Finding a Better Regulatory Balance

The federal consultation process for registering pesticides needs repair.
Finding a Better Regulatory Balance
Federal actions that could have adverse effects on threatened or endangered species or their habitat must go through a process called consultation. It’s a requirement of the Endangered Species Act (ESA). Courts have held that the rule applies to a broad range of federal actions, whether it’s building a bridge or registering a pesticide.
Discover why the federal consultation process for registering #ag pesticides needs repair.

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In the case of pesticide registrations, the consultation process* attempts to reconcile the protection of endangered species (under ESA) with the pesticide law governing regulations known as FIFRA (the Federal Insecticide, Fungicide and Rodenticide Act).

Ultimately, the balance of broadening environmental protection while still giving growers access to modern pest-control technologies is the goal of the various agencies responsible for setting this policy. In theory, key agencies — the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service — consult and agree on a final recommendation.

Growers are already doing a lot of great conservation work. We’re looking at options that don’t impose more burdens on growers but can allow for the good work they’re already doing to be recognized.

Rachel Lattimore
General Counsel
CropLife America
But the process is in need of repair, says Tony Burd, senior regulatory manager for Syngenta. Problems can arise when communications between the agencies break down or they disagree in their evaluations of a pesticide’s potential effects, he says.

Consultation Complications

Incomplete information is sometimes a stumbling block. “With pesticides, it’s a nationwide registration usually, but the pesticide isn’t actually being used uniformly nationwide,” says Rachel Lattimore, general counsel for CropLife America. “If a pesticide can be used up to six times a year on apple orchards, the consultation process has assumed that every apple orchard in America is using it six times a year. That’s just not the case. And then they say, ‘Wow, the registration of this product is a big problem.’”

The ranges of many endangered species are also not defined well, Burd says. “So if you do not have a very good idea of where the crop is being grown, it could potentially be grown anywhere. If the endangered species has a range map that is overly conservative and covers an entire state, you have a problem with overlapping areas. It looks like you are spraying pesticides over the entire U.S. as opposed to very specific areas. EPA and the wildlife services cannot reconcile that.”

For retailers and growers, the current process creates uncertainty. “There is regulatory uncertainty, legal uncertainty, liability uncertainty and planning uncertainty,” says Steve Hensley, National Cotton Council of America senior scientist for regulatory and environmental issues. “A farmer can plant a certain seed or crop only to find that a successful lawsuit has canceled a pesticide he needs for that crop.”

Toward an Improved Process

Lattimore would like to see a more realistic look at how pesticides are actually used and the role growers play in conservation efforts. “Growers are already doing a lot of great conservation work,” she says. “We’re looking at options that don’t impose more burdens on growers but can allow for the good work they’re already doing to be recognized.”

CropLife America has been working for years on this issue, talking with the government, other stakeholders and environmental groups, Lattimore says. “Syngenta has been a great partner in this.”

Bringing the pesticide registrants like Syngenta into discussions with the wildlife services earlier would also help, Burd says. The company has other ideas to improve the process, too. “We are working with groups, such as Defenders of Wildlife, to produce refined range maps,” Burd says. The company is also creating a species sequencing tool to help the wildlife services prioritize their efforts. “Instead of working on 1,800 species, they may only have 100 species that they have to work on, depending on where the pesticide would potentially be registered.”

Getting all parties to work in a more clearly defined process — and agreeing on some shared goals — would be beneficial, Hensley says. “Everyone has to recognize the different goals of ESA and FIFRA, then reconcile those goals,” he says. “By doing so, we can provide the greatest protections possible to endangered species while also allowing for the continued use of products that control pests. In that scenario, growers would have a reasonable certainty that the product they must have will be there when they need it.”

*How the Consultation Process Works Today — When an agriculture registrant seeks a pesticide registration, it goes through an assessment under FIFRA, after which EPA produces a biological evaluation. Based on this evaluation, the regulators overseeing the assessment conclude that there will be either no effect or potential effect on the species. If an effect is foreseen, that evaluation is shared with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. Then these wildlife services must either concur or write their own biological opinion.