A draft bill circulating on Capitol Hill would exempt pesticide registrations from the Endangered Species Act consultation process, prompting supporters of the current rules and critics to rally their respective advocates.
Supporters of the current process say it's designed to ensure that the chemicals do not harm endangered species or their habitat, while critics claim that the current rules add red tape that prompts more legal challenges, makes crop protection chemicals more expensive for farmers and does little to actually protect endangered species.
The draft language, which was obtained by environmental groups and made public last week, would add a provision to the part of the Federal Insecticide, Fungicide, and Rodenticide Act that lays out conditions for pesticide registration.
A new paragraph states that, in addition to the already existing requirements in FIFRA, EPA must register a pesticide when “it is not likely to jeopardize the survival of a federally listed threatened or endangered species or directly or indirectly alter, in a manner that is likely to appreciably diminish its value, critical habitat for both the survival and recovery of the listed species.”
But EPA could make that determination without the benefit of formal consultation with either the Fish and Wildlife Service or National Marine Fisheries Service, which administer the ESA. Those agencies are currently required by the ESA to evaluate whether federal actions such as timber sales or highway construction – or pesticide registration – will jeopardize species or adversely affect their critical habitat.
The draft bill allows FWS and NMFS to submit scientific information within 30 days of the start of EPA’s endangered species review process for a pesticide. But consultation, as defined in the ESA, would only have to take place if requested by the registration applicant.
“The pesticide industry wants to deep-six all evidence of the massive threats its products pose to our wildlife,” said Lori Ann Burd, environmental health director at the Center for Biological Diversity. “If this appalling bill passes, the EPA would have virtually no power to prevent toxic new pesticides from fueling the extinction of some of America’s imperiled birds, butterflies and fish.”
Peter Jenkins, counsel at the Center for Food Safety, said that CropLife America is behind the bill and “we know that they’ve targeted some of the most important committees,” but he declined to go into much detail. “We wish we knew who would be a sponsor” of the bill, which at this point has not been introduced, Jenkins said.
In addition to scrapping the consultation requirement, Jenkins noted that the bill would prevent the federal government from enforcing the “incidental take” provisions of the ESA. In other words, if someone used a pesticide in a way that harmed endangered species, they could not be prosecuted.
“Where’s the protection?” Jenkins asked.
Jay Vroom, president and CEO of CropLife America, said he would not respond to the environmental groups’ press release about the draft bill’s potential impacts. He also would not say whether CropLife is pushing the legislation.
But he reiterated a point CropLife has made for years: “The ESA is not helping species any more than it is helping agriculture.”
CropLife and some of its manufacturer members have fought environmental groups in court over claims that pesticides harm ESA-listed species and need to be subject to consultation requirements. In different settlements, EPA has agreed to evaluate the effects of some commonly used pesticides such as atrazine, glyphosate, chlorpyrifos and carbaryl.
But ESA pesticide consultations take years and cost a lot of money, Vroom said. In a related matter, the National Marine Fisheries Service recently asked a federal court in Washington state to give it two more years to fully evaluate the effects of malathion, diazinon and glyphosate on fish. A settlement agreement requires NMFS to complete its Biological Opinions on the active ingredients by the end of the year. Now, NMFS says it needs until December 2019.
An appropriations bill released by the Senate Appropriations Committee on Monday urges the Fish and Wildlife Service not to enter into any court settlements involving multiple species “unless the state and local governments where the species are located are a party” to them.
Vroom said CropLife will continue to defend its members’ products in the courts and at federal agencies, and on Capitol Hill. He said the group is working now on administrative fixes with some “non-traditional allies.” He declined, however, to say who they were.
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