The Environmental Protection Agency is poised to enter a court settlement that will commit it to a pesticide “pilot project” that has been roundly criticized by the USDA and the National Association of State Departments of Agriculture.

The EPA project will restrict pesticide use to protect 27 threatened or endangered species in parts of 29 states, including Oregon, Washington and California.

The EPA says it may revise details of the plan, but the settlement, pending in U.S. District Court for Northern California, obligates the agency to implement it despite the objections of the USDA, states and farm groups.

North Dakota Agriculture Commissioner Doug Goehring said Aug. 25 the pilot project bypasses normal procedures for regulating pesticides and the settlement will make halting the pilot more difficult.

“Now you have to overturn a court to put the processes back in place,” he said. “We almost didn’t believe (the settlement) when we first saw it.”

The settlement stems from a lawsuit led by the Center for Biological Diversity alleging the EPA failed to consult with other federal agencies on the effects of pesticides on federally protected species.

The settlement commits the EPA to meeting several deadlines for reviewing the safety of pesticides and developing a slate of “strategies” for different types of chemicals, such as herbicides and rodenticides.

An EPA spokesman said in an email the agency would be proposing the “vulnerable species pilot” even without the lawsuit.

Nevertheless, the pilot figures prominently in the settlement. If approved by the court, EPA will wrap up “public outreach” by the end of the year.

By Sept. 30, 2024, the EPA “shall determine how it could expand the approach used in the vulnerable species pilot to other selected vulnerable species,” the settlement states.

The settlement calls out the Taylor’s checkerspot butterfly, stating that lessons learned by restricting pesticide use in Oregon and Washington could be applied to protect other butterflies.

“The proposed settlement agreement doesn’t commit EPA to expanding the pilot program to other endangered species, but the settlement demonstrates EPA’s intent to protect other endangered species that are especially threatened by pesticides,” Center for Biological Diversity attorney Jonathan Evans said in an email.

The EPA has designated more than 2 million acres in Western Oregon and Western Washington as the Taylor’s checkerspot’s “pesticide use limitation area,” taking in counties where the butterfly does not exist.

Evans said any overly broad initial area is “entirely fixable.” The settlement is better than more lawsuits or “time consuming (Endangered Species Act) reviews on a species by species basis,” he said.

The agreement was negotiated by EPA attorneys. The EPA or Justice Department could still withdraw from the settlement.

The agency posted the settlement for public review in mid-July, but received only five comments. Goerhing was the only public official to remark on the agreement.

He asked the EPA to withdraw from the settlement, arguing it was providing cover for a policy that wouldn’t advance outside a lawsuit.

“We’ve never been in favor of ‘sue and settle,’ but this shined a whole new light on it,” Goerhing said in an interview. “It almost gives me a tight chest and anxiety.”

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