Assessment of Risk of Pesticide Use Under the Federal Insecticide Fungicide and Rodenticide Act and the Endangered Species Act; How Much Conservatism is Too Much?

Most stakeholders would agree that it makes sense to have in place sufficient restrictions on the use of pesticide products to protect human health and non-target plants and animals. Most stakeholders would also agree that regulation should not be so restrictive as to impede the ability to farm safely, protect public health and maintain property. In the US, the societal desire for a balanced approach in determining the level protection necessary is reflected in the Federal Insecticide and Rodenticide Act (FIFRA), the statute under which pesticides are registered or licensed, and the Endangered Species Act (ESA), which is focused more specifically on the protection of biodiversity. It is the Environmental Protection Agency (EPA) that administers FIFRA. Under FIFRA, federal regulators making a registration decision must consider the benefits a product provides relative to the risks associated with product use. A pesticide product must not cause "any unreasonable adverse effects on the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Further, federal actions, such as registering a pesticide, are required to comply with ESA and are, therefore, subject to review by the Services (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) that administer the ESA. Federal agencies are required to ensure that actions they carry out are "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species". An 'endangered species' under the act is any species likely to become extinct within the foreseeable future throughout all or a significant portion of its range. A 'threatened species' refers to any species which is likely to become an endangered species. The ESA was amended in 1988 with section 1010, which requires that in complying with ESA, agencies also must "minimize the impacts [of ESA imposed mitigations] to persons engaged in agricultural food and fiber commodity production and other affected pesticide users and applicators." Clearly, the intent of US law is to be protective, but within reasonable boundaries that still allow freedom of operation.