A Legal Victory for the (Very) Little Guys

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Call it a win for the little species, though all kinds of endangered animals and plants stand to benefit.

A sweeping legal settlement approved this week has put the Environmental Protection Agency on a binding path to do something it has barely done before, by its own acknowledgment: Adequately consider the effects on imperiled species when it evaluates pesticides and take steps to protect them.

“When you think about what a pesticide is, it’s supposed to kill pests,” said Michal Freedhoff, assistant administrator for the agency’s Office of Chemical Safety and Pollution Prevention. “It is difficult to design a process where it kills only the things it is supposed to kill.”

In the same area as crop-damaging insects, there may be threatened bumblebees and butterflies; among unwanted weeds, endangered plants. At the same time, pesticides help farmers produce enough food to meet the demands of a growing population. And they need a wide variety of pesticides to defend their crops, they say, as insects and weeds gain resistance to various chemicals.

By its own account, the E.P.A. has failed to meet the obligations of the Endangered Species Act for more than 95 percent of the thousands of pesticide assessments it completes annually, according to a report the agency issued last year. That lack of compliance has opened it to a flood of lawsuits from environmental groups, as well as a spate of recent court decisions against the agency. One 11-year-old case grew to include so many pesticide products, more than 1,000, that it came to be nicknamed “the megasuit.”

Under the Biden administration, E.P.A. leaders have tried to chart a new course that abides by the Endangered Species Act. The new settlement, which resolves the megasuit, locks in that effort with judicially enforceable deadlines, said Jonathan Evans, the legal director for environmental health at the Center for Biological Diversity, one of the groups that brought the megasuit.

“Another administration just can’t jettison this,” he said.

CropLife America, a trade association for pesticide manufacturers that joined the lawsuit as an intervenor on the side of the E.P.A., praised the settlement as “another important step” in the government’s work to better comply with the Endangered Species Act.

“We appreciate the engagement on these improvements and will continue to work with stakeholders as the process continues,” said Chris Novak, CropLife America’s president and chief executive.

Senator Shelley Moore Capito, the top Republican on the committee that oversees the E.P.A., and Senator John Boozman, the senior Republican on the agriculture committee, did not immediately respond to requests for comment on the settlement.

A benefit to farmers from the settlement, which was approved on Tuesday in United States District Court for the Northern District of California, is protection from having a pesticide abruptly pulled from the market as a result of a court order.

“We were not only failing to protect endangered species, we were also at risk of being unable to ensure the continued availability of pesticides that farmers need,” Ms. Freedhoff said.

One endangered species that stands to gain is the rusty patched bumblebee, once a widespread pollinator in the East and Upper Midwest. Another is the Taylor’s checkerspot, a butterfly from the Pacific Northwest whose brown wings are adorned with white and orange spots. Aquatic species like salmon and mussels do, too, as they are particularly vulnerable to pesticides that contaminate nearby water, Mr. Evans said.

Rather than outright bans on pesticides, he said, the settlement is likely to lead to restrictions on where they can be used in proximity to endangered species. New E.P.A. guidance, for example, may require buffer zones around waterways in certain areas, so endangered fish are not harmed by runoff. It could place restrictions on how far a chemical can drift when sprayed from a plane.

A major challenge for the E.P.A. in complying with the Endangered Species Act has been the sheer work of determining how each of the vast number of active chemicals in pesticides affects each of almost 1,700 federally protected species threatened with extinction. The process typically takes four to twelve years, Ms. Freedhoff said.

“We don’t have the resources or the time to go chemical by chemical for all these hundreds of pesticides,” she said.

Instead, the agency will bundle chemicals into groups according to their target species — plants, insects, rodents, fungus — and properties, for example, whether they dissolve in water or drift in air. This approach will let the agency set regulations efficiently, Ms. Freedhoff said.

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