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Eleven AGs Condemn EPA’s Plan to Gut Endangered Species Protections from Dangerous Pesticides

AGs warn proposal is “antithetical to the plain language and purpose” of the Endangered Species Act, “lacks any reasoned or justifiable basis.”

August 16, 2019
Contact: stateimpactcenter@nyu.edu

Washington, D.C. — New Mexico Attorney General Hector Balderas led a coalition of 11 attorneys general in filing comments with the Environmental Protection Agency (EPA) yesterday objecting to proposed changes to the agency’s process for evaluating the risks posed by pesticides to endangered species.
“New Mexico will not stand by and allow another Trump Administration rollback of environmental protections to harm our pristine environment and threaten the health and safety of New Mexican families,” said Attorney General Balderas. “We will continue to fight for our state’s treasured and irreplaceable natural resources and on behalf of our families.”
The attorneys general submitted their comment letter just days after the Trump administration announced that it had finalized the most far-reaching rollback of plant and animal protections under the Endangered Species Act in decades. According to the AGs, the EPA’s proposed guidance on pesticides violates the Endangered Species Act in at least nine ways, demonstrating the lengths that the Trump administration is willing to go to undermine critical species protections. Instead of relying on the best science available, the EPA’s new guidance is designed to provide the agency with the arbitrary authority to minimize its review of the impact of pesticides on species — a clear violation of the law.
In their comments, the attorneys general warn that the EPA’s proposal “runs counter to the [Endangered Species Act] and its policy of institutionalized caution" by requiring an unreasonable level of certainty at the earliest stages of the evaluation process, and “unlawfully circumvent[ing] consultation” with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service — the agencies charged with implementing the Endangered Species Act (ESA).
The EPA also proposes to exclude species that are “most likely extinct” from the evaluation process, a change the attorneys general warn “could kill off the last remaining individuals” of species on the brink of extinction. The coalition also notes that the proposal would “unlawfully allow the EPA to rely on incomplete and unreliable past usage data,” and fails to “resolve data ambiguities in favor of species protection,” as a precautionary approach would require. The attorneys general emphasize that the proposed changes contradict extensive ESA case law, and are arbitrary and capricious under the Administrative Procedure Act.
The attorneys general of California, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Washington, Vermont, and Washington, D.C. joined New Mexico in filing the comments.

Under Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the EPA is required to conduct ecological risk assessments of pesticides before they can be licensed for sale and use in the United States. This includes conducting a “biological evaluation” of potential risks to ESA-listed species and their critical habitat, as required under the Endangered Species Act. This process is overseen by the Environmental Fate and Effects Division of the EPA’s Office of Pesticide Programs.
The existing risk assessment method was established in 2015, following extensive consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services). Under the existing method, the EPA first determines whether a pesticide “may affect” a species. If so, the EPA and the Services determine whether the pesticide is “likely to adversely affect” that species. If that finding is made, the EPA prepares a Biological Opinion in formal consultation with the Services “to determine whether the pesticide would jeopardize the continued existence or adversely modify or destroy the critical habitat of any ESA-listed species.” To date, the EPA has conducted risk assessments for three pesticides — chlorpyrifos, diazinon and malathion — under the existing method.

Earlier this month, New York Attorney General Letitia James led a coalition of six state attorneys general in filing a lawsuit challenging the EPA's refusal to ban the use of chlorpyrifos on food crops. The EPA’s decision, which kicks the can down the road and calls for the completion of more research before making a final determination, is the latest in a series of delays that puts farm workers and consumers in harm’s way. An extensive scientific record already shows that there is no safe threshold of exposure to chlorpyrifos, which has been shown to cause developmental issues for infants and children.

The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to working with state attorneys general to protect and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit our website.