CLA sees potential progress in recent ESA litigation settlements

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Two recent litigation settlements addressing the Endangered Species Act (ESA) in the context of Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) pesticide registrations will result in nationwide ESA consultations, encompassing potential impacts to both aquatic and terrestrial endangered species for five pesticides. While CropLife America (CLA) does not support every aspect of these settlements, they represent modest steps toward a more streamlined approach to ESA review in the FIFRA context. CLA has been an active participant in both litigations, spanning a decade, and has repeatedly stressed both the inefficiencies of species-specific biological opinions (BiOps), and the need for a more comprehensive, science-based approach to ESA review of FIFRA registration decisions.   

On Aug. 15, 2014, a federal district court in Washington state approved a settlement-ending litigation brought by the Northwest Center for Alternatives to Pesticides (NCAP) and others against the Environmental Protection Agency (EPA) for allegedly failing to implement recommendations made by the National Marine Fisheries Service (NMFS) in two BiOps following ESA consultations between NMFS and EPA (NCAP v. EPA). The BiOps concerned the effects of certain crop protection products on endangered salmonids in the Pacific Northwest. NCAP v. EPA is the latest in the Washington Toxics line of cases, which have been ongoing for over a decade, each challenging different aspects of attempts by EPA and NMFS to complete ESA review relating to these registrations.

Under this settlement, NMFS has agreed to conduct a nationwide ESA review both for the products impacted and plans to finish those BiOps by Dec. 31, 2017, and Dec. 31, 2018, respectively. 

The NCAP v. EPA settlement follows closely on the heels of a recent revision to the 2013 settlement of ESA litigation challenging pesticide registrations and alleging impacts on the endangered red-legged frog (Center for Biological Diversity v. FWS). On July 28, 2014, the parties to that suit agreed to suspend a previously agreed-upon schedule for FWS to complete BiOps on the effects of specific pesticides on the endangered red-legged frog in favor of undertaking nationwide BiOps addressing the same pesticide registrations to be addressed in the NCAP v. EPA settlement. 

 “Taken together, these two settlement decisions should lead to comprehensive nationwide consultations between EPA, NMFS and FWS addressing potential ESA impacts resulting from these pesticide registrations,” said Jay Vroom, president and CEO of CLA. “This type of collaboration is a good first step in implementing the National Academy of Sciences’ recommendation in its 2013 report, supporting a streamlined approach to assessing the potential effects of pesticides on threatened and endangered species.”

The agree-to nationwide consultations are intended to be pilot projects for a new, more collaborative approach to ESA review of pesticide registration decisions that NMFS, FWS, EPA, and the U.S. Department of Agriculture (USDA) are developing.

CLA is actively involved in current ESA reform efforts and looks forward to working with EPA, the Services, USDA and other interested stakeholders to craft a science-based ESA pesticide consultation process that protects both threatened and endangered species and American agricultural production. For more information, visit www.croplifeamerica.org/pesticide-issues/endangered-species.


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