency has “authorized, funded, or carried out[.]” 16 U.S.C. § 1536(a)(2). Examples of activities that would be considered agency actions under the ESA include the promulgation of regulations; granting a license, contract, lease, or permit; or actions that directly or indirectly cause modification to the environment. 50 C.F.R. § 402.02. When a federal agency carries out an agency action, the ESA requires that agency to determine whether the action “may affect” any threatened or endangered species. 50 C.F.R. § 402.14. In general, this is regarded as a very low threshold to clear. According to FWS, a “may affect” finding is appropriate when the proposed action may have consequences to any protected species. If a federal agency finds that its action “may affect” a species listed under the ESA, its next step is to reach out to the Services to determine whether the proposed agency action is likely to adversely affect any listed species. If the action is likely to adversely affect a listed species, then the agency carrying out the proposed action (known as the “action agency”) will initiate formal consultation with the Services.
During formal consultation, the Services will prepare a document known as a Biological Opinion or “BiOp.” 50 C.F.R. § 402.14(e). The goal of formal consultation is to ensure that the proposed agency action will not jeopardize the continued existence of a listed species. 16 U.S.C. § 1536(a)(2). The ESA defines “jeopardy” as “an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02. If the Services find that a proposed agency action will result in jeopardy, then the BiOp will contain a selection of mitigation measures or alternative proposals that will meet the intended purpose of the proposed agency action while avoiding the likelihood of jeopardy. 50 C.F.R. § 402.02. From there, it is up to the action agency to decide how to proceed.
While there are a handful of exceptions to the ESA’s consultation requirements, the United States Supreme Court affirmed in Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), that all “actions in which there is discretionary Federal involvement or control” are subject to ESA consultation.
Federal Insecticide, Rodenticide, and Fungicide Act
FIFRA is the primary federal statute regulating the sale and use of pesticide products in the United States. EPA is responsible for administering FIFRA and carrying out numerous agency actions pursuant to the statute.
Under FIFRA, no pesticide product may be legally sold or used in the United States until the EPA has registered a label for that product. 7 U.S.C. § 136a(a). To register a label, EPA must determine that use of the pesticide according to its label instructions will not cause “unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5)(C). FIFRA defines “unreasonable adverse effects on the environment” as “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.” 7 U.S.C. § 136(bb). Unlike the ESA “may affect” standard which serves as a yes/no threshold, FIFRA’s “unreasonable adverse effects” standard is a balancing test that requires EPA to weigh all expected impacts of registering the pesticide.
Along with registering new pesticide labels, FIFRA directs EPA to review all registered pesticides once every fifteen years. The registration review process can take multiple years, and may involve issuing an interim decision prior to a final decision. Additionally, EPA may take a variety of other actions under FIFRA such as adding a new use to a previously registered pesticide label, or granting an emergency use. Each of these actions is recognized as an agency action for purposes of the ESA, and is therefore subject to ESA consultation. However, up until recently, EPA has primarily only conducted ESA consultation when registering new pesticide active ingredients. For all other actions, EPA relied on FIFRA’s “unreasonable adverse effects” standard. This policy ultimately resulted in numerous lawsuits.
Over the last several years, EPA has been subject to various lawsuits filed by different environmental groups alleging that EPA has violated the ESA by failing to engage in ESA consultation when taking agency actions under FIFRA. In some cases, such as Ctr. for Food Safety v. U.S. Envt’l Protection Agency, No. 1:23-cv-01633 (D. D.C., June 6, 2023), which was filed earlier this year, the plaintiffs challenge the registration of a pesticide without prior ESA consultation. More information on that case is available here. In other cases, such as Nat. Res. Def. Council v. U.S. Envt’l Prot. Agency, No. 20-70787 (9th Cir. 2020) and Rural Coal. v. U.S. Envt’l Prot. Agency, No. 20-70801 (9th Cir. 2020), the plaintiffs challenged registration review decisions that were issued without consultation. More information on both of those cases is available here. Still other cases, like Farmworker Ass’n of FL v. Envtl. Protection Agency, No. 21-1079 (D.C. Cir. 2021) have involved challenges to EPA actions that amend a registered pesticide label by adding a new use without ESA consultation on that specific use. Information on that case is available here.
Many of these cases have ended in court decisions favorable to the plaintiffs. In Farmworker Ass’n of FL v. Envtl. Protection Agency, the court found that EPA had failed to undergo ESA consultation when it amended the label for the pesticide aldicarb to allow for use on orange and grapefruit trees in Florida to combat citrus greening disease. There, the court vacated the label and sent it back to EPA for further ESA review. Without the label in place, aldicarb was unavailable for use on citrus trees. In Ctr. for Food Safety v. Regan, No. 19-72109 (9th Cir. 2022), the court found that EPA had unlawfully registered the pesticide sulfoxaflor without undergoing ESA consultation. While the court chose to leave the registration in place, it remanded the decision to EPA with a court-ordered timeline to complete consultation. The full decision is available here.
