Ease of compliance is not necessarily the primary objective of environmental regulations; however, if regulatory processes are ineffective, outcomes can include legal disputes, business uncertainty, and failure to deliver on the intent of the laws. These are the convoluted circumstances of the crop protection industry and compliance with the United States Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Endangered Species Act (ESA). The strategy for success going forward is to better deploy both the FIFRA and ESA authorization processes, resulting in national scale pesticide consultations that are more practically linked to the landscape. Balancing both crop and species protection is a win – for business, the environment, regulators, and society.

Our team at Creekbank Associates is developing and sharing a series of FIFRA-ESA focused articles to inform and guide needed improvements in the registration process and resulting outcomes.

Decades Old Strategies Don’t Work for Contemporary Regulatory Challenges in Crop Protection

A history of narrowly framed approaches has resulted in obstacles to pesticide registrations while not fully delivering on the intent of both the ESA and FIFRA. Ideally, the desired objective is effective registration of needed crop protection products, with equitable, well-coordinated and meaningful conservation outcomes where appropriate. Instead, however, the historical landscape reads like this: regulatory agencies do not effectively coordinate FIFRA risk assessments with ESA population-level assessments; while in the meantime, the pursuit of “no effect” conclusions for listed species through higher-tier science, label mitigation and deliberation in court has resulted in major uncertainties and inefficiencies for product registrations. These strategies are terminal and outdated. In short, change is the only way forward.

The ESA and FIFRA take different approaches to their species protection mandates. Add to that mix the distinctly different analyses used by EPA, which utilizes risk assessment methods to gauge the potential for harm to individuals of a listed species by a pesticide, and the U.S. Fish and Wildlife Service and National Marine Fisheries Service (“the Services”) who are required to evaluate the proposed actions effects on the overall population viability of each listed species under consideration so as to form their opinion. Each of these mandates and entities are siloed in their management, execution, and communication with one another.

Environmental legislation encompasses diverse laws and regulations, which are intended to work together to manage the interactions between humans and the natural world to reduce environmental threats and increase public health. It is unrealistic, however, to rely on regulating agencies to efficiently integrate their disparate regulatory processes especially in the face of declining budgets, reduced staffing, and increased administrative burden. This situation creates significant uncertainty for the crop protection industry in United States markets due to registration process complexity, resulting risk of litigation and the overall costs of both. The trickling effects of this uncertainty include difficulty in determining meaningful project timelines and budgets, and in setting competitive strategies for product lines. The crop protection industry is already paying a high price in public perception, as well as in refining risk assessment methodologies, addressing lawsuits, and managing for lagging decisions, all leading to lost revenue. This is likely costing companies more than effective ESA Section 7 consultations and meaningful conservation outcomes.

A new era of industry leadership and investment is needed to resolve this unnecessary and costly situation, by integrating processes and linking analyses with improved conservation outcomes where appropriate. Innovative crop protection companies stepping up to frame and inform a more practical, effective process and applied outcomes will be market leaders. This challenge is not going away, and consequently new attitudes and new approaches are key to progress. Here are three recommendations we have developed to achieve progress for the crop protection industry.

Three Recommendations for Crop Protection Industry Executives

1. Registrants should invest in developing expertise to understand effects to species-wide population viabilities and identify associated conservation measures needed for business and regulatory decision-making.

2. As ESA consultation applicants, registrants must develop a productive, transparent, and collaborative working relationship with the Services. Engaging experienced professionals to guide your progress gives you a distinct advantage.

3. Registrants should construct more effective industry-wide leadership entities to drive regulatory process improvements and to develop a program for conservation funding, cost-sharing, and delivery.