PHOENIX (CN) — The U.S. Environmental Protection Agency should have consulted other government agencies before issuing a nationwide recommendation that relaxed criteria for cadmium levels in freshwater, according to a recent ruling.
“Although EPA's position is defensible, the court agrees with the center that issuing water-quality criteria recommendations is an "action" under the (Endangered Species Act) that requires consultation,” U.S. District Judge John Hinderaker wrote Friday, referring to the Center for Biological Diversity.
The center sued the agency in 2022 over recommendations issued to individual states and tribal nations in 2016, increasing the levels of cadmium allowed in freshwater streams before the waterway is no longer considered safe under the Clean Water Act. Cadmium is a highly toxic, cancer-causing metal found in mineral deposits and released into the environment through the burning of fossil fuels.
“Cadmium has no beneficial biological function and is harmful at any exposure level. Acute exposure to cadmium can cause increased mortality in aquatic and marine life, which can include species listed as threatened or endangered under the ESA,” attorneys for the center wrote in a 2022 complaint. “Chronic exposure can further result in adverse effects on growth, reproduction, immune and endocrine systems, and development and behavior in these aquatic species.”
The center says the EPA 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.
The 2016 update “substantially weakened” the cadmium criteria for chronic concentrations in freshwater, the center claims, increasing the allowable cadmium concentration to 0.72 micrograms per liter, nearly triple the 2001 criteria of 0.25 micrograms per liter.
“At least 25 states and several tribes and territories have expressly adopted EPA’s revised cadmium 304(a) criteria since they were finalized in 2016, effectively weakening protections from cadmium exposure across the country as a result,” attorneys wrote in an April motion for summary judgment.
The agency countered with a motion for summary judgment of its own in May, framing the case as a “question of when — not whether” it has to consult on water quality criteria.
The recommendations made were nonbinding. States, tribes and territories are allowed to either accept, modify or reject recommendations based on individual needs. If the recommendation is modified or rejected, the state or tribe must explain why. But if the recommendation is accepted, no further action is necessary.
“It requires consultation only where the agency has “authorized, funded, or carried out” an action that may affect a listed species or its critical habitat,” agency attorneys wrote in the motion. “EPA has not taken such an action in issuing the 2016 recommended cadmium criteria.”
The agency argues it makes more sense to make a sweeping recommendation, allow states to create their own plans, then authorize those plans after the fact.
But Hinderaker says issuing a nonbinding recommendation still constitutes an “action” under the Endangered Species Act, so consultation still should have preceded.
“Here, EPA's 304(a) activity does not decide whether state activity may proceed. But EPA's activity does decide how a state may proceed: with or without explanation”
Hinderaker also dismissed the agency’s argument that the recommendation doesn’t directly affect endangered species.
“If, for example, EPA nearly triples the maximum chronic freshwater criterion for a pollutant, and if that criterion is adopted verbatim by most states, then protected species in those states' waters may be exposed to more of that pollutant than if EPA had lowered the criterion, kept it constant, or increased it by a smaller amount,” he wrote. “That chain of possibilities is not long. Its links fit snugly together — by design. EPA essentially concedes as much when it writes that nationwide consultation would "tend to produce" more stringent criteria”
While the agency didn’t receive consultation for any of the four recommendations regarding cadmium levels it made in 2016, Hinderaker vacated only the chronic freshwater criteria, as the other three are much more stringent. But he remanded each of the four recommendations back to the agency for further analysis.
The center also asked Hinderaker to order the agency to receive consultations on all four recommendations, but Hinderaker declined, implying that the agency will do so willingly upon remand.
“The court prefers not to manage an intricate and ongoing process. EPA has acted in good faith, and the court has no reason to believe it will not respond to partial vacatur and remand appropriately. Ordering consultation is therefore unnecessary.”
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