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EPA takes new stance on pesticide risks to endangered species

Less than a week into the new year of 2022, the Center for Biological Diversity announced its intention to sue the US Environmental Protection Agency (EPA) for approving 300 pyrethroid insecticides over the past six years, without considering their potential harm to endangered species. The EPA is no stranger to such lawsuits; environmental groups have sued the agency repeatedly for decades for failing to comply with the Endangered Species Act (ESA) when registering pesticides. The law requires the EPA to consult with other federal agencies when a pesticide has the potential to harm endangered species or their critical habitats, but the agency has rarely done this without litigation first being initiated. 

But now, in what can be described as a paradigm shift, the EPA is taking the issue seriously and is being more proactive about assessing these substances’ compliance with the Endangered Species Act (ESA), according to a feature article in Chemical & Engineering News, an independent news outlet of the American Chemical Society.

Senior Editor Britt E. Erickson writes that in January 2022, the agency rolled out a policy stating it would now evaluate how active ingredients could impact endangered species before new pesticides are introduced to the market, instead of waiting to be sued after products are already commercially available. The EPA also appointed Ya-Wei “Jake” Li, a lawyer with experience in chemical regulation and endangered species conservation, as deputy assistant administrator for pesticide programs. Li’s top priority is improving the pesticide office’s compliance with the ESA.

“Incorporating ESA assessments into the registration process for new pesticides is a key component of EPA’s larger effort to meet the Agency’s ESA obligations efficiently and effectively,” Li said in a Jan. 11 statement announcing the policy.

With the new policy, EPA also committed to consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service when appropriate. This is the process that is meant to take place when assessing the potential effects of a new pesticide, but it has not been successfully employed in many instances in the past. One of the issues is that the different agencies use different methods and criteria to determine the thresholds and risks of a pesticide for endangered species. 

For example, in the case of malathion, the EPA predicted that nearly all endangered species would be negatively impacted, whereas the Fish and Wildlife Service stated that less than 5 percent would experience such consequences. Some groups say that the EPA’s models overestimate pesticide usage and potential impacts, forcing companies and farmers to use mitigation measures that aren’t necessary. In the meantime, litigation is likely to continue as a way to keep focusing attention on the issue.

Some environmental groups welcome the EPA’s change in approach, but are worried that the policy will only be applied to include new pesticide products, and not to the countless, toxic products already on the market. 

The Center for Biological Diversity is urging the EPA to systematically evaluate pesticides by class for their potential to harm endangered species. In its latest intent-to-sue notice to the EPA, the group suggests starting with pyrethroids because of their acute toxicity to several endangered species.

“Despite pyrethroid pesticides representing one of the most dangerous and harmful groups of pesticides for aquatic wildlife, as well as causing significant harm to other wildlife and plants, the EPA has failed to take a single action to implement any on-the-ground conservation actions to protect any endangered species from these toxic chemicals,” the Center writes in a Jan. 6 letter to EPA administrator Michael Regan.

Although stakeholders are generally encouraged that the EPA is talking to parties on all sides of the issue in order to chart a path forward, they remain doubtful that this will be the year that the agency comes up with a workable plan to address the risks of pesticides to endangered species. 

According to Hartl of the Center for Biological Diversity, if the agency fails to address the backlog of pesticides that have not undergone endangered species consultations, “we’ll bring lawsuits, class by class, to address the violations and force a queue to develop. We really do want to make sure that the most important places are protected,” he says, so that there aren’t “spraying or applications happening in a way that pushes species towards extinction.”

By Alison Bosman, Staff Writer

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