Center for Biological Diversity v. United States Environmental Protection Agency

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL No. 23-2946

DIVERSITY, a non-profit

D.C. No.

organization,

4:22-cv-00138-

JCH

Plaintiff - Appellee,

v.

UNITED STATES OPINION

ENVIRONMENTAL PROTECTION

AGENCY; MICHAEL S. REGAN,

Administrator of the United States

Environmental Protection Agency,

Defendants - Appellants.

Appeal from the United States District Court

for the District of Arizona

John Charles Hinderaker, District Judge, Presiding

Argued and Submitted April 7, 2025

San Francisco, California

Filed March 3, 2026

Before: Sidney R. Thomas, Richard A. Paez, and Eric D.

Miller, Circuit Judges.

2 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

Opinion by Judge Paez;

Dissent by Judge Miller

SUMMARY *

Environmental Law /Standing

The panel affirmed the district court’s summary

judgment in favor of the Center for Biological Diversity

(“CBD”) in its action against the U.S. Environmental

Protection Agency (“EPA”) seeking to invalidate the EPA’s

2016 cadmium recommendations, and to compel the EPA to

engage in a consultation under Endangered Species Act

(“ESA”) § 7 before promulgating new recommendations

under Clean Water Act (“CWA”) § 304.

Under § 303 of the CWA, States must promulgate water

quality standards for all waters within their jurisdictions.

Section 304(a) of the CWA requires the EPA to develop

nationwide recommendations for States’ criteria. Under § 7

of the ESA, federal agencies must carry out consultations

with the Fish and Wildlife Service and/or the National

Marine Fisheries Service before taking agency action that

may affect endangered species or their critical habitats.

The panel held that CBD had Article III standing to

challenge EPA’s failure to consult with the Services under

ESA § 7 before promulgating its CWA § 304(a)

recommendations for cadmium. To establish standing, a

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 3

plaintiff must show that (1) it has suffered an injury in fact,

(2) the injury is fairly traceable to the defendant’s challenged

action, and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.

First, CBD members established an injury in fact

because the record contains ample evidence that less-

stringent State water quality criteria harm listed species by

increasing pollution, and that these harms impair CBD

members’ concrete interests in engaging in recreational and

educational activities involving these species.

Second, the injury is traceable to an action by the EPA

because consultation between EPA and the Services

regarding the § 304(a) recommendations likely would have

resulted in stricter water quality standards. Evidence of

historical practice shows that many States will adopt EPA’s

§ 304(a) recommendations, and State implementation is

even more predictable given that several States have

legislation or regulations requiring or incentivizing

lawmakers to adopt the § 304(a) recommendations. The

behavior of States is not unfettered, but controlled and

predicted by EPA’s § 304(a) recommendations.

Third, CBD’s injury is redressable because consultation

is likely to lead to stricter § 304(a) recommendations and at

least one State is likely to adopt stricter water quality criteria

in response to stricter § 304(a) recommendations, which

would likely impact CBD members’ interests in various

listed species.

Turning to the merits, § 7 of the ESA requires agencies

to consult with the Services before performing any “agency

action” that “may affect” listed species or their critical

habitats. In researching, developing, and publishing

nationwide recommendations for aquatic pollutant levels,

4 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

which would foreseeably be adopted wholesale by many

States, EPA carried out an “agency action” which “may

affect” listed species, requiring consultation with the

Services under § 7. Accordingly, the panel affirmed the

district court’s summary judgment.

Dissenting, Judge Miller would reverse the district

court’s judgment and remand with instructions to dismiss the

case for lack of standing because CBD cannot establish

traceability. To establish traceability, CBD must show that

EPA exerts a “determinative or coerce effect” on a State’s

decision to adopt the section 304 guidance levels. CBD

cannot make that showing because EPA does not have a

“determinative or coercive effect” on a State’s decision to

propose criteria that incorporate EPA’s section 304

recommendations. It follows that CBD’s injury, which

occurs only to the extent that States adopt the section 304

recommendation levels, is not fairly traceable to EPA.

COUNSEL

Claire E. Tonry (argued), Smith & Lowney PLLC, Seattle,

Washington; Hannah M.M. Connor, Center for Biological

Diversity, Washington, D.C.; for Plaintiff-Appellee.

Michelle Melton (argued) and Robert P. Stockman,

Attorneys, Environment & Natural Resources Division,

Appellate Section; Clifford E. Stevens Jr., Senior Trial

Attorney; Kathrine E. Konschnik, Acting Assistant Attorney

General; Todd Kim, Assistant Attorney General; United

States Department of Justice, Washington, D.C.; Eleanor

Garretson, Attorney Advisor, Office of General Counsel,

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 5

Environmental Protection Agency, Washington, D.C.; for

Defendants-Appellants.

OPINION

PAEZ, Circuit Judge:

Under § 303 of the Clean Water Act (“CWA”), states,

territories, and authorized tribes 1 (hereinafter, “States”)

must promulgate water quality standards (“WQSs”) for all

waters within their jurisdictions. See 33 U.S.C. § 1313.

WQSs set maximum pollution levels, called “criteria,” for

individual pollutants. See id. § 1313(c). Section 304(a) of

the CWA also requires the Environmental Protection

Agency (“EPA”) to develop nationwide recommendations

for States’ criteria. Id. § 1314(a). Although these § 304(a)

recommendations are nonbinding, States must either adopt

them or explain the decision to depart from them, and criteria

not based on the § 304(a) recommendations must be justified

scientifically. See 40 C.F.R. §§ 131.20(a); 131.11(b)(1)(iii)

(2016). 2 Under § 303 of the CWA, EPA must review State

WQSs to ensure compliance with that act. See 33 U.S.C.

§ 1313(c)(2)(A); 40 C.F.R. § 131.5. When a State’s WQSs

do not comply with the requirements of the CWA, EPA must

promulgate WQSs for the State directly. Id. § 1313(c)(3).

1

See 40 C.F.R. § 131.3(j).

2

We refer to the 2016 regulations, which differ slightly from the current

version, because the plaintiff challenges an action undertaken by EPA in

that year.

6 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

Under those circumstances, EPA often implements its

§ 304(a) recommendations in the noncompliant State.

Under § 7 of the Endangered Species Act (“ESA”),

federal agencies must carry out consultations with the Fish

and Wildlife Service (“FWS”) and/or the National Marine

Fisheries Service (“NMFS”) (together, “the Services”)

before taking any “agency action” that “may affect”

endangered species or their critical habitats. 16 U.S.C.

§ 1536(a)(2); 50 C.F.R. § 402.14 (2016).

