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Endangering endangered species

Endangering endangered species LAWS OF NATURE LAWS OF NATURE LAWS OF NATURE Endangering endangered species I n my idle moments – usually during boring phone conferences – I stare out of my 34th-floor window at a magnificent pair of peregrine falcons soaring and diving from office building to office building. We have come a long way since Rachel Carson warned of the effect of pesticides on the environment: “On the mornings that had once throbbed with the dawn chorus of scores of bird voices there was now no sound; only silence lay over the fields and woods and marsh”. Some pesticides have had disastrous effects on wild animals. Bald eagles, peregrine falcons, some types of pelicans, and other birds nearly went extinct before the pesticide DDT, banned in the US more than 30 years ago, was implicated in the deterioration of their egg shells. Other pesticides that caused reproductive problems and birth defects in wildlife have also been banned. The US Environmental Protection Agency (EPA) and the states have the primary authority to register the use of, and ban, pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). However, some commentators believe that a new rule may make the review of pesticide effects on species and habitats less accurate. The new EPA Administrator, Steve Johnson, who comes from the agency’s pesticide programs, will be very knowledgeable on one particular aspect of the recent rule-making controversy. In 2004, an advocacy group, the Center for Biological Diversity (CBD), accused the EPA of not doing its job. According to the CBD, about 375 animals and plants – nearly one-third of the species listed under the Endangered Species Act (ESA) – are exposed to, and potentially harmed by, pesticides. Every year, CBD said, more than 2 billion pounds of chemicals are applied to US crops, lawns, and gardens to control insects and weeds, and much of it ends up in waters and lands that are inhabited by endangered animals and plants. In the course of its pesticide approval process, CBD claimed, the EPA “displays a stunning lack of initiative in complying with the [ESA]” and “has shown reckless disregard for the impact of its pesticide regulation program on wildlife, and most importantly, endangered species”. Under Section 7 of the ESA and the Endangered Species Protection Program, EPA is arguably required to consult with the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) each time it licenses a new pesticide. The statute seems plain enough: “Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species…”. But that hasn’t Courtesy of T Daniel, ODNR been the practice for some time. Government observers point out that the “Services” were both understaffed and overworked. The CBD complained that the EPA hadn’t completed a single consultation since 1993. Then, in a bold step in late summer of 2004, the rules were changed to modify the process, so that EPA can carry out informal consultations with the FWS for those FIFRA actions that EPA determines are ‘‘not likely to adversely affect’’ any federally protected threatened and endangered species or critical habitat. Many were alarmed by a joint press release from Interior and Commerce Department officials, to the effect that, because the consultations to examine the effects of pest-control products were complex, there had been almost no consultations completed in the past decade. Did the EPA simply not have the time or inclination to do what the law states? The new rule indicates that EPA would have the “option” of involving the other agencies in determining the possible effects of pesticides on wildlife, that EPA should produce risk assessments that appropriately identify actions that are “not likely” to adversely affect listed species or critical habitat, and that these assessments should be ones that the other agencies are “likely” to concur with. The new rule was in part inspired by a successful lawsuit against EPA in 2004, by the Washington Toxics Coalition and other groups, who argued that EPA hadn’t consulted with the government’s wildlife experts to gauge the risks posed by various pesticides to salmon in the Pacific Northwest. They accused the agency of failing to conduct consultations with NMFS to determine whether its pesticide regulations would lead to endangered salmon being harmed. The court temporarily banned the use of some pesticides and found that “it is undisputed that EPA has not initiated, let alone completed, consultation with respect to the relevant 55 pesticide active ingredients” and that “EPA’s own reports document the potentially significant risks posed by registered pesticides to threatened and endangered salmonids and their habitat”. As the cynics say, “when you can’t comply with the law, write a regulation”. Despite the statute, for now the agencies have the “fix” they want: flexibility. Still, questions about 10 years of missed consultations remain, new pesticides flood the market weekly, and activist groups are primed to challenge the new rule. I hope in the meantime they’re up to protecting my private peregrine air show as well. Douglass F Rohrman Lord, Bissell & Brook LLP, Chicago © The Ecological Society of America www.frontiersinecology.org http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Frontiers in Ecology and the Environment Ecological Society of America

Endangering endangered species

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Publisher
Ecological Society of America
Copyright
Copyright © 2005 by the Ecological Society of America
Subject
Laws of Nature
ISSN
1540-9295
eISSN
1540-9309
DOI
10.1890/1540-9295%282005%29003%5B0172:EES%5D2.0.CO%3B2
Publisher site
See Article on Publisher Site

