Dow, FMC Try to Overturn Pesticide Endangered Species Findings

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By Tiffany Stecker

Three companies are trying to roll back the federal government’s attempts to protect imperiled species from pesticides, after years of work—and legal wrangling—over how agencies comply with endangered species law while supporting agriculture.

David Weinberg, an attorney representing Dow Agrosciences LLC, Makhteshim Agan of North America, (known as ADAMA), and FMC Corporation, sent letters to top administration officials on April 13 to stop three court-ordered opinions on pesticides found to harm plants and animals listed under the Endangered Species Act (ESA).

Weinberg, who works in the Washington office of Wiley Rein LLP, asked Commerce Secretary Wilbur Ross, Interior Secretary Ryan Zinke and Environmental Protection Agency Administrator Scott Pruitt to put the brakes on biological opinions for chlorpyrifos, malathion and diazinon—decades-old pesticides that kill insects by overstimulating the nervous system and that have been linked to cognitive delays in children exposed in utero.

The letter, first reported April 20 by the Associated Press, is an effort to change the course of key agencies under the Departments of Commerce and Interior. The National Marine Fisheries Service and the Fish and Wildlife Service are set to publish their ESA opinions by December 31, 2017, based on the EPA’s biological evaluations finding that 97 percent of endangered or threatened species are vulnerable to chlorpyrifos and malathion.

A spokeswoman for the Interior Department did not say whether the Fish and Wildlife Service would consider delaying its biological opinions.

“The Secretary has had no meetings on the subject with any of the parties mentioned,” said spokeswoman Heather Swift.

The EPA and Commerce press offices did not respond to a request for comment on the letters.

‘Years of Work Went Into This’

The evaluations “are fundamentally flawed and should be set aside,” Weinberg told the officials, citing a lack of transparency and the inclusion of species not protected under the ESA. Weinberg also criticized the EPA’s choice of studies and data analysis to make their claims, and for making “unrealistically high and sometimes physically impossible estimates” on exposure to the pesticides.

The use of organophosphates has tumbled by half since 2005, according to recent data from the Freedonia Group, a market research firm. The upcoming biological opinions represent a sliver of the thousands of chemicals that likely harm rare species, say environmental groups. The three pesticides are the first to go through a nationwide process to evaluate the impact, and are a test model for future assessments of pesticides, said Amanda Goodin, a staff attorney in Earthjustice’s Seattle office.

The letters “send a clear message that they are not interested in protecting species, and are willing to just scrap the science for not just these pesticides, but other pesticides around the country,” Goodin told Bloomberg BNA. “Years of work went into this; the agency’s best science went into this.”

EPA released the evaluations of the organophosphates in January, representing three of the five pesticides at issue in a 2014 settlement between the nonprofit Center for Biological Diversity and the Fish and Wildlife Service ( Ctr. for Biological Diversity v. U.S. Fish and Wildlife Service, N.D. Cal., 3:11-cv-05108, 7/28/14). The December 2017 deadline for the biological decision was reached the same year, in a different federal court ( NCAP v. NMFS, W.D. Wash., 2:07-cv-01791, 05/21/14). The evaluations for the three pesticides took at least four years to complete, she said. The next set of evaluations are expected to take far less time.

Goodin and other environmental advocates have sued the EPA numerous times for not consulting with federal wildlife agencies on whether pesticides they approve harm listed species.

“The reason they’re in this mess is they’ve been violating the law for decades,” she said. “It is going to take some time to dig their way out of this hole.”

Tight Deadlines on a Tight Budget

The lawsuits have forced the agency to take decisions much sooner than originally anticipated. But they have also placed a heavy burden on an agency already constrained by a shrinking budget and staff.

The pesticide companies’ criticism of EPA’s scientific analysis is largely a reflection of the agency’s workload as it takes on the massive ESA review task with few resources on a tight deadline, said Ya-Wei Li, vice president of endangered species conservation at the nonprofit Defenders of Wildlife. Li is working with companies and the government to improve the process of applying the ESA to the pesticide approval process.

“I agree, it’s not perfect,” Li told Bloomberg BNA of the data used for the evaluations. “The problem is that that’s the only data.”

In evaluating effects to species, the agencies create maps at the county level. It’s not likely that a rare animal or plant occurs everywhere in a county, but the agencies did not have more precise data at the time they were doing the evaluations. More time is needed to gather the more granular information, something the court deadlines don’t provide.

“There’s this trade-off between time and quality of this information,” Li added. “We can’t have it both ways.”

But the drawbacks aren’t serious enough to warrant a rollback from the administration, Li said.

Bill Jordan retired from his post as deputy director of the Office of Pesticide Programs last year after more than 40 years with the agency. Although he thinks that the EPA and wildlife agencies need to identify pesticides that pose risks and take steps to shield species from those risks, he doesn’t think the biological evaluations do much to show whether those concerns are real.

If EPA withdraws the biological evaluations, as requested by the pesticide manufacturers, it could provide an opportunity to improve the assessments.

“My hope is that they would quickly find a better way to assess the risks so that they can fulfill their statutory duties and deal with any real problems that may exist,” Jordan told Bloomberg BNA.

According to Jordan, the assessments tend to make conservative assumptions that overstate the risks. EPA also failed to respond to many of the comments that were submitted, he said.

Spotlight on Chlorpyrifos

The letters raises new concerns about Dow’s close relationship with the Trump administration. The company donated $1 million to President Donald Trump’s inaugural committee. Trump appointed Dow Chairman and CEO Andrew Liveris to head the White House American Manufacturing Council.

EPA’s Pruitt denied a petition last month to impose a near-ban on chlorpyrifos, which was first manufactured by Dow, rejecting the previous administration’s assessment linking the insecticide to low IQ and other neurodevelopmental problems.

“Dow Chemical wants to suppress the science showing that chlorpyrifos is harmful to everything it contacts. It damages children’s brains, contaminates drinking water, poisons workers, and threatens to wipe out Pacific salmon and other endangered species,” Patti Goldman, managing attorney for Earthjustice’s Northwest regional office, said in a statement. Goldman is representing environmental groups in a suit seeking to ban chlorpyrifos.

The company defended its efforts to deter the development of the biological opinions.

“In its review under the Endangered Species Act, EPA did not apply its own standards of data quality to much of the information,” Dow spokesman David Sousa said in a statement. EPA also didn’t follow recommendations on the process in a 2013 report from the National Academy of Sciences, he added.

The company also defended its participation in policy and the political process, including financial contributions.

“Dow maintains and is committed to the highest standard of ethical conduct in all such activity,” Sousa said.

Jim Ferraro, a Miami-based attorney who successfully litigated against DuPont Co. for distributing a fungicide linked to birth defects, said the companies’ denunciation of agency science follows a pattern of discrediting results that could affect their sales. “Over time, these people become desensitized,” he said.

To contact the reporter on this story: Tiffany Stecker in Washington, D.C., at tstecker@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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