In November, 2020, the Environmental Protection Agency (“EPA”) released a draft Biological Evaluation (“BE”) assessing the risks posed to species listed under the Endangered Species Act (“ESA”) from registered uses of glyphosate. According to the BE, use of glyphosate is “likely to adversely affect” over 90% of species listed under the ESA. While this document is only a draft, the final BE could ultimately result in changes to the glyphosate label.

What a BE is & Why EPA Drafted One

The BE is a part of the process used by EPA to determine whether glyphosate should remain registered for use under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). All pesticides registered under FIFRA must be periodically reviewed to ensure that they still meet the standards necessary for FIFRA registration. In 2006, EPA adopted a FIFRA review program that requires the agency to review each registered pesticide every fifteen years. EPA began its review of glyphosate in 2009. In January, 2020 the agency issued a final interim approval decision. That decision is regarded as clearing the way for glyphosate’s ultimate re-approval, however there are still portions of the review process that have yet to be completed.

Part of the glyphosate review that is still in process involves determining the impact that a pesticide will have on species listed under the ESA. One requirement of EPA’s responsibilities when either registering a pesticide or reviewing a pesticide’s registration is to determine whether use of the pesticide is likely to adversely affect wildlife and vegetation. This requirement comes from FIFRA which states that EPA may only register a pesticide if “it will perform its function without unreasonable adverse effects on the environment[.]” 7 U.S.C. § 136a(c)(5)(c). In order to fulfill that requirement, EPA will assess the risk that a pesticide poses to species listed as either threatened or endangered under the ESA. The result of that assessment is one of either two determinations: (1) that a pesticide will have “no effect” on listed species, or (2) that a pesticide “may affect” listed species. A “no effect” determination requires no further action from EPA. However, a “may affect” determination requires the agency to undergo further assessment to determine whether the pesticide “may affect, but is not likely to adversely affect” (“NLAA”) the species, or “may affect and is likely to adversely affect” (“LAA”) the species. If EPA makes a NLAA conclusion, that means that the identified effects to listed species are either insignificant, discountable, or beneficial. The BE published by EPA is the document that contains these conclusions.

Under the ESA, federal agencies are required to consult with either Fish and Wildlife Service (“FWS”) or the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) whenever a federal agency determines that a proposed project may adversely affect listed species. When registering and reviewing pesticides, EPA is not required to consult with the Services after a “no effects” determination. A NLAA finding will result in a process called informal consultation, where the Services will review the conclusion and will either agree or disagree with EPA’s finding. Finally, a LAA conclusion will cause the Services to engage in formal consultation with EPA. The formal consultation process involves drafting a document known as a Biological Opinion which provides the Services’ view on whether registering the pesticide is likely to jeopardize the continued existence of a listed species.

Drafting a BE is an important part of the pesticide registration and review process because it ensures that EPA is complying with both FIFRA and the ESA.

What the BE Says

The draft BE for glyphosate details the listed species that EPA evaluated, its conclusion on the effects of registering glyphosate for each species, and the specific uses of glyphosate that EPA believes poses a threat to listed species. The BE made effects determinations for 1795 of the 2360 species, both foreign and native to the United States, listed as either threatened or endangered under the ESA. That included both plant and animal species. EPA did not reach a single “no effects” conclusion for any of the species examined under the BE. All of the species EPA examined received a “may affect” determination. From there, EPA made NLAA findings for 119 species, and LAA determinations for 1676 species. Additionally, EPA concluded made NLAA findings for 33 areas of designated critical habitat under the ESA, and LAA determinations for 759 critical habitats. This translates to about 93% of the species, and 96% of critical habitats analyzed by EPA receiving a LAA finding.

While EPA concluded that registering glyphosate would adversely affect many listed species, the BE notes that agricultural uses of glyphosate were not the main risk factor. Instead, EPA concluded that non-agricultural uses posed the greatest threats to listed species. Specifically, EPA identified uses of glyphosate associated with forestry, rights-of-way applications, and open space development as posing the biggest threat to listed species and critical habitats.

Going Forward

Importantly, the document published by EPA is a draft, not a final report. EPA will be taking comments from the public that it will use to draft the final BE. The comment period is open for sixty days for, and comments can be submitted here. Although the draft BE contains LAA findings for 1676 species, it is possible that the final BE may reach different conclusions. Whether the Services will engage in formal consultation with EPA over the review of glyphosate will not be determined until after the final BE is published.

If the Services do engage in formal consultation and produce a Biological Opinion, that process could ultimately result in changes to the glyphosate label in order to avoid harm to listed species. However, it is unclear at this point what kind of changes would be made. It is possible that any future changes to the label would be primarily targeted at non-agricultural uses if the Services agree with EPA that risks to listed species are mostly the result of non-agricultural activity. Ultimately, the degree of consultation that the Services engage in will not be known until the final BE is published.

To read the draft BE, click here.

For more information from EPA about evaluation of listed species, click here.

To read the text of FIFRA, click here.

To read the text of the ESA, click here.

For more information on pesticides from the National Agricultural Law Center, click here.