In 2016, EPA promulgated new § 304(a)

recommendations for cadmium without consulting with the

Services. In doing so, EPA asserted that § 7 of the ESA only

requires it to consult with the Services before approving or

disapproving each State’s WQSs under CWA § 303. The

Center for Biological Diversity (“CBD”) filed the instant

action to invalidate the 2016 cadmium recommendations and

compel EPA to engage in § 7 consultation before

promulgating new recommendations under CWA § 304. In

granting summary judgment to CBD, the district court

determined that EPA must comply with § 7 because EPA’s

publication of § 304(a) recommendations is an “agency

action” that “may affect” listed species or critical habitat. See

Ctr. for Biological Diversity v. U.S. Env’t Prot. Admin., No.

CV-22-00138-TUC-JCH, 2023 WL 5333260, at *7, *11 (D.

Ariz. Aug. 18, 2023). On appeal, EPA argues that CBD lacks

standing to challenge EPA’s failure to consult before

promulgating § 304(a) recommendations. Concerning the

merits, EPA also argues that the promulgation of § 304(a)

recommendations is not an “agency action” and that it has

no effect on listed species or their critical habitat. We affirm.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 7

I.

Because this case deals with the intersection of the CWA

and the ESA, we briefly discuss the pertinent provisions of

these two statutes. We then provide some background

concerning the challenged 2016 § 304(a) recommendations

for cadmium. Finally, we outline the relevant procedural

history of this case before turning to the issues on appeal.

A.

The Clean Water Act aims “to restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters” by regulating and ultimately eliminating the

discharge of pollutants. 33 U.S.C. § 1251(a). It sets forth

Congress’s policy “to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution.” Id. § 1251(b). EPA is

responsible for administering the CWA, including those

provisions related to establishing and reviewing water

quality standards throughout the United States. See id.

§§ 1251(d), 1313.

Section 303 of the CWA directs States to develop, adopt,

and regularly review WQSs for all waters within their

jurisdictions. Id. § 1313(a), (c); see generally 40 C.F.R.

Part 131. WQSs include maximum pollution levels, called

“criteria,” for individual pollutants in a State’s waterways. 3

33 U.S.C. § 1313(c)(2)(B). The CWA mandates use of these

3

WQSs consist of three components: (1) the designated uses of the water

body; (2) water quality criteria identifying levels of pollutants adequate

to protect the designated uses; and (3) an “anti-degradation policy” that

protects existing uses and provides a mechanism for preventing water

quality deterioration. See 33 U.S.C. § 1313(c), (d)(4)(B); PUD No. 1 of

Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704-05 (1994);

40 C.F.R. § 130.3.

8 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

criteria for several regulatory purposes. Criteria are used to

develop discharge limits in federal pollution permits,

without which pollutant discharge from point sources is

generally prohibited. Id. §§ 1311(a)–(b), 1341(a)(1),

1342(a)(1). In addition, States must use their water quality

criteria to identify bodies of water that are “impaired” by

high pollutant levels and to develop “total maximum daily

loads” of pollutants for those bodies of water to protect

wildlife. Id. § 1313(d).

Section 304 of the CWA directs EPA to “develop and

publish” nationwide water quality criteria recommendations

that “reflect[] the latest scientific knowledge” on the

“identifiable effects” of pollutants on humans and aquatic

species. Id. § 1314(a)(1). EPA has published and

periodically updates § 304(a) recommendations for

approximately sixty individual pollutants, covering acute

pollution in marine and estuarine waters, acute pollution in

fresh waters, chronic pollution in marine and estuarine

waters, and chronic pollution in fresh waters. See U.S. Env’t

Prot. Agency, National Recommended Water Quality

Criteria - Aquatic Life Criteria Table (2025). 4 To calculate

these four recommended values, EPA uses an established,

scientifically valid methodology that considers “all available

information concerning toxicity to, and bioaccumulation by,

aquatic organisms.” See U.S. Env’t Prot. Agency,

Guidelines for Deriving Numerical National Water Quality

Criteria for the Protection of Aquatic Organisms and Their

Uses (2024). 5

4

https://www.epa.gov/wqc/national-recommended-water-quality-

criteria-aquatic-life-criteria-table.

5

https://www.epa.gov/wqc/guidelines-deriving-numerical-national-

water-quality-criteria-protection-aquatic-organisms-and.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 9

The CWA requires States to hold public hearings every

three years for the purpose of reviewing their WQSs and

making modifications if necessary. 33 U.S.C. § 1313(c)(1);

40 C.F.R. § 131.20. EPA’s regulations provide that the

“form” of a State’s criteria should be numerical, although

narrative criteria or criteria based on biomonitoring methods

may be used “where numerical criteria cannot be established

or to supplement numerical criteria.” 40 C.F.R. § 131.11(b).

In establishing numerical criteria, States are required to use

values based on either EPA’s § 304(a) recommendation,

with or without modification for site-specific conditions, or

“[o]ther scientifically defensible methods.” Id. Moreover,

during the triennial review process, States must revise their

criteria to match any new or revised § 304(a)

recommendations, or submit an explanation to EPA for the

decision not to do so. Id. § 131.20(a). Importantly, while

States must justify scientifically any proposed criteria other

than the § 304(a) recommendation, id. § 131.11(b)(1)(iii),

they need not justify scientifically their decision to retain

existing criteria despite a new or revised § 304(a)

recommendation, id. § 131.20(a). 6 Rather, a State’s

6

The relevant regulations make clear that a State need only provide

additional scientific justification for new or revised proposed criteria that

departs from the § 304(a) recommendations. See 40 C.F.R. § 131.20(a)

(“[I]f a State does not adopt new or revised criteria for parameters for

which EPA has published new or updated CWA section 304(a) criteria

recommendations, then the State shall provide an explanation when it

submits the results of its triennial review to the Regional Administrator

consistent with CWA section 303(c)(1) and the requirements of

paragraph (c) of this section.”) (emphasis added); see also id.

§ 131.11(b)(1) (“In establishing criteria, States should: (1) Establish

numerical values based on: (i) 304(a) Guidance; or (ii) 304(a) Guidance

modified to reflect site-specific conditions; or (iii) Other scientifically

defensible methods[.]”). Notably, the statutory construction of 40 C.F.R.

10 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

explanation for declining to adopt EPA’s revised § 304(a)

recommendations may appeal to budget, priorities, or other

economic concerns. Regardless of whether a State elects to

revise its water quality criteria, it must submit “the results of

the [triennial] review, any supporting analysis for the use

attainability analysis, the methodologies used for site-

specific criteria development, any general policies

applicable to water quality standards and any revisions of the

standards” to EPA for approval within thirty days of the final

decision. Id. § 131.20(c).

EPA must approve any new and revised State WQSs

before they can go into effect for use in CWA programs. 33

U.S.C. § 1313(c)(2)(A), (c)(3); 40 C.F.R. § 131.5. In

approving a State’s proposed water quality criteria, EPA

verifies that they “protect the designated water uses based on

sound scientific rationale,” were revised or adopted pursuant

to “applicable legal procedures,” and are consistent with the

CWA and other applicable law. 40 C.F.R. § 131.5(a). If EPA

determines that a State’s proposed criteria would not be

consistent with the requirements of the CWA, then it must

directly promulgate criteria for that State. 33 U.S.C.

