July 25th, 2018

This Monday, we filed comments challenging the Environmental Protection Agency’s (EPA) latest maneuvering in support of the pesticide industry. This maneuvering is yet further evidence of the Trump administration’s ongoing attempt to orchestrate a slow-motion coup within the EPA. While “coup” may be a strong word, it is accurate. There is simply no other way to describe this administration’s brazen attempt to convert the EPA, an agency charged by Congress with protecting the environment, into the handmaiden of polluting industry. Before delving into the substance, we express our thanks to the Center for Biological Diversity for signing on to our comments regarding this important issue.

On the surface, EPA was merely satisfying its statutory duty under the Endangered Species Act (ESA). EPA wishes to re-register three controversial pesticides — chlorpyrifos, malathion, and diazinon — under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a federal action triggering ESA obligations. The National Marine Fisheries Service (NMFS), the federal agency in charge of administering the ESA for marine species and anadromous fish, issued a Biological Opinion regarding the potential effects of these pesticides on listed species and habitat. EPA then called for public comments on the Biological Opinion, including comments on NMFS' recommendations for ways to avoid harm to listed species and designated critical habitat. These steps seem promising on the surface. A reasonable EPA following its statutory mandate might well do the same. However, below this superficial procedural level, this EPA has something very insidious in mind.

In a Biological Opinion spanning well over 3,000 pages, NMFS concluded that registration of these pesticides stands to “jeopardize” 38 different listed species and “adversely modify” 37 critical habitat units.[1] These numbers are truly shocking. Among other species, Pacific salmon and Southern Resident orcas (which rely upon abundant salmon for prey) stand to suffer further severe population declines if EPA permits the unmitigated use of these harmful pesticides.

Photo credit: David Ellifrit, Center for Whale Research

To avoid this illegal state of affairs — the federal government may not take “actions” that either jeopardize listed species or adversely modify critical habitat — NMFS has identified a series of “reasonable and prudent alternatives” (RPAs). In a nutshell, the RPAs provide a path for EPA to authorize use of the pesticides while avoiding jeopardy and adverse modification (e.g., requiring vegetative buffer zones between fields and water bodies, so as to reduce the impact on aquatic species). Similarly, NMFS has articulated a list of “reasonable and prudent measures” (RPMs). RPMs are actions necessary to minimize the impacts of incidental take that is anticipated to result from implementing an action that, thanks to RPAs or otherwise, NMFS has determined is not likely to jeopardize a listed species or adversely modify designated critical habitat.[2] In other words, whereas RPAs serve to avoid jeopardy and adverse modification in the first instance, RPMs kick in thereafter, minimizing the impacts of incidental take.

As demonstrated in our comments — available here: Letter and Comments -- EPA Request for Comments on Pesticides BiOp (FINAL) — these RPAs and RPMs are precisely what they purport to be: reasonable and prudent alternatives and measures to a state of affairs that is legally unacceptable. They hardly prevent agricultural firms and other enterprises from carrying out their business.

Yet, in its call for comments, EPA selectively solicits information and opinions in a transparent effort to cast doubt on the RPAs and RPMs. Specifically, EPA requests the following: “Comments on the RPAs and RPMs. Can they be reasonably implemented? If not, describe why not. Are there different measures that may provide equivalent protection to the ones in the BiOp but result in less impact to pesticide users?”[3]

As this language reveals, EPA is exclusively interested in comments undermining the RPAs and RPMs. Conspicuously absent is any request for comments bolstering NMFS’ conclusion or, better yet, identifying different measures that may provide heightened protection for listed species and designated critical habitat. Rather, EPA inappropriately invites consideration of economic consequences to pesticide users arising from NMFS´ identified alternatives and measures. Nevertheless, courts have found that such economic considerations have no place in this analysis. By taking this approach, EPA loudly broadcasts that it is not interested in “less impact” to protected fauna and habitat, but instead “less impact to pesticide users.”

A coup is typically associated with a military takeover of government. At its core, however, a coup is defined by inside actors subverting the institutions of lawful government. The EPA, as reformulated by Donald Trump, is guilty of taking precisely this subversive path. Trump has stacked the EPA with individuals who oppose everything for which the institution stands. EPA’s approach to pesticides is but the latest example of this hostile takeover. EPA doesn’t care about salmon or orcas. EPA only cares about Dow and Monsanto.

While EPA tries to mask its true intentions behind a veneer of form and procedure, we stand ready to call this agency out for what it has become — a champion of industry and other forces of environmental destruction that value private economic benefit over wildlife protection. It is high time for EPA to live up to its name.


[1]NMFS, Biological Opinion on the Environmental Protection Agency’s Registration of Pesticides Containing Chlorpyrifos, Diazinon, and Malathion, FPR-2017-9241 (Dec. 29, 2017), at i.

[2]50 C.F.R. § 402.02.

[3]83 Fed. Reg. at 12755 (col. 2).

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