VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED September 5 ...
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED September 5, 2012 Lisa Jackson, Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W., Washington, DC 20460 Ken Salazar, Secretary of the Interior U.S. Department of Interior 1849 C Street, N.W. Washington, D.C. 20240 Sixty-Day Notice of Intent to Sue EPA Pursuant to the Endangered Species Act Re: Registration and Use Approvals of Clothianidin and Thiamethoxam, Neonicotinoid Insecticides Dear Administrator Jackson and Secretary Salazar, The U.S. Environmental Protection Agency (“EPA”) is hereby notified that the Center for Food Safety, Beyond Pesticides, the Sierra Club, Jeff Anderson, Steve Ellis, David Hackenberg and Steve Ellis (collectively “the concerned parties”) intend to file suit, pursuant to the citizen suit provision of the Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g), concerning EPA’s registration of the neonicotinoid insecticides clothianidin and thiamethoxam and including EPA’s ongoing approval of scores of novel uses for those insecticides. EPA has violated, and remains in violation of, section 7 of the ESA by failing to insure, through consultation with the U.S. Fish and Wildlife Service (“FWS”), that its registrations and numerous use approvals for clothianidin and thiamethoxam, which have enabled these pesticides’ sale and use throughout the nation, are not likely to jeopardize the continued existence of any threatened or endangered species and/or result in the destruction or adverse modification of the critical habitat of any listed species. The concerned parties hereby notify EPA that it has also violated and remains in violation of section 7(a)(1) of the ESA. 16 U.S.C. § 1536(a)(1).
N A T I O N A L O F F I C E : 660 Pennsylvania Ave., S.E., Suite 302, Washington, D.C. 20003 phone: 202-547-9359 fax: 202-547-9429 C A L I F O R N I A O F F I C E : 303 Sacramento Street, 2nd Floor, San Francisco, CA 94111 phone: 415-826-2770 fax: 415-826-0507 P A C I F I C N O R T H W E S T O F F I C E : 917 SW Oak Street, Suite 300, Portland, OR 97205 phone: 971-271-7372 fax: 971-271-7374 email: [email protected] | www.centerforfoodsafety.org | www.truefoodnow.org
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
I. Identity of the Parties Giving Notice: The name and location of the concerned parties giving notice of intent to sue under the ESA are: - Beyond Pesticides, located in Washington, D.C., is a nonprofit membership organization founded in 1981. Beyond Pesticides promotes safe air, water, ecosystems, land, and food. It works to protect public health and the environment, including threatened and endangered species, by encouraging a transition away from the use of toxic pesticides. - Center for Food Safety, located in Washington, D.C.; San Francisco, California; and Portland, Oregon, is a nonprofit membership organization. It seeks to ameliorate the adverse impacts of industrial farming and food production systems on human health, animal welfare and the environment, including threatened and endangered species. The Center for Food Safety has over 200,000 members nationwide. - Sierra Club, headquartered in San Francisco, California, with chapters in every State, is the largest grassroots environmental organizations in the United States, as well as one of the oldest and most influential citizen organizations. Its fundamental mission is to practice and promote the responsible use of the earth's ecosystems and resources. - Jeff Anderson, Oakdale, California; and Eagle Bend, Minnesota; Steve Ellis, Barrett, Minnesota; David Hackenberg, Lewisburg, Pennsylvania; and Tom Theobold, Niwot, Colorado. Each of these men are major commercial beekeepers who are deeply concerned over EPA’s failures to comply with the ESA due to concerns both about the directly-impacted invertebrate species and about the broader ecosystem and habitat impacts that flow from EPA’s approvals of vast numbers of clothianidin and thiamethoxam-based products without adequate effects analysis. Their honeybee colonies cannot thrive in habitats where repeated use of persistent systemic neonicotinoid insecticides occurs and each of them has suffered serious economic and other damages due to these insecticides. All of the concerned parties, and their members in the case of the organizational members, have a strong interest in protecting America’s species and ecosystems from endangerment through degradation caused by inappropriate pesticides. Beneficial species of insects, other invertebrates, birds, amphibians, and other taxa provide the concerned parties, and their members, with essential ecological services, as well as scientific, aesthetic, recreational, and other benefits.
II.
Counsel for the Concerned Parties: Peter T. Jenkins, Of Counsel Center for Food Safety 660 Pennsylvania Ave., SE, #302 Washington, D.C. 20003 Tel: 202-547-9357 Fax: 202-547-9429 Email: [email protected]
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
III.
