EPA Sued for Relying on Illegal Rules Following WOTUS Repeal
Albuquerque, New Mexico; October 22, 2019: A lawsuit filed today on behalf of the New Mexico Cattle Growers’ Association challenges the Trump Administration’s decision to rely on old, unconstitutional rules in the wake of the 2015 Waters of the United States rule’s repeal.
Last month, the Environmental Protection Agency announced the repeal of thecontroversial 2015 Waters of the United States rule. The 2015 rule was the subject to numerous lawsuits, and five federal courts found that the 2015 rule was illegal.However, the EPA reverted toolder rules that are similarly unconstitutional.
Represented by Pacific Legal Foundation, the New Mexico Cattle Growers’ Association is challenging this reversion to the pre-2015 rules.
“The old rules that EPA is using now have been ruled unconstitutional by the Supreme Court,” said PLF Senior Attorney Tony Francois. “While it is good that EPA is repealing the 2015 rule, the older rules the agency is now enforcing have many of the same legal defects. The problem here is that for decades, not just since 2015, EPA has sought to use its Clean Water Act authority over navigable lakes and rivers to regulate puddles and dry arroyos on private property all over the country. This is the trend that has to be turned back.”
PLF has represented numerous people who were unfairly prosecuted under the rules on which EPA will now rely, including Andy Johnson, whose case President Trump discussed when he ordered the EPA to review the WOTUS rule in 2017.
In U.S., One-Third of all Available Food Goes Uneaten Through Loss or Waste.
News Release Edited By Patrick Cavanaugh
Recently, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA) kick off Winning on Reducing Food Waste Month by calling for greater collaboration with public, private, and nonprofit partners as well as state and local officials to educate and engage consumers and stakeholders throughout the supply chain on the need to reduce food loss and waste.
In the U.S., more than one-third of all available food goes uneaten through loss or waste. Food is the single largest type of waste in our daily trash. In recent years, great strides have been made to highlight and mitigate food loss and waste, but the work has just begun. When food is tossed aside, so too are opportunities for economic growth, healthier communities, and environmental prosperity—but that can change through partnership, leadership, and action. Further elevating the importance of this issue, the recent announcement follows aPresidential Messagefrom President Trump acknowledging the month of April as Winning on Reducing Food Waste Month and encouraging public action and participation from all sectors.
“Reducing food waste and redirecting excess food to people, animals, or energy production provide immediate benefits to public health and the environment. I am proud to join President Trump and my federal partners in recognizing April as Winning on Reducing Food Waste Month,”EPA Administrator Andrew Wheeler said.“We are working closely with our federal partners and stakeholders across the nation to reduce the amount of food going to landfills and maximize the value of our food resources.”
“USDA alone cannot end food waste, it will require partners from across the supply chain working together on innovative solutions and consumer education. We need to feed our hungry world, and by reducing food waste, we can more wisely use the resources we have. I am pleased President Trump identified this issue as one of importance, and I look forward to USDA’s continued work with our agency partners at EPA and FDA to change behavior in the long term on food waste,”U.S. Secretary of Agriculture Sonny Perdue said.
“With 1 in 6 people getting a foodborne illness every year in the U.S. and up to 40 percent of food left uneaten, it’s understandable why food safety and food waste are major societal concerns,”FDA Deputy Commissioner Frank Yiannas said.“The FDA is working to strengthen its collaboration and coordination with the EPA and USDA to strategically align our federal efforts between the two issues to better educate Americans on how to reduce food waste and how it can be done safely.”
As part of the month’s observances, on April 9, EPA will host a live-streamed event with USDA and FDA. Additional joint agency actions will be announced at the event regarding the Winning on Reducing Food Waste Initiative. At the event, a panel of food waste stakeholders will share how state and local communities can join the federal government in reducing food waste and loss.
USDA, EPA, and FDA invite public and private partners to participate in Winning on Reducing Food Waste Month through the following:
Join the conversation: Share your efforts with the #NoWastedFood hashtag in your social media posts throughout the month.
Educate your community: Learn about USDA,EPA, andFDAprograms and resources to reduce food loss and waste.
Be aU.S. Food Loss and Waste 2030 Champion: Join other corporate and business leaders who have made a public commitment to reducing food loss and waste in their U.S. operations by 50 percent by the year 2030.
The Winning on Reducing Food Waste Initiative is acollaborative effortamong USDA, EPA, and FDA to reduce food loss and waste through combined and agency-specific action. Individually and collectively, these agencies contribute to the initiative, encourage long-term reductions, and work toward the goal of reducing food loss and waste in the United States. These actions include research, community investments, education and outreach, voluntary programs, public-private partnerships, tool development, technical assistance, event participation, and policy discussion.
