Monday, July 22, 2024

EPA Close to Clearing Legal Backlog, Working on Herbicide, Insecticide Strategy Incorporating the Endangered Species Act

⋅ BY MARY HIGHTOWER ⋅

Rod Snyder, the Environmental Protection Agency’s senior adviser for agriculture, speaking at the 11th Mid-South Ag and Environmental Law Conference in Memphis, Tennessee, on June 7, 2024. (U of A System Division of Agriculture photo by Drew Viguet.)

Lack of personnel and sketchy maps are among the stumbling blocks as the Environmental Protection Agency works pesticide approvals through the lens of the Endangered Species Act, according to a senior EPA adviser.

The courts have prompted EPA to enact a new strategy for pesticide registrations. Under the Endangered Species Act, all federal agencies, including the EPA, must consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, to ensure no endangered or threatened species are jeopardized.

Rod Snyder, appointed EPA’s senior advisor for agriculture in 2021, said Friday that “there has been no bigger issue to impact pesticide policy in decades than this endangered species conversation.”

Snyder, along with Brigit Rollins, staff attorney for the National Agricultural Law Center, were co-presenters of “Tomorrow’s Harvest: An Overview of the Regulatory and Litigation Landscape for Crop Protection Products.”

Their presentation was part of the center’s Mid-South Agricultural and Environmental Law Conference in Memphis, Tennessee.

Litigation has resulted in a court-ordered schedule to review specific active ingredients from those cases with Fish and Wildlife and the National Marine Fisheries.

“Going chemical by chemical, it’s incredibly slow and arduous, and Fish and Wildlife Service and National Fisheries are even less equipped to manage the volume and complexity of these things.  At least EPA has experts in this space” with more scientists than either Fish and Wildlife or National Marine Fisheries.

“So, it’s quite a bottleneck,” he said. “It was not a sustainable way and it also leaves the entire industry this tremendous vulnerability as to whether or not potentially for products to be vacated.”

Knowing that reviews could take decades, the EPA introduced its endangered species work plan in April 2022. The plan was intended to help EPA get ahead and “make labels that would hold up better in court,” Rollins said.

“The backlog of ESA litigation around pesticides has begun to get cleared and there have not been a lot of new cases filed,” Snyder said. “I think there’s only one currently outstanding and if you think about the last 15-plus years, that is a remarkable development and we are getting a little bit of a reprieve from new litigation.”

Snyder said he hoped that final case would be cleared by the end of the year.

EPA released its draft herbicide strategy in July 2023 and public comments are currently being evaluated. The deadline for the final strategy has been extend until this August. The EPA is also drafting an insecticide strategy, which if expects to be available for public comment in July, with the final version set for spring 2025.

Snyder also spoke about the agency’s Vulnerable Species Pilot Project, which includes 27 species seen as most sensitive to pesticides including plants, insects, fish, isopods, amphibians, mollusks, birds and mammals. The project has been hampered by a lack of good maps showing species habitat.

“We are not going to implement the pilot for species until we have more refined maps,” Snyder said. “Like the Taylor checkspot butterfly — the map that was originally published for that, and the most-high profile case — covered almost the entire state of Washington.”

Rollins said “if anyone is wondering why these maps aren’t as accurate as they could be, again Fish and Wildlife Service doesn’t have the funding it needs. With a lot of these maps, if you’re talking about going and finding where this butterfly is located, and that takes bodies, that takes manpower going out there and observing.”

In some cases, the “maps” are as simple as describing the kind of habitat the species relies upon,” Rollins said.

EPA doesn’t make the maps, only adopts the ones provided by the services, Snyder said.

Fire and gumption

Earlier in the presentation, Rollins reviewed dicamba’s legal situation, noting the plaintiffs’ strategy to sink registration of dicamba formulas on procedural grounds. The strategy worked, and in February, plaintiffs won a federal court decision vacating the chemical’s use in over-the-top applications.

However, it’s not the end of the road and manufacturers have submitted rewritten labels for two of the formulations: XTendiMax and Engenia.

“If those labels go through these same plaintiffs are going to file a fourth lawsuit,” she said. “They’ve been successful twice. They have fire. They’ve got gumption. Why wouldn’t they keep going?”

There’s legal action on other fronts too, Rollins said.

“We’ve also seen claims from plaintiffs who are filing cases saying, ‘we were injured due to pesticide use.’ I think most famous one you have is plaintiffs saying use of glyphosate caused us to develop non-Hodgkin’s lymphoma. We’ve also seen it in paraquat and chlorpyrifos,” she said.

A trend among these cases, filed in state court, is the claim that the manufacturers failed to warn the plaintiffs about health risks associated with their products, Rollins said.

“The plaintiffs argue that you, the pesticide manufacturer, failed to warn me about this risk that your product posed to me, and you need to do something about that. You need to pay some money,” she said.

The crux is whether those “failure-to-warn” claims should be pre-empted by FIFRA, the Federal Insecticide, Fungicide, and Rodenticide Act, which the EPA uses to regulate pesticides.

“FIFRA has a provision that states shall not impose or continue in effect any requirement for labeling or packaging addition to, or different from, those required under FIFRA,” Rollins said.

“Plaintiffs say, ‘you didn’t include a carcinogen warning on the label’ and you have the manufacturers saying, “of course we didn’t. That’s not required under our FIFRA label,” she said.

There is also the argument that these products were misbranded because they don’t include a warning label.

However, a ruling by a three-judge panel from the 11th Circuit Court of Appeals said, “yes, these failure-to-warn claims are not pre-empted by FIFRA. These claims can stand,” Rollins said.

She said there’s a chance the issue could be taken up by the U.S. Supreme Court, but that may be less likely since the full panel of the 11th Circuit failed to take up the issue.

Meanwhile, in some states, bills are being filed to prevent failure-to-warn claims against pesticide manufacturers if that pesticide isn’t required to have a carcinogen warning on the label.

“We have yet to see one of these bills be successful,” Rollins said.

Mention of brand names does not imply endorsement by the University of Arkansas System Division of Agriculture.


Mary Hightower is chief communications officer for the University of Arkansas System Division of Agriculture and may be reached at mhightower@uada.com.

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