This week, the U.S. Department of Justice, on behalf of the U.S. Environmental Protection Agency (EPA) resolved longstanding litigation covering over 1,000 pesticide products, allowing EPA to fulfill its obligations to protect endangered species while conducting reviews and approvals of pesticides in a safe and protective manner.  In 2011, the Center for Biological Diversity and Pesticide Action Network (Plaintiffs) filed a complaint in Federal Court in California against EPA alleging that it was violating the Endangered Species Act (ESA) when it registered or reevaluated the registration of 382 pesticide active ingredients, which was ultimately reduced to 35 active ingredients covering over 1,000 pesticide products containing one or more of these active ingredients. This became known as the “megasuit” because of the number of pesticides it covered. The settlement entered by the Court this week resolves all outstanding claims.

“This agreement is a win-win-win to protect endangered species, ensure the availability of pesticides needed to grow food across America, and save considerable time and taxpayer expenses required to further litigate this case,” said Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention Michal Freedhoff.

In 2022, EPA issued its ESA Workplan, Balancing Wildlife Protection and Responsible Pesticide Use: How EPA’s Pesticide Program Will Meet its Endangered Species Act Obligations, which describes how EPA will address the challenge of protecting ESA-listed species from pesticides. This settlement is consistent with EPA’s ongoing efforts to develop a multichemical, multispecies approach to meeting its ESA obligations under the workplan. EPA’s traditional chemical-by-chemical, species-by-species approach to meeting these obligations has been slow and costly, with ESA work on each pesticide typically taking many years to complete. As a result, EPA has completed its ESA obligations for less than 5% of its actions, creating legal vulnerabilities, the potential for adverse impacts to listed species, and uncertainty for farmers and other pesticide users that use many pesticides. Resolving the remaining claims in this lawsuit and establishing a path forward under the settlement is a significant step to overcoming these challenges.

This agreement and the prior partial settlement include obligations for EPA as follows:

• Development of mitigation measures for listed species that are particularly vulnerable to exposures from pesticides and determine how to apply these mitigations to future pesticide actions, as well as whether this Vulnerable Species Pilot should be expanded to more species.
• Development and implementation of an Herbicide Strategy (draft released for public comment), a Rodenticide Strategy, Insecticide Strategy, and Fungicide strategy (the latter three are still under development) which will identify mitigation measures for entire classes of pesticides to address their potential impacts to hundreds of ESA-listed species
• Completion of the ESA work for eight organophosphates and four rodenticides;
• Hosting of a workshop for stakeholders to explore how to offset pesticide impacts on ESA-listed species in situations where eliminating or modifying pesticide use may not be feasible, and how EPA could incorporate those offsets into its process for registering or reregistering pesticides. Offsets could include restoring wetland habitat or funding breeding programs for affected species.

We will have to see how this plays out, because “the devil is in the details.”   What are the mitigation measures and how are the pilot projects impacting farming operations are couple of questions that immediately rise to the top when reviewing EPA’s announcement.