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Environment law


For the past 35 years, the conflicting goals, standards, focuses, and methods of United States species protection laws and United States pesticide law have produced a fierce legal battle. The unwitting casualties of this battle are the millions of birds, fish, and other wildlife that have been killed, and the hundreds of protected species put at risk of extinction. This battle has intensified in recent years, as environmental organizations have sued the United States Environmental Protection Agency ("EPA") for its continued failure to comply with the Endangered Species Act ("ESA"). In response, EPA has invoked numerous legal and regulatory strategies, becoming further entrenched in its position of non-compliance. EPA's reluctance to conform to the ESA is due in part to its institutional bias in favor of registering pesticides under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), and its generic bureaucratic inertia. A significant cause of the non-compliance, however, is the catch-22 in which EPA finds itself due to inherent conflicts between FIFRA and the ESA.

This Article begins by describing the extent of the harm to wildlife, including threatened and endangered species, caused by current pesticide usage and EPA's failure to comply with wildlife protection laws. After providing an overview of the major federal species protection statutes, this Article chronicles the historic tension between those statutes, discussing the resulting litigation, EPA's regulatory actions and inaction, and the legislative response. The picture that emerges is one of unresolved crisis and massive noncompliance with federal mandates. The Article then turns to examine 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 tensions, the Article concludes by suggesting legislative reforms intended to eliminate or at least alleviate the conflict and to reconcile the goals of wildlife protection and availability of socially useful pesticides.