Requirements of the ESA
Section 7 of the ESA requires EPA, in consultation with FWS, to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). “Action” is broadly defined to include all activities or programs of any kind authorized, funded, or carried out by federal agencies, including activities directly or indirectly causing modifications to land, water, or air. 50 C.F.R. § 402.02. For each federal action, EPA must request information from FWS indicating whether any listed or proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, EPA must prepare a “biological assessment” to determine whether the listed species may be affected by the proposed action. 16 U.S.C. § 1536(c)(1). The biological assessment generally must be completed within 180 days. Id.; 50 C.F.R. § 402.12(i). If EPA determines that its proposed action may affect any listed species or critical habitat, the agency must engage in formal consultation with FWS. 50 C.F.R. § 402.14. To complete formal consultation, FWS must provide EPA with a “biological opinion” explaining how the proposed action will affect the listed species or habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. Consultation generally must be completed within 90 days from the date on which consultation is initiated. 16 U.S.C. § 1536(b)(1)(A); 50 C.F.R. § 402.14(e). If FWS concludes that the proposed action “will jeopardize the continued existence” of a listed species, the biological opinion must outline “reasonable and prudent alternatives.” 16 U.S.C. § 1536(b)(3)(A). If the biological opinion concludes that the action is not likely to jeopardize the continued existence of a listed species, and will not result in the destruction or adverse modification of critical habitat, FWS must provide an “incidental take statement” specifying the amount or extent of such incidental taking on the listed species and any “reasonable and prudent measures” that FWS considers necessary or appropriate to minimize such impact, and also setting forth the “terms and conditions” that must be complied with by EPA to implement those measures. Id. at § 1536(b)(4); 50 C.F.R. § 402.14(i). In order to assess the effects of incidental take, EPA must monitor and report the impact of its action on the listed species to FWS as specified in the incidental take statement. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 402.14(i)(1)(iv), 402.14(i)(3). If during the course of the action the amount or extent of incidental taking is exceeded, EPA must reinitiate consultation with FWS immediately. 50 C.F.R. § 402.14(i)(4). The re-initiation of formal consultation is required and must be requested by EPA or FWS if (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the action is modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological
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opinion; or (4) a new species is listed or critical habitat designated that may be affected by the identified action. Id. at § 402.16. During consultation with FWS, EPA is prohibited from making any irreversible or irretrievable commitment of resources with respect to the agency action which may foreclose the formulation or implementation of any reasonable and prudent alternative measures. 16 U.S.C. § 1536(d). Section 7(a)(1) of the ESA requires EPA, in consultation with and with the assistance of FWS, to utilize its authority in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered and threatened species. Id. at § 1536(a)(1). Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of listed species. Id. at §§ 1533(d), 1538(a)(1); 50 C.F.R. § 17.31. “Take” is defined broadly to include harming, harassing, trapping, capturing, wounding, or killing a protected species either directly or by degrading its habitat. See 16 U.S.C. § 1532(19). Taking that is in compliance with the terms and conditions specified in a biological opinion is not prohibited under section 9 of the ESA. Id. at § 1536(o)(2).
IV.
EPA’s Registrations and Use Approvals for Clothianidin and Thiamethoxam
Neonicotinoid pesticides such as clothianidin and thiamethoxam are systemic pesticides that are expressed throughout plant tissues, including a plant’s flowers, pollen, and nectars.1 Neonicotinoids damage the central nervous system of insects. When bees and other insects— including many ESA-protected insects—forage on pollen or nectar from crops or plants treated with clothianidin and/or thiamethoxam, they ingest the pesticide, which can result in paralysis, death, or damaging sub-lethal effects. Major exposure pathways include inter alia residues in pollen and nectar, dust from treated seeds and soils, planter exhaust, untreated but contaminated non-crop plants adjacent to treated fields, guttation droplets on both treated and untreated but contaminated plants, and residues from foliar uses. To make matters worse, neonicotinoid pesticides have extremely long half-lives—as long as 1,155 days.2 Thus, they persist in the environment, increasing the risk of cumulative toxic loading effects. EPA first conditionally registered clothianidin for use on corn and canola in 2003.3 In its initial conditional registration of clothianidin, EPA recognized that compliance with ESA is necessary:4 1
EPA, Pesticide Fact Sheet: Clothianidin, Conditional Registration (May 30, 2003), available at www.epa.gov/opprd001/factsheets/clothianidin.pdf. Note: clothianidin is derived from thiamethoxam and the two are very closely related chemically. To avoid redundancy, this notice will not repeatedly refer to thiamethoxam documents, as the issues for the two compounds are essentially the same. 2 Id. 3 Id.
