CRE Comments on Application of Executive Order 13777 to EPA and the Services’ New ESA Pesticide Consultation Procedures and Practice Requirements.
On March 11, 2017, the Center for Regulatory Effectiveness filed comments on EPA’s Request for Input on Regulations That May Be Appropriate for Repeal, Replacement, or Modification In Accordance with Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” 82 FR 17793 (April 13, 2017), here.
CRE’s comments included the following introductory section (footnotes omitted):
“The Environmental Protection Agency (“EPA”), the Fish and Wildlife Service (“FWS”), and the National Oceanic and Atmospheric Administration/National Marine Fisheries Service (“NOAA/NMFS”) are working together to develop new procedures and practice requirements for consulting on all pesticide registrations under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and the Endangered Species Act (“ESA”).
These new pesticide ESA consultation procedures and practice requirements will be used for all pesticides during each individual pesticide’s registration or re-registration by EPA. These new procedures and requirements are agency statements of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy, or to describe the procedure or practice requirements of the agencies. Consequently, these new procedures and practice requirements are subject to Executive Orders 13771 and 13777.
These new ESA pesticide consultation procedures and practice requirements violate the Executive Orders because they will result in the banning of many pesticides that have been safely used for decades. These new procedures and practice requirements are also extremely time and resource intensive, and they are burdensome to all involved, including the agencies. They will provide few if any benefits and cause enormous costs. They are not legally required, and they violate many legal requirements including the Information Quality Act (“IQA”).
For example, EPA, NOAA/NMFS and FWS (“the Agencies”) are using models during their new ESA pesticide consultations (“ESA Models”). Like the rest of the new consultation procedures and practice requirements, the ESA Models are not limited to a specific license or registration. The Agencies intend to use these ESA Models for all ESA pesticide consultations.
These ESA Models are inconsistent with IQA requirements. The IQA requires that the Agencies demonstrate that the Models are accurate and reliable before they are used. This IQA requirement includes demonstrating that the Models have been properly validated. Proper validation includes showing that the ESA Models’ output corresponds with real world observations. The ESA Models have never met this and other IQA requirements. They cannot meet these IQA requirements because they predict ecological harm that does not occur. They generate data that is not accurate, reliable and transparent.
The ESA Models are also inconsistent with the requirements of OMB’s Final Information Quality Bulletin on Peer
Review (“Peer Review Bulletin”). The ESA Models–and the Biological Evaluations (“BEs”) and Biological Opinions (“BiOps”) using them–are Highly Influential Scientific Assessments (“HISA”). Yet the ESA Models–and the BEs and BiOps using them–have never been peer reviewed in compliance with OMB’s IQA Peer Review Bulletin.
The ESA Models’ inconsistency with multiple IQA requirements adversely affects EPA’s implementation of the rules codified at 40 CFR Part 158: “Data Requirements for Pesticides.” Part 158 expressly applies to EPA’s data requirements for assessing pesticide risks to “endangered species.” The Agencies intend to use the ESA Models to meet these data requirements. The National Academy of Sciences (NAS) deemed the Part 158 rules so important that it included a portion of them as Appendix A to the NAS report on ESA pesticide consultations.
The ESA Models, and many other aspects of the new pesticide ESA consulting procedures and practice requirements, violate Executive Orders 13771 and 13777 because they
“i) eliminate jobs, or inhibit job creation;
(ii) are outdated, unnecessary, or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; [and]
(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note)
[the Information Quality Act/IQA] , or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility….”
Consequently, EPA’s Regulatory Reform Task Force should recommend that the EPA Administrator take those actions necessary to ensure that 40 CFR Part 158, and all other relevant rules, do not allow use of the ESA Models, or of any other aspects of the new pesticide ESA consulting procedures and practice requirements that violate the IQA and/or Executive Orders 13771 and 13777.
CRE is also filing copies of these comments with FWS and NOAA/NMFS. The ESA Models, and other aspects of the new ESA pesticide consulting procedures and practice, violate the IQA and Executive Orders 13771 and 13777. Consequently, they adversely affect the Services’ implementation of 50 CFR Part 402: “ESA Section 7 Regulations—Interagency Cooperation.”
The FWS and NOAA/NMFS Regulatory Reform Task Forces should therefore recommend that their agency heads take those actions necessary to ensure that 50 CFR Part 402, and all other relevant rules, do not allow use of the ESA Models, or of any other aspects of the new ESA pesticide consulting procedures and practice requirements that violate the IQA and/or Executive Orders 13771 and 13777.
The new ESA pesticide consulting procedures and practice requirements, including the ESA Models, are themselves agency statements of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency. Consequently, pursuant to Executive Orders 13771 and 13777, the EPA, FWS and NOAA/NMFS Regulatory Reform Task Forces should recommend that their agency heads take those actions necessary to ensure that the new consulting procedures and practice requirements do not violate the IQA and/or the Executive Orders.
The U.S. Department of Agriculture (“USDA”) agrees that EPA and the Services should not proceed with the new ESA consulting procedures and practice requirements. USDA representatives made comments to this effect at EPA’s Pesticide Program Dialogue Committee meeting on May 4, 2017, which was devoted to public comments on Executive Order 13777 and pesticides regulation. The USDA was one of the agencies that requested NAS review of the ESA pesticide consultations process. The USDA’s opposition to EPA and the Service’s current implementation of the NAS report should be given particular weight.”