According to the Endangered Species Act (“ESA”), federal agencies are required to consult with Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”) to ensure that federal actions will not jeopardize listed species. For example, when the Environmental Protection Agency (“EPA”) registers a new pesticide label or reviews a pesticide label for registration, it determines whether the pesticide “may affect” species listed under the ESA. If EPA concludes that a pesticide may affect any listed species, it is required to consult with either FWS or NMFS to ensure that listed species will not be jeopardized. The process by which EPA makes this determination is called a biological evaluation (“BE”). The process for creating the BE, in this situation, is outlined in the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal statute regulating pesticide regulation in the United States.
In the past, EPA’s approach to assessing pesticide risks to endangered species has often resulted in extended litigation which has led to delays in pesticide registration. Pesticides are useful tools for farmers, and lengthy delays in registration can result in pest management problems. At the same time, ensuring the protection and recovery of endangered species are two important national goals that benefit agriculture. Assessing the effects of pesticides on endangered species in an accurate, but timely manner is important to the EPA as it seeks to make pest management tools available to farmers while also protecting vulnerable species.
Since 2011, EPA has been trying to better assess the effects of proposed FIFRA actions on listed species. At that time, EPA requested that the National Research Council of the National Academy of Sciences convene a committee to examine tools for assessing the effects of potential FIFRA actions on listed species. The report was released in 2013, along with the committee’s recommendations for improving how risks to listed species are assessed. In 2015, EPA developed its first approach based on the 2013 report. Under that approach, EPA developed national-level BEs for three different pesticides. To further refine the methods adopted in 2015, EPA released a draft of proposed revised methods for evaluating the impact pesticide registration would have on listed species. EPA evaluated public comments on the draft proposal and worked with FWS, NMFS, and the United States Department of Agriculture (“USDA”) to create the final Revised Method for National Level Listed Species Biological Evaluations of Conventional Pesticides (“Revised Method”).
According to the Revised Method, released on March 12, 2020, EPA will follow a three-step process when conducting a BE. Under step one, EPA will focus on approved uses of the pesticide, which are defined on the pesticide’s product label, and determine whether the uses will have either “no effect” on listed species, or “may effect” listed species. If EPA determines that there will be no effect to a listed species, then it will likely register the pesticide without any additional action. If EPA determines that there may be an effect to a listed species, it proceeds to step two. Under step two, EPA considers whether the registration would be likely to adversely effect a listed species. Step two results in either a conclusion that the registration “may affect, but is not likely to adversely affect” (“NLAA”) a listed species, or that the registration “may affect, and is likely to adversely affect” (“LAA”) a listed species. If EPA makes a finding of NLAA, it can go on to register the pesticide without any additional action so long as either FWS or NFMS concurs with the finding. If EPA makes a finding of LAA, then it proceeds to step three which is a full ESA consultation with either FWS or NFMS.
Although the plan is only three steps, EPA must consider a variety of factors at each stage of the BE process. When considering whether the registration of a pesticide will have “no effect” or “may effect” a listed species, EPA will consider whether the area EPA expects to be sprayed with the pesticide overlaps with the known range or designated critical habitat of any listed species. If there is no overlap, EPA will make a “no effect” determination. If there is an overlap, EPA will next consider whether effects to listed species or to the species’ habitat are anticipated. If such effects are not anticipated, EPA will make a determination of “no effect,” otherwise it will reach a “may affect” determination and move on to step two.
Under step two, EPA reviews a variety of factors to consider whether to make a finding of NLAA or LAA. At this level, EPA considers impacts to individual members of listed species to make its determination. Among the variety of factors that EPA considers under step two are whether the listed species is most likely extinct, whether models predicting exposure of the pesticide to a listed species are unreliable, and whether the evidence suggests that spraying the pesticide would result in less than one member of a listed species experiencing impacts to its survival. Under the Revised Methods, EPA will only make a finding of LAA and move on to formal ESA consultation if all of the factors it considers under step two result in a negative answer.
EPA and supporters of the Revised Method view it as a way to protect and promote the recovery of listed species, while also ensuring that pesticide registration decisions are conducted transparently and in a timely manner. However, others are concerned that the Revised Method does not address certain ways in which pesticides cause harm by focusing only on effects to listed species when species habitat or range overlaps with an area where a pesticide will be sprayed.
In a case currently before the Ninth Circuit Court of Appeals, the plaintiffs argue that EPA unlawfully registered Monsanto Company’s dicamba-based pesticide, XtendiMax, after making a “no effect” determination pursuant to FIFRA. According to the plaintiffs in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, No. 19-70115 (9th Cir. TKTK), EPA should have evaluated whether XtendiMax would have affected listed species under the “may effect” standard found in the ESA instead of under the FIFRA standards. Although the case is not a challenge to the Revised Methods, a conclusion from the Ninth Circuit that EPA should apply ESA standards instead of FIFRA standards when assessing affects to listed species for proposed FIFRA actions could present a challenge for evaluating pesticide registration under the Revised Methods going forward.
For the time being, the impacts pesticide registrations cause to listed species will be assessed under the Revised Methods.
To read the Revised Methods, click here.
For more background on the Revised Methods, click here.
To read the complaint in Nat’l Family Farm Coal. v. U.S. Envtl. Prot. Agency, click here.
To read the text of FIFRA, click here.
To read the text of the ESA, click here.
For more National Agricultural Law Center resources on pesticides, click here.
For more National Agricultural Law Center resources on the ESA, click here.