26 December 2022, Washington: The District of Columbia Circuit Court of Appeals today ordered the Environmental Protection Agency to address the harms of four pesticides to endangered plants and animals.
The court chastised the agency’s repeated failure to complete assessments of pesticides’ harms to endangered species, noting that “the dysfunction” of the EPA’s “registration process has drawn attention from various quarters.”
Today’s decision marks the third time in two months that federal courts have ordered the EPA to address pesticides’ harms to endangered species. Earlier this week the 9th Circuit Court of Appeals ordered the agency to address dangers to endangered wildlife and pollinators from the systemic insecticide sulfoxaflor. Last month the D.C. Circuit ordered the EPA to address its long-delayed obligation to protect endangered species from the toxic insecticide cyantraniliprole.
More than 1 million pounds of the pesticides covered by today’s order — halauxifen-methyl, bicyclopyrone, flupyradifurone and benzovindiflupyr — are used every year across the United States.
The four pesticides, which are used on a wide variety of crops, have been documented to pose serious threats to hundreds of protected plants and animals, including fish and marine crustaceans, mammals and birds.
“Just in time for the holidays, today’s decision is a vital victory for endangered wildlife and the rule of law,” said George Kimbrell, legal director for Center for Food Safety. “Once again, courts have confirmed that EPA’s job is not to grant the fondest wishes of pesticide companies but instead to protect the environment and do it by meaningful deadlines.”
Today’s legal victory for the Center for Biological Diversity, Center for Food Safety and Defenders of Wildlife sets court-ordered deadlines in 2025 and 2027 for the EPA to finalize biological evaluations of harms to endangered wildlife under the Endangered Species Act.
The EPA has already restricted uses of a fifth pesticide included in the lawsuit — cuprous iodide — to protect endangered salmon and other aquatic species.
“For decades the EPA has practiced a reckless spray-first-look-later approach to addressing the threats of pesticides to imperiled species,” said Jonathan Evans, environmental health legal director at the Center for Biological Diversity. “The courts’ unequivocal message is that ‘enough is enough.’ EPA’s pesticide office isn’t above the law and must address the outsized role of pesticides in driving the extinction crisis.”
For decades the EPA has failed to comply with the Endangered Species Act’s requirements to consult with expert wildlife agencies to reduce the harm of pesticides to protected species. As a result of ongoing pressure from the environmental community, earlier this year the EPA released its first-ever comprehensive workplan to address the challenge of protecting endangered species from pesticides.
The agency is also initiating pilot programs focused on reforming the pesticide-approval process to correct violations of the Endangered Species Act. It also committed this year to analyzing the effects of new pesticide active ingredients on endangered species before registering them.
Bicyclopyrone is an herbicide used mostly on corn. The EPA’s own risk assessment found that bicyclopyrone exceeds levels of concern for mammals and hundreds of plants protected under the Endangered Species Act, potentially affecting nearly half of all threatened and endangered species in the United States. Yet the agency approved new products combining bicyclopyrone and atrazine, a pesticide that the EPA recognizes is likely to harm more than 1,000 of the nation’s most endangered plants and animals.
Flupyradifurone is a systemic insecticide that is absorbed by plants and distributed throughout the plant to kill and deter pests. It is used on a range of crops including cotton, fruits, vegetables, orchards, grapes and alfalfa. The EPA’s risk assessment concludes that flupyradifurone may harm nearly every taxonomic group of protected species. It is “highly toxic to honeybees on an acute oral exposure basis” and “very highly toxic” to freshwater insects and marine crustaceans. It is also mobile and persistent in the aquatic environment.
Benzovindiflupyr is a fungicide used on corn, soybeans and other crops. The EPA recognizes that it has the potential to harm protected mammals, birds, fish and invertebrates. Even with steps to mitigate its harm the agency acknowledges “there are still broad risks of concern” for mammals, birds, fish and aquatic invertebrates.
Cuprous iodide — copper iodide — is an antimicrobial pesticide used to treat fabrics and other products. Because copper is very highly toxic to aquatic organisms it can adversely impact reproduction and growth at very low concentrations. Cuprous iodide can leach into waterbodies when products such as socks and sheets are washed. Once forced by litigation to look at its impacts to endangered species, the EPA changed the approval to eliminate washable uses that could leach into waterways.
Halauxifen-methyl is an herbicide most frequently used on wheat. It poses threats to endangered plants and pollinating species, such as monarch butterflies and bees that rely on flowering plants to survive. Because of the pesticide’s potential to drift, protected plants more than 2,500 feet from the application site could be harmed.
The EPA approved bicyclopyrone, flupyradifurone, benzovindiflupyr and cuprous iodide for use in 2015 and halauxifen-methyl in 2016.
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