CRE Comments to NMFS on ESA Pesticide Consultations
On August 21, 2017, the Center for Regulatory Effectiveness filed comments with U.S. National Marine Fisheries Service addressing ESA Section 7 consultations among NMFS, the Environmental Protection Agency (“EPA”) and the Fish and Wildlife Service during pesticide registration review and registration. NMFS requested such comments as part of NMFS’ streamlining of its regulatory processes and reduction of its regulatory burden. CRE’s comments included the following executive summary (footnotes omitted):
“These CRE comments address ESA Section 7 consultations among NMFS, the Environmental Protection Agency (“EPA”) and the Fish and Wildlife Service (“FWS”) (referred to collectively as “the Agencies”) during pesticide registration review and registration.
The Agencies have developed and are applying irrational and impracticable new ESA consultation rules for pesticides. These new rules dictate the process by which ESA section 7 consultations must occur, and prescribe the use of several unvalidated computer models. These new rules, which are legally binding, respond in part to a National Academy of Sciences report, but they are in no way compelled by that NAS report. These new ESA consultation rules are extremely time consuming and resource intensive. They are unduly burdensome to all involved, including the Agencies. The Agencies do not have the resources to implement the new rules for all the pesticides that are subject to them. The Agencies’ inability to implement the new ESA consultation rules will cause wasteful litigation.
The new ESA consultation rules will provide few if any benefits and cause enormous costs. These costs include costs resulting from the prohibition of many pesticides that have been safely manufactured, sold and used for decades. The new ESA consultation rules are economically significant rules and regulatory actions under Executive Orders 12866 and 13563; yet the Agencies have not complied with the requirements of these Executive Orders.
These new ESA Consultation rules violate many other legal requirements, For example, they
- violate the Information Quality Act (IQA) by requiring use of unvalidated and inaccurate models (“ESA Models”);
- violate OMB/OIRAs Final Information Quality Bulletin for Peer Review;
- violate the FIFRA and ESA time limits on consultation; and
- violate Executive Orders 13771 and 13777.
The Agencies should stop using their new ESA consultation rules. Before even considering use of the new rules, the agencies should take those actions necessary to remedy the violations discussed above and below. These actions include by way of example and without limitation
- sending the new ESA consultation rules and their ESA Models to OMB/OIRA for review before they are used to review, register, or otherwise regulate pesticides;
- properly validating the ESA Models before they are used to review, register or otherwise regulate pesticides; and
- submitting the new ESA consulting rules and their ESA Models to peer review in accordance with OMB’s Peer Review Bulletin before they are used to review, register, or otherwise regulate pesticides.
The U.S. Department of Agriculture (“USDA”) agrees that the Agencies should not use the new ESA consulting rules. The USDA was one of the agencies that requested NAS review of the ESA pesticide consultations process. The USDA also regulates pesticides. The USDA’s opposition to the Agencies’ new ESA consultation rules should be given particular weight.”