David Brassard of Brassard Pesticide Regulatory Solutions has many years of experience working with the EPA. Based in Washington D.C., Brassard, along with his wife, Candy, now assist in getting new products registered for use with the EPA.
Brassard spoke with us about benefit assessment in regards to the EPA and pesticide regulation and how real data collection is a much stronger source of information.
“So there’s several ways of doing benefit assessment. For instance, back in the day, we used to have the National Agricultural Pesticide Impact Assessment Program (NAPIAP) getting farm advisers’ opinions and county extension agents’ opinions about what would happen if, say, we canceled chlorpyrifos,” Brassard said.
Brassard explained that when looking at benefit assessments alone, this testing could vary greatly from area to area. Compared to concrete data, benefit assessment can look unreliable in comparison.
“Frequently, you’d go to, say, Arizona. The guy from Arizona goes: ‘Oh, we get by without it just fine.’ Then right across the border in California, they’ll say ‘Oh, no. We can’t live without it. There’d be a 20% yield loss.’ There’s a lot of discrepancies in the kind of information that we would get,” Brassard said.
“When we actually dug into it, what we found was that if you actually relied on the hard data — the product performance data, the efficacy testing, what the yield difference is — you can get much more reliable answers,” he said.
These more reliable answers are important when producers are trying to maintain access to these products.
“There was a big movement in the ’90s, and I was at the forefront of it, of moving NAPIAP from the process of just asking expert opinions about what would happen to actually getting experts to pony up some data that would support their opinions,” he said.
David Haviland is a UC Cooperative Extension Farm Advisor based in Kern County, and he’s focused on etymology. He spoke to California Ag Today about the current review by the EPA on the pyrethroid class of crop protection materials. He noted that the EPA is concerned about the material making its way to waterways.
“It’s a legitimate concern in that pyrethroids can bind to sediment, and if that sediment was just hypothetically say, worst case scenario, what if you sprayed a product into a orchard or a field right next to a river on the day before it rained?” Haviland asked.
“We don’t do that, but hypothetically if you did that and that sediment washed from that orchard out into a stream, yes, those pyrethroids can affect aquatic invertebrates and of course little tiny organisms. These little invertebrates are the basis for food chains in the stream systems,” Haviland said.
“Just like if you’ve got a household cleaner, it says, ‘Store out of reach of children.’ So yeah, there’s a risk of that product, and you mitigate or solve that risk by only using it where it’s appropriate, storing it where somebody can’t get it,” Haviland said. “The same is true with pyrethroids. If you read the label, there’s very specific use instructions on where you can and can’t use the product as well as other details about waterways and buffer zones and things like that,” he said.
All that is taken into account to make sure that any risk that may occur doesn’t turn into an actual real problem. “That’s part of the review, for the EPA to look over that label,” Haviland said.
The EPA review is to make sure that any mitigations on the label and use patterns adequately take into account any risks that may be real. “I expect it will be done scientifically and prudently and based on that, I hope pyrethroids are in the tool box for a long time,” Haviland said.
California Farm Bureau Federation says Republican President, House and Senate are good news for California Ag
By Patrick Cavanaugh, Farm News Director
At the recent 98th Annual Meeting of the California Farm Bureau Federation (CFBF) there was definitely a positive buzz in the air regarding the recent election.
Walnut and almond grower and CFBF President Paul Wenger said agriculture should take quick advantage of what is an unexpected trifecta.
“During the Bush administration, the Republicans controlled the house and the Senate and also the White House, and we didn’t quite get done the things that we want to get done, but I think there was a signal sent in this last election,” Wenger said. “It surprised everybody. It surprised the Republicans, the Democrats, the Independents – everybody. The establishment. The non-establishment.”
Wenger said the industry has an opportunity to work with the incoming Trump Administration to actually get some things done. “I think the voters sent a very clear signal. We don’t want business as usual. We want to see things get done. People need jobs. People need to be able to not be held down by all this regulatory morasses out there, and so I think in the first 100 days and definitely within the first 14 months, it will make or break this administration,” Wenger said.
“We need to work together. We need to get moderate Democrats with the Republicans. We cannot allow … divisions within the Republican party. We’re lucky to have California Congressman and House Majority leader Kevin McCarthy in a very influential position,” Wenger said. “We have a great list of congressmen around the state – not only in the Republican but the Democrat side – to work together. So let’s solve some problems.”
Wenger noted that agriculture needs relief from the Environmental Protection Agency.
