Conservation groups have long claimed that the EPA fails in its ESA obligations, leading to a raft of lawsuits. In 2002, for example, the Center for Biological Diversity sued the EPA, alleging it had not considered impacts to the California red-legged frog, a threatened species, during the registration review of 66 active pesticide ingredients. The EPA has faced similar lawsuits for protected species of salmon and trout, and many others.
Under the Biden administration, the EPA overhauled how it regulated thousands of chemicals, to streamline the process and to come into closer compliance with the ESA. The agency signed a legal agreement in 2023 and has been working with industries, conservation groups, and others to develop a process of “strategies” aimed at aligning its chemical reviews with the ESA and clearly communicating with people who use chemicals.
Conservationists and industrial groups alike are watching the proposed rule change, to understand whether a new reading of the Endangered Species Act would disrupt this process—across the federal government. If the rule goes through, said Donley at the Center for Biological Diversity, “quite a bit more agency actions are just not going to be analyzed at all under the Endangered Species Act.”
If habitat destruction is not an issue under the law, farmers may be less inclined to join conservation programs.
As of now, the EPA is still relying on a traditional interpretation of the law. On April 29, the EPA issued a major update intended to streamline the regulation of insecticides and curb their impacts on endangered species. The agency said it has a responsibility to ensure that pesticide registration doesn’t jeopardize protected species, “or result in the destruction or adverse modification of their designated critical habitats.”
EPA released a similar strategy for herbicides last August. In that strategy, habitat protection is even more central, since weedkillers tend to also kill plants that various species depend on.
Under the interpretation proposed by Fish and Wildlife, critical habitat would not be considered. Farm groups are watching to see whether that new interpretation will impact the EPA’s strategies and process going forward.
“It’s something we’re keeping close tabs on,” said Kyle Kunkler, senior director of government affairs for the American Soybean Association. “We don’t feel that these ESA strategies are where we want them to be yet. But the other thing is, we want to make sure that there isn’t going to be anything that overturns the apple cart as well, that would completely disrupt those processes. If there is some major, disruptive factor, some sort of rule-making, or something that comes along that could jeopardize that path that we’re on, that’s something that we’re going to have to really think long and hard about.”
EPA officials were not available for direct comment by press time.
Beyond the EPA, taking habitat loss out of the Endangered Species Act could have other implications. It could change the way species are protected on private land. An agricultural producer may be less inclined to enroll in government land conservation programs, which sometimes provide legal protections against accidentally killing endangered species.
The monarch butterfly, for example, is currently proposed as a threatened species under the Endangered Species Act, and agencies and others are looking for ways to incentivize farmers to protect milkweed on their properties, since it’s the only food source for monarchs. If habitat destruction is not an issue under the law, farmers may be less inclined to join conservation programs.