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
Clothianidin is expected to present acute and/or chronic toxicity risk to endangered/ threatened birds and mammals via possible ingestion of treated corn and canola seeds. Endangered/threatened non-target insects may be impacted via residue laden pollen and nectar. The potential use sites cover the entire U.S. because corn is grown in almost all U.S. states. EPA has made the same admissions in its thiamethoxam documentation. Despite EPA’s recognition of the acute and/or chronic toxicity risk to endangered/threatened birds and mammals from these substances, the agency has proceeded to ignore those risks. EPA has approved the use of clothianidin and thiamethoxam on more than 30 crops, as well as ornamental, turfgrass, and structural applications. All told, EPA has approved about 85 total products in 12 years. See Appendices A and B, listing the approved uses for the two compounds including the dates of initial registration; more recent approvals may have occurred since these Appendices were prepared. Yet, there is no evidence that EPA consulted with FWS prior to registering clothianidin or thiamethoxam, or prior to approving this vast number of new uses over this period. EPA acknowledges it has not complied with section 7(a)(2) of the ESA. As the agency stated in June 2012, in its recent “Registration Review Final Work Plan” for clothianidin :5 The Agency has not conducted a risk assessment that supports a complete endangered species determination for clothianidin. The ecological risk assessment planned during registration review will allow the Agency to determine whether clothianidin’s use has “no effect” or “may affect” federally listed threatened or endangered species (listed species) or their designated critical habitats. When an assessment concludes that a pesticide’s use “may affect” a listed species or its designated critical habitat, the Agency will consult with the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service (the Services), as appropriate. EPA made the same acknowledgement in its Registration Review Final Work Plan for thiamethoxam.6 More than 15 threatened or endangered insects, ranging from beetles to butterflies to grasshoppers and other taxa, are potential directly affected now by the use of clothianidin and thiamethoxam-based pesticides.7 The vast majority of these were listed prior to 4
Id. Pesticide Re-evaluation Division, EPA, Clothianidin Final Work Plan for Registration Review (June 2012); docket EPA-HQ-OPP-2011-0865; see also Pesticide Re-evaluation Division, EPA, Thiamethoxam Final Work Plan - Registration Review (June 2012); docket EPA-HQ-OPP-20110581. 6 Pesticide Re-evaluation Division, EPA, Thiamethoxam Final Work Plan - Registration Review (June 2012); docket EPA-HQ-OPP-2011-0581. 7 A non-exhaustive list shows 18 threatened or endangered insects that clothianidin and thiamethoxam may affect (this list provides the date of the Federal Register notice of their listing): 5
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the dates of EPA’s approvals at issue (listing dates indicated in footnote 7). Yet EPA has not even made the basic, required determination as to whether and how clothianidin and thiamethoxam, and the various approved uses of them, “may affect” any of the ESA-listed taxa, much less consulted on the key ESA action-forcing determination as to whether any of their uses “jeopardize” the survival of these species. Harmful effects on many non-insect ESA-listed species are also foreseeable, based on the many declines of insectivorous birds documented in Europe due to neonicotinoid use.8 EPA has not made the required “effects” determinations or consulted for them either. For clothianidin, EPA’s June 2012 Final Work Plan admits this:9 The environmental fate and effects database is largely complete for clothianidin with the exception of effects data on avian and terrestrial invertebrate species.
American burying beetle (Nicrophorus americanus) – 7/13/1989 Behren’s fritillary (or Behren's silverspot) (Speyeria zerene behrensii) – 12/5/1997 Callippe silverspot (Speyeria callippe callippe) – 12/5/1997 Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis) – 9/23/1993 Fender’s blue (Icaricia icarioides fenderi) -- 1/25/2000 Hine’s emerald dragonfly (Somatochlora hineana) – 1/26/1995 Karner blue (Plebejus melissa samuelis) – 12/14/1992 Kern primrose sphinx moth (Euproserpinus euterpe) – 4/8/1980 Lange’s metalmark (Apodemia mormo langei) – 6/1/1976 Mitchell’s satyr butterfly (Neonympha mitchellii mitchelli) -- 5/20/1992 Myrtle’s silverspot (Speyeria zerene myrtleae) – 6/22/1992 Northeastern beach tiger beetle (Cicindela dorsalis dorsalis) – 8/7/1990 Ohlone tiger beetle (Cicindela ohlone) – 10/3/2001 Quino checkerspot butterfly (Euphydryas editha quino) – 1/16/1997 Salt Creek tiger beetle (Cicindela nevadica lincolniana) – 10/6/2005 San Bruno elfin (Callophrys mossii bayensis) – 6/1/1976 Schaus swallowtail (Papilio aristodemus ponceanus) – listed as threatened 4/22/1975; reclassified as endangered 8/31/1984 Zayante band-winged grasshopper (Trimerotropis infantilis) – 1/24/1997 This list likely will need updating as more species are regularly added and numerous “Candidate” species await further action, including native bees. 8
Henk Tennekes, The Systemic Insecticides: A Disaster in the Making (Weevers Walburg Communicatie, Zutphen, The Netherlands) (2010), available at www.disasterinthemaking.com. 9 Clothianidin Final Work Plan, at 3.