“I think one of the things that the Trump Administration wants to do through the Interior and the EPA is to get some relaxation or some equity in the Endangered Species Act,” Wenger said.
“The Endangered Species Act was put in under a Republican administration, but nobody thought it would be carried out to the extreme that it is. It’s a very immovable object. Let’s get some flexibility in this that gives mankind the same equal footing that we have for other species because we’re dependent upon that water,” Wenger said. “We can have a healthy environment and a healthy economy and produce food, but so far, those doors have been slammed shut, and it’s only one way, and that’s the species way.”
The Trans Pacific Partnership Trade Agreement is another issue. “We’re going to have to work with the Trump Administration. He came out during the campaign, said he was against it. He said he was against NAFTA. We need these trade agreements,” Wenger said. “He said he was going to put up a wall, but the other day he said in that wall there’s going to be doors, so if we can work with this Trump Administration and make sure that we have an available legal workforce, that’s great, but Waters of the US (WOTUS) is dead in the first few days of his administration,” Wenger said. “This will be good for all farmers and ranchers across the country.”
WOTUS is a rule that was a 2015 ruling by EPA as part of the Clean Water Act, which says that the EPA as expanded agency over bodies of water and even low areas of ag land where water can settle. It has been met with lawsuits form many states, and major pushback by agriculture.
Wenger said that the Food Safety Modernization Act (FSMA) may also get another look. “We think there’s a good potential that they’ll take another look at and make it more practical rather than this onerous rule that everybody’s trying to figure out,” Wenger said. “Also, we think the estate tax is something that he’ll take a look at.”
“We’re excited to work with a new administration, see what we can forge in the first 100 days for sure, and at least in the first 14 months so that not only do we have a trifecta for the first two years of his administration, but the last two years too,” Wenger said.
President-Elect Trump May Help Make California Agriculture Great Again!
By Patrick Cavanaugh, Farm News Director
The election of Donald J. Trump as the 45th President of the United States may prove very significant for California. He and his future administration may be able to make sense of the devastating water deliveries diverted from California farms to protect fish species that may already have become extinct, in order to comply with the Endangered Species Act.
Joel Nelsen, president, California Citrus Mutual and a leader in California agriculture, is encouraged by the election results. “You know, the Donald Trump election was a bit of a surprise to me. You can always hope, but the numbers did not look that good. Now that he is our president-elect, I think we can be somewhat optimistic about the next Congress and this next administration,” Nelsen said.
Nelsen said the optimism is going to be on several fronts. “One, I think we have an opportunity now to move water legislation that contains real storage and creates water for a bigger population in California,” he said.
“We also have an opportunity to slow down a rogue agency—which I would call Environmental Protection Agency (EPA)—and their activity specific to crop protection tools. We can get an effort going to modernize the Endangered Species Act. Nobody wants to eliminate species, but let’s face it, when that was first signed and passed, it was two generations ago. I think we need to take another look at that,” he said.
Nelsen noted there are some opportunities on the horizon. He hopes the upcoming Congress and new presidential administration will generate some positive activity for the California agriculture industry .
Nelsen and other California ag leaders will soon return to Washington to make sure things are getting done. “A couple of us are going back next week for the lame-duck session because we are hoping Congress will pass a budget that will fund the Asian Citrus Psyllid and Huanlongbing program,” he said. “There is no money for it in the USDA budget. As a result, the support at the federal level is less than what it could be or should be.”
“Because the current administration is going to be in office until January 19, 2017, the activists have until then to get things moving in a direction that cannot be stopped from their perspective. I don’t think these next two months will necessarily be quiet.”
“We must have a mindset that others will attempt to do what they think cannot be done. It will be up to many of us in leadership positions to ensure that there’s still a balanced approach with this administration before the next one comes in,” Nelsen said.
Researchers are developing effective ways to control crop-destroying worm-like nematodes. One product, Nimitz, is not yet registered for use in California but is showing great promise in vegetables.
“We’ve been working with a number of different products over a number of years, and actually have two products; one is Nimitz, the other is still in development.,” said UC Riverside Cooperative Extension Associate Nematologist Antoon Ploeg. “Both look very promising in all three crops that we have been testing: tomatoes, melons, and carrots, so for us it’s been an exciting time!”
Ploeg and his team found remarkable results from nematode pressure plots. Non-treated plants were heavily galled and those that were treated with Nimitz showed a 95% reduction in galls.
“Something is going on here that makes us very excited, especially because the product has low toxicity,” said an enthusiastic Ploeg. “It has only a ‘Caution’ label, and has had the original restricted-entry interval (REI) of 24 hours reduced to zero.”
