Easing the amount of cadmium allowed under the Clean Water Act is an agency action, so the EPA should have consulted with other federal agencies, the panel found.
By Joe Duhownik, Courthouse News Service
The Ninth Circuit on Tuesday nixed the Environmental Protection Agency’s recommendation to relax criteria for toxic cadmium levels in fresh water, compelling the agency to revisit its guidance under the Clean Water Act.
A three-judge panel — upholding a lower court order vacating the guidance — found the agency violated the Endangered Species Act by failing to consult with either the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before it issued new recommendations in 2016.
“The consultation process would have provided EPA with a nationwide biological opinion, including scientific information suggesting that more protective state criteria are necessary to protect migratory and long-lived listed species,” Senior U.S. Circuit Judge Richard Paez wrote in a 34-page opinion published Tuesday. “Armed with that information, EPA is likely to require more stringent criteria from the states.”
The 2016 update substantially weakened the criteria for chronic concentrations of cadmium in fresh water that is still considered safe under the Clean Water Act, increasing the allowable concentration from 0.25 to 0.72 micrograms per liter. Cadmium is a highly toxic, cancer-causing metal found in mineral deposits and released into the environment through the burning of fossil fuels.
The Endangered Species Act requires federal agencies to consult with others on any “agency action” that “may affect” a listed species or their critical habitat.
Because the recommendations are not binding agency actions — states and tribes are invited to accept or reject based on their own interests — the EPA says no outside consultation was required.
The Ninth Circuit disagreed.
“In researching, developing and publishing nationwide recommendations for aquatic pollutant levels, which would foreseeably be adopted wholesale by many states, EPA undeniably ‘carried out’ an ‘agency action’ which ‘may affect’ listed species, requiring consultation with the services,” wrote Paez, a Bill Clinton appointee.
The Center for Biological Diversity sued in 2022, and a year later a federal court sided with the environmentalists, finding the agency should have consulted with other government agencies before issuing the recommendation.
The EPA appealed, but was met with the same conclusion at the appellate stage.
“As the district court acknowledged, the recommendations are not in fact mere recommendations but effectively the default from which states must justify departing,” Paez wrote.
More than 29 states and tribes had adopted the 2016 recommendations at the time of oral arguments held last year. While there is no direct consequence for rejecting a recommendation, the EPA still must approve a state or tribe’s final criteria individually.
The panel found state implementation is predictable since some states have laws requiring the adoption of EPA recommendations. If the EPA rejects a state’s criteria or a state fails to create one, the EPA will implement its own.
The center argues the EPA pressures states and tribes with fewer resources to follow its own recommendations blindly, and that a single national consultation would be superior to its piecemeal approach.
“If EPA had complied with the ESA’s consultation requirement, its criteria for cadmium would have taken into account the services’ serious concerns with EPA’s criteria,” Paez wrote. “EPA itself acknowledges that nationwide consultation would ’tend to produce’ more stringent recommendations.”
The panel accepted the center’s evidence that cadmium exposure at the agency’s recommended levels are harmful to numerous marine animals like salmon, sturgeon and sea turtles, and agreed consultation with other federal agencies would have resulted in stricter water quality standards.
Dissenting from the majority, U.S. Circuit Judge Eric Miller wrote the center’s lawsuit should be dismissed for lack of standing. The Donald Trump appointee said since the EPA doesn’t force states to adopt its recommendations, any injury resulting from states mirroring the policies cannot be traced back to the EPA.
“The states — the key actors in CBD’s chain of causation — are third parties not before the court,” he wrote. “And a plaintiff ordinarily cannot establish causation when its injury depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict.”
He acknowledged that states, for many reasons, are likely to adopt EPA guidelines regardless.
“But we have never held that downstream injuries are traceable to government recommendations just because the third-party actors responsible for those injuries find the government’s nonbinding guidance persuasive,” he said.
U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, rounded out the panel.
Neither side replied to a request for comment.
