Center for Biological Diversity Sues EPA Over 2016 Cadmium Regulations

The Center for Biological Diversity filed suit against thee Environmental Protection Administration (EPA) and its head, Michael S. Regan, on Tuesday in the District of Arizona. The complaint for declaratory and injunctive relief takes issue with the EPA’s approach to implementing new cadmium contamination criteria.

In 2016, the EPA implemented new revisions that plaintiff maintains “weakened the aquatic life water quality criteria for the heavy metal cadmium.” As a result of the revisions, many endangered species have allegedly been placed at a greater risk, including salmon, sturgeon, freshwater mussels, sea turtles, and more.

The Endangered Species Act (ESA) requires the EPA to ensure that any provision it passes will “not jeopardize the survival and recovery of endangered and threatened species or adversely modify habitat deemed essential to their survival and recovery.”

To ensure that the ESA is not violated through EPA provisions, the EPA must consult scientists and experts within the United States Fish & Wildlife Services and the National Marine Fisheries Service. The collaboration will ensure “against jeopardizing the species and to minimize potential for an action to harm ESA-listed species or their habitats.” The EPA is also responsible for setting water quality criteria that will protect human health and aquatic life.

In 2016, the EPA implemented a revised set of water quality criteria. The new criteria were based off of new assessments of the effects of cadmium on aquatic organisms, and are “less protective of water quality than prior iterations of the criteria.”

Despite being required to do so, the EPA implemented the new criteria without consulting the necessary agencies as detailed by the ESA. The plaintiff explains that the failure to consult the required agencies is indicative of a larger trend where the EPA consistently fails to “consult the ESA on the adoption of water quality criteria.” The failure to consult also violates a Memorandum of Agreement that the EPA entered into with the aforementioned agencies.

The plaintiffs assert that the dangers of cadmium are understated by the new criteria, since cadmium “has no beneficial biological function and is harmful at any exposure level.” Specifically, they explain that it can lead to increased mortality in aquatic and marine life.

The complaint cites a violation of the Endangered Species Act, and the plaintiff seeks favorable judgment, for the Court to vacate the cadmium criteria, litigation fees, and any other relief deemed appropriate by the Court.

The plaintiff is represented by their own counsel and Smith & Lowney.