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If At First You Don't Succeed... Try Gutting the ESA Again

This recent attempt isn't the first time that the Bush administration has tried to eliminate Endangered Species Act consultations. In 2004, the Services adopted regulations urged by the Bush administration that authorized the Environmental Protection Agency (EPA) to avoid consulting wildlife experts on most of its approvals of pesticides for use in the United States. Under the rule, the Services delegated their consultation authority to EPA, thereby eliminating the expert wildlife agency oversight that serves as an independent check and safeguard. To justify the delegation, the Services reviewed EPA's methods for assessing wildlife risks from pesticides and, despite unanimous dissent from agency wildlife scientists involved in the review, found that EPA's methods would result in the same outcomes as consultation with the Services.


The pesticide initiative was a cynical attempt to circumvent the law after years of neglect. During the 1980s and early 1990s, EPA did engage in ESA consultations on pesticides. Scientists at the Fish and Wildlife Service repeatedly found serious potential harm to wildlife and recommended a variety of means to prevent exposure, including buffers around the species' habitat, reduced use of pesticides, and outright bans on the use of pesticides in endangered species' habitat. Tragically, these recommendations, called "jeopardy opinions," languished in the bureaucracy. EPA continued to authorize many hundreds -- possibly thousands -- of old and even new uses of hazardous pesticides without requiring the mitigation FWS had found to be necessary. Worse yet, EPA then stopped ESA consultations on pesticides altogether.


In 2001, Earthjustice went to court on behalf of commercial fishing and environmental groups. We challenged EPA's failure even to begin the process of ensuring that pesticides would not impede the survival and recovery of more than two dozen salmon and steelhead species protected by the ESA. We entered into extensive settlement discussions with EPA and the more than two dozen industry intervenors both before and after filing the lawsuit.


Given how blatant EPA's legal violations were, I thought this case would settle. At one point, we were close, but then the evening before a court appearance, a beleaguered Justice Department told me the settlement had been nixed "at the highest levels." We later learned from a presentation by the chemical industry's attorney that Tom Samsonetti, a political appointee overseeing the Justice Department's environmental attorneys, had pulled the plug.


Back in court, the lawsuit produced a court order in 2002 directing EPA to start ESA consultations with the Services on 54 pesticides by the end of 2004 and another court order in 2004 -- upheld by the court of appeals and turned down for review by the U.S. Supreme Court -- requiring pesticide-free buffers around salmon streams and warning labels on pesticides that can be purchased over-the-counter in urban areas.


The chemical industry then went to the now-notorious Julie MacDonald, who at the time oversaw the Fish and Wildlife Service, and other political appointees seeking a get-out-of-jail-free card for pesticides. The outcome, under heavy pressure from the White House, was the 2004 pesticide self-consultation rule.


We went back to court on behalf of our original clients and other environmental groups. In 2006, the district court threw out the pesticide self-consultation rule. First, the judge held that it takes two to consult -- just like it takes two to tango. The self-consultation rule violated the plain terms of the ESA requiring mandatory consultation with the Services. Second, the judge rejected the assertion that EPA's unilateral findings would be as protective as ESA consultations with the Services. Career scientists at FWS and NMFS had repeatedly found that EPA failed to use the best available science in its pesticide decisions and had criticized EPA's assessments for overlooking peer-reviewed scientific literature and other key information.


Both EPA and the chemical industry appealed, but in May 2007, they dropped their appeals.


With the self-consultation rule gone, it still took another Earthjustice lawsuit to move the salmon consultations along. In a July 2008 settlement, NMFS agreed to a timeline to complete the consultations, and it released the first biological opinion later that month. NMFS found "overwhelming evidence" that three commonly-used agricultural pesticides -- chlorpyrifos, diazinon, and malathion -- are "likely to jeopardize the continued existence" of all listed salmon by interfering with the ability of salmon to swim, find food, reproduce, and escape predators. NMFS made these jeopardy calls for all uses of these pesticides, including 16 uses EPA had dismissed as having inconsequential impacts.


Ironically, less than two weeks later, the Services announced another Bush administration proposal to authorize self-consultation. But this time, the proposal would exempt countless actions from ESA consultations by changing the consultation trigger and would grant the power of self-consultation to all federal agencies when they deem their actions to have minimal effect and the Services fail to object under new strict and unrealistic deadlines. Past experience indicates that self-consultation will fail and will place species at risk. If the Bush administration goes forward and finalizes this ill-conceived proposal, Earthjustice will be back in court.