door agriculture, forestry, weed control, and other uses are also intentionally released into the environment. Consequently, if any listed species nest, roost, migrate through, or otherwise exist in a particular geographic location where pesticides are released, they could be exposed to potentially harmful substances, and takes could occur.
As described above, the ESA prohibits any take of a listed species and requires formal consultation for any agency action that is likely to affect any listed species adversely. FIFRA, in contrast, requires a cost-benefit balancing of the risks associated with the use of a pesticide and the social and economic benefits to be gained by its use. The ESA prohibits takes of listed species and seeks to ensure that federal agency actions do not jeopardize the continued existence of a listed species. Economic considerations do not come into play in ESA listing, take, or jeopardy evaluations as they do under FIFRA. The FIFRA cost-benefit standard applies whether or not listed species are at issue, although presumably harm to a listed species would be considered a high cost. In fact, the only place where FIFRA mentions threatened or endangered species is in Section 6(c)(1) of FIFRA, which authorizes EPA to “suspend the registration of a pesticide [if that] is necessary to prevent an imminent hazard during the time required for a cancellation proceeding.” As noted above, FIFRA Section 2(l) defines imminent hazard to include a “situation which exists when the continued use of a pesticide during the time required for cancellation proceeding … will involve unreasonable hazard to the survival of a species declared endangered or threatened.” FIFRA does not provide EPA with any other direction concerning listed species.
Another challenge for EPA in complying with the ESA for pesticide registrations is that FIFRA creates a national registration process whereas the ESA requires an evaluation of effects on the habitat of a listed species and individual members of a species. Under FIFRA, pesticide registration or cancellation decisions are made on a nationwide basis. The ESA, in contrast, is geographically and temporally focused. Although EPA typically considers geographic fate and exposure scenarios relevant to where and when a pesticide is expected to be used, it is challenging to design label restrictions and warnings to ensure that there is never an effect on a listed species.
Another difference between FIFRA and the ESA concerns data available for assessments. As indicated above, FIFRA requires the submission of data before registration, whereas under the ESA the Services are mandated to rely on the best data available (as opposed to requesting new data). Furthermore, under the ESA, decisions are not to be delayed because of a lack of data.
The differences between the statutes have led EPA and the Services to develop different approaches to ecological risk assessment that have often made it difficult for them to reach a scientific agreement. As a result, EPA and the Services decided to seek advice from the NRC on several scientific issues related to conducting an ecological risk assessment.