§ 1313(c)(4).

EPA’s § 304(a) recommendations are not a safe harbor

and are not presumed to be appropriate. Indeed, EPA has

disapproved State water quality criteria that were at least as

stringent as the relevant § 304(a) recommendations. See U.S.

Env’t Prot. Agency, Email Concerning EPA’s Action on

North Dakota’s Revised Chronic Aquatic Life Criterion for

§ 131.11(b)(1) necessarily implies that § 304(a) guidance is

scientifically defensible.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 11

Mercury 5–6 (July 15, 2022) 7 (disapproving North Dakota’s

2022 water quality criterion for chronic mercury, which was

based on the current § 304(a) value).

EPA also utilizes its § 304(a) recommendations for other

regulatory purposes, including to establish cleanup

requirements for contaminated sites under the

Comprehensive Environmental Response, Compensation

and Liability Act. See 42 U.S.C. § 9621(d)(2)(A); 40 C.F.R.

§ 300.430(e)(2)(i)(E).

B.

The Endangered Species Act provides a framework to

conserve and protect the world’s flora and fauna by creating

a list of endangered or threatened species and providing

procedural and substantive protections for those species. See

16 U.S.C. §§ 1531–1544. The Services administer the ESA;

the responsible Service is usually determined by species. See

50 C.F.R. § 402.01(b).

Section 4 of the ESA requires the Services to determine

whether a given species qualifies for designation as

endangered or threatened, and designate and periodically

update critical habitat for those listed species. See 16 U.S.C.

§ 1533; 50 C.F.R. § 402.01(b).

Section 7 of the ESA requires federal agencies to ensure

that “any action authorized, funded, or carried out by [the]

agency” (“agency action”) is “not likely to jeopardize the

continued existence of any endangered or threatened

species” or adversely modify or destroy those species’

designated critical habitats. 16 U.S.C. § 1536(a)(2). Under

7

https://www.epa.gov/system/files/documents/2024-05/actltr-16138-

nd07152022.pdf.

12 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

the applicable regulations, federal agencies must do so by

reviewing their actions “at the earliest possible time” to

determine whether they “may affect” a listed species or

critical habitat. 50 C.F.R. § 402.14(a). If so, then the agency

proposing the action (“action agency”) and the Service(s)

must engage in a formal consultation. Id.; 16 U.S.C.

§ 1536(a)(4).

To initiate a formal consultation, the action agency must

prepare certain materials for the consulting Service(s) to

review, called a “biological assessment” or “biological

evaluation.” See 16 U.S.C. § 1536(c); 50 C.F.R.

§ 402.14(c)(1); Memorandum of Agreement Between the

Environmental Protection Agency, Fish and Wildlife

Service and National Marine Fisheries Service Regarding

Enhanced Coordination Under the Clean Water Act and

Endangered Species Act, 66 Fed. Reg. 11202, 11210 (Feb.

22, 2001); Erin Ward & Pervaze Sheikh, Cong. Rsch. Serv.,

IF12423, Endangered Species Act (ESA) Section 7

Consultation 1 (2023). 8 These materials include a detailed

description of the project parameters and an analysis of the

potential effects on listed species. Then, the Service(s) must

prepare a “biological opinion” detailing whether the action

will likely result in “jeopardy” to listed species. 16 U.S.C.

§ 1536(b)(3)–(4); 50 C.F.R. § 402.14(g)–(h). If so, the

Service(s) must also include a list of reasonable and prudent

alternatives to avoid jeopardy to listed species or adverse

modification of designated critical habitat. See 16 U.S.C.

§ 1536(b)(3)–(4); 50 C.F.R. § 402.14(g)–(h).

8

https://www.congress.gov/crs_external_products/IF/PDF/IF12423/IF12

423.2.pdf.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 13

Agencies may also avoid formal consultation by

engaging in a voluntary informal consultation under 50

C.F.R. § 402.13. If, through informal consultation, the

agency determines and the Service(s) concur that the action

which “may affect” a listed species or critical habitat is “not

likely to adversely affect” the species or habitat, then formal

consultation is not required. Id.; see id. § 402.14(b)(1).

While either form of consultation is ongoing, the action

agency must avoid making any “irreversible or irretrievable

commitment of resources” that could foreclose

implementation of any modifications or alternatives

recommended by the consulting Service(s). 16 U.S.C.

§ 1536(d); 50 C.F.R. § 402.09.

C.

The parties do not dispute the material facts. While

cadmium naturally occurs in surface waters at very low

levels, most is introduced by anthropogenic activities

including mining, manufacturing, and agriculture. No level

of exposure to cadmium is beneficial for aquatic life or

human health; cadmium is acutely toxic, although its toxicity

varies based on water conditions and across species. Long-

lived or migratory species are especially sensitive to

cadmium, including sturgeon, sea turtles, salmonids, and

freshwater mussels. Chronic cadmium exposure causes

cancers, birth defects, and adverse effects on growth,

reproduction, immune and endocrine functions,

development, and behavior in aquatic species.

EPA first published § 304(a) recommendations for

cadmium in 1980, with subsequent updates in 1985, 1995,

and 2001. In 2016, EPA again revised its recommended

criteria for cadmium based on around 100 new studies

published since 2001 concerning the impact of cadmium on

14 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

aquatic life. The new studies included data for more than

seventy-five new species. In total, data was available for

nine species listed as endangered or threatened under the

ESA.

Based on these studies, and after external peer review

and a public comment period, EPA published updated

§ 304(a) recommendations for cadmium along with a

lengthy report detailing its methodology. Of the four criteria

recommendations for cadmium, only the freshwater chronic

value became less stringent in 2016: the EPA tripled the

recommended cadmium concentration compared to its 2001

recommendation. The other three became more stringent.

EPA did not consult with the Services before publishing

its new § 304(a) recommendations for cadmium, asserting

that it was only required to consult before deciding whether

to approve each State’s proposed WQSs under § 303. During

notice and comment on the new cadmium recommendations,

NMFS criticized EPA’s “piecemeal” approach to

consultation as incapable of fully capturing the implications

of the WQSs for “broadly ranging species,” “lead[ing] to an

incomplete consideration” of effects. EPA acknowledged

that nationwide consultation would “tend to produce” more

stringent § 304(a) recommendations.

Every time EPA has directly promulgated cadmium

criteria for a State, it has used its own § 304(a)

recommendations to supplant the State’s insufficient

standards. See, e.g., 40 C.F.R. § 131.38(b)(1) (implementing

the 2001 § 304(a) recommendations for cadmium in

California); Water Quality Standards; Establishment of

Numeric Criteria for Priority Toxic Pollutants; States’

Compliance—Revision of Metals Criteria, 60 Fed. Reg.

