ABSTRACT

The Killing Fields:

Reducing the Casualties in the Battle Between

U.S. Species Protection Law and U.S. Pesticide Law

Mary Jane Angelo, University of Florida Levin College of Law

For the past 35 years a battle has raged due to the conflicting goals, standards, focus, and methods among the U.S. species protection laws and U.S. pesticide law. The unwitting casualties of this battle are the literally millions of birds, fish, and other wildlife species that have been killed and the hundreds of legally-protected species that have been put at risk of extinction. In the past several years the battle has intensified. A number of environmental organizations have sued the U.S. Environmental Protection Agency (EPA) over its continued failure to comply with the Endangered Species Act (ESA). Rather than come into compliance, EPA has invoked every legal defensive strategy imaginable and become more entrenched in its position of non-compliance. EPA’s reluctance to comply with the law is due in part to EPA’s institutional bias in favor of registering pesticides and its generic bureaucratic inertia. A significant cause of the non-compliance, however, is the catch-22 in which EPA finds itself due to the conflicts in the law.

This Article chronicles the history of the interaction among species protection and pesticide statutes, describing the litigation the conflict has spawned, EPA’s regulatory action and inaction, and the legislative response. The picture that emerges is one of an unresolved crisis and massive noncompliance with federal mandates. To complicate matters more, in July 2007, the U.S. Supreme Court decision in National Association of Home Builders et al. v. Defenders of Wildlife created more controversy, throwing the relationship between federal pesticide law and federal species protection into even greater disarray. This Article examines the sources of tension between the statutes: their conflicting goals, standards, geographic and temporal focuses, and risk reduction methods. Based on this exposition of the fundamental tension, the Article suggests legislative reform targeted to eliminate, or at least alleviate, the conflict while promoting the reconcilable goals of wildlife protection and availability or pesticides in the public interest.