In­te­rior nom­i­nee in­ter­vened to block re­port on pes­ti­cides’ threat to en­dan­gered species

The Buffalo News - - WASHINGTON NEWS - By Eric Lip­ton

WASH­ING­TON – Af­ter years of ef­fort, sci­en­tists at the Fish and Wildlife Ser­vice had a mo­ment of cel­e­bra­tion as they wrapped up a com­pre­hen­sive anal­y­sis of the threat that three widely used pes­ti­cides present to hun­dreds of en­dan­gered species, like the kit fox and the sea­side spar­row.

“Woohoo!” Pa­trice Ash­field, then a branch chief at Fish and Wildlife Ser­vice head­quar­ters, wrote to her colleagues in Au­gust 2017.

Their anal­y­sis found that two of the pes­ti­cides, malathion and chlorpyrifos, were so toxic that they “jeop­ar­dize the con­tin­ued ex­is­tence” of more than 1,200 en­dan­gered birds, fish and other an­i­mals and plants, a con­clu­sion that could lead to tighter re­stric­tions on use of the chem­i­cals.

But just be­fore the team planned to make its find­ings pub­lic in Novem­ber 2017, some­thing un­ex­pected hap­pened: Top po­lit­i­cal ap­pointees of the In­te­rior Depart­ment, which over­sees the Fish and Wildlife Ser­vice, blocked the re­lease and set in mo­tion a new process in­tended to ap­ply a much nar­rower stan­dard to de­ter­mine the risks from the pes­ti­cides.

Lead­ing that in­ter­ven­tion was David Bern­hardt, then the deputy sec­re­tary of the in­te­rior and a for­mer lob­by­ist and oil-in­dus­try lawyer. In Oc­to­ber 2017, he abruptly sum­moned staff mem­bers to the first of a rapid se­ries of meet­ings in which the Fish and Wildlife Ser­vice was di­rected to take the new ap­proach, one that pes­ti­cide mak­ers and users had lob­bied in­ten­sively to pro­mote.

Bern­hardt is now Pres­i­dent Trump’s nom­i­nee to be­come in­te­rior sec­re­tary. The Se­nate is sched­uled to hold a hear­ing on his con­fir­ma­tion Thurs­day.

This se­quence of events is de­tailed in more than 84,000 pages of In­te­rior Depart­ment and En­vi­ron­men­tal Pro­tec­tion Agency doc­u­ments ob­tained via Free­dom of In­for­ma­tion re­quests by The New York Times and, sep­a­rately, by the Cen­ter for Bi­o­log­i­cal Di­ver­sity, an en­vi­ron­men­tal group that sued the fed­eral gov­ern­ment to force it to com­plete the pes­ti­cide stud­ies.

The doc­u­ments pro­vide a case study of how the Trump ad­min­is­tra­tion has been us­ing its power to sec­ond-guess or push aside con­clu­sions reached by ca­reer pro­fes­sion­als, par­tic­u­larly in the area of pub­lic health and the en­vi­ron­ment.

The de­ci­sion to block the re­lease of the re­port rep­re­sented a vic­tory for the pes­ti­cide in­dus­try, which has in­dus­try al­lies and for­mer ex­ec­u­tives sprin­kled through the ad­min­is­tra­tion. Among those with the most at stake were Dow AgroS­ciences, a man­u­fac­turer of chlorpyrifos, which is used on dozens of fruits and vegeta­bles, and FMC Corp., a man­u­fac­turer of malathion, which is used against mos­qui­toes as well as chew­ing and suck­ing in­sects that at­tack a range of crops, in­clud­ing toma­toes, straw­ber­ries and wal­nuts.

Dow, which was re­cently re­named Corteva, do­nated $1 mil­lion to Trump’s in­au­gu­ra­tion com­mit­tee. EPA and In­te­rior Depart­ment records show that top pes­ti­cide in­dus­try ex­ec­u­tives had reg­u­lar ac­cess to se­nior agency of­fi­cials, press­ing them to re­con­sider the way the fed­eral gov­ern­ment eval­u­ates the threat pes­ti­cides cause to en­dan­gered species.