22229 (May 4, 1995) (interim final rule implementing the

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 15

1995 § 304(a) recommendations for cadmium in nine states,

the District of Columbia, and Puerto Rico); Water Quality

Standards; Establishment of Numeric Criteria for Priority

Toxic Pollutants; States’ Compliance, 57 Fed. Reg. 60848

(Dec. 22, 1992) (implementing the 1985 § 304(a)

recommendations for cadmium in some states). In 2013,

EPA disapproved Oregon’s criteria for acute cadmium

pollution in fresh water, even though it was based on EPA’s

2001 § 304(a) recommendation. Aquatic Life Criteria for

Copper and Cadmium in Oregon, 81 Fed. Reg. 22555,

22556–22557 (Apr. 18, 2016). In its place, however, EPA

promulgated a new criterion for Oregon matching the

§ 304(a) recommendation for cadmium issued in 2016.

Aquatic Life Criteria for Cadmium in Oregon, 82 Fed. Reg.

9166, 9168 (Feb. 3, 2017).

II.

In March 2022, CBD filed this action alleging that EPA

violated § 7 of the ESA by failing to engage in nationwide

consultation when it revised its 2016 § 304(a)

recommendations for cadmium. CBD moved for summary

judgment, seeking vacatur of EPA’s chronic freshwater

cadmium recommendation and remand of all four of the

2016 recommendations to EPA for consultation with the

Services. EPA cross-moved for summary judgment,

defending its failure to consult and arguing that CBD lacked

standing. In August 2023, the district court granted in part

CBD’s motion for summary judgment, denied EPA’s cross-

motion for summary judgment, and granted the relief that

CBD requested—vacating the chronic freshwater

recommendation and remanding all four cadmium

recommendations to EPA.

16 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

The district court rejected the government’s argument

that CBD lacked standing. The court concluded that CBD’s

members had established actual and imminent injury

because EPA’s failure to consult resulted in § 304(a)

recommendations that insufficiently accounted for

cumulative and interstate effects and would therefore tend to

produce less stringent State cadmium criteria, threatening

members’ use of protected species. The court reasoned that

consultation with the Services would have produced more

stringent recommendations and that those recommendations

likely would be adopted by States, establishing causation

and redressability.

On the merits, the district court concluded that EPA’s

publication of § 304(a) recommendations is “agency action”

under ESA § 7. In doing so, it invoked the test articulated in

Karuk Tribe of California v. U.S. Forest Service, which

considers (1) whether an agency affirmatively authorized,

funded, or carried out the underlying activity, and

(2) whether the agency had discretion to influence or modify

the activity to benefit protected species.

The district court further determined that EPA’s § 304(a)

recommendations “may affect” listed species by influencing

State criteria and thereby modulating pollution levels in the

waters of those States. The court reasoned that because

EPA’s non-binding recommendations are “designed to

influence state water-quality standards,” and because EPA

concedes that consultation “tends to produce” more stringent

criteria, the “may affect” requirement of ESA § 7 was

satisfied.

The district court remanded all four § 304(a)

recommendations for cadmium to EPA and vacated the

freshwater chronic recommendation. In reaching this

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 17

decision, the court determined that EPA’s failure to consult

was a serious violation of the ESA, that the risk to the

environment of leaving the freshwater chronic

recommendation in place was high, and that EPA was

unlikely to adopt the same rule on remand. Upon vacatur of

the 2016 chronic freshwater cadmium criterion, the more

stringent 2001 criterion replaced it.

III.

We review de novo a district court’s resolution of a

summary judgment motion. Karuk Tribe, 681 F.3d at 1017.

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Sierra Club v. Bosworth, 510

F.3d 1016, 1022 (9th Cir. 2007). We review de novo “an

agency’s interpretation of a statute outside its

administration,” including EPA’s interpretation of the ESA.

Karuk Tribe, 681 F.3d at 1017.

IV.

CBD has standing to challenge EPA’s failure to consult

with the Services under ESA § 7 before promulgating its

§ 304(a) recommendations for cadmium. 9 “To establish

Article III standing, ‘a plaintiff must show (1) it has suffered

an ‘injury in fact’ that is (a) concrete and particularized and

9

Because CBD asserts an injury on behalf of its members, it must show

that “(a) its members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the

lawsuit.” Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, 38 F.4th 34,

54 n.16 (9th Cir. 2022). Because EPA does not contest prongs (b) and

(c) and “we are satisfied that they are met here,” our analysis focuses on

(a). Id.

18 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

(b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of

the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.’” Ass’n of Irritated Residents v. U.S. Env’t Prot.

Agency, 10 F.4th 937, 943 (9th Cir. 2021) (quoting Friends

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 180–81 (2000)). “[A]t the summary judgment

stage, a plaintiff must offer evidence and specific facts

demonstrating each element” of standing. Ctr. for Biological

Diversity v. Exp.-Imp. Bank of the U.S., 894 F.3d 1005, 1012

(9th Cir. 2018).

A.

“[A]lleged violations of Section 7(a)(2)’s consultation

requirement constitute a procedural injury for standing

purposes.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776,

783 (9th Cir. 2014) (en banc) (quoting Hunt v. Wash. State

Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)). A

“procedural right,” however, must also protect some

“concrete interest” to create Article III standing. Summers v.

Earth Island Inst., 555 U.S. 488, 496 (2009). CBD’s

members have established concrete, particularized, and

actual or imminent injuries. The record contains ample

evidence that less-stringent State water quality criteria harm

listed species by increasing pollution, and that these harms

impair CBD members’ concrete interests in those species.

CBD members routinely engage in educational and

recreational activities for the purposes of observing,

photographing, studying, and enjoying listed species such as

Atlantic sturgeon, shortnose sturgeon, pallid sturgeon, green

sturgeon, Chinook salmon, coho salmon, certain steelhead,

Cumberlandian combshell mussels, Cumberland

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 19

moccasinshell mussels, orangefoot pimpleback pearly

mussels, and hellbender salamanders.

As the record documents, elevated cadmium

concentrations in our nation’s waters cause long- and short-

term harm to these and other species, thereby injuring CBD’s

members by diminishing their ability to pursue their

recreational, educational, aesthetic, and scientific interests.

Cadmium is acutely toxic and chronic exposure harms

aquatic species’ growth, reproduction, immune and

endocrine functions, development, and behavior. State

cadmium criteria directly affect cadmium levels in State

waters by setting limits in pollutant discharge permits and

determining “total maximum daily loads” for impaired

bodies of water. See 33 U.S.C. §§ 1311(a)–(b), 1341(a)(1),

1342(a)(1), 1313(d).

EPA argues that CBD has not been injured because the

methodology used to calculate the § 304(a)

recommendations, which incorporated data from nine listed

species and used “surrogate” species to account for others,

was sufficient to protect listed species. CBD counters that

the § 304(a) recommendations were produced using

insufficient data and poor scientific methodology.