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For thiamethoxam, the June 2012 Final Work Plan is not as explicit but notes essentially the same thing.10 In short, the agency lacks the required effects data on the key taxa that are at risk here: terrestrial invertebrates, such as the 18 insects listed in footnote 6, and birds, such as those insectivorous birds that are most at risk from the two insecticidal compounds involved here. Proceeding without this vital information violates the ESA. Even more alarming, a recent paper identifies immune suppression effects of neonicitinoid insecticides as a potential contributor to broader global wildlife declines, including such imperiled taxa as amphibians and bats.11 EPA has ignored these broader potential effects as well. Agency documents suggest EPA is seeking to paper over various inadequate forms of “compliance” that fall far short of actually making biologically based “effects” determinations and doing the consultations that are mandated under section 7(a)(2). Yet elsewhere the agency admits its own violations. At Appendix H of the 2011 Clothianidin Registration Review Problem Formulation, EPA outlined the need for four studies, on “Pollinator Larval Toxicity”; “Pollinator Laboratory Chronic Feeding”; “Residues in Pollen and Nectar/ Field Residue Analysis”; and a “Field Test for Pollinators.” For each of those studies, the agency states:12 EPA is required by section 7(a)(2) of the ESA to ensure that any action it authorizes or takes “…is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction of or adverse modification of critical habitat” and to use the “best scientific data available” in carrying out this obligation. The data EPA intends to call in are necessary to inform the determination required by the ESA as to whether continued registration of a pesticide is not likely to jeopardize the species or its critical habitat. The lack of these data will limit the flexibility that the agency and registrants have in coming into compliance with the ESA and could result in use restrictions which are unnecessarily severe. In addition, the lack of these data may result in assumed risk and potential mitigation of clothianidin formulations under FIFRA. (Emphases added). The statement’s focus on “continued registration” and “coming into compliance with the ESA” entirely begs the question of complying with the ESA before approving the uses of these pesticides, which the agency has not done, and not after it has made these approval decisions. In short, EPA has allowed clothianidin and thiamethoxam to be applied over vast acreage and a myriad of climates and habitats throughout the U.S. with no prior ESA compliance. 10
Thiamethoxam Final Work Plan, supra note 5, at 4-5. Rose Mason, Hank A. Tennekes, Francisco Sánchez-Bayo, and Palle Uhd Jepsen, Immune Suppression by Neonicotinoid Insecticides at the Root of Global Wildlife Declines, Journal of Environmental Immunology and Toxicology (forthcoming publication). 12 Office of Chemical Safety and Pollution Prevention, EPA, Registration Review: Problem Formulation for the Environmental Fate and Ecological Risk, Endangered Species, and Drinking Water Exposure Assessments of Clothianidin (2011). Essentially the same statements exist for thiamethoxam. 11
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V.
Violations of the ESA
Prior to conditionally registering clothianidin and thiamethoxam, and prior to issuing the approximately 85 use approvals for them over the last 12 years as listed in Appendices A and B, EPA failed to: a) ensure, in consultation with FWS, that the uses of clothianidin and thiamethoxam are not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). b) request from FWS information on whether any threatened or endangered species, or designated critical habitat, may be present within or near the areas of the proposed uses. Id. at § 1536(c)(1); 50 C.F.R. § 402.12. c) prepare a “biological assessment” to determine whether any threatened and endangered species may be affected by the proposed uses. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. d) engage in consultation with FWS regarding the potential adverse effects of the proposed uses of clothianidin and thiamethoxam on threatened and endangered species, and critical habitat. 16 U.S.C. § 1536(a); 50 C.F.R. §§ 402.13–14. e) ensure that the agency, registrant, and users of clothianidin and thiamethoxam would not make any irreversible or irretrievable commitment of resources with respect to the sale and use of these compounds prior to EPA initiating and completing consultation with FWS. 16 U.S.C. § 1536(d). Furthermore, EPA has failed, in consultation with FWS, to utilize its authority in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered and threatened species, in violation of the ESA. Id. at § 1536(a)(1). More specifically, EPA has failed to utilize its authority to carry out programs for the conservation of the threatened and endangered species located in areas where clothianidin and thiamethoxam will be foreseeably used.
VI.
