Center for Biological Diversity

For Immediate Release, August 21, 2023

Contact:

Hannah Connor, (202) 681-1676, hconnor@biologicaldiversity.org

Judge Rules EPA Failed to Protect Endangered Wildlife From Cadmium Water Pollution

Groundbreaking Decision Will Likely Lead to Improved Water Quality Nationwide

TUCSON, Ariz.— In a precedent-setting decision, a federal judge ruled late Friday that the Environmental Protection Agency violated the Endangered Species Act in 2016 when it failed to assess harms to endangered species before nearly tripling the levels of the heavy metal cadmium allowed in U.S. waters. The ruling, in the U.S. District Court for the District of Arizona, follows a 2022 lawsuit filed by the Center for Biological Diversity.

“This groundbreaking decision will protect Atlantic sturgeon, sea turtles and other aquatic wildlife from cadmium pollution and make our waters safer for people across the country,” said Hannah Connor, a senior attorney and environmental health deputy director at the Center. “This ruling also means the EPA can no longer ignore the freshwater extinction crisis when it sets criteria for other dangerous pollutants like the forever chemical PFAS.”

Cadmium is a dangerous pollutant that bioaccumulates and is a carcinogen toxic to wildlife and people at any level of exposure. Industrial and agricultural activities are the source of more than 90% of the cadmium found in surface waters. Coal combustion contributes approximately 40% of that pollution, while the production and use of phosphate fertilizers contributes about half.

In his ruling U.S. District Judge John C. Hinderaker determined that if the EPA had complied with the Endangered Species Act and consulted with expert wildlife agencies when it set nationwide water-quality criteria, the result would likely be “more stringent criteria.” That would lead to better water protections for aquatic and aquatic-dependent wildlife.

“With this decision the EPA can no longer pawn its endangered species responsibilities off on under-resourced states, tribes and territories,” said Claire Tonry, a partner at the law firm Smith & Lowney and counsel for the Center in this case. “Now the agency must look at the big picture of toxic harm to species like pallid sturgeon, which cross dozens of jurisdictions during their lives.”

Under the Clean Water Act, the EPA is required to set criteria that establish benchmarks for states, territories and Tribal nations to follow when they develop their water-quality standards, including for heavy metals like cadmium. The EPA must assess harm to endangered species when it approves state-based standards, but the court held that these consultations failed to consider the potential harm to wide-ranging species that cross multiple jurisdictions and fall under different standards.

Friday’s decision vacated EPA’s 2016 chronic freshwater cadmium criteria and left other more protective criteria in place, which the Center had requested. It also sent the EPA’s 2016 cadmium criteria back to the agency. As the judge said in his ruling, “The bottom line here is that EPA does not have discretion to avoid its obligations under the ESA.”

“The EPA can no longer refuse to consult with wildlife agencies when it develops nationwide water-quality criteria. It has to follow the Endangered Species Act,” said Connor. “That’s a gamechanger for the health of the country’s rivers and streams and the freshwater plants and animals that depend on them.”

In 2022 the EPA proposed the first ever nationwide water-quality criteria for forever chemicals PFAS and PFOS but signaled that it would not comply with the Endangered Species Act in issuing the criteria.

Wildlife agencies have warned that the EPA’s 1986 methodologies for setting water-quality criteria are antiquated. Friday’s ruling may finally compel the EPA to update its methodologies.

The Center is represented by Richard Smith and Claire Tonry, with Smith & Lowney PLLC, and Center attorney Hannah Connor.

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Pallid sturgeon. Photo credit: U.S. Fish and Wildlife Service Image is available for media use.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places.

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