This is an ongoing series on policy proposed by the U.S. Environmental Protection Agency to bring its ESA-FIFRA process into compliance. 

In the U.S., there are more than 17,000 registered pesticide products containing more than 1,200 active ingredients, and the U.S. Environmental Protection Agency (EPA) is responsible for evaluating and regulating these products to protect the people and environment from associated health risks. 

With these obligations come a laundry list of processes and statutes the EPA must follow, including the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). This effort requires considerable time and resources, taking the EPA up to four years – and in some cases up to 15 years – to register a single pesticide. 

Additionally, each pesticide must be reviewed and re-registered every 15 years, and the same goes for any new uses added to a pesticide label. Bottom line, it’s a lot of work and the EPA has admitted to falling behind. 

This lag has opened the door to mounting lawsuits in recent years, resulting in settlements and court orders against the EPA. It is also part of what prompted EPA to develop a workplan to refine their ESA-FIFRA policy and bring it into compliance.

Related:Western lawmakers seek ESA changes

As these changes begin to surface, it is critical for farmers and pesticide applicators to understand their impact on the farm level. To help wrap our minds around this complicated information we turned to Brigit Rollins, staff attorney at the National Agricultural Law Center.  

Rollins presented the full spectrum of potential EPA policy changes in December 2023 at the annual meeting of the Agricultural Council of Arkansas. In this series we will dive into the details of her presentation and share EPA updates as they develop. 

For now, let’s start with the four fundamentals you should know about the ESA-FIFRA process. 

1. FIFRA: The basics

FIFRA was enacted in 1947 and is administered by the EPA. It is the primary statute regulating all pesticides in the U.S., requiring them to be registered under FIFRA before being used or sold. 

Since its enactment, FIFRA has undergone several amendments specifying labels, classification, and safety standards to protect pesticide handlers, and anyone exposed to pesticides or pesticide residue. 

FIRFA registration is considered an agency action and requires the EPA to determine whether a product will have an unreasonable adverse effect to humans or the environment when used as intended. As part of this process, any company registering a pesticide is responsible for providing data to the EPA to base its decision. 

Related:Endangered Species Act threatens pesticide use

Rollins said this unreasonable adverse effect standard serves as a balancing test. If the EPA determines the benefits of using a pesticide outweigh any potential risks, the pesticide can be registered under FIFRA. 

In addition, EPA carries out numerous other agency actions under FIFRA each year, like modifying pesticide labels for new use, registering new active ingredients, and reviewing registered pesticides every 15 years. 

This list of agency actions is important to keep in mind as we lay out the EPA’s further obligations under the ESA. 

2. The ESA: Purpose and requirements

The ESA was signed into law in December 1973, as a conservation program to protect threatened and endangered species and their habitats. The act is administered by the U.S. Fish and Wildlife Service (FWS) and the U.S. National Oceanic and Atmospheric Administration (NOAA) Fisheries Service.  

These two administrative agencies are responsible for identifying and listing threatened and endangered species and designating their critical habitat. Furthermore, federal agencies like the EPA are required to consult with the FWS and NOOA Fisheries Service to ensure that any actions taken do not jeopardize the existence of listed species or destroy their critical habitat. 

To fulfill this requirement, the EPA must participate in a consultation process laid out in Section 7 of the ESA. This Section 7 consultation determines if any EPA action “may affect” a listed species or impact a critical habitat.  

If the action passes the initial consultation, then the EPA has fulfilled its obligation. However, Rollins noted the “may affect” standard has a low threshold and is easily triggered. When this happens, formal consultation is initiated for a deeper assessment of the agency's action.   

Rollins said, “This is a very important part of the ESA. I could probably spend an hour talking about the consultation process itself, but so we are all on the same page, this is something every federal agency is required to do when taking any agency action.” 

3. EPA's failure to comply

Think back to the EPA’s requirements under FIFRA to register, review, or relabel pesticides. For each of those FIFRA actions, the EPA must fulfill its Section 7 consultation duty. Unfortunately, it has failed to comply. In fact, the EPA has admitted to its inability to keep up with the workload.  

“In the past decades, the Agency has met those obligations for less than 5% of the thousands of pesticide actions it completes annually under FIFRA,” as written in the EPA’s 2022 workplan, Balancing Wildlife Protection and Responsible Pesticide Use. 

This non-compliance has resulted in over 20 lawsuits, steering the EPA’s priorities toward meeting ESA settlements and court-ordered deadlines. In addition, this has also created a great deal of uncertainty for farmers and pesticide applicators who rely on those products in question. 

Rollins said, “The ESA requirements are iron clad. There is not a lot of wiggle room here. Most of the time, courts will side with the environmental plaintiffs because of how clearly the ESA Section 7 consultation requirements are written.  

“This makes our pesticide labels less secure and is one of the reasons EPA is pursuing a new policy – in effort to reduce some of these lawsuits and come into full ESA compliance.” 

4. EPA's new ESA-FIFRA policy

Rumblings of the EPA’s new policy began a few years back and were released in the 2022 EPA workplan. 

Rollins said, “EPA’s new ESA-FIFRA policy is focused on what they are calling early mitigations. These restrictions will be added to pesticide labels to reduce pesticide impacts to listed species and critical habitats. The goal is to reduce future jeopardy findings, reduce future consultations, and therefore require fewer mitigations down the line.” 

To accomplish this feat, the EPA is developing mitigations in two broad means. One is through pesticide use strategies for each of three groupings: herbicides, insecticides, and rodenticides. The other is through tailored mitigations addressing pesticide risks to species deemed highly vulnerable by the EPA. 

So far, two of these EPA mitigation measures have been rolled out for public comment.  

First, a draft of the Vulnerable Species Pilot (VSP) program, released June 22, 2023, proposed mitigations to either minimize or avoid pesticide exposure for 27 federally listed species that were determined by the EPA to be highly vulnerable to pesticides.  

Second, a draft Herbicide Strategy, released on July 24, 2023, proposed early mitigations to reduce pesticide impacts for over 900 listed species and their critical habitats.  

Public comment for each has since closed, and an update has been released for the VSP. At the time of this writing, we await an update on the draft Herbicide Strategy along with the release of a draft Insecticide Strategy expected in early 2024. 

These proposals are each part of a bigger picture that will continue to develop and will no doubt apply to every farming operation. We invite you to follow along with upcoming parts to this series, as we take a deep dive into these new policies and uncover their impact on the farm level.