its intended function and will not cause unreasonable adverse environmental effects. Once granted, the registration requires that the pesticide be labeled with specific product information, directions for use, and hazard information; the label specifies legal use of the pesticide.
The ESA is the federal statute that assigns FWS and NMFS the authority to designate species as threatened or endangered—that is, to “list” species—and governs the activities that might affect listed species. Under the ESA, federal agencies must ensure that their actions do not harm listed species or jeopardize their existence. Accordingly, if EPA is deciding whether to register a pesticide, it must determine whether the action “may affect” a listed species. If the answer is yes, EPA has the option of initiating a formal consultation or conducting further analysis to determine whether the action is “likely to adversely affect” listed species. If EPA determines that the action is not likely to affect listed species adversely—and FWS or NMFS, as appropriate, agrees—no further consultation is required. However, if EPA determines that the action is likely to affect a listed species adversely, a formal consultation is required, and FWS or NMFS must determine whether the proposed action is likely to jeopardize the existence of the listed species. The product of that determination is called a biological opinion (BiOp) and is issued by FWS or NMFS.
Compliance with the ESA in registering pesticides creates some challenges. First, pesticides are intended to harm target organisms and are intentionally released into the environment. Other species that are in an area where a pesticide is applied could be exposed to and harmed by the pesticide. Second, FIFRA requires that EPA must determine before registering a pesticide that the use of the pesticide will not cause an unreasonable adverse effect on the environment, taking into account economic and social benefits associated with its use. That is, EPA weighs the costs to human health and the environment that could result from pesticide use against social and economic benefits, such as the benefits of mitigating disease vectors and reducing crop damage. The ESA prohibits jeopardizing listed species or adversely affecting their critical habitats but does not generally consider economic and social costs and benefits. Third, FIFRA creates a national registration process in which pesticides are registered on a nationwide basis, but the ESA calls for evaluating effects on specific species and their critical habitats and thus is geographically and temporally focused. The differences between the statutes have led to conflicting approaches in evaluating risks and have contributed to the current inability to reach consensus on assessing risks to listed species from pesticides.
A COMMON APPROACH
Compliance with the ESA in the context of pesticide registration requires EPA and the Services to determine the probability of adverse effects on listed species and their critical habitat when a pesticide is used according to its label requirements. Clearly, there are tensions among the agencies in making that de-