Nimitz has been approved by the EPA, but has not yet been approved for use in California.
In the release, Jared Blumenfeld, EPA’s Regional Administrator for the Pacific Southwest, states, “Working closely with our state and federal partners, our joint efforts will protect salmon and steelhead trout while maintaining rice production in California. This action also supports EPA’s commitment to minimize pesticide pollution in the San Francisco Bay Delta.”
“This is a smart approach to pesticide use that includes important safeguards for protected fish while still allowing growers to care for their crops,” said Will Stelle, administrator of National Oceanic and Atmospheric Administration (NOAA Fisheries) West Coast Region, in the same release. “This demonstrates that we can find balanced and workable solutions through collaboration.”
The California Department of Pesticide Regulation (CDPR) established measures to protect salmon and steelhead trout based on proximity to endangered and threatened species habitat according to NOAA Fisheries geographic locations, as well as information and best management practices from the California Rice Commission and its grower members, plus the California Regional Water Quality Control Board – Central Valley Region. U.S. EPA and Valent, the manufacturer of the herbicide thiobencarb, also worked to put these restrictions in place.
After reviewing CDPR’s data on pesticide use and the state’s protective measures to be enforced by County Agriculture Commissioners, NOAA Fisheries found that thiobencarb use on rice in California would not jeopardize salmon and steelhead trout provided protective measures currently being applied in California are ensured.
“The positive approach we applied throughout development of the thiobencarb use conditions,” Firoved explained, “expanded into our interaction with the NOAA National Marine Fisheries Services (NMFS) as they researched and wrote the biological opinion (BiOp) for thiobencarb.”
Thiobencarb is a systemic, pre-emergence herbicide in liquid or a granular formulation that inhibits shoots of emerging weed seedlings. First registered for use on rice in 1982, thiobencarb is used to control grasses, sedge and broadleaf weeds in food crops such s rice (represents 95% of use), lettuce, celery, and endive. Thiobencarb, or Valent’s Bolero® UltraMax Herbicide, may be applied using ground spray equipment or by aircraft.
“The win for rice growers is that the farming practices developed over time are also protective of endangered species. We always assumed this to be the case, and entrusted the thiobencarb BiOp for confirmation.
Reflecting on the successful collaboration, Firoved stated, “We have no magic bullet, nor do we approach the issues with contention. Our perspective is that all participants around the table are looking for the same end result, no matter where they work.”
The U.S. Environmental Protection Agency (EPA) announced its call for nominations for the 2015 Presidential Green Chemistry Challenge Awards for companies or institutions that have developed a new process or product that helps protect public health and the environment.
“The Presidential Green Chemistry Challenge is an opportunity for EPA to recognize green solutions and help solve critical environmental problems,” said Jim Jones, EPA’s Assistant Administrator for Chemical Safety and Pollution Prevention. “Green chemistry is about designing products and processes that reduce energy, chemicals and water waste while cutting manufacturing costs, and sparking investments. Ultimately, these chemicals and products are safer for people’s health and the environment. This year, EPA is excited to be celebrating the 20th anniversary of the awards.”
Nominations for innovative technologies in six categories are due to the agency by December 31, 2014. The categories are: academic; small business; greener synthetic pathways; greener reaction conditions and designing greener chemicals; and a new category for climate change. The awardees will be honored at a ceremony in Washington D.C., in July 2015.
Since the inception of the awards 20 years ago, EPA has received more than 1500 nominations and presented awards to 98 technologies. It has resulted in the reduction of more than 826 million pounds of hazardous chemicals and solvents, savings of 21 billion gallons of water, and elimination of 7.8 billion pounds of carbon dioxide releases to air.
Michael Braverman manages biopesticides for Rutgers University’s IR-4 Project in Princeton, New Jersey. The IR- 4 Project helps with research to get these safe and effective pest management products registered for use in specialty crops, the cornerstone of California agriculture.
“We have two main objectives,” said Braverman. “We have an efficacy grant program, where we fund researchers all across the United States to conduct field or greenhouse trials involving biopesticides to see how they can fit into real-world production systems. The other part of our program is a regulatory assistance program. Biopesticides, like any crop protection products on the market, require EPA registration. We work with university researchers who may have discovered a new organism, a plant extract or whatever it may be, and we help guide them through the EPA registration process,” said Braverman.
“There is certainly a trend towards use of biopesticides,” Braverman observed. “If you notice, major manufacturers—all the biggest companies—are now investing in research or purchasing smaller companies that are involved in the biopesticide market. So it’s really expanding very rapidly,” said Braverman.