A Dow spokesman said the shift in pol­icy was un­re­lated to the $1 mil­lion con­tri­bu­tion. The new ap­proach will re­sult in “a bet­ter un­der­stand­ing of where and how pes­ti­cides are be­ing used,” said Gregg M. Sch­midt, a Corteva spokesman.

Spokes­men for FMC and Adama – the other pri­mary mak­ers of the pes­ti­cides be­ing stud­ied – as well as their lawyers and CropLife Amer­ica, the trade group that rep­re­sents them, de­clined to com­ment.

Asked if Bern­hardt’s in­ter­ven­tion was ap­pro­pri­ate or mo­ti­vated by a de­sire to serve the in­dus­try’s in­ter­ests, an In­te­rior Depart­ment spokes­woman said his ac­tions had been “governed solely by le­git­i­mate con­cerns re­gard­ing the le­gal suf­fi­ciency and pol­icy.”

Be­fore he joined the Trump ad­min­is­tra­tion, Bern­hardt worked as a lawyer and lob­by­ist rep­re­sent­ing clients in­clud­ing the oil and gas in­dus­try. He was fre­quently paid to chal­lenge en­dan­gered species-re­lated mat­ters, in­clud­ing one in­volv­ing a tiny sil­very blue fish called the delta smelt whose pro­tec­tion by the fed­eral gov­ern­ment has re­sulted in lim­its on wa­ter use by Cal­i­for­nia farm­ers.

Agency records sug­gest Bern­hardt, af­ter hav­ing had only lim­ited in­volve­ment in the is­sue, had nine meet­ings or calls on his sched­ule with Fish and Wildlife staff in Oc­to­ber and Novem­ber 2017, and helped write the let­ter say­ing the In­te­rior Depart­ment was no longer pre­pared to re­lease the draft.

Wendy Cle­land-Ham­nett, the EPA of­fi­cial at the time who ran the of­fice in charge of toxic chem­i­cals and pes­ti­cides, said the sud­den change in reg­u­la­tory phi­los­o­phy was part of a broader trend across the gov­ern­ment af­ter Trump’s elec­tion.

“It is cer­tainly sim­i­lar to the pat­tern we saw in toxic chem­i­cals as well, where the reg­u­lated in­dus­try had a more sym­pa­thetic ear in the new ad­min­is­tra­tion,” said Ham­nett, who left the EPA in late 2017, af­ter a 38-year ca­reer with the agency. “And that re­sulted in a shift in ap­proach as to how th­ese is­sues would be han­dled.”

Gary Frazer, the top en­dan­gered species of­fi­cial at the Fish and Wildlife Ser­vice, whose sched­ule says he par­tic­i­pated in all nine of the late 2017 dis­cus­sions with Bern­hardt, and who sub­se­quently di­rected his staff to re­vise the study, said he did not be­lieve the change in di­rec­tion was po­lit­i­cally driven.

“It was an en­tirely ap­pro­pri­ate role,” he said in an in­ter­view, as two of the agency’s pub­lic af­fairs of­fi­cials lis­tened in. “There was no arm-twist­ing of any kind.”

The en­dan­gered species re­view is re­quired as part of the re-reg­is­tra­tion of pes­ti­cides, a process that oc­curs ev­ery 15 years.

The pes­ti­cide in­dus­try, as well as groups rep­re­sent­ing farm­ers who rely on its prod­ucts, be­gan to mo­bi­lize as the en­dan­gered species re­view got un­der­way dur­ing the Obama ad­min­is­tra­tion.

