Endangered Species Considerations in Pesticide Use Restrictions: Background and Legislation

Endangered Species Considerations in Pesticide Use Restrictions: Background and Legislation

June 7, 2018
Endangered Species Considerations in Pesticide Use
Restrictions: Background and Legislation
The Federal Insecticide, Fungicide, and Rodenticide Act
formal consultation is necessary. The assessment must be
(FIFRA; 7 U.S.C. 136 et seq.) requires that pesticides,
based on “the best scientific and commercial data
before being approved for distribution or sale, must be
available.” For purposes of pesticide registrations,
registered by the U.S. Environmental Protection Agency
biological assessments are also referred to as effects
(EPA). Registration approval depends on a finding that the
determinations.
pesticide will not pose “unreasonable adverse effects on the
environment” when used in conformance with labeling
Through consultation with either FWS or NMFS, federal
directions. To avoid unlawful takings of federally listed
agencies must ensure that their actions are “not likely to
threatened or endangered species under the Endangered
jeopardize the continued existence” of any listed species or
Species Act (ESA; 16 U.S.C. 1531 et seq.) from permitted
adversely modify their critical habitats. Critical habitat
uses of pesticides under FIFRA, EPA must consult with the
includes the geographic areas occupied by the species at the
U.S. Fish and Wildlife Service (FWS) or the U.S. National
time of listing and areas outside that geographic area
Marine Fisheries Service (NMFS), depending on the listed
determined by FWS or NMFS as essential for the
species of concern. The purpose of consultation is to
conservation of the species.
determine whether a federal action may jeopardize listed
species or adversely modify their critical habitat and, if so,
If FWS or NMFS finds that an action (e.g., pesticide
to develop alternative federal actions that would avoid such
registration) would neither jeopardize listed species nor
jeopardy or adverse modification.
adversely modify critical habitat, the service issues a
biological opinion that may include a written incidental
Since 1988, several organizations have challenged the
take statement specifying the terms and conditions under
adequacy of the consultation process for pesticide
which the federal action may proceed. If FWS or NMFS
registrations and its protectiveness of listed species.
finds that an action would jeopardize listed species or
Conversely, pesticide manufacturers and applicators have
adversely modify critical habitat, the service must suggest
asserted that overly conservative approaches to evaluating
reasonable and prudent alternatives that would avoid harm
risk to listed species by FWS and NMFS leads to pesticide
to the species. Regulations that govern the consultation
use restrictions that are not adequately supported by
process are codified at 50 C.F.R. Part 402. See CRS Report
scientific and technical information. Currently, EPA, FWS,
RL31654, The Endangered Species Act: A Primer for more
and NMFS must ensure that the permissible uses of more
information on the ESA and the consultation process.
than 1,100 pesticide active ingredients do not jeopardize
over 1,400 listed species or their critical habitats.
Litigation Challenging Adequacy of
Endangered Species Consultations for
Pesticide Registration Process and
Pesticide Registrations
Endangered Species Consultation
EPA, FWS, and NMFS implementation of the ESA
Before EPA registers a pesticide, the agency conducts risk
consultation process for pesticide registrations has been
assessments to determine whether “unreasonable adverse
litigated multiple times in federal court. The litigation has
effects on the environment” may result from uses to be
resulted in court orders and legal settlements that direct the
permitted by the registration. As part of the assessments,
agencies to take certain actions to comply with the ESA.
EPA determines whether listed species under the ESA
might be affected by such uses. Generally, unreasonable
In 1988, a federal appeals court ruled that without an
risks identified by the agency may be avoided through
incidental take statement prepared by FWS through the
labeling requirements that specify restrictions on use. For
consultation process, EPA’s registration of the pesticide
more information on the pesticide registration process
strychnine constituted unlawful taking under the ESA
under FIFRA, see CRS Report RL31921, Pesticide Law: A
(Defenders of Wildlife v. EPA, 882 F.2d 1294, 8th Cir.,
Summary of the Statutes.
1988). The decision affirmed the consultation requirement
for pesticide registrations.
Under ESA Section 7 (16 U.S.C. 1536), if federal actions—
or actions of nonfederal parties that require federal
Subsequent litigation has focused on specific elements of
approvals, permits, or funding—might adversely affect
the consultation process. For example, in separate
listed species as determined by FWS or NMFS, the federal
decisions, federal district and appeals courts have directed
agency taking, approving, or funding such actions must
EPA to conduct effects determinations for various
complete a biological assessment to determine whether
pesticides (e.g., Washington Toxics Coalition v. EPA, 413
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Endangered Species Considerations in Pesticide Use Restrictions: Background and Legislation
F. 3d 1024, 9th Cir., 2005). While EPA conducts effects
four other pesticide active ingredients—atrazine, simazine,