Conclusion
For the above stated reasons, EPA has violated, and remains in ongoing violation of, section 7 of the ESA. If these violations of law are not cured within 60 days, the concerned parties intend to file suit for declaratory and injunctive relief, as well as attorney and expert witness fees and costs. Id. at § 1540(g)(4). This notice letter was prepared based on good faith information and belief after reasonably diligent investigation. If you believe that any of the foregoing is factually erroneous or inaccurate, please notify us promptly.
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Sincerely,
Peter T. Jenkins Center for Food Safety 660 Pennsylvania Ave., SE Suite 302 Washington, DC 20003 Tel: 202-547-9359 Fax: 202-547-9429 Email: [email protected]
cc:
Eric H. Holder, Jr., U.S. Attorney General
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N A T I O N A L O F F I C E : 660 Pennsylvania Ave., S.E., Suite 302, Washington, D.C. 20003 phone: 202-547-9359 fax: 202-547-9429 C A L I F O R N I A O F F I C E : 303 Sacramento Street, 2nd Floor, San Francisco, CA 94111 phone: 415-826-2770 fax: 415-826-0507 P A C I F I C N O R T H W E S T O F F I C E : 917 SW Oak Street, Suite 300, Portland, OR 97205 phone: 971-271-7372 fax: 971-271-7374 email: [email protected] | www.centerforfoodsafety.org | www.truefoodnow.org
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
I. Identity of the Parties Giving Notice: The name and location of the concerned parties giving notice of intent to sue under the ESA are: - Beyond Pesticides, located in Washington, D.C., is a nonprofit membership organization founded in 1981. Beyond Pesticides promotes safe air, water, ecosystems, land, and food. It works to protect public health and the environment, including threatened and endangered species, by encouraging a transition away from the use of toxic pesticides. - Center for Food Safety, located in Washington, D.C.; San Francisco, California; and Portland, Oregon, is a nonprofit membership organization. It seeks to ameliorate the adverse impacts of industrial farming and food production systems on human health, animal welfare and the environment, including threatened and endangered species. The Center for Food Safety has over 200,000 members nationwide. - Sierra Club, headquartered in San Francisco, California, with chapters in every State, is the largest grassroots environmental organizations in the United States, as well as one of the oldest and most influential citizen organizations. Its fundamental mission is to practice and promote the responsible use of the earth's ecosystems and resources. - Jeff Anderson, Oakdale, California; and Eagle Bend, Minnesota; Steve Ellis, Barrett, Minnesota; David Hackenberg, Lewisburg, Pennsylvania; and Tom Theobold, Niwot, Colorado. Each of these men are major commercial beekeepers who are deeply concerned over EPA’s failures to comply with the ESA due to concerns both about the directly-impacted invertebrate species and about the broader ecosystem and habitat impacts that flow from EPA’s approvals of vast numbers of clothianidin and thiamethoxam-based products without adequate effects analysis. Their honeybee colonies cannot thrive in habitats where repeated use of persistent systemic neonicotinoid insecticides occurs and each of them has suffered serious economic and other damages due to these insecticides. All of the concerned parties, and their members in the case of the organizational members, have a strong interest in protecting America’s species and ecosystems from endangerment through degradation caused by inappropriate pesticides. Beneficial species of insects, other invertebrates, birds, amphibians, and other taxa provide the concerned parties, and their members, with essential ecological services, as well as scientific, aesthetic, recreational, and other benefits.
II.
Counsel for the Concerned Parties: Peter T. Jenkins, Of Counsel Center for Food Safety 660 Pennsylvania Ave., SE, #302 Washington, D.C. 20003 Tel: 202-547-9357 Fax: 202-547-9429 Email: [email protected]
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
III.