With Trump’s elec­tion, the in­dus­try es­ca­lated its cam­paign. In April 2017, its lawyers sent a let­ter to Ryan Zinke, then the in­te­rior sec­re­tary; Scott Pruitt, then the EPA’s ad­min­is­tra­tor; and the com­merce sec­re­tary, Wil­bur Ross, ask­ing them to “di­rect that any ef­fort to pre­pare bi­o­log­i­cal opin­ions,” as the process is called, “be set aside,” ar­gu­ing that the anal­y­sis was “fun­da­men­tally flawed.”

The in­dus­try’s cen­tral ar­gu­ment was that the fed­eral sci­en­tists were not suf­fi­ciently tak­ing into ac­count the dif­fer­ence be­tween how the pes­ti­cides could legally be used and how they were ac­tu­ally used.

Staff mem­bers at the Fish and Wildlife Ser­vice, emails show, did have ac­cess to ac­tual pes­ti­cide us­age, as well as other in­for­ma­tion, such as mea­sure­ments of pes­ti­cide con­cen­tra­tions found in salmon-bear­ing streams in Wash­ing­ton state.

But the agency staff – work­ing from dozens of field of­fices like Hawaii and Maine as well as the head­quar­ters – gen­er­ally built its pre­dic­tions of a “jeop­ardy” threat to en­dan­gered species by as­sum­ing the pes­ti­cides were be­ing used to the max­i­mum ex­tent pos­si­ble as al­lowed by their la­bels.

That is be­cause “un­like most other types of prod­uct la­bels, pes­ti­cide la­bels are legally en­force­able,” ac­cord­ing to EPA pol­icy. And his­toric us­age data, the agency staff said in its doc­u­ments, is not suf­fi­cient to pre­dict how th­ese pes­ti­cides might be used – and cause harm – in the com­ing 15 years.

The pes­ti­cides, par­tic­u­larly chlorpyrifos and malathion, are “high tox­i­c­ity” for all an­i­mals, and their ef­fect on en­dan­gered species would be both di­rect and in­di­rect, via con­tam­i­na­tion of food sources, for ex­am­ple, the staff con­cluded. The EPA has sep­a­rately con­sid­ered ban­ning chlorpyrifos be­cause of po­ten­tial harm to hu­mans.

Agency records show re­peated con­tacts in early 2017 by the pes­ti­cide in­dus­try with ad­min­is­tra­tion of­fi­cials. Among those tar­geted, the emails show, was Daniel Jor­jani, a top In­te­rior Depart­ment lawyer who had spent six years work­ing for groups con­nected to bil­lion­aire brothers Charles G. and David H. Koch.

Aaron Hobbs, a one­time lob­by­ist for CropLife, the lead­ing pes­ti­cide in­dus­try trade as­so­ci­a­tion, who now works for an af­fil­i­ate of the in­dus­try­funded group, reached out to Jor­jani and in­vited him to an April 2017 meet­ing with in­dus­try of­fi­cials to dis­cuss the en­dan­gered species ef­fort – shortly af­ter send­ing the let­ter ask­ing the agency to kill the Fish and Wildlife Ser­vice’s work. He fol­lowed up again in July in an at­tempt to set up an­other meet­ing.

Top of­fi­cials from the EPA and In­te­rior and Agri­cul­ture de­part­ments be­gan a se­ries of meet­ings in June 2017, of­ten in­volv­ing rep­re­sen­ta­tives from the White House.

Even as th­ese meet­ings were tak­ing place, staff mem­bers in­side the Fish and Wildlife Ser­vice were wrap­ping up the enor­mous task of as­sess­ing the threat pre­sented by th­ese pes­ti­cides, email records show.

New York Times

A photo pro­vided by the U.S. Fish and Wildlife Ser­vice shows a fam­ily of San Joaquin kit foxes. Decades ago the species in­hab­ited large parts of Cal­i­for­nia’s San Joaquin Val­ley, but most of those fox pop­u­la­tions are now gone, in part be­cause of pes­ti­cides.

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