We affirm the district court’s determination that CBD

established that its members sustained or will sustain an

injury in fact stemming from the 2016 § 304(a)

recommendations for cadmium. As the record shows, NMFS

found that those recommendations are likely to harm

multiple listed species. In its public comments on the

proposed recommendations, NMFS cautioned that only a

comprehensive nationwide study could capture the full range

of adverse effects; without accounting for nationwide

effects, EPA’s § 304(a) recommendations were likely to be

20 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

insufficiently protective of long-lived and migratory species.

NMFS also expressed concerns with other aspects of EPA’s

methodology, including its use of data in adjusting for water

hardness, which affects the toxicity of pollutants like

cadmium.

In consultations on States’ proposals to adopt criteria

based on the 2016 § 304(a) recommendations, NMFS

emphasized these concerns and elaborated on others,

including limitations on the applicability of laboratory

testing in field conditions and the absence of data concerning

some of the most sensitive listed species. In these

consultations, NMFS has repeatedly identified species likely

to experience adverse effects. NMFS’s concerns are

especially weighty because the procedure that EPA

bypassed—consultation—was intended to insert the

Services’ expertise on these precise questions to protect the

precise interests at issue here. CBD has adequately

established a procedural injury harming its interests in listed

species.

B.

A litigant challenging the violation of a procedural right

“‘can assert that right without meeting all the normal

standards’ for traceability and redressability.” Jewell, 749

F.3d at 782 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

572 n.7 (1992)). Such a plaintiff can instead establish

standing by showing “(i) the agency violated certain

procedural rules, (ii) those rules protect a concrete interest of

the plaintiff, and (iii) it is ‘reasonably probable’ that the

challenged action threatens that concrete interest.” Navajo

Nation v. Dep’t of the Interior, 876 F.3d 1144, 1160 (9th Cir.

2017) (quoting Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d 961, 969–70 (9th Cir. 2003)). In short, “a

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 21

litigant who asserts a procedural violation under Section

7(a)(2) need only demonstrate that compliance with Section

7(a)(2) could protect his concrete interests.” Jewell, 749 F.3d

at 783.

As discussed above, nationwide consultation is likely to

produce more stringent § 304(a) recommendations by giving

the Services the opportunity to study and present a biological

opinion concerning interstate and cumulative effects on

listed species and their habitats. As CBD argues, a

nationwide study may better capture the interconnected

nature of ecosystems and waterways, migration patterns, and

the long lifespans of certain species. If EPA had complied

with the ESA’s consultation requirement, its criteria for

cadmium would have taken into account the Services’

serious concerns with EPA’s criteria. EPA itself

acknowledges that nationwide consultation would “tend to

produce” more stringent § 304(a) recommendations.

But the key issue is the causal link between the § 304(a)

recommendations and the water quality criteria that States

ultimately adopt. “Where an essential element of standing

depends on the reaction of a third party to the requested

government action or inaction, ‘it becomes the burden of the

plaintiff to adduce facts showing that those choices have

been or will be made.’” WildEarth Guardians v. U.S. Forest

Serv., 70 F.4th 1212, 1217 (9th Cir. 2023) (quoting Exp.-

Imp. Bank, 894 F.3d at 1012).

Our court and the Supreme Court have identified several

ways to make the causal showing required under these

circumstances. The plaintiff may show that the defendant’s

action had a “determinative or coercive effect upon the

action” causing the injury. Bennett v. Spear, 520 U.S. 154,

169 (1997). Likewise, the plaintiff may show that “the

22 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

defendant had ‘clear regulatory authority over the third party

who more directly caused the plaintiff’s injury’ or was ‘an

integral participant in a third-party’s allegedly harmful

action.’” WildEarth, 70 F.4th at 1217 (quoting Exp.-Imp.

Bank, 894 F.3d at 1013). Litigants may also establish a

causal link between a challenged government action and

harm resulting from the independent conduct of third parties

by “showing that third parties will likely react in predictable

ways to” the challenged government action. Dep’t of

Commerce v. New York, 588 U.S. 752, 768 (2019); see also

Murthy v. Missouri, 603 U.S. 43, 57–58 (2024).

Just last year, the Supreme Court decided Diamond

Alternative Energy, LLC v. U.S. Environmental Protection

Agency, concerning fuel producers’ standing to challenge

California regulations requiring automakers to limit

greenhouse-gas emissions among new vehicles and

manufacture a certain percentage of electric vehicles. 606

U.S. 100, 105–07 (2025). In deciding whether the fuel

producers had Article III standing, the Supreme Court

reiterated its emphasis on predictability, writing that

“[c]ourts must distinguish the ‘predictable’ from the

‘speculative’ effects of government action or judicial relief

on third parties” and “conclude that ‘third parties will likely

react’ to the government regulation (or judicial relief) ‘in

predictable ways’ that will likely cause (or redress) the

plaintiff’s injury.” Id. at 112 (quoting Food & Drug Admin.

v. All. for Hippocratic Med., 602 U.S. 367, 383 (2024), and

citing Dep’t of Commerce, 588 U.S. at 768). Because

“[i]nvalidating the regulations likely (not certainly, but

likely)” would have caused automakers to manufacturer

more vehicles that run on gasoline, the fuel producers had

established redressability. Id. at 118.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 23

Ultimately, while EPA’s determinative or coercive

regulatory control over the States may provide one strong

basis for traceability, it is sufficient that the States’ actions

be a predictable consequence of EPA’s § 304(a)

recommendations.

CBD argues that a consultation between EPA and the

Services regarding the § 304(a) recommendations likely

would have resulted in stricter water quality standards

because: (1) EPA has historically applied its § 304(a)

recommendations when directly promulgating water quality

standards for noncompliant States under 33 U.S.C.

§ 1313(c)(3)–(4); (2) the § 304(a) recommendations

effectively set defaults which many States have adopted and

from which they must justify departing under 40 C.F.R.

§§ 131.11, 131.20(a); (3) a nationwide biological opinion

would inform EPA’s approvals or rejections of State water

quality standard proposals under 40 C.F.R. § 131.5(b). We

agree.

First, under 33 U.S.C. § 1313(c)(3)–(4), when States fail

to adopt compliant criteria, EPA will directly promulgate the

requisite water quality standards for the noncompliant State.

When promulgating State standards for cadmium, EPA has

always used its § 304(a) recommendations. For instance, in

2013, EPA disapproved Oregon’s criteria for acute cadmium

pollution in fresh waters and imposed on Oregon its most

recent § 304(a) recommendation. Aquatic Life Criteria for

Cadmium in Oregon, 82 Fed. Reg. at 9168. In doing so, it

explained that “[t]he 2016 cadmium 304(a) criteria reflect

the best available science.” Id. As EPA notes, the § 304(a)

recommendations do not bind its decisions when directly

promulgating water quality standards for States. But EPA’s

historical practice of using its own recommendations in this

24 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

context is particularly compelling evidence of traceability in

this state-federal context.

