The U.S. Environmental Protection Agency (EPA) has announced that it will assess impacts on endangered and threatened species before it approves brand-new pesticides in the future. Given that the Endangered Species Act (ESA) has required this—and more—for decades, this shouldn’t be big news. But the change represents a huge step toward ESA compliance that should result in better protections for imperiled species and other wildlife.
The ESA’s Consultation Requirement
Section 7 of the ESA requires all federal agencies to ensure that their actions are not likely to jeopardize endangered and threatened species or destroy or adversely modify critical habitat—designated areas that are particularly important for listed species. For example, agency decisions o build or fund construction of a dam, pass or change a regulation, or approve a pesticide all must comply with this requirement. To do so, agencies must engage in a process called “consultation” before following through with a proposed action.
Simplified slightly, the agency must first determine whether the action is “likely to adversely affect” listed species or critical habitat. This is called an “effects determination.” If the agency finds that the action is not likely to adversely affect species, the agency can move forward with the action as long as the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“the Services”) agree.
But if the agency finds that the action is likely to adversely affect listed species or critical habitat, the agency must initiate formal consultation with the Services. That requires the Services to issue a written “Biological Opinion,” which explains whether the proposed action is likely to jeopardize the species or their habit. The acting agency must then take steps to ensure that those harms don’t happen.
Decades of Unlawful Pesticide Approvals
For decades, EPA has approved thousands of pesticide products containing hundreds of active ingredients (i.e., the chemicals that actually kill pests) without ever completing this process. As a result, pesticide products have been put on the market without a full understanding of their impacts on listed species, likely placing already imperiled species at even higher risk of extinction. For example, the weedkiller glyphosate has been used since the 1970s and today is used on over 300 million acres across the United States—three times the land area of California. But EPA didn’t even make an effects determination for glyphosate until late 2021, when it determined that glyphosate likely harms 1,676 species.
Over the years, NRDC and other groups have filed a series of lawsuits challenging EPA’s continuing failure to comply with the law by approving pesticides before completing consultation. In recent years, NRDC has focused on neonicotinoid pesticides, or “neonics,” widely used insecticides that are a leading cause of bee declines, threaten a huge variety of wildlife, and have been in use for decades without a formal assessment of their impacts on listed species.
EPA: Turning a New Leaf?
EPA’s new policy change partly resolves these concerns. Before approving any new active ingredient, EPA says it will complete an effects determination and enact use restrictions to limit risks to listed species. This is good news. For the first time in decades, risks to ESA-listed species will be considered before new pesticides are sent to market. And hopefully, meaningful restrictions will reduce impacts to listed species more than ever before.
But two concerns remain. First, EPA is still far behind on completing effects determinations for the countless pesticides that are already in use—like neonics. The agency is slowly working through this extensive backlog. Second, EPA’s policy only says that it will make an effects determination prior to approving new pesticides. In other words, EPA will continue to rush pesticides to market before fulfilling their full mandate under the ESA—to complete consultation before approving these products. The Services will not have the chance to apply their expertise until after a pesticide is approved, meaning pesticides might be approved and used without adequate protections in place.
To be clear, EPA’s policy change is a good one. It has the potential to significantly reduce the impacts of pesticide use on endangered and threatened species. But the devil is, as always, in the details. Will EPA conduct a robust assessment of the effects of pesticides on listed species? Will it implement meaningful restrictions to reduce risks to wildlife before approval? Will it go back and impose necessary restrictions once the Services complete their biological opinion? Our team will be monitoring these questions and others to ensure that listed species get the protection they deserve. For now, we are cautiously optimistic that EPA is on the right path.