To meet the conservation and species recovery goals of the Endangered Species Act (ESA), the EPA’s Office of Pesticide Programs must consult on each "action" to register or re-register a pesticide use. This consultation process is outlined in Section 7 of the ESA. During the past 35+ years, EPA has not successfully implemented ESA obligations for pesticides. However, it has been EPA’s intention to integrate ESA into the Registration Review process. Instead, activist-driven litigation is now driving the ESA consultation process for pesticides.
In 2001, environmental groups sued EPA in the Washington Toxics Coalition vs. EPA case for failing to consult with the National Marine Fisheries Service (NMFS) on the effects of 54 pesticide active ingredients on protected Pacific salmonids in the Northwest. In 2002, a federal district court ordered EPA to determine if ESA consultations are necessary for the 54 pesticides that may pose risks. As part of a settlement agreement, EPA agreed to place interim restrictions on the 54 pesticide active ingredients – including large no spray buffer zones – while they worked through the multi-year consultation process with the NMFS. As EPA moved through the consultation process with the NMFS, the interim restrictions on individual products become permanent restrictions. Similar copycat lawsuits during the past 10 years have resulted in pesticide use restrictions at golf facilities. In January 2011, in a landmark case, activists filed suit against EPA for its failure to consult with federal wildlife agencies regarding the impacts of 380 pesticides, many of which are used on golf courses, on more than 216 endangered and threatened species scattered throughout the U.S. On April 22, 2013, the U.S. District Court Northern District of California dismissed the Center for Biological Diversity and Pesticide Action Network North America v. Environmental Protection Agency, Endangered Species Act "Mega-Suit." In June 2013, plaintiffs filed a narrower lawsuit which asked for interim measures restricting the use of 78 pesticides on 216 listed species. In May 2014, the EPA and a coalition of industry groups both requested that the lawsuit challenging the registration of 78 pesticides over alleged violations of the ESA be dismissed in its entirety.
The ESA Section 7 consultation process is flawed and the lack of a clear and transparent ESA consultation process is seriously jeopardizing the availability and use of effective products to the golf industry. In 2011, EPA, the U.S. Department of Agriculture (USDA), Fish and Wildlife Service (FWS), and NMFS asked the National Academy of Sciences (NAS) to evaluate the ESA consultation review process for pesticide registration actions related to endangered species. In November 2013, the NAS released its much anticipated report on pesticides and endangered species stating that EPA, the NMFS, and the FWS should use a common approach when determining the potential effects a pesticide has on an endangered species and its environment. In 2014, the EPA began holding workshops to provide a forum for stakeholders to offer scientific and technical feedback on the joint interim approaches issued in November 2013. These stakeholder meetings continued throughout 2015.
The most serious challenge to the integrity of pesticide registrations approved under FIFRA is ESA litigation. The new ESA consultation process as currently coordinated between EPA, USDA and other agencies has led to a years-long evaluation process of over 30,000 pages of material for the first three pesticides alone. This new assessment process is time consuming, costly and not practical. It will cost hundreds of millions in taxpayer dollars and take decades to complete. But it is currently the template of what it takes to conduct an ESA consultation for pesticide products.