Currently, EPA claims that completing all the ESA consultations for pesticides that are currently subject to court decisions or on-going litigation would take the agency at least until the 2040s and would represent only 5% of EPA’s ESA obligations. In an effort to more efficiently meet its ESA obligations and craft stronger pesticide labels, EPA has developed its new ESA-FIFRA policy.
Draft Herbicide Strategy
EPA’s new policy on how to meet its ESA obligations while taking agency action under FIFRA contains a variety of different strategies. In a work plan published by EPA in April 2022, and a subsequent update published the following November, EPA outlined two overall strategies that it would pursue in an effort to bring existing pesticide labels into ESA compliance. The first strategy involves breaking out registered pesticides into similar groups – herbicides, insecticides, and rodenticides – and then identifying and implementing early ESA mitigation measures for those groups. The second strategy involves identifying threatened and endangered species that are considered highly vulnerable to pesticides, and developing mitigation measures to protect those species from pesticide exposure. While several of these approaches are still in the planning stage, EPA has made its Draft Herbicide Strategy available for public comment, and expects to finalize and begin implementing this part of its ESA-FIFRA policy in 2024.
Under the Draft Herbicide Strategy, EPA has identified two primary categories of mitigation measures that it expects to include on herbicide labels. The first category of mitigation measures will be targeted at reducing pesticide spray drift, while the second category will focus on reducing pesticide runoff and erosion. According to EPA, these are two of the most common ways that threatened and endangered species are exposed to herbicides. Reducing exposure is expected to reduce the likelihood that future ESA consultations will result in a finding that FIFRA actions will jeopardize the existence of listed species.
The Draft Herbicide Strategy identifies buffers in the form of windbreaks or hedgerows, hooded sprayers, and application rate reductions as mitigation measures to reduce spray drift. To reduce runoff and erosion, the Draft Herbicide Strategy identified a variety of mitigation measures, including restrictions on applications if rain is in the forecast; restrictions based on field characteristics such as soil make up and field slope; methods of application; in-field management activities designed to reduce runoff such as mulch amendment or terrace farming; management activities adjacent to sprayed fields such as establishing a buffer strip; and other activities aimed at increasing water retention. For the mitigation measures for runoff and erosion, EPA is also proposing a point-based system designed to give farmers more control over which measures to implement. Each of the previously mentioned mitigation measures would be assigned a point value based on how effective the measure is at reducing runoff or erosion. Pesticide labels will identify how many points are necessary for the pesticide’s intended use. From there, farmers can implement the mitigation measures that work best for them to achieve the number of points needed to apply the pesticide. Importantly, the Draft Herbicide Strategy notes that activities farmers are already taking to reduce runoff or erosion may be used to satisfy the point system. Currently, EPA does not appear to be recommending a similar system for implementing spray drift mitigation measures.
According to the Draft Herbicide Strategy, the proposed mitigation measures will be incorporated into pesticide labels in two primary ways. Mitigation measures that EPA finds are necessary across the contiguous 48 states will be directly included as part of the pesticide label. However, some mitigation measures are only needed in specific geographic areas. For those measures, EPA expects to increase its use of the website Bulletins Live Two (“BLT”). BLT is a website run by EPA that provides geographic-specific updates to pesticide labels. For example, if EPA determines that mitigation measures are needed to reduce runoff of a particular pesticide in the Pacific Northwest region of the country to prevent exposure to listed species only found in that area, instead of adding additional language to the pesticide label, it would direct applicators to check the BLT website. There, EPA would have language addressing geographic-specific restrictions. According to the Draft Herbicide Strategy, EPA intends to make greater use of BLT as it begins implementing its new policy, and will include additional language on pesticide labels directing applicators to check BLT prior to application.
The Draft Herbicide Strategy represents only one aspect of EPA’s new ESA-FIFRA policy. As roll out and implementation of this policy continues, farmers and pesticide applicators can expect to see additional application restrictions included on pesticide labels. As previously mentioned, some of the restrictions will be included in the labels themselves, while others will be available on the BLT website. It is currently unclear how quickly these label changes will be made. EPA’s work plans and the Draft Herbicide Strategy suggest that these mitigation measures will be incorporated into labels as they come before EPA for registration and registration review.
The comment period on the Draft Herbicide Strategy will close on October 22, 2023 with a final draft expected next year. EPA also intends to release a draft of its insecticide strategy in 2024, along with drafts of the strategies aimed at protecting vulnerable species. While it is still too early to know what the ultimate outcome of this new policy will be, the Draft Herbicide Strategy offers an informative look at what is to come.
To read the Draft Herbicide Strategy, click here.
To learn how to submit a comment on the Draft Herbicide Strategy, click here.
To read the text of the ESA, click here.
To read the text of FIFRA, click here.
For more information on pesticides from the National Agricultural Law Center, click here.