Editorial: EPA tries ‘sue and settle’ power grab

Published 7:00 am Thursday, August 31, 2023

Add the U.S. Department of Agriculture to the chorus of ag groups and state government agencies that are wary of the Environmental Protection Agency’s plan to establish 27 “pilot projects” to protect endangered species across parts of 29 states.

Unfortunately, it appears EPA plans to move ahead, even though the projects will, in USDA’s words, have severe economic consequences for farmers.

It seems EPA is trying to do through a court settlement what it could never do otherwise — ignore federal law that requires EPA to analyze the costs and benefits of using a pesticide.

The EPA said the 27 species chosen for the vulnerable species pilot project have small ranges and are especially vulnerable to pesticides. The pilot project could be expanded to include more species, according to the agency.

More species, and more area.

Under EPA’s proposal, aerial and broadcast spraying of all conventional pesticides would be prohibited with some exemptions, such as indoor, residential and “small scale spot-treatment applications.”

At issue in the Northwest are proposed EPA restrictions meant to help the Taylor’s checkerspot butterfly.

The limitation would apply to more than a million acres in the western and southern portions of Oregon’s Willamette Valley and on lands surrounding Washington’s Puget Sound — what EPA calls a “small range.”

Most of the land earmarked for restrictions isn’t habitat for the Taylor’s checkerspot because it is under cultivation.

Farm groups across the country have uniformly panned the terms of the projects.

Both red and blue state officers charged with enforcing pesticide laws said they were surprised by aspects of the pilot project and have asked the EPA to not pursue it, arguing the EPA hasn’t presented the science to justify it or consulted with states.

USDA says the pilot program would circumvent the Federal Insecticide, Fungicide and Rodenticide Act, which requires EPA to analyze the costs and benefits of using a pesticide.

Not a problem. EPA is trying to implement the program through the authority of the federal judiciary.

Though EPA says the vulnerable species program was conceived independently, the pilot programs are being folded into a proposed settlement EPA is making with environmental groups that sued the agency in 2011, alleging it was not complying with the Endangered Species Act.

If Magistrate Judge Joseph Sero approves the settlement, the EPA will be committed to implementing the vulnerable species project. The EPA also will commit to deciding whether to expand the project to other species by Sept. 30, 2024.

Plaintiffs say the settlement would show EPA is serious about enforcing the Endangered Species Act. We can’t imagine they wouldn’t sue if EPA decided not to expand the project.

All of this seems like a new variation of the old “sue and settle” scheme, a popular legal strategy employed by the Obama administration under which environmental plaintiffs were encouraged to file suit with assurances there would be an advantageous settlement.

EPA is trying to grab power not authorized by Congress. But, when you’re doing the Lord’s work, something as trivial as the Constitution can’t be allowed to get in the way.

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