Amid the Fog of Policy, Reporting on Pesticide Regulation

Backgrounder: Amid the Fog of Policy, Reporting on Pesticide Regulation

By Joseph A. Davis

Scott Pruitt, then the new Trump U.S. Environmental Protection Agency boss, stunned the pesticide world in March 2017 when he decided not to ban the pesticide chlorpyrifos — despite strong recommendations from agency scientists that he do so.

Pesticides are hot news today, a key story for environmental journalists. But the regulation of pesticides is a much older story, hard to see, understand and report. SEJournal Backgrounder hopes this explainer will help.

The bigger story about pesticides is sometimes lost in the rush of breaking news. There has been plenty of that in recent months. Here are highlights:

• Chlorpyrifos not banned. Chlorpyrifos is a widely used pesticide in the organophosphate family (which includes nerve gas). Scientific studies showed high likelihood that it caused neurodevelopmental delays in children, and EPA scientists concluded it should be banned. Shortly after taking office, however, Pruitt said EPA would continue studying its health effects until 2022.
• Farmers fume over dicamba. Dicamba, which kills a wide variety of weeds, was registered in 1967. But more recently, Monsanto developed GMO varieties of soy and cotton that resist dicamba, allowing more to be applied. Nearby farmers not using the GMO seeds complained that dicamba was vaporizing and drifting, damaging their crops. When Arkansas regulators banned dicamba use, Monsanto sued them. EPA in October tried to limit dicamba use more tightly without banning it, but it remained unclear whether this would make anyone beyond the chemical companies happy.
• Imports badly tracked. A September 2017 report by EPA’s Office of Inspector General found that because of low rates of inspection and sampling, EPA might not be effectively identifying and deterring the import of illegal pesticides harmful to health and the environment.
• Contaminated honey. A study published in October 2017 in the prestigious journal Science found a significant amount of honey worldwide to be contaminated by neonicotinoid insecticides. So-called neonics are suspected of being one major cause of the honeybee die-off known as “colony collapse.” The finding bolsters these concerns, though EPA continues to allow their wide use.
• Greens sue EPA on neonics. The environmental group Natural Resources Defense Council filed suit Oct. 3 against the EPA for failing to regulate neonicotinoid insecticides in a way that does not harm the environment. NRDC’s complaint went beyond damage to bees — to include other insects and other pollinators like butterflies and birds.
• Atrazine widespread in water. The second-most commonly applied pesticide in the United States, is a weedkiller widely used on Midwestern corn. As a result, it is often found in water, often drinking supplies. EPA is in the middle of re-evaluating its health effects (which may be significant) and regulatory status. A recent study found that the health effects of atrazine can be transmitted from one generation to the next. EPA’s next actions will likely be reviewed by science advisory panels newly purged by Pruitt.

Politics long a part of pesticide regulation

EPA decisions on pesticides and public health are not supposed to be made merely by political fiat, at least if federal pesticide law is to be taken seriously.

Yet historically, politics have mattered. The agricultural interests that rely on pesticides and the chemical companies that profit from them have long had a strong hand on pesticide regulation and policy.

But pesticides are known to harm human health and environmental integrity in many situations. That is why health and environment considerations are supposed to rule pesticide policy. It’s also why the EPA — not the Agriculture Department — is supposed to be in charge of regulating pesticides.

The nation’s main pesticide law, the Federal Insecticide, Fungicide, and Rodenticide Act, or FIFRA, has a history worth knowing.

A Ford tri-motor spraying DDT as part of a Western spruce budworm control project at Powder River, Ore., in 1955. The pesticide was not banned until 1972. Photo: R.B. Pope/USDA Forest Service, Flickr Creative Commons

FIFRA was originally enacted in 1910, in an era when the Ag Department was in charge of it. Even a major revision in 1947 did not change that. Only in 1972, during the heyday of environmental lawmaking, was the newly formed EPA put in charge of the law and tasked with protecting public health and the environment.

