Endangered Species Act threatens pesticide use

Todd Baughman, Oklahoma State University Extension weed scientist, says herbicide resistance is the number one troubling topic producers cite at grower meetings.

“It’s at the top of their list of issues we have to address,” Baughman said at the recent Texas Plant Protection Association Annual Meeting in Bryan, Texas.

Resistance, however, challenging as it is, might not be the issue keeping weed scientists awake at night in the near future.

“I would surmise the Endangered Species Act (ESA) and how it could affect pesticides is way more important than herbicide resistance,” Baughman said.

A key sticking point, and one that frustrates Baughman and others closely tied to crop protection programs, is the lack of communication between those who write the regulations and those who understand how those regulations affect agriculture and other industries.

He cited several instances where pesticides were restricted without regulators conferring with knowledgeable scientists and agencies most closely aligned with the need for restrictions and the impact these regulations would have on product use and ability to manage pests.

Baughman acknowledged the need to protect species. 

“I think it’s important to realize we have a history of wanting to preserve species in the U.S., and it didn’t just start with the ESA,” he said. “We can look back to 1900 when the first law was enacted to start protecting certain species. So, it has a long history in our country. I think we should be proud of that.”

ESA regulation confusion

The regulations and the process of creating them has gotten more confusing. 

“We should want to protect species,” Baughman said. “I hope nobody in this room would disagree with this point.”

He noted the law most people are familiar with was not the first Endangered Species Preservation Act. One dates back to 1966, and one in 1969 was enacted to seriously start protecting species.

“The one we’re most familiar with, the one we’re following the regulations of now, was signed in 1973 by Richard Nixon,” Baughman shared.

“This law was passed with bipartisan support, which I would say is definitely unusual in today’s political climate. Legislators agreed this was an important issue,” he added.

According to Baughman, regulations include more than protecting specific species.

“Those laws include critical habitat, which will come into play as we move forward with this issue,” he said.

He further noted the ESA provides protection for endangered species. 

“The ESA’s goal is to protect threatened or endangered species and their habitats. However, the part that gets ignored is the phrase ‘without placing unnecessary burden on agriculture and pesticide users,’” he pointed out.

Recently, through lawsuits, the ESA has served as a means “to vacate registrations and restrict the use of various pesticides.”

Baughman said the most publicized action was the 2022  “vacation of the use of registered dicamba products – Engenia, Xtendimax and FeXapan – in dicamba tolerant cotton and soybeans.

“This caused much consternation because it occurred during the growing season after tolerant crops had already been planted. A continuing concern among applicators and crop producers is this law could be used to jeopardize use of pesticides in the future,” Baughman stated. “Additional concerns are district courts are setting law through these judgements.”

Where’s the science?

What is also concerning, according to Baughman, is decisions from these courts are made with inadequate understanding of the science involved in creating, testing, registering and using these products.

“Those decisions will affect future registration and reregistration of pesticides, as well as ‘potential loss or increased regulation through labeling and language restricting use,’” Baughman said.

“These decisions could make pesticide application difficult, if not nearly impossible, in large-scale production agriculture. This ultimately should concern anyone involved in agricultural production,” he continued.

Baughman also noted he is encouraged the ESA has worked with agriculture to sort out some of the questionable restrictions.

He also encouraged consultants, producers and others who work with or depend on crop protection products to be aware of pending restrictions. 

“Follow legislation. Be alert to the debates going on and take advantage of the public comment opportunities,” he concluded. “Agricultural has to be more involved in the process.”

Ron Smith is an editor for Farm Progress. This article was originally published in Farm Progress on Dec. 18.