Under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), only pesticides with a license from the U.S. Environmental Protection Agency (“EPA”), known as a registration, can be distributed and sold. For years, the lack of a review for such registrations under the Endangered Species Act (“ESA”) has resulted in significant legal challenges to approval of pesticides, and a substantial backlog of necessary ESA reviews. A legal decision in 2021 from the D.C. Circuit Court of Appeals vacated EPA’s approval of Aldicarb under FIFRA for the agency’s failure to meet its obligations under the ESA, effectively undoing the approval. Aldicarb is useful against several pests, including the Asian citrus psyllid responsible for citrus greening. The Florida Department of Agriculture used the lack of a complete ESA review as a justification for denying its own approval of Aldicarb under the state law that parallels FIFRA.
EPA has announced a new strategy for reviewing applications for pesticide registration that takes the ESA into account. EPA has explained that it will make an initial determination on whether the pesticide will have no effect, will not likely adversely affect, or will likely adversely affect ESA-covered species. EPA will also determine if registration of a pesticide that is likely to adversely affect an ESA-covered species will jeopardize the continued existence of the species or destroy or adversely modify its designated critical habitat. EPA will use its determination to decide whether mitigation measures are necessary and, if so, the mitigation measures necessary for compliance with the registration. The registration process will move forward based on EPA’s assessment and any necessary mitigation measures, with the possibility for future revisions to the registration if necessary following informal or formal consultation with the U.S. Fish and Wildlife Service.
For now, EPA is implementing this approach for new pesticides only, but EPA states that it will be subsequently addressing antimicrobials and biopesticides, and will be developing a work plan for already-registered pesticides awaiting ESA review. The legality of EPA’s planned approach to ESA review is likely to be contested in court, but for now it provides a more hopeful path to approval for new pesticides facing a contested registration.
Deborah Madden is a Gunster shareholder and has practiced environmental law since joining the firm in 2012. Her experience includes state and federal listed species issues across a wide variety of contexts, including agriculture and development.
Greg Munson is a former General Counsel and Deputy Secretary at the Florida Department of Environmental Protection. Since 2013, he has been a Gunster shareholder practicing environmental law, including pesticide regulation, representing industrial, mining, utility, and agricultural clients. His experience includes federal and administrative litigation.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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