By TIM ALEXANDER
PEORIA, Ill. — Chemicals used in farming including pesticides will become even more difficult to register in coming years due to new food safety and endangered species regulations. Keeping existing registrations in place for pesticides farmers already depend on is also an area of concern for farmers and ag input retailers under the terms of the U.S. Environmental Protection Agency’s (EPA) newly issued pesticide non-target species mitigation.
This is according to Harrison Pittman, director of the National Agricultural Law Center (NALC), who offered an update on pesticides and the Endangered Species Act (ESA) during the Illinois Fertilizer and Chemical Association (IFCA) 2023 Conference and Trade Show in Peoria.
“This is a new world as far as how the EPA considers changes to their policy,” said Pittman, referring to the EPA’s “Workplan to Protect Endangered and Threatened Species from Pesticides: Pilot Project,” announced in November. As part of EPA’s Endangered Species Protection Program, the pilot project’s goal is to carry out EPA’s responsibilities under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in compliance with the ESA, without placing unnecessary burdens on agriculture and other pesticide users.
During his presentation to farmers and farm fertilizer and chemical retailers, Pittman cast severe doubt on EPA’s claim the work plan does not impose an “unnecessary burden” on producers and applicators.
“Be mindful of regulation through litigation. This is going to become more prevalent,” said Pittman, who has been employed at the NALC, located at the University of Arkansas in Fayetteville, for over 21 years. “The registration of products with the EPA, which was hard to start with, is harder now and it will be harder in the future. Maintaining registrations will be a huge challenge.”
Pittman told the fertilizer and chemical retailers to expect more civil and legal action coming their way that will seek to restrict or eliminate pesticides, herbicides, fungicides and other chemicals farmers rely on to control pests and disease. “There are hundreds of civil actions being brought that are basically arguing that products are defective, or cause health issues. We’ve seen some magnificent verdicts already,” he said.
“On the registration side, it’s difficult to imagine new products being brought to market without taking on some kind of legal challenge. It’s coming from groups like the Center for Food Safety, the Center for Biological Diversity and a whole sort of ecosystem of groups that exist. They’re well funded and often have a deep understanding of the ag industry, so keep that in mind.”
Pittman devoted a portion of his talk to unpacking the content of EPA’s “workplan” for fulfilling the agency’s ESA obligations when it comes to pesticides and other farm chemicals. The workplan establishes four overall strategies and dozens of actions that EPA will adopt, in collaboration with other federal agencies, to improve protection for federally threatened and endangered (listed) species.
In association with the workplan, EPA, working with three other agencies, will compile a list of recommended “mitigations” regarding pesticide usage and registration. EPA began public outreach on identified mitigations with states, pesticide users, pesticide registrants, conservation organizations, and other stakeholders in fall 2022.
In addition, EPA will identify certain vulnerable listed species and mitigations to protect them from pesticide exposure, and then implement these mitigations across different types of pesticides. This project will focus on implementing protections for multiple pesticides within a group to protect a particular species, according to an EPA news release.
Pittman warned that these mitigations will likely include restricting the usage of certain chemicals commonly used on crops grown by both commercial and specialty producers.
“I think this represents the biggest change in the crop protection industry and the ag industry as a whole in decades. There’s been a fundamental change in how this whole aspect of the industry works, whether you’re on the ag retail side, an applicator or a farmer,” said Pittman.
A November 2022 update from the EPA more clearly defined the steps the agency would take in issuing new pesticide registrations and renewing existing ones. The update states, in part, that over the next six years, existing court-enforceable deadlines will require EPA to complete ESA reviews for 18 pesticides — the most EPA estimates it can handle during this period based on its current capacity and processes. “Ongoing litigation and settlement discussions for other lawsuits cover dozens of additional pesticides and will likely fill the EPA’s ESA workload well beyond 2030. According to EPA, if its ESA efforts continue at this pace, a future court may decide to curtail drastically pesticide use until EPA meets its obligations. EPA believes this situation would be unsustainable and legally tenuous and provide inadequate protection for listed species and create regulatory uncertainty for farmers and other pesticide users,” the update states.
As part of EPA’s renewed ESA compliance efforts, scientists will likely be taking a fresh look at pesticides and crop protection chemicals with a focus on areas such as spray drift and surface runoff potential, as well as examining the compounds themselves for potential human, plant and animal health risks.
An EPA comment period on their new ESA workplan for pesticide regulation was scheduled to end at the end of January, according to Pittman. “One thing this workplan makes clear is that there is more to come,” he said. “The next phase is going to focus probably on herbicides, and there will be a comment period coming for that as well.”
EPA’s workplan can be accessed at epa.gov.