Second, as the district court acknowledged, the § 304(a)

recommendations are not in fact mere recommendations but

effectively the default from which States must justify

departing. In response, EPA argues that this justification

need not be scientific but could be purely economic. This

argument misreads the statute and regulations, which allow

a State to provide a non-scientific reason when declining to

adopt a new § 304(a) recommendation, 40 C.F.R.

§ 131.20(a), but nonetheless require that a State base any

criterion it promulgates on the corresponding § 304(a)

recommendation or justify any other criteria with a scientific

explanation, id. § 131.11(b)(1) (requiring States to use the

§ 304(a) recommendation or “[o]ther scientifically

defensible methods”). Moreover, as the district court noted,

the process of generating criteria is costly and time intensive.

See Water Quality Standards Regulatory Revisions, 80 Fed.

Reg. 51020, 51028 (Aug. 21, 2015) (EPA noting that

updating § 304(a) recommendations involves “invest[ing]

significant resources”). While a § 304(a) recommendation is

not necessarily a safe harbor, adopting it allows States to

bypass much of the cost associated with scientific research

and analysis. This incentive may explain why nearly every

State has adopted some version of EPA’s § 304(a)

recommendations for cadmium.

In fact, several States mandate adoption of EPA’s

§ 304(a) recommendations or impose additional hurdles to

deter deviations from them. See, e.g., 38 Me. Rev. Stat. Ann.

tit. 38, § 420(2)(A) (requiring state to adopt EPA’s § 304(a)

recommendations); N.M. Code R. § 20.6.4.13(F)(3)

(imposing EPA’s § 304(a) recommendations automatically

if the state does not adopt its own standards); Minn. R.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 25

7050.0218. subp. 4(C) (establishing presumption that EPA’s

§ 304(a) recommendations will be adopted and imposing

notice and hearing requirements before different criteria may

be used in discharge permit limits).

Third, EPA’s failure to engage in the required

consultation likely affects its downstream decisions to

approve or reject proposed State criteria. As CBD argues, the

consultation process would have provided EPA with a

nationwide biological opinion, including scientific

information suggesting that more protective State criteria are

necessary to protect migratory and long-lived listed species.

Armed with that information, EPA is likely to require more

stringent criteria from the States.

Twenty-six states and several other jurisdictions had

adopted the 2016 cadmium § 304(a) recommendation in

whole or in part by the time that CBD filed this action in

2022. Notably, most States which had not adopted the 2016

recommendations had in effect cadmium criteria matching

the § 304(a) recommendations issued by EPA in prior years.

Thus, even if CBD’s injury depends to some extent on the

independent discretion of States, the evidence shows that

very few States have been willing to exercise their discretion

to diverge from EPA’s § 304(a) recommendations.

CBD’s injury therefore easily satisfies this court and the

Supreme Court’s various formulations of the traceability

requirement where causation depends on decisions by third

parties. Evidence of historical practice shows that many

States will adopt EPA’s § 304(a) recommendations,

rendering this result highly “predictable” under Department

of Commerce, 588 U.S. at 768, and Diamond Alternative,

606 U.S. at 112, 117–18. And State implementation is even

more predictable given that several States have legislation or

26 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

regulations requiring or incentivizing lawmakers to adopt

the § 304(a) recommendations.

Similarly, the fact that forty-five out of fifty states have

adopted some iteration of EPA’s § 304(a) recommendations

for cadmium certainly suggests that § 304(a)

recommendations are a “determinative” regulatory

mechanism under Bennett, 520 U.S. at 169. And while the

2016 recommendations have not been “determinative” with

respect to some States, CBD did not bring a state-level

complaint. It challenged EPA’s failure to conduct a

nationwide consultation on the grounds that nationwide

harms would result, in part from widespread adoption by

States of the 2016 recommendations.

Furthermore, EPA’s § 304(a) recommendations, which

effectively establish a default and require a justification for

departure, represent “clear regulatory authority” over the

States and make EPA “an integral participant” in the water

quality standard adoption process. See Exp.-Imp. Bank, 894

F.3d at 1013. The § 304(a) recommendations, which resulted

from extensive study and analysis, are likely to influence

EPA’s decisions to approve or reject States’ chosen criteria.

Moreover, the record shows that EPA will directly

implement the § 304(a) recommendations in States that are

noncompliant. These are two additional means through

which EPA is an “integral participant” in setting State

criteria.

Our recent opinion in Prutehi Litekyan: Save Ritidian v.

U.S. Dep’t of Airforce supports traceability here. 128 F.4th

1089 (9th Cir. 2025). There, we held that the plaintiffs had

standing to allege a procedural injury stemming from the Air

Force’s failure to conduct the environmental reviews and

public engagement required by the National Environmental

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 27

Policy Act (NEPA) before detonating and burning waste

munitions on a beach. Id. at 1099, 1106–07. Importantly, the

fact that the waste disposal project could not go forward

without a permit from the Guam EPA “d[id] not require a

different result.” Id. at 1107. “So long as there is a reasonable

probability that Guam EPA will approve the Air Force’s

application[,] . . . enforcing that procedural right will reduce

the likelihood of Prutehi Litekyan’s experiencing its asserted

injury.” Id.

Guam EPA’s permitting requirement in Pruethi

Litekyan, while not the same as the States’ decisions to adopt

the § 304(a) criteria, is nevertheless analogous because an

intervening agency must take one of two binary actions (to

permit or not, to adopt or not) on the defendant federal

agency’s proposal before the plaintiff could be harmed. And

here, the large number of States which chose to adopt EPA’s

2016 § 304(a) recommendations for cadmium easily

satisfies the “reasonable probability” of injury required by

Prutehi Litekyan to establish traceability between CBD’s

asserted injury and EPA’s challenged conduct. Id. at 1107.

EPA relies on several cases where we held that the

plaintiff failed to establish traceability, but they are readily

distinguishable. EPA’s strongest case, WildEarth, concerned

the plaintiffs’ claim that the U.S. Forest Service’s grazing

decisions would bring livestock into contact with wolves,

leading to depredation, to which the Washington State

Department of Fish & Wildlife would respond with “lethal

removals” of the depredating wolves. WildEarth, 70 F.4th at

1214–15, 1217. In holding that the plaintiffs had not

established traceability, we relied on the absence of any legal

or regulatory framework connecting the Forest Service’s

grazing decisions to the Washington Fish & Wildlife

Department’s lethal removal decisions. Id. at 1217. Lethal

28 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

removals are not regulated by the Forest Service in any way,

but are evaluated case by case by the Washington Fish &

Wildlife Department, according to its own criteria and taking

into account “considerations” which “do not include the

Service’s actions.” Id. By contrast, States’ water quality

standards are directly regulated by EPA, in large part

through the § 304(a) recommendations, which are a key

“consideration” in the process for adopting water quality

standards. Id.

WildEarth held that standing did not exist “[b]ecause the

injury ‘depends on the unfettered choices made by

independent actors not before the courts and whose exercise

of broad and legitimate discretion the courts cannot presume

either to control or to predict.’” Id. at 1218 (quoting

ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)). Here,

the behavior of States is not unfettered, but controlled and

certainly predicted by EPA’s § 304(a) recommendations.

