In court: Bush rule on pesticide harm to endangered species

By J.R. Pegg

WASHINGTON, DC, September 27, 2004 (ENS): Environmentalists have gone to court in a bid to block a Bush administration regulation that allows the U.S. Environmental Protection Agency (EPA) to determine whether new pesticides will jeopardize endangered species without consulting with the federal government's two key wildlife agencies.

The suit alleges that the rule change violates the Endangered Species Act and is "arbitrary, capricious, and contrary to the best available scientific information."

"The last thing America's most imperiled species need is a rule change that could make their prospects for survival worse," said John Kostyack, senior counsel for the National Wildlife Federation, one of the plaintiffs in the suit.

The coalition of eight environmental and fishing groups filed the suit Thursday in federal court in Seattle.

The groups say the new rule, which was finalized in late July, makes it easier for agribusiness and other industries to use highly toxic pesticides without regard for endangered species.

"This policy is more about undermining the Endangered Species Act than it is about government streamlining," said Jamie Rappaport Clark, executive vice president at Defenders of Wildlife, who served as director of the U.S. Fish and Wildlife Service during the Clinton administration. "This decision lets EPA off the hook instead of requiring it to do its job."

Under Section 7 of the Endangered Species Act, the EPA is required to consult with the Fish and Wildlife Service and the National Marine Fisheries Service (NMFS) to ensure that pesticides approved by the agency are not likely to adversely affect listed species - or their critical habitat.

But almost no consultations have been completed in the past decade and administration officials say the rule change revamped a broken regulatory process while maintaining protection for wildlife.

The new rule authorizes the EPA to make determinations that pesticides are not likely to "adversely affect" a threatened or endangered species without concurrence or informal consultation.

If the agency determines a formal consultation is required, the EPA can directly or indirectly involve the wildlife agencies, which under the law would make the final determination.

The federal wildlife agencies, the EPA and the pesticide industry say the new approach is more workable and will result in increased consultations, but critics are far from convinced.

The EPA has a very poor track record of consulting with biologists at the wildlife agencies and has only fulfilled the mandate when forced to do so by the courts, according to David Wright, a former Fish and Wildlife Service biologist.

"Up to now, EPA's track record in addressing the effects of pesticides on endangered species has been abysmal," Wright said. "After all its previous neglect and flawed decisions, handing endangered species protection over to EPA stinks of conflict of interest."

Critics of the policy note that the administration proposed its rule change in late January - less than a week after a federal judge ruled against the EPA and restricted the use of 38 pesticides near salmon streams in the Pacific Northwest.

The judge ordered the EPA to consult with the National Marine Fisheries Service and establish permanent restrictions needed to protect salmon from pesticides.

"When the court found that the EPA was not playing by the rules, the EPA simply changed the rules," said Patti Goldman, an attorney with Earthjustice, which is representing the coalition.

The government agencies changed the rule in response to a successful lawsuit brought by conservationists and fishermen against the EPA for failing to consult with NMFS scientists on the impact of pesticides on Pacific Northwest salmon.

There is ample data that pesticides can pose a serious threat to wildlife.

Pesticides have been linked to declines of amphibians in California and several species of Pacific salmon, they threaten sea turtles in Chesapeake Bay, and were integral in the dramatic decline of the bald eagle last century.

In July the Center for Biological Diversity issued a report, "Silent Spring Revisited - Pesticide Use and Endangered Species," that identified 375 species listed as endangered or threatened under the Endangered Species Act that were adversely affected by pesticides.

More two billion pounds of pesticides are sold in the United States each year for agricultural, commercial, and home uses and the EPA has registered for use more than 18,000 pesticides.

Hundreds of pesticides are up for registration review by the EPA this year, and environmentalists say many of these chemicals could adversely impact the more than 1,200 species protected by the Endangered Species Act.

The groups filing the suit are: Center for Biological Diversity, Defenders of Wildlife, Helping our Peninsula's Environment, National Wildlife Federation, Natural Resources Defense Council, Northwest Coalition for Alternatives to Pesticides, Pacific Coast Federation of Fishermen's Associations/Institute for Fisheries Resources, and Washington Toxics Coalition.

The EPA site on pesticides and endanagered species is found at: http://www.epa.gov/oppfead1/endanger/

Copyright Environment News Service (ENS) 2004. All Rights Reserved.
http://www.ens-newswire.com/ens/sep2004/2004-09-27-10.asp


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