determinations, the courts have required the agency and
propazine, and glyphosate (Center for Biological Diversity
pesticide manufacturers to take interim measures that
v. DOI, No. 15-cv-00658-JCS, N.D. Cal., Dkt. 74, 2016).
restrict pesticide use (e.g., no-use buffer zones, shelf tags
FWS expects to complete these biological opinions by
accompanying pesticide product).
December 2022.
In 2004, to streamline the consultation process, FWS and
NMFS Actions
NMFS promulgated “counterpart” regulations that
In December 2017, NMFS issued a final biological opinion
established alternative consultation procedures for EPA
on the registration of chlorpyrifos, diazinon, and malathion
actions under FIFRA (50 C.F.R. Part 402, Subpart D).
to meet a court-ordered deadline (NW Coalition for
Under the regulations, FWS or NMFS would oversee EPA
Alternatives to Pesticides v. NMFS, No. 07-cv-01791-RSL,
determinations on jeopardy of listed species or adverse
W.D. Wash., Dkt. 50, 2014). NMFS had requested an
modification of critical habitat with regard to its pesticide
extension from the court to address various technical and
regulatory actions. Litigation challenging these counterpart
methodological issues, but the court denied the request.
regulations by conservation groups ultimately resulted in a
EPA sought public comment on the biological opinion to
federal district court finding that certain consultation
decide whether to reinitiate consultation or implement the
procedures were arbitrary, capricious, and contrary to law
“reasonable and prudent” measures recommended by
(Washington Toxic Coalition v. FWS and NMFS, 457 F.
NMFS (83 Federal Register 12754, March 23, 2018).
Supp. 2d 1158, W.D. Wash., 2006).
H.R. 2 Provisions
In 2008, NMFS issued a final biological opinion on the
In the 115th Congress, H.R. 2, the Agriculture and Nutrition
reregistration of chlorpyrifos, diazinon, and malathion with
Act of 2018, as reported by the House Committee on
respect to several salmon and steelhead species. Several
Agriculture, would require EPA to make determinations on
pesticide manufacturers challenged the biological opinion.
whether pesticide registrations and other related agency
In 2013, a federal appeals court found the biological
actions are likely to jeopardize federally listed species or
opinion to be arbitrary and capricious and ordered it to be
alter their critical habitat. H.R. 2 would explicitly not
vacated (Dow Agrosciences v. NMFS, 707 F. 3d 462, 4th
require EPA to consult with FWS or NMFS under ESA
Cir., 2013). NMFS has continued to work on the biological
Section 7 for such determinations unless requested by the
opinion. The status is discussed in “NMFS Actions.”
pesticide registrant. However, EPA must request
information regarding listed species from FWS and NMFS
As EPA continues to register pesticides, there continue to
to assist the agency’s determination on jeopardy or adverse
be legal challenges on ESA consultation for various
modification. Further, H.R. 2 would make EPA’s
pesticide registrations (e.g., Natural Resources Defense
registration of a pesticide without FWS or NMFS
Council v. EPA, No. 17-cv-02034, D.D.C.).
consultation not actionable in federal court.
Agency Actions in Response to Litigation Some opponents of these provisions argue that EPA does
EPA continues to issue listed species effects determinations
not have the expertise to make the required determinations
for different pesticides that are submitted to FWS or NMFS
and that the enactment of the provision would result in
for consultation under ESA Section 7. In January 2018,
pesticide registrations that do not adequately protect listed
EPA, FWS, and NMFS signed a memorandum of
species under the ESA. Further, opponents contend that
agreement to establish an interagency working group with
shielding decisions from litigation could reduce judicial
other relevant federal agencies to recommend ways to
oversight of registration decisions. Some advocates of these
improve consultations. However, various settlement
provisions contend that the provisions would streamline the
agreements are guiding FWS and NMFS actions.
registration process and help to avoid ESA-related litigation
of pesticide registrations.
FWS Actions
In 2014, as part of a legal settlement, FWS agreed to
Whether the terms and conditions of pesticide registrations
prepare nationwide biological opinions on the registration
would differ based on which federal agency (e.g., EPA,
of five pesticide active ingredients—carbaryl, chlorpyrifos,
FWS, or NMFS) is selected to assess potential effects on
diazinon, malathion, and methomyl—within certain time
listed species from the permissible use of pesticides
frames (Center for Biological Diversity v. FWS, No. 11-cv-
depends largely on the process and expertise used to assess
05108-JSW, N.D. Cal., Dkt. 87, 2014). Although FWS
relevant scientific information.
expected to issue a biological opinion on the registration of
chlorpyrifos, diazinon, and malathion by December 2017,
Jerry H. Yen, Analyst in Environmental Policy
to date, it has not been issued. FWS expects to issue final
Pervaze A. Sheikh, Specialist in Natural Resources Policy
biological opinions on carbaryl and methomyl by December
Kezee Procita, Research Librarian
2018.
IF10903
In a separate legal settlement, FWS agreed to prepare
nationwide biological opinions on the registration review of

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Endangered Species Considerations in Pesticide Use Restrictions: Background and Legislation

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