Moreover, EPA’s failure to consult with the Services—and

the less-stringent § 304(a) criteria that resulted—predictably

impacts its own decisions in implementing WQSs for States

directly and in deciding whether to approve or reject States’

proposed WQSs. In the district court’s words, “EPA’s

regulations may ‘only’ require States to justify any

departure, but that requirement appears to have a powerful

effect on what they actually do.” CBD has adequately

established traceability.

C.

As discussed above, the normal causation and

redressability requirements are relaxed for procedural rights

claims. Exp.-Imp. Bank, 894 F.3d at 1012–13. Thus, a

plaintiff “need only demonstrate that he has a procedural

right that, if exercised, could protect his concrete interests

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 29

and that those interests fall within the zone of interests

protected by the statute at issue.” Id. at 1013 (quoting

Cottonwood Env’t L. Ctr. v. U.S. Forest Serv., 789 F.3d

1075, 1083–84 (9th Cir. 2015)).

CBD’s asserted injury is redressable because

consultation is likely to lead to stricter § 304(a)

recommendations and at least one State is likely to adopt

stricter water quality criteria in response to stricter § 304(a)

recommendations, which would likely impact CBD’s

members’ interests in various listed species. CBD has

established Article III standing to challenge EPA’s failure to

consult with the Services under ESA § 7.

V.

We turn to the merits of CBD’s claim. Section 7 of the

ESA requires agencies to consult with the Services before

performing any “agency action” that “may affect” listed

species or their critical habitats. 16 U.S.C. § 1536(a)(2); 50

C.F.R. § 402.14(a). The terms “agency action” and “may

affect” are defined broadly to ensure compliance with the

ESA’s substantive protections. Karuk Tribe, 681 F.3d at

1021, 1027; see also Pac. Rivers Council v. Thomas, 30 F.3d

1050, 1055 (9th Cir. 1994). EPA’s publication of § 304(a)

recommendations meets the definition of agency action and

satisfies the relatively low “may affect” threshold to trigger

mandatory consultation under § 7. Karuk Tribe, 681 F.3d at

1027.

A.

“Agency action” includes “all activities or programs of

any kind authorized, funded, or carried out, in whole or in

part, by Federal agencies.” 50 C.F.R. § 402.02; see also 16

U.S.C. § 1536(a)(2). “Examples include . . . actions directly

30 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

or indirectly causing modifications to the land, water, or air.”

50 C.F.R. § 402.02(d). Although we do not defer to

agencies’ interpretation of their enabling statutes, the

Services promulgated nearly identical regulatory language

before Congress enacted the modern version of the ESA, and

that language has remained consistent for over 45 years, so

it offers strong evidence of the correct interpretation of the

ESA. See Interagency Cooperation, 43 Fed. Reg. 870, 874

(Jan. 4, 1978); H. R. Rep. No. 95-1804, at 18 (1978) (Conf.

Rep.); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394

(2024).

The promulgation of § 304(a) recommendations is a

congressionally mandated activity that follows notice and

comment procedures and requires “consultation with

appropriate Federal and State agencies and other interested

persons.” 33 U.S.C. § 1314(a). It is authorized, funded, and

carried out by EPA. See 33 U.S.C. §§ 1251(d), 1314.

Moreover, as CBD notes, EPA’s publication of § 304(a)

recommendations is an activity that “directly or indirectly

caus[es] modifications to . . . water” because EPA directly

implements the criteria in its federal cleanup program,

incentivizes States to adopt them as binding water quality

criteria, and directly promulgates them in certain States and

tribal lands.

EPA asserts that the phrase “authorized, funded, or

carried out” creates a requirement that the alleged action

involve “conduct with an impact in the physical world.” This

interpretation is contrary to the text of the statute, its

implementing regulations, and our precedents.

First, the statute and the regulations define “agency

action” broadly, as “any action authorized, funded, or carried

out by [a federal] agency.” 16 U.S.C. § 1536(a)(2); see also

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 31

50 C.F.R. § 402.02. By requiring “underlying conduct in the

physical world,” EPA’s interpretation attempts to insert

limiting language into the statute where there is none. As

CBD argues, inserting a “physical world” limitation into the

ESA would exempt major categories of agency actions from

the consultation requirement, which flies in the face of

Congress’s intent in using broad language and “affording

endangered species the highest of priorities.” Tenn. Valley

Auth. v. Hill, 437 U.S. 153, 194 (1978); see also Karuk

Tribe, 681 F.3d at 1021.

Moreover, EPA’s interpretation contradicts Supreme

Court precedent treating actions that had no component “in

the physical world” as potential agency actions. In National

Association of Home Builders v. Defenders of Wildlife, the

Supreme Court treated EPA’s decision to transfer federal

pollution permitting authority to a State’s water permitting

program as an “agency action.” 551 U.S. 644, 668 (2007).

Although the Court ultimately held that § 7 consultation was

not required because the transfer decision was

nondiscretionary, it nonetheless observed that the transfer

decision was an “action authorized, funded, or carried out by

a federal agency.” Id. Notably, EPA’s decision did not itself

authorize, fund, or carry out any conduct in the physical

world, but merely reduced its role in future pollution

permitting. Id. at 650–51.

EPA relies on Marbled Murrelet v. Babbitt, in which we

held that there was no “agency action” when FWS provided

non-binding advice to two lumber companies in an ad hoc

letter laying out conditions the companies could meet to

avoid violating the ESA. 83 F.3d 1068, 1072 (9th Cir. 1996).

But the reason for the outcome of that case was akin to Home

Builders: there was no “agency action” because the agency

“lack[ed] the discretion to influence the private action” to the

32 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

benefit of listed species. Id. at 1074 (quoting Sierra Club v.

Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995)). Here, however,

EPA concedes that its action satisfies that requirement.

Moreover, issuing statutorily mandated § 304(a)

recommendations which have nationwide consequences,

including action-forcing mechanisms for every State, is

altogether different than a one-off advice letter about a

project that was not under the agency’s purview. See id.

(noting that “there is no evidence that the [agency] had any

power to enforce [the conditions laid out in its advice letter]

other than its authority under section 9 of the ESA”).

Given the breadth of the statutory and regulatory

language, Congress’s intent to strongly prioritize the

protection of listed species, and the Supreme Court’s

reasoning in Home Builders, the promulgation of § 304(a)

recommendations is “agency action” “carried out” by EPA

for the purposes of § 7 of the ESA.

B.

Like “agency action,” “may affect” determinations are

analyzed broadly. As we have repeatedly explained, “‘may

affect’ is a ‘relatively low’ threshold for triggering

consultation,” such that “‘[a]ny possible effect, whether

beneficial, benign, adverse or of an undetermined character,’

triggers the requirement.” Karuk, 681 F.3d at 1027 (quoting

California ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d

999, 1018–19 (9th Cir. 2009)). “An agency may avoid the

consultation requirement only if it determines that its action

will have ‘no effect’ on a listed species or critical habitat.”

