What’s the Harm? Examining EPA’s New Approach to ESA Compliance When Making FIFRA Decisions
Topic:
The Endangered Species Act (“ESA”) is one of the best-known environmental laws in the United States. It protects species
from extinction by requiring the federal Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) to identify endangered species, which then receive all the protections offered by the ESA, including prohibitions on harming endangered species or their designated critical habitat. The ESA also requires every federal agency to help carry out its goal of preventing species extinction by requiring each agency to ensure that their actions will not harm endangered species. If a federal agency finds that its proposed action “may affect” any endangered species, it will consult with FWS or NMFS to make sure that any potential harm it minimized.
The Environmental Protection Agency (“EPA”) is responsible for administering the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the primary statute regulating pesticides in the United States. Under FIFRA, EPA carries out a variety of agency actions, including registering new pesticides for use, adding new uses to previously registered pesticides, and reviewing existing pesticide registrations every fifteen years. Under the ESA, EPA consult with FWS or NMFS on each of its FIFRA actions to minimize any potential adverse impacts to endangered species. However, for decades EPA failed to conduct such consultations. This has led to a series of lawsuits resulting in court decisions finding that EPA failed to comply with ESA.
In an attempt to come into compliance with the ESA and reduce the amount of pesticide registrations at risk of being overturned by a court for failure to comply with the law, EPA is developing a new policy for how it will meet its ESA responsibilities when carrying out FIFRA actions. Under this new policy, EPA will conduct ESA consultations across whole groups of pesticides and create a “menu” of mitigation measures intended to reduce the impacts of pesticide applications to endangered species. EPA claims that its new policy will both increase protections for endangered species and be more efficient than its previous approach. However, many remain skeptical of EPA’s approach. Critics say that EPA’s new policy is over-broad and could harm the agricultural industry by limiting when and where producers are able to spray.
In this webinar, NALC Staff Attorney Brigit Rollins will discuss what we know so far about EPA’s new ESA/FIFRA policy, the various legal issues at play, and what this all means for agriculture.
Time and Date:
Wednesday, February 21, 2024
Noon – 1 p.m. (EST)
11 a.m. – Noon (CST)
Participation:
Presenters:
Brigit began her life in Sonoma County, in the heart of California’s wine country. Growing up, she was surrounded by small farms, dairies, and wineries, which ultimately led to a passion for agriculture and the environment. She attended Sonoma State University where she earned a Bachelor of Arts in environmental studies, and a minor in studio arts. While at Sonoma State, Brigit studied different types of agricultural methods and how those methods could be used to promote environmental sustainability. After graduating from Sonoma State in 2015, she started as a law student at Lewis & Clark Law School in Portland, Oregon. While at Lewis & Clark, she worked as a student clerk for the Western Resources Legal Center, where she worked on cases assisting small ranches, farms, and municipalities. During her time at Lewis & Clark, she also interned with the California Farm Bureau Federation, and worked as a law clerk for the Sacramento-based environmental law firm Somach Simmons & Dunn. While at the California Farm Bureau, Brigit focused on Environmental Species Act issues and water law issues, as well as issues specific to California. While at Somach Simmons & Dunn, Brigit expanded her work on water law and participated in work involving federal Indian law. On campus, Brigit was on the board of Lewis & Clark’s Food & Ag Law Society and served as a student member of the ABA Public Lands Committee. She is licensed to practice law in Oregon.
Brigit began her work at the Center as a research fellow during her second year of law school. As a research fellow, Brigit worked on a wide variety of agricultural law topics ranging from liability issues to the new frontier of lab-grown meat. In 2019, Brigit graduated from Lewis & Clark and joined the Center full-time. At the Center, her primary area of research and scholarship is environmental law as it intersects with agriculture. She maintains an interest in promoting sustainability and environmental health through agriculture and resource use.