As we have previously remarked, agriculture faces an increasingly dangerous threat through legally mandated implementation of the Endangered Species Act (ESA). Two major lawsuits by environmentalists have been adjudicated more or less in favor of the plaintiffs.

Others have been or are likely to be filed. In California, a consent decree has been proposed in the Californians for Alternatives to Toxics, et al vs. EPA. The petition for decree, originally filed in August 2000, accuses EPA of “failure to consult” as required by the ESA concerning certain species of salmon, their habitat and adjacent forest species.

The consent decree clearly would assume that EPA had made required preliminary consultation and would proceed directly to a final determination. Also, FWS or NMFS have virtual veto authority in that they may claim that any product in question “may adversely affect the species in question” — this with no science or proof required.

CropLife America (CLA) and other parties involved in the case have filed objections.

In Washington state, a federal judge has ruled in favor of the plaintiff in the case Washington Toxics vs. EPA in a second ESA case. This ruling let stand 55 commonly used pesticides about which EPA failed to consult with FWS and NMFS.

It excluded 898 other products also claimed by the plaintiffs to require “consultation.” Again, these all relate to the salmon species. It requires a fixed and short decision schedule regardless of data available.

An additional case, not yet determined, was filed against EPA by the Center for Biodiversity. This suit concerns the “red legged frog,” which enviros claim has produced defective offspring due to pesticide exposure.

A win here would require consultation and require the applications for pesticide registration to include data showing no damages to the “frog.” Later scientific studies say viruses, etc. — not pesticides — cause the deformity problem. Nevertheless, the suit is there.

On July 8, the Oregon Natural Resources Council, Pacific Coast federation of Fishermen's Associations, Northwest Environmental Center, Institute for Fisheries Resources, and the Sierra Club filed a 60-day notice of intent to sue the Bureau of Reclamation over its use of aquatic herbicides in the Klamath Reclamation Project irrigation canals. The environmental groups allege that use of the herbicides is harming endangered fish.

On June 3, the Alaskan organization Cascade Resources Advocacy Group (on behalf of the Center for Biological Diversity) filed with EPA a sixty-day notice of intent to sue. The notice alleged ESA failed to consult proper parties regarding EPA's pesticide program. It charges EPA failed to implement a conservation plan, and for “takings” of endangered or threatened species.

The notice also alleged violations of the Migratory Bird Treaty Act.

This lawsuit does not limit its scope to any specific listed species or registered pesticides. Rather it challenges the legal validity of the FIFRA pesticides program as a whole. In an apparent effort to avoid standing complications in court, and the possibility that a programmatic challenge ultimately may be found infirm for jurisdiction, the notice singles out 45 pesticides and 624 endangered and threatened species nationwide.

On the good-news side is a bill, HR4840, which would require better data before any species could be declared endangered. It would also set up methods for peer review and removal. Chances of the bill getting through the Senate are problematic, however.

SCPA sees an unmodified ESA as the most dangerous obstacle to retaining good, safe and efficient crop pesticide products at a reasonable price. We must do all possible to have the law changed or risk losing many more of our effective tools.

Ed Duskin is executive vice president of the Southern Crop Protection Association.