Requirements of the ESA
Section 7 of the ESA requires EPA, in consultation with FWS, to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species, or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). “Action” is broadly defined to include all activities or programs of any kind authorized, funded, or carried out by federal agencies, including activities directly or indirectly causing modifications to land, water, or air. 50 C.F.R. § 402.02. For each federal action, EPA must request information from FWS indicating whether any listed or proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. If listed or proposed species may be present, EPA must prepare a “biological assessment” to determine whether the listed species may be affected by the proposed action. 16 U.S.C. § 1536(c)(1). The biological assessment generally must be completed within 180 days. Id.; 50 C.F.R. § 402.12(i). If EPA determines that its proposed action may affect any listed species or critical habitat, the agency must engage in formal consultation with FWS. 50 C.F.R. § 402.14. To complete formal consultation, FWS must provide EPA with a “biological opinion” explaining how the proposed action will affect the listed species or habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. Consultation generally must be completed within 90 days from the date on which consultation is initiated. 16 U.S.C. § 1536(b)(1)(A); 50 C.F.R. § 402.14(e). If FWS concludes that the proposed action “will jeopardize the continued existence” of a listed species, the biological opinion must outline “reasonable and prudent alternatives.” 16 U.S.C. § 1536(b)(3)(A). If the biological opinion concludes that the action is not likely to jeopardize the continued existence of a listed species, and will not result in the destruction or adverse modification of critical habitat, FWS must provide an “incidental take statement” specifying the amount or extent of such incidental taking on the listed species and any “reasonable and prudent measures” that FWS considers necessary or appropriate to minimize such impact, and also setting forth the “terms and conditions” that must be complied with by EPA to implement those measures. Id. at § 1536(b)(4); 50 C.F.R. § 402.14(i). In order to assess the effects of incidental take, EPA must monitor and report the impact of its action on the listed species to FWS as specified in the incidental take statement. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §§ 402.14(i)(1)(iv), 402.14(i)(3). If during the course of the action the amount or extent of incidental taking is exceeded, EPA must reinitiate consultation with FWS immediately. 50 C.F.R. § 402.14(i)(4). The re-initiation of formal consultation is required and must be requested by EPA or FWS if (1) the amount or extent of taking specified in the incidental take statement is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the action is modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological
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opinion; or (4) a new species is listed or critical habitat designated that may be affected by the identified action. Id. at § 402.16. During consultation with FWS, EPA is prohibited from making any irreversible or irretrievable commitment of resources with respect to the agency action which may foreclose the formulation or implementation of any reasonable and prudent alternative measures. 16 U.S.C. § 1536(d). Section 7(a)(1) of the ESA requires EPA, in consultation with and with the assistance of FWS, to utilize its authority in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered and threatened species. Id. at § 1536(a)(1). Section 9 of the ESA and its implementing regulations prohibit the unauthorized “take” of listed species. Id. at §§ 1533(d), 1538(a)(1); 50 C.F.R. § 17.31. “Take” is defined broadly to include harming, harassing, trapping, capturing, wounding, or killing a protected species either directly or by degrading its habitat. See 16 U.S.C. § 1532(19). Taking that is in compliance with the terms and conditions specified in a biological opinion is not prohibited under section 9 of the ESA. Id. at § 1536(o)(2).
IV.
EPA’s Registrations and Use Approvals for Clothianidin and Thiamethoxam
Neonicotinoid pesticides such as clothianidin and thiamethoxam are systemic pesticides that are expressed throughout plant tissues, including a plant’s flowers, pollen, and nectars.1 Neonicotinoids damage the central nervous system of insects. When bees and other insects— including many ESA-protected insects—forage on pollen or nectar from crops or plants treated with clothianidin and/or thiamethoxam, they ingest the pesticide, which can result in paralysis, death, or damaging sub-lethal effects. Major exposure pathways include inter alia residues in pollen and nectar, dust from treated seeds and soils, planter exhaust, untreated but contaminated non-crop plants adjacent to treated fields, guttation droplets on both treated and untreated but contaminated plants, and residues from foliar uses. To make matters worse, neonicotinoid pesticides have extremely long half-lives—as long as 1,155 days.2 Thus, they persist in the environment, increasing the risk of cumulative toxic loading effects. EPA first conditionally registered clothianidin for use on corn and canola in 2003.3 In its initial conditional registration of clothianidin, EPA recognized that compliance with ESA is necessary:4 1
EPA, Pesticide Fact Sheet: Clothianidin, Conditional Registration (May 30, 2003), available at www.epa.gov/opprd001/factsheets/clothianidin.pdf. Note: clothianidin is derived from thiamethoxam and the two are very closely related chemically. To avoid redundancy, this notice will not repeatedly refer to thiamethoxam documents, as the issues for the two compounds are essentially the same. 2 Id. 3 Id.
