Impacts to agriculture of new Endangered Species Act rules to be discussed

In 2022, the Environmental Protection Agency announced that it was adopting what was then a new policy for how it would meet its Endangered Species Act obligations when carrying out agency actions under the Federal Insecticide, Fungicide, and Rodenticide Act.

While many aspects of this policy are still under development, the shift is expected to result in additional restrictions to pesticide applications.

“EPA claims that this policy will both increase protections for endangered species and be more efficient than its previous approach,” said Brigit Rollins, staff attorney for the National Agricultural Law Center. “That being said, some critics say that EPA’s new policy is over-broad and could harm the agricultural industry by limiting when and where producers are able to spray.”

The Endangered Species Act works to protect species from extinction by requiring the federal Fish and Wildlife Service and the National Marine Fisheries Service to identify endangered species, which then receive all the protections offered by the ESA.

To further its goals of protecting species from extinction, the ESA also requires all federal agencies to consult with the Fish and Wildlife Service or the National Marine Fisheries Service prior to carrying out an agency action. This consultation is used to determine the effects of the action on endangered species, and to develop any mitigation measures that may be required.

The EPA is responsible for administering the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, which is the primary statute regulating pesticides in the U.S. Under FIFRA, EPA carries out a variety of agency actions, such as registering new pesticides for use, adding new uses to previously registered pesticides and reviewing existing pesticide registrations. In the past, EPA has only conducted ESA consultations for a small portion of its FIFRA actions leading to numerous lawsuits. To combat these legal issues, EPA is creating a new policy to help it come into ESA compliance for all FIFRA decisions.

Rollins will discuss the ESA/FIFRA policy, the various issues at play and what this means for agriculture during NALC’s webinar, “What’s the Harm? Examining EPA’s New Approach to ESA Compliance When Making FIFRA Decisions.” The webinar will be on Wednesday (Feb. 21).

“This policy is an attempt from EPA to come into compliance with the ESA, while also reducing the amount of pesticide registrations at risk of being overturned by a court,” Rollins said. “Under this policy, EPA will conduct ESA consultations across whole groups of pesticides and create a wide range of mitigation measures intended to reduce the impacts of pesticide applications to endangered species. I am looking forward to shedding some light on this policy and helping everyone understand what it all means.”

Rollins authored a guide to the Endangered Species Act, the NALC ESA Manual, which was written to help farmers navigate the law in the context of their operations. The manual is updated regularly and provides a guide to this historic and wide-ranging piece of legislation.

“We are extremely excited for Brigit to share this beneficial information regarding the new ESA/FIFRA policy,” NALC Director Harrison Pittman said. “Its impact could greatly affect agricultural producers, so this webinar is more pertinent than ever.”