As a point of reference, DDT was not discovered until 1939. Its inventor won the Nobel Prize in 1948. Rachel Carson published "Silent Spring" in 1962. And EPA banned DDT in 1972.

But even today, because of the way the law is written and enforced, FIFRA often balances environmental health against the economic well-being of farmers (and perhaps also the profits of chemical companies).

Now, in the Pruitt EPA, that balance may be skewed toward the chemicals.

FIFRA is unusual among the major environmental laws in the large degree to which it allows public health and farmer/company profits to be balanced. That leaves leeway for judgment calls by the regulator.

Politics? Really? Yes. Try to remember how viciously Carson was pilloried by the chemical companies — before she was proven right. Now, the Trump administration is bringing in chemical industry allies like Michael Dourson and Nancy Beck to oversee regulation of chemicals.

Science? That may also be a thing of the past. According to critics, Pruitt is busy overhauling the agency’s science advisory panels to make them more friendly to industry. EPA has one science advisory panel just for FIFRA; you can keep an eye on it here.

FIFRA — how it functions

FIFRA works a bit differently from other environmental laws.

Pesticides must be “registered” to be sold and used legally. So a registration is something like a permit or a license given by EPA to the manufacturer of a pesticide product. Each product may be a different formulation of an active ingredient (or more than one) and various other ingredients meant to make it do certain jobs (e.g., spray easily or appeal to rats).

A registration comes with a number of conditions or restrictions. Its use may only be allowed on certain crops, or at certain times, or in certain amounts. There may be restrictions on what insects or weeds it can be used to control. It may be for indoor or outdoor use, household or farm use. There may be instructions on how to wash and dispose of empty containers. Sometimes, only licensed applicators can use it.

 

 

Despite the law regulating pesticide use

to protect human health and the environment,

it is still largely an honor system for the end users.

 

Most of this information must be displayed on the product label and it is illegal to use it in ways inconsistent with label instructions. All of these restrictions are meant to protect health and the environment.

All that said, it is still largely an honor system for the end users.

To get a registration, a pesticide manufacturer has to jump through some hoops. An applicant for registration of a product or for a new use of a registered pesticide must show that it will not cause unreasonable adverse effects on human health or the environment.

Ah, you might ask: what is “reasonable?”

That is where the lawyers and scientists come in — it gets litigated. The question is, when used according to label instructions, whether the risk to health and environment is small enough to justify the benefits of killing the pest.

The regulation of pesticides is vastly more complex than we can explain here. Some good explanations come from EPA. Many important points are explained in the EPA Pesticide Registration Manual. More information can be found from EPA’s main pesticide page.

Harm to human health?

Pesticides are used on food crops. Real harm to human health can result when residues of certain pesticides remain on or in the food products we consume. In many cases, fortunately, the pesticides may wash away or degrade chemically long before produce gets to the consumer.

But not always. FIFRA includes requirements for information about food residues as part of an application for registration. These requirements were strengthened in the 1996 FIFRA amendments. Those amendments included special protections for children and infants, who are especially vulnerable.

Are pesticide residue requirements effective in protecting public health? That may be an open question. For more information, see the Environmental Working Group’s "2017 Shopper's Guide to Pesticides in Produce."

Regulatory exceptions abound

One thing worth realizing, in any case, is that battles over entirely new pesticide chemicals are comparatively rare. The battles are more likely to be over new uses, new formulations/products and new health information.

Often the controversy is over re-registration of an old pesticide, which must be done at intervals. Sometimes the fights are over whole new categories of products, such as antimicrobials and biological controls, or over biopesticides.

Another important thing to understand is that FIFRA is a vast landscape of special exceptions.

A researcher uses a spray rig to apply herbicide to Roundup Ready alfalfa test plots at the Texas A&M AgriLife Research and Extension Center at Overton. Photo: Robert Burns/Texas A&M AgriLife Research, Flickr Creative Commons

For example, there are emergency exemptions, ostensibly meant to address some dire and immediate pest threat. There are experimental use permits, which are purportedly meant to allow pesticide makers to field-test products. There are state-specific registrations for special local needs. There are restricted use products that can only be used by licensed applicators. There are minor uses, subject to their own special rules.