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
Clothianidin is expected to present acute and/or chronic toxicity risk to endangered/ threatened birds and mammals via possible ingestion of treated corn and canola seeds. Endangered/threatened non-target insects may be impacted via residue laden pollen and nectar. The potential use sites cover the entire U.S. because corn is grown in almost all U.S. states. EPA has made the same admissions in its thiamethoxam documentation. Despite EPA’s recognition of the acute and/or chronic toxicity risk to endangered/threatened birds and mammals from these substances, the agency has proceeded to ignore those risks. EPA has approved the use of clothianidin and thiamethoxam on more than 30 crops, as well as ornamental, turfgrass, and structural applications. All told, EPA has approved about 85 total products in 12 years. See Appendices A and B, listing the approved uses for the two compounds including the dates of initial registration; more recent approvals may have occurred since these Appendices were prepared. Yet, there is no evidence that EPA consulted with FWS prior to registering clothianidin or thiamethoxam, or prior to approving this vast number of new uses over this period. EPA acknowledges it has not complied with section 7(a)(2) of the ESA. As the agency stated in June 2012, in its recent “Registration Review Final Work Plan” for clothianidin :5 The Agency has not conducted a risk assessment that supports a complete endangered species determination for clothianidin. The ecological risk assessment planned during registration review will allow the Agency to determine whether clothianidin’s use has “no effect” or “may affect” federally listed threatened or endangered species (listed species) or their designated critical habitats. When an assessment concludes that a pesticide’s use “may affect” a listed species or its designated critical habitat, the Agency will consult with the U.S. Fish and Wildlife Service and/or National Marine Fisheries Service (the Services), as appropriate. EPA made the same acknowledgement in its Registration Review Final Work Plan for thiamethoxam.6 More than 15 threatened or endangered insects, ranging from beetles to butterflies to grasshoppers and other taxa, are potential directly affected now by the use of clothianidin and thiamethoxam-based pesticides.7 The vast majority of these were listed prior to 4
Id. Pesticide Re-evaluation Division, EPA, Clothianidin Final Work Plan for Registration Review (June 2012); docket EPA-HQ-OPP-2011-0865; see also Pesticide Re-evaluation Division, EPA, Thiamethoxam Final Work Plan - Registration Review (June 2012); docket EPA-HQ-OPP-20110581. 6 Pesticide Re-evaluation Division, EPA, Thiamethoxam Final Work Plan - Registration Review (June 2012); docket EPA-HQ-OPP-2011-0581. 7 A non-exhaustive list shows 18 threatened or endangered insects that clothianidin and thiamethoxam may affect (this list provides the date of the Federal Register notice of their listing): 5
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
the dates of EPA’s approvals at issue (listing dates indicated in footnote 7). Yet EPA has not even made the basic, required determination as to whether and how clothianidin and thiamethoxam, and the various approved uses of them, “may affect” any of the ESA-listed taxa, much less consulted on the key ESA action-forcing determination as to whether any of their uses “jeopardize” the survival of these species. Harmful effects on many non-insect ESA-listed species are also foreseeable, based on the many declines of insectivorous birds documented in Europe due to neonicotinoid use.8 EPA has not made the required “effects” determinations or consulted for them either. For clothianidin, EPA’s June 2012 Final Work Plan admits this:9 The environmental fate and effects database is largely complete for clothianidin with the exception of effects data on avian and terrestrial invertebrate species.
American burying beetle (Nicrophorus americanus) – 7/13/1989 Behren’s fritillary (or Behren's silverspot) (Speyeria zerene behrensii) – 12/5/1997 Callippe silverspot (Speyeria callippe callippe) – 12/5/1997 Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis) – 9/23/1993 Fender’s blue (Icaricia icarioides fenderi) -- 1/25/2000 Hine’s emerald dragonfly (Somatochlora hineana) – 1/26/1995 Karner blue (Plebejus melissa samuelis) – 12/14/1992 Kern primrose sphinx moth (Euproserpinus euterpe) – 4/8/1980 Lange’s metalmark (Apodemia mormo langei) – 6/1/1976 Mitchell’s satyr butterfly (Neonympha mitchellii mitchelli) -- 5/20/1992 Myrtle’s silverspot (Speyeria zerene myrtleae) – 6/22/1992 Northeastern beach tiger beetle (Cicindela dorsalis dorsalis) – 8/7/1990 Ohlone tiger beetle (Cicindela ohlone) – 10/3/2001 Quino checkerspot butterfly (Euphydryas editha quino) – 1/16/1997 Salt Creek tiger beetle (Cicindela nevadica lincolniana) – 10/6/2005 San Bruno elfin (Callophrys mossii bayensis) – 6/1/1976 Schaus swallowtail (Papilio aristodemus ponceanus) – listed as threatened 4/22/1975; reclassified as endangered 8/31/1984 Zayante band-winged grasshopper (Trimerotropis infantilis) – 1/24/1997 This list likely will need updating as more species are regularly added and numerous “Candidate” species await further action, including native bees. 8
Henk Tennekes, The Systemic Insecticides: A Disaster in the Making (Weevers Walburg Communicatie, Zutphen, The Netherlands) (2010), available at www.disasterinthemaking.com. 9 Clothianidin Final Work Plan, at 3.
