3 years ago




monarch numbers continue to decline steeply despite the fact that many of the existing conservation plans have been in place for many years or even decades. This is not to say that the measures currently in place are insignificant, but the most significant current threats to monarchs are landscape-scale issues that can only be properly addressed by protecting the monarch under the ESA. Existing plans and piecemeal voluntary efforts simply cannot adequately address the complex and synergistic threats in the manner needed to reverse the decline of monarchs. Federal Mechanisms There are no existing federal mechanisms which are adequate to ensure the monarch’s long-term survival and recovery. The Service is required to take into account other federal agencies’ actions when considering the adequacy of existing regulatory mechanisms. The genetically-engineered, herbicide-resistant varieties of crops that have decimated milkweed in the Midwest and hence monarch butterfly populations are approved by the U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS). That agency regulates these genetically-engineered crops under the Plant Protection Act (PPA), 7 U.S.C. §§ 7701-7772, which provides APHIS authority to “prohibit or restrict . . . movement in interstate commerce of any plant” as necessary to prevent either “plant pest” or “noxious weed” harms. 7 U.S.C. § 7712(a). In the United States, there is no single overarching law or federal agency that oversees the products of biotechnology. There are no laws that were drafted and passed with the intent to regulate genetically engineered organisms. Instead, federal agencies apply their pre-existing legislative authorities to genetically engineered organisms in order to oversee them, laws that were never intended for that purpose, implemented by several agencies, including APHIS. The PPA’s purpose is to protect not only agriculture, but also the “environment, and economy of the United States” through the “detection, control, eradication, suppression, prevention, or retardation” of these harms. 7 U.S.C. § 7701(1). Genetically engineered crops are classified as presumptive plant pests, and cannot be sold and grown commercially until approved, or deregulated, by APHIS. 7 C.F.R. 340.1, 340.2, 340.6; Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S. Ct. 2743, 2749-50 (2010) (explaining APHIS’s regulation). Once a genetically engineered crop is approved by APHIS, the agency ceases to monitor it or regulate it in any way. Unfortunately, APHIS’s regulatory approach in applying the PPA to genetically engineered crops has been to narrowly cabin its statutory authority. As a result it has never denied a petition to deregulate a genetically engineered crop, or put restrictions on their use or planting postcommercialization. APHIS has claimed that the significant herbicide impacts of genetically engineered, herbicide resistant crop systems, despite their intertwined nature with the engineered plant (and its sole, engineered purpose) are beyond their purview. Further, in so approving some genetically engineered crops, including “Roundup Ready” crops, APHIS has claimed its approval decision is non-discretionary and thus it could not consult under the Endangered Species Act’s Section 7 mandates, despite admitting that the genetically engineered, “Roundup Ready” crops might cause harm to protected species or their habitat. In summary, APHIS’s regulatory approach in approving numerous genetically engineered, “Roundup Ready” crops at issue here has been wholly inadequate to protect monarch butterflies and their habitat, and instead has directly contributed to the need for their ESA listing, as shown in the section of this Monarch ESA Petition 80

Petition, Loss of Monarch Habitat in Croplands Due to Increased Use of Glyphosate With Roundup Ready Crops, supra. Similarly, the U.S. Environmental Protection Agency (EPA) licenses the sale and use of the herbicides and insecticides that threaten monarch butterflies as explained supra. EPA regulates these pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. FIFRA directs EPA to register a pesticide only upon determining that “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment”. 7 U.S.C § 136a(c)(5)(D). Unfortunately, to date, EPA has not considered the broad suite of population-level impacts on monarch butterflies (or other insects) like those described herein as an “unreasonable adverse effect on the environment,” or otherwise as a basis for denying, suspending, re-classifying, or otherwise limiting any pesticide registration approvals or use determinations, despite having the ongoing authority to take such actions. The culmination of the FIFRA registration process is EPA’s approval of a label for the pesticide, including use directions and appropriate warnings or cautions on safety and environmental risks. FIFRA, 7 U.S.C. § 136(q)(1), is explicit in requiring EPA to find a product is misbranded and may not be used if: (F) the labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and if complied with, together with any requirements imposed under section 136a(d) of this title, are adequate to protect health and the environment; [or] (G) the label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 136a(d) of this title, is adequate to protect health and the environment. A review of the labels for the various glyphosate, neonicotinoid and other pesticides at issue here because of their harm to monarchs reveals no use directions, warnings or cautions aimed at protecting monarch butterflies. In short, FIFRA’s regulatory measures, as implemented by EPA in registering and labeling the large number of glyphosate and the other herbicidal and insecticidal products at issue, have been wholly inadequate to protect monarch butterflies. As with APHIS’s actions, EPA’s regulatory actions have instead directly contributed to the need for ESA listing. Though some protective mechanisms for monarchs are in place on federal lands, including efforts of the Monarch Joint Venture (MJV) and various programs on National Wildlife Refuges, on U.S. Forest Service lands, and on National Park Service lands, none of these federal programs provide regulatory measures to give monarchs adequate protection. The Monarch Joint Venture (MJV) is a partnership of entities across the United States that is guided by the North American Monarch Conservation Plan (NAMCP) (described below in the ‘international mechanisms’ section). The Monarch Joint Venture is a partnership of federal and state agencies, non-governmental organizations, and academic programs that are working Monarch ESA Petition 81

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