By Derek Hoffman, Darien Key
In 2016, the U.S. Environmental Protection Agency (EPA) issued recommendations, in accordance with the federal Clean Water Act, which relaxed criteria for toxic cadmium levels in fresh water. In 2022, the Center for Biological Diversity challenged the recommendation and, last month, the Ninth Circuit, through a three-judge panel, affirmed the District Court decision thereby vacating the 2016 recommendation for violation of the Endangered Species Act (ESA). [Center for Biological Diversity v. U.S. Environmental Protection Agency, ___F.4th___, Case No. 23-2946 (9th Cir. Mar. 3, 2026).]
Background
The EPA’s 2016 recommendations on cadmium, an acutely toxic mineral largely introduced into the environment through mining, agricultural, and manufacturing activities, significantly weakened criteria for concentrations of cadmium in fresh water, creating guidance that allowed for increased permissible concentrations.
In accordance with the Clean Water Act, states must promulgate water quality standards for all waters within their jurisdictions and the EPA influences those standards in issuing recommendations that provide nationwide guidance which informs state criteria. The recommendations must reflect the latest scientific knowledge, as well as identifiable effects of pollutants on humans and animals.
Relatedly, under the Endangered Species Act, federal agencies, including the EPA, must carry out consultations with the Fish and Wildlife Service and/or the National Marine Fisheries Service before taking any agency action that may affect any endangered species or their critical habitat. Following consultation, the agency must prepare an analysis of the potential effects on listed species, and prepare a opinion detailing, at minimum, whether the actions will result in jeopardy of the species. Agencies may engage in informal consultation if all parties agree that they action will not likely to adversely affect species or habitat. Otherwise, formal consultation is required. Here, however, the EPA undertook neither formal, nor informal, consultation before issuance of the 2016 recommendation.
Cadmium’s documented toxicity shows several, adverse health effects on aquatic life. The EPA first promulgated recommendations for cadmium in 1980, with updates in 1995 and 2001. Since the 2001 recommendation, approximately 100 new studies have been published detailing the effect of cadmium on aquatic life and habitats, including data on 75 new species. Nine of those species are listed as endangered or threatened under the ESA.
Prior to issuance of the 2016 recommendation, which relaxed criteria for permissible concentrations of cadmium in fresh water, the EPA declined to undertake any consultation, citing that such consultation is only required for agency action, to which the EPA contends the recommendation is not. In 2022, the Center for Biological Diversity (CBD) filed an action to invalidate the 2016 cadmium recommendations, and compel the EPA to engage in the consultation process, as mandated by the ESA.
The Ninth Circuit’s Decision
In addressing the central issue and affirming the trial court, the Ninth Circuit found that EPA’s promulgation of the 2016 recommendation constitutes agency action, thereby requiring consultation under the ESA. The court emphasized the term agency action has been interpreted broadly and consistently to ensure the ESA’s substantive protections. The court further noted the threshold which triggers the consultation requirement is relatively low. The recommendations promulgated by the EPA satisfied both standards.
Discussing the EPA’s issuance of recommendations broadly, the court noted that the action constitutes more than merely non-binding guidance as the recommendations serve as the default on which states rely in adopting their own standards. As such, the recommendations are likely to produce nationwide consequences, including impacts on listed species and their habitats, while also acting as action-forcing mechanisms for every state. Such effects meet the threshold for consultation requirement and necessitates reliance on best available science to ensure the compliance with species and habitat protections prioritized under the ESA.
The Ninth Circuit stipulated an exception to the consultation requirement where the agency determines that no negative effect on listed species or habitat will result from the recommendation. However, because of documentation demonstrating cadmium’s effects on listed species and their habitats, and ample evidence to demonstrate foreseeability, in 2016, that a state may adopt the recommendation in at least one body of water inhabited by at least one member of the listed species, the exception does not apply to the present case. As the court further stated, evidence of such foreseeability is clear in states’ history of adopting recommendations promulgated by the EPA, the EPA’s implementation of its recommendations in states with non-compliant water quality standards, and through example of states’ promulgation of regulations requiring or incentivizing state officials to adopt EPA’s recommendations.
Standing
Beyond the merits of the case, the court additionally rejected the EPA’s arguments that CBD lacked standing, and that alleged injuries were too attenuated to rise to the level of redressability by the court. The court held that CBD’s members sufficiently established actual and imminent injury as a result of the EPA’s failure to engage in consultation, and subsequent recommendations, because of the action’s potential to create both cumulative, and interstate, effects of creation of less stringent state standards which, in turn, directly effects the members of CBD’s use of the protected species through listing of several activities, including recreational and educational activities. Importantly, the court stated, when a plaintiff challenges a procedural right, the requirements of causation and redressability are relaxed, in that the plaintiff need only demonstrate he holds a procedural right that, if exercised, could protect his concrete interests, and those interests fall within he zone of interested protected by the statute at issue, and CBD sufficiently provided such support.
Conclusion and Implications
In affirming the deciding of the District Court, the Ninth Circuit found the EPA violated the ESA in failing to engage in consultation before promulgation, and publication, of the 2016 recommendation. The Ninth Circuit recognized application of the consultation requirement to action taken in compliance with the Clean Water act constituted an issue of first impression for the court. However, the court disagreed with arguments made by the EPA which claimed the decision would open a floodgate for future claims, thereby forcing agencies to consult on every piece of non-binding guidance issued. Instead, the Court cited specific details to the present case which set it apart including, the potential for substantial effect and nationwide influence the EPA recommendations have the potential to generate.
In accordance with the court’s decision, the 2016 recommendation is invalidated and the EPA is required to engage in consultation, in accordance with ESA requirements, and promulgate new guidance. The Ninth Circuit’s opinion is available here: Accessible here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/03/23-2946.pdf