While the federal EPA has the key authority over pesticide registration, remember that it is usually the states that have day-to-day enforcement authority over actual use of pesticides.

If spray drifts from a farmer’s field onto schools, if an unlicensed applicator applies a restricted use pesticide, or if a person uses a pesticide in ways that do not comply with label instructions — that is usually going to be the state’s problem (although states can refer cases to EPA for prosecution).

That’s why it’s useful to be in touch with your own state’s pesticide control agency; a list of them is online here.

GMO crops spark pesticide controversies

One of the biggest policy arenas today involves pesticides applied to pesticide-tolerant crops.

You may have heard of “Roundup Ready” corn, soybeans and alfalfa. Those are crops engineered with GMO technology to be resistant to glyphosate, the weedkiller which is the main ingredient in Monsanto’s Roundup family of herbicides. This makes weed control much easier for farmers, lowering costs and raising yields.

The current controversy over dicamba mentioned above also fits this pattern.

But pesticide-tolerant GMO crops encourage farmers to use more pesticides — a boon to the pesticide companies, but often a bane to environment and health.

Pesticide registrations and patents already give big market power to the companies holding them. Amplifying that power very often is that the company that sells the pesticide also holds the patent on the GMO seed for the pesticide-tolerant crop.

This gives that company a very strong lock on the market for entire crops — a virtual monopoly power largely unchecked by economic competition or government regulation.

Scientific review skewed?

Companies applying for registration have to submit studies supporting their claims of no unreasonable adverse effects. Those studies must usually be done at the company’s own expense. The fact that applicants are paying for the science could possibly skew the results.

 

 

The way in which studies are done on pesticides

may keep the science on health effects

out of the public eye.

 

Another problem is that the companies keep a proprietary interest in the science they submit. If another company wants to register a similar product, they must either pay for their own science or pay the original company to use it. This may distort both the science and the market.

The worst effect, however, may be that it keeps the science on pesticide health effects out of the public eye.

The public has a right to know how federally registered pesticides may affect their health and the environment — and environmental journalists have a duty to inform the public of these things.

Technically, a 1978 amendment to the law (7 USC 136h (d)(1)) requires public disclosure of health and environmental effects. But then the amendment walls that information in with many exceptions. Not only are pesticide formulations patentable, but applicants can claim much of their information is confidential or trade secrets.

You can file a Freedom of Information Act request for pesticide health studies, but to get them you have to sign an affirmation saying you will not disclose them to a company’s foreign competitors. That may effectively prevent publication, although SEJ is unaware of this ever being challenged in court.

Some links to pesticide health studies and other information are available in EPA’s Pesticides FOIA Electronic Reading Room — but those have now been removed from EPA’s regular website and put into a static archive section. A functional near-equivalent is now published in the form of a docket at the regulations.gov website.

Other pesticide info sources

As problematic an information source as EPA can be, it does offer some handy sources of data and information for people writing about pesticides.

One is a database of pesticides and active ingredients, the Pesticide Product and Label System, which is online and searchable here. It is not perfect, but can get you started on tracking a registration.

Another database, operated by the Pesticide Action Network, is here. EPA has a list of other databases useful in evaluating pesticide risks (some of them commercial).

Two environmental groups that work on pesticide issues are Beyond Pesticides and the Natural Resources Defense Council. The main industry lobbying group is CropLife America, but specialty pesticides are represented by Responsible Industry for a Sound Environment.

Joseph A. Davis is director of SEJ’s WatchDog Project, and writes SEJournal Online’s Backgrounders and TipSheet columns.

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* From the weekly news magazine SEJournal Online, Vol. 2, No. 41. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here.  And see past issues of the SEJournal archived here.