The Environmental Protection Agency argues that it didn’t need to consult with other agencies because states and territories aren’t obligated to adopt its scientific recommendations.
By Monique Merrell, Courthouse News Service
A battle over federal recommendations easing the limit of toxic chemicals allowed in waterways is for a three-member panel of the Ninth Circuit Court of Appeals to decide, as the government urged the court to reject the finding that it coerced states into adopting its criteria on Monday.
The U.S. Environmental Protection Agency maintains that the recommendations it issued to individual states and tribal nations in 2016 — which increased the levels of cadmium permitted in freshwater streams before the waterway is no longer considered safe under the Clean Water Act — were nonbinding and didn’t require outside agency consultation. Cadmium is a highly toxic, cancer-causing metal found in mineral deposits and released into the environment through the burning of fossil fuels.
“The Clean Water Act is not about compulsion; it’s about cooperative federalism, and Congress structured things this way so that EPA could provide guidance and a backstop, but that does not mean that EPA is compelling any state to adopt any particular water quality criteria,” Michelle Melton, Justice Department attorney, argued.
The Center for Biological Diversity sued the agency in 2022, arguing that the agency violated the Endangered Species Act by failing to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service before issuing the recommendations.
In 2023, a federal court sided with the environmentalists, finding that the agency should have consulted with other government agencies before issuing that recommendation.
On appeal, the EPA argues that its recommendations were just that: recommendations.
“The publication of recommendations are not agency action — they do not authorize states or other parties to adopt the criteria,” Melton argued. Nor do they fund states in developing their own criteria or put the recommendations into action or practice.
Further, each state makes its own decision on whether or not to adopt the EPA’s recommendations and update its criteria, a process that Melton says isn’t necessarily made easier by adopting the EPA’s recommendations.
“They still have to justify those recommendations as appropriate, and EPA reviews whether those recommendations actually are appropriate under the Clean Water Act,” Melton said.
U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, asked why the record reflects that states have primarily adopted the guidance standards if, as Melton asserted, they don’t face adverse action if they choose not to.
“It really depends on which pollutant you’re talking about,” Melton said.
For something like selenium, for example, multiple states have rejected the agency’s more stringent recommendations for a variety of reasons, sometimes due to the recommendations being tailored to protect a species not present in those states.
“A fundamental flaw with plaintiff’s theory, that national consultation will result in a uniform standard, states do not just uncritically accept whatever EPA publishes; they, in fact, make decisions to either modify or decline to adopt if they don’t agree with them,” Melton said.
The Center for Biological Diversity, however, disagrees with that argument.
“EPA’s refusal here to engage in nationwide consultation when it revises criteria that by EPA’s own regulatory design dictate water quality standards across the nation defies the law, both the statute, the regulations, and the court’s precedent,” argued Claire Tonry, attorney with the Seattle-based Smith & Lowney law firm representing the Center for Biological Diversity.
U.S. Circuit Judge Eric Miller, a Donald Trump appointee, pushed back on this statement, questioning how the agency has dictated standards across the nation if each state has the ability to set its own criteria. Tonry pointed to the fact that at least 29 states, territories and tribal governments have adopted the agency’s 2016 criteria, but Miller remained skeptical.
“But the states that adopt the criteria are doing it presumably because they think it’s a good idea, right? Because they think that EPA has good scientists and knows what it’s talking about,” Miller asserted. “There’s no legal compulsion on them to do that, is there?”
Tonry argued that by presenting states with what it presents as very good science, the agency is incentivizing states that might not have the resources to adopt their own criteria based on their own science to go with the EPA’s criteria.
“So EPA has done the work for them,” Tonry said. “In addition, EPA is the one at the end of the day that has to approve or reject the state’s criteria.”
Still, Miller pushed back.
“The obligation on the states is to do what is consistent with the science, not what’s consistent with what EPA has said about the science, right?” Miller asked.
To the Center for Biological Diversity, the issue lies in the agency’s role in regulating water quality standards. Plus, the assertion that states can reject the EPA’s recommendations without consequence simply isn’t the case, Tonry argued.
“[States] need to provide a scientific justification, and it needs to be one that EPA accepts,” Tonry said. “It’s not a free license to delay, and it’s not a free license to adopt any criteria that the state desires.”
At the end of the day, the problem is the agency instituting a regulatory regime that goes beyond authorizing and coerces states, Tonry said. That, and the 2016 recommendation, changed toxic pollution standards across the country in waterways inhabited by endangered and threatened species.
“The record is replete with evidence, again from the expert wildlife agencies showing that cadmium at these levels is harmful to sturgeon, to sea turtles, to salmon,” Tonry said.
On rebuttal, Melton argued that siding with the environmental group could chill federal agencies releasing helpful, scientific information if those releases are viewed as agency actions subject to additional rules.
“There are innumerable scientific studies, scientific information that the government issues all of the time that they’re just not required to engage in consultation with. And whether that’s because there’s no effect or whether it’s because it’s not agency action, I think that the conclusion is the same,” Melton argued.
The Ninth Circuit panel — which also included U.S. Circuit Judge Sidney R. Thomas, a Clinton appointee — did not indicate when it would rule.
