A Trump administration effort to change the way pesticides are reviewed under the Endangered Species Act turned six months old Tuesday with little official results to show for its brief existence.
On Jan. 31, Interior Secretary Ryan Zinke, Commerce Secretary Wilbur Ross and then-EPA Administrator Scott Pruitt signed a Memorandum of Agreement to set up a working group on pesticides and the ESA consultation process.
The ESA requires federal agencies to consult with one another on the effects of agency actions on species listed as threatened or endangered under the law. But so far, for pesticides, the process has been “highly challenging,” the MOA said, citing the “several years” it has taken the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to examine the effects of three active ingredients – diazinon, malathion and chlorpyrifos – on endangered species.
Since Pruitt announced the MOA at the National Association of State Departments of Agriculture Winter Policy Conference, however, there has been no word from the federal government on the working group – its membership, agenda, meetings or progress.
Because it does not have any members who work in the private sector, the group is not subject to the Federal Advisory Committee Act, which would require public meetings, although the MOA does say that the group can seek input from outside parties “consistent with the requirements” of FACA.
The federal agencies involved had little to say on the matter. USDA’s Sheryl Kunickis, head of the Office of Pest Management Policy, said she was not involved in the process, but that Deputy General Counsel Stephen Vaden is representing USDA on the working group. Vaden did not respond to an email or a phone message seeking comment.
Vaden is one of about a dozen political appointees in the group, according to emails obtained by Brett Hartl, government affairs director for the Center for Biological Diversity, whose lawsuits have forced EPA, FWS and NMFS to conduct pesticide consultations.
The group “involves virtually no career staff at FWS and NMFS,” Hartl said. “It’s totally driven by political, high-level people.”
The Council on Environmental Quality sent over a general statement about the group, noting it was created by the MOA and “has met at regular intervals. The membership and organization of the working group are described in the MOA itself, which is publicly available.”
The MOA “emphasizes the statutory requirement that endangered species consultation be based on the best scientific and commercial data available, such as identifying and evaluating data sources for pesticide usage and developing appropriate methods for incorporating these data into endangered species assessments,” the CEQ spokesman said.
Ya-Wei (Jake) Li, of the Environmental Policy Innovation Group, a newly formed think tank, also has been keeping tabs on the group and agreed that it’s largely run by political appointees. Li, who recently left Defenders of Wildlife, said the working group probably would like to be farther along in its progress, but has been focused on gathering data for a Fish and Wildlife Service Biological Opinion (BiOp) looking at the effects of diazinon, malathion and chlorpyrifos on listed species nationwide.
The BiOp was supposed to be released in April, but it has yet to be finalized “because FWS has been trying to get pesticide usage data,” Li said. The National Agricultural Statistics Service could be a good source for that information, he said, along with the states.
Without “refined data,” Li said, agencies assume for purposes of their analyses that pesticides are applied at the maximum rate, which can result in more determinations that species are threatened by the use of the chemicals.
EPA biological evaluations released in January 2017 found that chlorpyrifos and malathion are likely to harm 97 percent of about 1,800 threatened or endangered species in the country, and that diazinon was likely to harm 79 percent.
A Biological Opinion released by NMFS in December found that chlorpyrifos, malathion and diazinon harm ESA-listed salmon species and Southern Resident killer whales, or orcas. Among the options to address the impacts: buffer zones, spray reduction technologies, and pesticide stewardship programs.
Not surprisingly, EPA’s evaluations alarmed the registrants for the three organophosphates. Dow AgroSciences (now Corteva Agriscience following Dow Chemical’s merger with DuPont), ADAMA and FMC Corp. sought a halt to the consultation process for the three chemicals in April 2017. The companies also said that the consultation process itself, which had been implemented following recommendations from the National Academy of Sciences, was “fundamentally flawed” and should be set aside.
To Hartl, the working group is part of an administration effort to “scrap the BiOps.”
Defenders and CropLife America, along with groups representing corn, wheat, soybeans and minor crops, all wrote to Zinke, Pruitt and Ross in April outlining six key points of agreement. Specifically, they recommended that the working group:
- Develop interagency processes on pesticide consultations that enable the EPA, services, and USDA to make the best use of each agency’s expertise and limited resources;
- Use more refined species location maps and better pesticide use data;
- Adopt better endangered species exposure assessments;
- Take advantage of avoidance and minimization opportunities to improve the efficiency and effectiveness of pesticide consultations;
- Support opportunities to use voluntary conservation in pesticide evaluations;
- Prioritize species-use combinations for formal consultation.
Even if the working group doesn’t come up with anything soon, though, FWS and NMFS are moving forward with changes to the ESA, including proposals to expedite consultations and give “action agencies” – EPA in the case of pesticides, because it is responsible for registering them – more of a role in crafting measures to minimize impacts to species.
“Under the proposal relating to federal consultations, impacts to critical habitat will be ignored unless they impact the entirety of an animal’s habitat – ignoring the fact that ‘death by a thousand cuts’ is the most common way wildlife declines toward extinction,” CBD said.
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Farm groups and conservative lawmakers applauded the proposals. “These proposals are another step toward establishing a regulatory environment that will allow the responsible use of our public lands and produce better outcomes for fish and wildlife,” Sen. Lisa Murkowski, R-Alaska, said.
On Monday, CBD released documents it obtained through the Freedom of Information Act showing that career staff at FWS disagreed with the content of the proposed rules.
“Among the many changes that were proposed, career staff rejected some of the most egregious recommendations,” CBD said. “Those included assessing the economic impacts from protecting an endangered species, defining the ‘foreseeable future’ for listing decisions and including deadlines for informal consultations.”
However, Trump administration officials maintain that ESA changes are long overdue.
"One thing we heard over and over again was that ESA implementation was not consistent and often times very confusing to navigate. We are proposing these improvements to produce the best conservation results for the species while reducing the regulatory burden on the American people,” said U.S. Fish and Wildlife Service Principal Deputy Director Greg Sheehan when the proposed rule was released.
The comment period ends on September 24, 2018, and comments can be posted on regulations.gov
In addition to agency proposals, Senate Environment and Public Works Chairman John Barrasso also introduced an ESA reform bill which was applauded by the National Cattlemen's Beef Association and other livestock groups.
“What was originally intended to be a wildlife recovery program has instead become a toolbox of litigation-ready opportunities for agenda-driven outside groups and individuals to exert control over proper policy making. Policies and mandates, often crafted by legal settlement, rather than scientific data, have become the norm,” they wrote to Barrasso.
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