EPA Pesticides Approach Faces Scrutiny

LINCOLN, Neb. (DTN) -- Farmers waiting for EPA approval of new pesticides and herbicides may not see such products making it to market anytime soon.

EPA Administrator Michael Regan said during a hearing on Wednesday before the House Committee on Agriculture that the agency finds itself having to dig out from under an avalanche of lawsuits when it comes to regulating pesticides and herbicides and is hampered by a lack of personnel to approve new crop protection products.

As a result of a variety of lawsuits, the EPA is undertaking an Endangered Species Act review of current pesticides and herbicides, and Regan told the committee the work will continue.

Regan also talked about how the agency is bogged down in the process required to bring new crop-protection products to market.

"But then there is this sort of lack of funding at EPA," he said. "We have so many new market entrants that are ready to hit the streets that could be tools for farmers, but we haven't gotten them through our review process because we have too few employees to do so. I think we can make sure we're applying the science correctly and don't artificially take products off the shelves. But then there are a lot of new products that farmers are ready to see and use that we need to get those out the door as well.

"As you are aware, multiple administrations have struggled with balancing the scientific and legal policy considerations that arise from both FIFRA (Federal Insecticide, Fungicide and Rodenticide Act) and ESA on numerous occasions."

During the past 20 years, federal courts have ruled the EPA has been out of compliance with the Endangered Species Act when registering pesticides, and the agency has faced an increasing number of lawsuits for failing to meet its obligations under the law.

Jake Li, deputy assistant administrator for pesticide programs within EPA's Office of Chemical Safety and Pollution Prevention, said during a webinar last November that more than 50 pesticide ingredients encompassing more than 1,000 products currently have court-enforceable deadlines to comply with the Endangered Species Act or are in pending litigation.

Chairman of the House Ag Committee Rep. Glenn Thompson, R-Penn., said that when it comes to crop protection products, EPA has not been considering the advice of USDA officials when making decisions about product registrations.

"The EPA has recently rejected or ignored recommendations from the office of pest management. Does EPA not value the input it receives from other federal agencies like USDA?" Thompson asked.

Regan answered, "We absolutely do. We value the input we receive from staff, and I value my personal and professional relationship with Secretary Tom Vilsack. So, we're working in very close coordination on a whole host of issues."

Thompson said because the EPA has "frequently ignored" input from USDA, last year, Congress passed legislation that requires the EPA to take USDA feedback into account when developing Endangered Species Act mitigation measures on ag chemicals.

"How do you plan on following this language to ensure that USDA feedback is actually implemented in your decisions and not just with Secretary Vilsack but, quite frankly, with the professionals that we have deployed within USDA, that your staff should be consulting with?" Thompson asked.

Regan responded, "Since I've been there for the past two years, whether it's in my front office or throughout the agency with careers, we're seeing constant engagement, constant meetings, co-hosting meetings with external stakeholders, to be sure that we're getting all of the information to make the decisions we make."

FOLLOWING SCIENCE OR COURTS?

Members of the committee questioned whether the EPA was following the science on Endangered Species Act reviews or simply acting under court orders.

"I believe if that had been done in the past, we wouldn't have 50 years of ignoring the ESA, and this administration wouldn't find itself in the position that is in," Regan said.

"Now we're all in this pressure cooker. I believe that our farmers should have every tool in the toolbox. And so, there's a couple things we can do. I think the first thing is making sure that we are all looking at the science and making sure that the science is correct. I also think that when we have situations like that, it's not about just ripping it off the market. It's about making sure that our farmers have the education so that we can avoid the overspray and having millions of dollars of crops disrupted because some farmers need that pesticide."

In 2022, the EPA announced it was taking steps to meet Endangered Species Act obligations on current crop products before registering new products.

The agency published a work plan that establishes a long-term strategy in protecting listed species and to reduce legal vulnerabilities, Regan said, while providing "predictability to our farmers."

As part of the comprehensive plan, farmers could be required to adopt vegetative filter strips, cover cropping, contour terracing and other conservation measures to protect endangered species.

Rep. Kat Cammack, R-Fla., said she's concerned about added costs to farmers coming from the agency's response to Endangered Species Act litigation.

"These practices are very costly," she told Regan. "In fact, in the state of Florida of which I represent, this would impact producers from my home state more than any other state in the union. For example, it would cost $1.2 million annually just to install just vegetative filter strips on 5,000 acres. There are hundreds of thousands of acres under production in my home state, so you can imagine the burden that our farmers and ranchers would bear in trying to comply with this particular work plan. How do you expect our growers to comply with these burdensome regulations while facing incredible input cost increases and not go broke in the process?"

Regan said the work plan is not a regulation, so having conversations between EPA and agriculture is important going forward.

"I think what we need to do is ensure that as a work plan, it has been developed so that we can all get on the same page, that we have the right people at the table for that we're conversing and using the same language and have an understanding of how costly this is going to be," Regan said.

"So, what I'd like to suggest is that I revisit this with my staff to be sure that we've got the right stakeholders at the table as we continue to talk through his work plan."

COURT ACTIONS

At the end of March, the Center for Biological Diversity announced it would sue the U.S. Fish and Wildlife Service by the end of April if the agency does not respond to a 2019 petition to restrict pesticide use in critical habitats.

The EPA has conducted biological evaluations for chlorpyrifos, diazinon, malathion, carbaryl, methomyl, glyphosate, atrazine, simazine, imidacloprid, thiamethoxam, clothianidin and sulfoxaflor, finding the chemicals do harm some critical habitats.

EPA finalized a rule on Feb. 28, 2022, revoking the food tolerances for chlorpyrifos, effectively banning legal use of the insecticide among U.S. farmers. That rule was issued by the Biden EPA in August 2021 in response to an order from the U.S. Court of Appeals for the Ninth Circuit.

The EPA issued a new interim registration for the insecticide in December 2020 before the Ninth Circuit handed down its order in April 2021. That order led EPA to issue its food tolerance revocation.

In the December 2020 action by EPA, it found 11 high-benefit, low-risk crop uses for chlorpyrifos. All other chlorpyrifos registrants have since pulled their registrations.

Regan told the committee the court gave the agency no choice but to act quickly on chlorpyrifos.

"The court weighed in and said that they were fed up and frustrated with EPA's inaction," he said.

"So, they set a high bar and a timeline. That was really hard to meet. And so, I would argue that the difference between USDA and EPA on this instance isn't the science. It's high. We had to apply what the court required us to do. And they set a bar that was too high for us to meet in the time that they gave us using the science that we had. And so, we made the best decision that we could make with the science that we have to comply with the mandate from the court, which that mandate from this court was much different for chlorpyrifos than it has been for any other pesticide we've seen."

OTHER ISSUES

Members of the House Committee on Agriculture raised several issues with Regan, including the waters of the U.S. rule. Currently, courts have issued preliminary injunctions against the rule in 26 states.

Regan offered no new information about the WOTUS rule, only to reiterate the new rule codified a number of agriculture exemptions.

On E15, Regan said the EPA has started drafting a rule to allow permanent year-round sales in eight Midwest states that would take effect in 2024.

When asked about whether the Biden administration was set to issue an emergency waiver to allow E15 sales to continue this summer, Regan said, "I think that it's not necessarily waiting until the last minute, but I think if you look at prior administrations that have proactively issued those waivers or gone too quickly, the courts have stripped them down. So, we have some precedents that we have to watch out for. There are certain market conditions that must be present in order for EPA to utilize that waiver. And my staff is taking a constant look."

Read more on DTN:

"EPA Proposes New Approach for Pesticides," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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