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
For thiamethoxam, the June 2012 Final Work Plan is not as explicit but notes essentially the same thing.10 In short, the agency lacks the required effects data on the key taxa that are at risk here: terrestrial invertebrates, such as the 18 insects listed in footnote 6, and birds, such as those insectivorous birds that are most at risk from the two insecticidal compounds involved here. Proceeding without this vital information violates the ESA. Even more alarming, a recent paper identifies immune suppression effects of neonicitinoid insecticides as a potential contributor to broader global wildlife declines, including such imperiled taxa as amphibians and bats.11 EPA has ignored these broader potential effects as well. Agency documents suggest EPA is seeking to paper over various inadequate forms of “compliance” that fall far short of actually making biologically based “effects” determinations and doing the consultations that are mandated under section 7(a)(2). Yet elsewhere the agency admits its own violations. At Appendix H of the 2011 Clothianidin Registration Review Problem Formulation, EPA outlined the need for four studies, on “Pollinator Larval Toxicity”; “Pollinator Laboratory Chronic Feeding”; “Residues in Pollen and Nectar/ Field Residue Analysis”; and a “Field Test for Pollinators.” For each of those studies, the agency states:12 EPA is required by section 7(a)(2) of the ESA to ensure that any action it authorizes or takes “…is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction of or adverse modification of critical habitat” and to use the “best scientific data available” in carrying out this obligation. The data EPA intends to call in are necessary to inform the determination required by the ESA as to whether continued registration of a pesticide is not likely to jeopardize the species or its critical habitat. The lack of these data will limit the flexibility that the agency and registrants have in coming into compliance with the ESA and could result in use restrictions which are unnecessarily severe. In addition, the lack of these data may result in assumed risk and potential mitigation of clothianidin formulations under FIFRA. (Emphases added). The statement’s focus on “continued registration” and “coming into compliance with the ESA” entirely begs the question of complying with the ESA before approving the uses of these pesticides, which the agency has not done, and not after it has made these approval decisions. In short, EPA has allowed clothianidin and thiamethoxam to be applied over vast acreage and a myriad of climates and habitats throughout the U.S. with no prior ESA compliance. 10
Thiamethoxam Final Work Plan, supra note 5, at 4-5. Rose Mason, Hank A. Tennekes, Francisco Sánchez-Bayo, and Palle Uhd Jepsen, Immune Suppression by Neonicotinoid Insecticides at the Root of Global Wildlife Declines, Journal of Environmental Immunology and Toxicology (forthcoming publication). 12 Office of Chemical Safety and Pollution Prevention, EPA, Registration Review: Problem Formulation for the Environmental Fate and Ecological Risk, Endangered Species, and Drinking Water Exposure Assessments of Clothianidin (2011). Essentially the same statements exist for thiamethoxam. 11
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
V.
Violations of the ESA
Prior to conditionally registering clothianidin and thiamethoxam, and prior to issuing the approximately 85 use approvals for them over the last 12 years as listed in Appendices A and B, EPA failed to: a) ensure, in consultation with FWS, that the uses of clothianidin and thiamethoxam are not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2). b) request from FWS information on whether any threatened or endangered species, or designated critical habitat, may be present within or near the areas of the proposed uses. Id. at § 1536(c)(1); 50 C.F.R. § 402.12. c) prepare a “biological assessment” to determine whether any threatened and endangered species may be affected by the proposed uses. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12. d) engage in consultation with FWS regarding the potential adverse effects of the proposed uses of clothianidin and thiamethoxam on threatened and endangered species, and critical habitat. 16 U.S.C. § 1536(a); 50 C.F.R. §§ 402.13–14. e) ensure that the agency, registrant, and users of clothianidin and thiamethoxam would not make any irreversible or irretrievable commitment of resources with respect to the sale and use of these compounds prior to EPA initiating and completing consultation with FWS. 16 U.S.C. § 1536(d). Furthermore, EPA has failed, in consultation with FWS, to utilize its authority in furtherance of the purposes of the ESA by carrying out programs for the conservation of endangered and threatened species, in violation of the ESA. Id. at § 1536(a)(1). More specifically, EPA has failed to utilize its authority to carry out programs for the conservation of the threatened and endangered species located in areas where clothianidin and thiamethoxam will be foreseeably used.
VI.
Conclusion
For the above stated reasons, EPA has violated, and remains in ongoing violation of, section 7 of the ESA. If these violations of law are not cured within 60 days, the concerned parties intend to file suit for declaratory and injunctive relief, as well as attorney and expert witness fees and costs. Id. at § 1540(g)(4). This notice letter was prepared based on good faith information and belief after reasonably diligent investigation. If you believe that any of the foregoing is factually erroneous or inaccurate, please notify us promptly.
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ENDANGERED SPECIES ACT SIXTY DAY NOTICE LETTER
Sincerely,
Peter T. Jenkins Center for Food Safety 660 Pennsylvania Ave., SE Suite 302 Washington, DC 20003 Tel: 202-547-9359 Fax: 202-547-9429 Email: [email protected]
cc:
Eric H. Holder, Jr., U.S. Attorney General
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