In 2014, several environmental groups petitioned the United States Fish and Wildlife Service (“FWS”) to list the monarch butterfly under the Endangered Species Act (“ESA”). Since the initial petition was submitted to FWS, there has been a lawsuit that resulted in a deadline by which FWS had to make a final listing decision for the monarch, as well as an extension of the original deadline. Now, FWS has until December 15, 2020 to make a final decision on whether to list the monarch butterfly under the ESA. Listing the monarch as an endangered or threatened species could have long term effects on agriculture because the butterfly is found in many parts of the United States, including crop fields, and a listing decision could make it a violation of the ESA to harm the monarch. This could ultimately affect pesticide registration and usage. In litigation challenging federal pesticide registrations, such as the Enlist Duo and dicamba cases, plaintiffs have argued that the registrations were unlawful because the Environmental Protection Agency (“EPA”) failed to properly consider the result of registration on monarchs.
While waiting on the final listing decision, members of the agricultural industry have entered into voluntary conservation agreements with FWS called Candidate Conservation Agreements with Assurances (“CCAA”). The goal of such agreements is to improve the status of the monarch butterfly so that it does not need to be listed under the ESA.
The Endangered Species Act
The purpose of the ESA is to protect and recover species at risk of extinction, as well as their habitats. It is administered by FWS and the National Marine Fisheries Service (“NMFS”). FWS takes primary responsibility for terrestrial and freshwater organisms, while NMFS is mainly responsible for marine wildlife.
Under the ESA, a species can be listed as either “endangered” or “threatened” under the ESA. It is a violation of the ESA to import, export, take, possess, sell, or transport any endangered or threatened species. Under the Act, “take” is broadly defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to engage in any such conduct.” Additionally, the ESA provides that land necessary for the survival of a listed species should be designated critical habitat. The prohibition on “take” includes the destruction of critical habitat. The ESA also requires all federal agencies to consult with the FWS and the NMFS before engaging in any action that may affect protected species or adversely modify critical habitat. For more information on the function of the ESA, see here and here.
Listing the Monarch Butterfly
The monarch butterfly is a large orange and black butterfly that is known for its annual migration between Canada and Mexico, where the butterfly overwinters before heading back north. There are two populations of the monarch butterfly, one to the east and one to the west of the Rocky Mountains. Both populations depend on milkweed, their host plants and sole source of food, for survival. In recent decades, both monarch populations have dropped drastically, with some estimates suggesting that the population of monarchs east of the Rockies has dropped by 90 percent since 1995.
A petition to list the monarch butterfly was first submitted to FWS in August, 2014 by a coalition of environmental groups including the Center for Biological Diversity (“CBD”) and the Center for Food Safety (“CFS”). The petitioners argued that the monarch should be listed under the ESA because it was threatened by all five factors that the Act uses to determine whether a species should be listed. Those factors are: (1) the present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence. The main threat that the petitioners identified as a threat to the monarch was the loss of its milkweed habitat. The petitioners identified the use of pesticides such a glyphosate, dicamba, and 2,4-D as one of the main reasons that milkweed was in decline.
Under the ESA, a petition for listing triggers a process for addressing the petition. Within 90 days, FWS must determine whether the petition has “substantial information” indicating that listing “may be warranted.” It the agency makes that determination, then it has twelve months to gather information and make a final listing decision. In response to the initial petition to list the monarch butterfly, FWS determined that the petition contained substantial information indicating that listing may be warranted. However, it failed to make a final listing decision within twelve months. That delay prompted CBD and CFS to file a lawsuit seeking to compel FWS to set a legally binding deadline by which the final listing decision had to be made.
The original case, Ctr. for Food Safety v. Jewell, No. 4:19-cv-00145 (D. Ariz. March 3, 2016), was filed in the United States District Court for the District of Arizona. It was transferred to an ongoing multidistrict litigation involving ESA deadline claims against FWS, and then eventually settled. The parties agreed that FWS would issue its final decision to list the monarch butterfly by June 30, 2019. That date has since been extended so the final listing decision is now due by December 15, 2020.
Conservation Agreements
Since setting a date to issue the final listing decision for the monarch butterfly, efforts have been underway to conserve monarch habitat in the hopes of preventing the need for ESA protection. Much of these efforts have been voluntary, and have ranged from small scale efforts from individual landowners to plant patches of milkweed to projects that span across various states and involve several different state departments of wildlife working together to implement monarch conservation plans. However, the largest monarch conservation program is the Candidate Conservation Agreements with Assurances (“CCAA”) which FWS announced on April 8, 2020. The Agreement has been entered into by multiple state departments of transportation and members of the energy and transportation sector who collectively manage several millions of acres of rights-of-way across the lower 48 states. The Rights of Way as Habitat Working Group, led by the University of Illinois-Chicago, developed the agreement with FWS and manages the program.
CCAAs are agreements FWS enters into with one or more non-federal landowners to engage in voluntary conservation efforts of a species that has not been listed under the ESA. FWS works with landowners in a CCAA to implement conservation measures designed to help keep a species from needing ESA protection. In exchange, the landowners receive regulatory assurances that if the species covered by the CCAA is listed, the landowner will not be required to do anything beyond what is specified in the agreement. CCAAs are authorized by the ESA, which encourages FWS to help interested parties develop and maintain conservation programs.
The CCAA for the monarch butterfly is regarded as the first of its kind because it is nationwide and covers an area consisting of land across the lower 48 states. According to the agreement, the “covered area” includes “lands managed by energy and transportation partners within the migratory and breeding range of the monarch butterfly across the lower 48 states of the U.S.” Per the agreement, the covered lands will be managed to promote monarch habitat.
Going Forward
At the moment, it is unclear whether the conservation measures taken in recent years will prevent the monarch butterfly from ESA listing. It is also unclear what long-term effects on agriculture listing the monarch would have. It is possible that listing the monarch could affect pesticide registration. The litigation challenging the Environmental Protection Agency’s (“EPA”) registration of Enlist Duo, a pesticide that combines glyphosate and 2,4-D, argues that the registration was invalid because EPA failed to fully consider the effects of Enlist Duo on the monarch butterfly. If the monarch becomes listed, that could potentially affect the outcome of the case. For more information about that litigation, click here.
Usage of certain pesticides may also be affected if the monarch butterfly is listed. The prohibition on “take” in the ESA applies to private individuals. If use of a pesticide results in “take” of a monarch butterfly or its critical habitat, that would be a violation of the ESA, even if the pesticide is used legally and according to its federally registered label. This has the potential have far-reaching effects on agriculture because there is a significant overlap of areas where pesticides are used and areas that are considered critical habitat for the monarch butterfly.
The final listing decision from FWS is due by December 15, 2020, but could be released before then. We will publish an update when the listing decision is published.
To read the text of the ESA, click here.
To read the petition to list the monarch butterfly, click here.
To read the complaint in Ctr. for Food Safety v. Jewell, click here.
To read the settlement agreement in Ctr. for Food Safety v. Jewell, click here.
To read the CCAA, click here.
For more National Agricultural Law Center information, click here.