Abstract

LAWS OF NATURE LAWS OF NATURE LAWS OF NATURE Endangering endangered species I n my idle moments – usually during boring phone conferences – I stare out of my 34th-floor window at a magnificent pair of peregrine falcons soaring and diving from office building to office building. We have come a long way since Rachel Carson warned of the effect of pesticides on the environment: “On the mornings that had once throbbed with the dawn chorus of scores of bird voices there was now no sound; only silence lay over the fields and woods and marsh”. Some pesticides have had disastrous effects on wild animals. Bald eagles, peregrine falcons, some types of pelicans, and other birds nearly went extinct before the pesticide DDT, banned in the US more than 30 years ago, was implicated in the deterioration of their egg shells. Other pesticides that caused reproductive problems and birth defects in wildlife have also been banned. The US Environmental Protection Agency (EPA) and the states have the primary authority to register the use of, and ban, pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). However, some commentators believe that a new rule may make the review of pesticide effects on species and habitats less accurate. The new EPA Administrator, Steve Johnson, who comes from the agency’s pesticide programs, will be very knowledgeable on one particular aspect of the recent rule-making controversy. In 2004, an advocacy group, the Center for Biological Diversity (CBD), accused the EPA of not doing its job. According to the CBD, about 375 animals and plants – nearly one-third of the species listed under the Endangered Species Act (ESA) – are exposed to, and potentially harmed by, pesticides. Every year, CBD said, more than 2 billion pounds of chemicals are applied to US crops, lawns, and gardens to control insects and weeds, and much of it ends up in waters and lands that are inhabited by endangered animals and plants. In the course of its pesticide approval process, CBD claimed, the EPA “displays a stunning lack of initiative in complying with the [ESA]” and “has shown reckless disregard for the impact of its pesticide regulation program on wildlife, and most importantly, endangered species”. Under Section 7 of the ESA and the Endangered Species Protection Program, EPA is arguably required to consult with the US Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) each time it licenses a new pesticide. The statute seems plain enough: “Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species…”. But that hasn’t Courtesy of T Daniel, ODNR been the practice for some time. Government observers point out that the “Services” were both understaffed and overworked. The CBD complained that the EPA hadn’t completed a single consultation since 1993. Then, in a bold step in late summer of 2004, the rules were changed to modify the process, so that EPA can carry out informal consultations with the FWS for those FIFRA actions that EPA determines are ‘‘not likely to adversely affect’’ any federally protected threatened and endangered species or critical habitat. Many were alarmed by a joint press release from Interior and Commerce Department officials, to the effect that, because the consultations to examine the effects of pest-control products were complex, there had been almost no consultations completed in the past decade. Did the EPA simply not have the time or inclination to do what the law states? The new rule indicates that EPA would have the “option” of involving the other agencies in determining the possible effects of pesticides on wildlife, that EPA should produce risk assessments that appropriately identify actions that are “not likely” to adversely affect listed species or critical habitat, and that these assessments should be ones that the other agencies are “likely” to concur with. The new rule was in part inspired by a successful lawsuit against EPA in 2004, by the Washington Toxics Coalition and other groups, who argued that EPA hadn’t consulted with the government’s wildlife experts to gauge the risks posed by various pesticides to salmon in the Pacific Northwest. They accused the agency of failing to conduct consultations with NMFS to determine whether its pesticide regulations would lead to endangered salmon being harmed. The court temporarily banned the use of some pesticides and found that “it is undisputed that EPA has not initiated, let alone completed, consultation with respect to the relevant 55 pesticide active ingredients” and that “EPA’s own reports document the potentially significant risks posed by registered pesticides to threatened and endangered salmonids and their habitat”. As the cynics say, “when you can’t comply with the law, write a regulation”. Despite the statute, for now the agencies have the “fix” they want: flexibility. Still, questions about 10 years of missed consultations remain, new pesticides flood the market weekly, and activist groups are primed to challenge the new rule. I hope in the meantime they’re up to protecting my private peregrine air show as well. Douglass F Rohrman Lord, Bissell & Brook LLP, Chicago © The Ecological Society of America www.frontiersinecology.org

Journal

Frontiers in Ecology and the Environment – Ecological Society of America

Published: Apr 1, 2005

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