On March 3, 2026, the U.S. Court of Appeals for the Ninth Circuit issued its decision in Center for Biological Diversity v. United States Environmental Protection Agency (Docket No. 23‑2946).
The case addressed whether the EPA’s 2016 nationwide cadmium recommendations under Clean Water Act § 304(a) constituted “agency action” that would trigger consultation requirements under Endangered Species Act § 7.
The Ninth Circuit affirmed the district court’s summary judgment in favor of the Center for Biological Diversity (CBD), holding that the EPA was required to consult with the Fish and Wildlife Service and the National Marine Fisheries Service before issuing its 2016 cadmium recommendations.
Judge Miller dissented, arguing that CBD lacked standing because any alleged injury was not sufficiently traceable to EPA guidance.
Case Background
The Center for Biological Diversity (CBD), a non-profit environmental organization, sued the EPA and Administrator Michael S. Regan, alleging that the agency violated ESA § 7 by failing to consult with the Services before issuing its 2016 § 304(a) recommendations for cadmium.
The 2016 guidance revised water quality criteria for cadmium, including a less stringent chronic freshwater standard.
CBD argued that the lack of consultation threatened endangered species and harmed its members, who engage in recreational, educational, and scientific activities involving affected aquatic species.
The district court granted summary judgment to CBD, vacating the chronic freshwater recommendation and remanding all § 304(a) cadmium criteria for consultation. EPA appealed, challenging CBD’s standing and whether the guidance constituted “agency action.”
Court Ruling and Reasoning
The Ninth Circuit concluded that CBD had Article III standing and that EPA’s § 304(a) recommendations were agency action that may affect endangered species, triggering ESA § 7 consultation requirements.
In reaching this decision, the court noted:
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Injury in fact: CBD members routinely use waters with listed species potentially affected by cadmium, and less stringent water quality criteria could harm these species.
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Traceability: Historical practice shows that many States adopt EPA § 304(a) recommendations, making it reasonably predictable that EPA guidance influences water quality standards.
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Redressability: Consultation is likely to result in stricter cadmium recommendations, which at least some States would adopt, thereby protecting CBD members’ interests in endangered species.
The court emphasized that § 304(a) recommendations are not merely advisory; they are a statutorily mandated mechanism that guides State adoption of water quality standards.
While the guidance itself is nonbinding, its widespread influence over State decisions satisfies ESA § 7’s requirements.
Judge Miller dissented, arguing that CBD could not demonstrate traceability because States retain discretion to adopt or reject EPA guidance, and therefore any injury was not directly caused by EPA action.
Key Takeaways For Business
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EPA Guidance Is Agency Action: Even nonbinding § 304(a) recommendations may trigger procedural obligations under the ESA if they affect endangered species.
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Procedural Compliance Matters: Federal agencies must engage in § 7 consultation before promulgating guidance that may influence State water quality standards.
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Predictability of Adoption: Businesses should understand that widespread adoption of EPA recommendations can create legally significant consequences.
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Environmental NGO Strategy: Challenging federal guidance that may affect species can be a valid legal avenue; consultation processes are critical.
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Risk Monitoring: Corporate counsel should account for ESA consultation obligations when assessing regulatory and environmental compliance risk.
The Ninth Circuit affirmed CBD’s victory, confirming that EPA must consult with the Fish and Wildlife Service and the National Marine Fisheries Service under ESA § 7 before issuing or reinstating its 2016 cadmium § 304(a) recommendations.
In the meantime, the 2016 chronic freshwater recommendation remains vacated, and the agency must revisit all cadmium guidance through the lens of ESA consultation.
Case Details
Court: U.S. Court Of Appeals For The Ninth Circuit
Date: March 3, 2026
Case Name: Center For Biological Diversity v. United States Environmental Protection Agency
Docket Number: 23‑2946
Area Of Law: Other Commercial Litigation (Environmental / Regulatory)
Result: Affirmed District Court; EPA Required To Consult Under ESA § 7
People Also Ask
Why did the Ninth Circuit affirm the district court in CBD v. EPA?
The court found that CBD had standing and that EPA’s 2016 cadmium guidance qualified as agency action that may affect endangered species, requiring consultation under ESA § 7.
What is the legal significance of “agency action” in this case?
“Agency action” under ESA § 7 includes federal actions that may affect listed species. The court held that EPA’s § 304(a) guidance meets this standard because it influences State water quality standards.
Did the EPA violate the Endangered Species Act?
Yes. By issuing the 2016 cadmium guidance without consulting the Services, EPA failed to comply with ESA § 7.
How does standing relate to third-party State decisions?
CBD demonstrated that adoption of EPA guidance by States is reasonably predictable, creating a direct link between EPA action and potential injury, satisfying standing requirements.
Are nonbinding EPA recommendations enforceable?
While not directly enforceable, § 304(a) recommendations have a predictable impact on State water quality standards, making them actionable for ESA consultation purposes.