Id. 10

10

EPA did not issue a formal “no effect” determination. We do not

decide whether the statute or regulations required EPA to do so.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 33

Although the applicable regulations did not define “may

affect,” they defined “effects of the action” to include “the

direct and indirect effects of an action on the species or

critical habitat, together with the effects of other activities

that are interrelated or interdependent with that action.” 50

C.F.R. § 402.02 (2016). “Indirect effects are those that are

caused by the proposed action and are later in time, but still

are reasonably certain to occur.” Id.

EPA argues that the regulatory language requiring

“reasonabl[e] certain[ty]” of direct effects forecloses CBD

from establishing that the § 304(a) recommendations “may

affect” listed species. We note that the regulations’

“reasonabl[e] certain[ty]” requirement appears to be in some

tension with our interpretation of 16 U.S.C. § 1536, as

articulated by the Karuk Tribe en banc court. Karuk Tribe

was explicit that “[a]ny possible effect . . . triggers the

requirement” and that only if an agency “determines that its

action will have ‘no effect’” is it exempt from consultation.

681 F.3d at 1027; see Loper Bright, 603 U.S. at 413 (holding

that “courts need not and under the [Administrative

Procedure Act] may not defer to an agency interpretation of

the law simply because a statute is ambiguous”).

In any case, CBD has shown that in 2016, it was

reasonably certain that § 304(a) recommendations would

affect listed species. To meet this requirement, it needed

only to show that it was foreseeable in 2016 that at least one

State would implement § 304(a) recommendations in at least

one body of water inhabited by at least one member of a

listed species.

CBD has met this burden in several ways. First, most

States had a demonstrated history of adopting EPA’s

§ 304(a) recommendations. Second, EPA had a

34 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

demonstrated history of implementing its § 304(a)

recommendations in noncompliant States. See, e.g., Water

Quality Standards, 60 Fed. Reg. at 22229; 40 C.F.R.

§ 131.38(b)(1). Third, several States had legislation or

regulations requiring or incentivizing state officials to adopt

EPA’s § 304(a) recommendations. See Me. Rev. Stat. Ann.

tit. 38, § 420(2)(A); Minn. R. 7050.0218, subp. 4(C).

Contrary to EPA’s assertion, it is irrelevant which States

would adopt the cadmium § 304(a) recommendations; all

that is needed to trigger § 7 consultation is “agency action”

that “may affect” at least one member of a listed species. See

50 C.F.R. §§ 402.13–402.14. The publication of § 304(a)

recommendations was therefore an “agency action” that

“may affect” listed species and EPA violated the ESA by

failing to consult with the Services.

Conclusion

The applicability of ESA § 7 consultation to EPA’s

promulgation of § 304(a) recommendations appears to be an

issue of first impression among the courts. EPA suggests that

the outcome here will open the floodgates, requiring

agencies to consult on every piece of nonbinding guidance

they issue. Not so. The requirement that the agency activity

“may affect” listed species plays an important limiting role.

Moreover, some agency activities may be too insubstantial

to be “carried out” in any meaningful sense. But in

researching, developing, and publishing nationwide

recommendations for aquatic pollutant levels, which would

foreseeably be adopted wholesale by many States, EPA

undeniably “carried out” an “agency action” which “may

affect” listed species, requiring consultation with the

Services under § 7.

AFFIRMED.

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 35

MILLER, Circuit Judge, dissenting:

This case involves nonbinding water quality guidance

promulgated by the Environmental Protection Agency. The

Center for Biological Diversity seeks to challenge that

guidance, which it says caused States to adopt less protective

water quality standards, resulting in harm to endangered

species. But the publication of the guidance had no legally

cognizable effect on state water quality standards, so any

injury to CBD’s interests is not traceable to that action.

Although CBD may be able to challenge a State’s decision

to adopt a certain standard or EPA’s decision to approve it,

it lacks standing to challenge the nonbinding guidance at

issue here.

I

The Clean Water Act makes States the “primary

regulators” of water quality. Puget Soundkeeper All. v. Port

of Tacoma, 104 F.4th 95, 104 (9th Cir. 2024) (quoting

Southern Cal. All. of Publicly Owned Treatment Works v.

EPA, 853 F.3d 1076, 1086 (9th Cir. 2017)). Section 303 of

the Act requires States to adopt water quality standards

(WQSs) for all waters within their jurisdiction. See 33

U.S.C. § 1313. “These state water quality standards provide

‘a supplementary basis . . . so that numerous point sources,

despite individual compliance with effluent limitations, may

be further regulated to prevent water quality from falling

below acceptable levels.’” PUD No. 1 of Jefferson Cnty. v.

Washington Dep’t of Ecology, 511 U.S. 700, 704 (1994)

(quoting EPA v. California ex rel. State Water Res. Control

Bd., 426 U.S. 200, 205 n.12 (1976)). In developing their

WQSs, States must identify the “designated uses” of

waterways and define “criteria” that must be met for the

waterways to support those uses. 33 U.S.C. § 1313(c)(2).

36 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

The criteria for toxic pollutants must be defined numerically

as maximum pollution levels. Id. § 1313(c)(2)(B).

A State must review its WQSs every three years. 33

U.S.C. § 1313(c)(1). During that triennial review, the State

need not update its criteria. If the State chooses to do so, the

new criteria are subject to review by EPA. Id.

§ 1313(c)(2)(A). If EPA does not approve proposed WQSs,

it must explain the changes the State must make, and, if the

changes are not made within 90 days, it must promulgate

WQSs itself. Id. § 1313(c)(3)–(4).

Section 304(a) of the Clean Water Act, entitled

“Information and guidelines,” requires EPA to publish

guidance “from time to time” on recommended maximum

levels of various pollutants. 33 U.S.C. § 1314(a). If EPA has

published new section 304 guidance for a particular

pollutant, a State must consider that guidance, along with

other “new information,” during its next triennial review. 40

C.F.R. § 131.20(a). But, as noted, the State need not update

its WQSs during that review cycle, let alone adopt EPA’s

recommended levels, and its decision to keep its existing

criteria is not subject to EPA approval. The State must

provide some reason why it opted to keep its existing

criteria, but that reason can be based on economic or policy

considerations. See Water Quality Standards Regulatory

Revisions, 80 Fed. Reg. 51,020, 51,029 (Aug. 21, 2015) (“A

state’s or authorized tribe’s explanation may be situation-

specific and could involve consideration of priorities and

resources.”).

If a State decides to update its criteria, it is free to

propose whatever it deems appropriate, but EPA must

review the proposed criteria to ensure that they are based on

a “sound scientific rationale” and will “protect the

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 37

designated water uses.” 40 C.F.R. § 131.5(a)(2); see id.

§ 131.11(b)(1). Adopting the recommended level in EPA’s

section 304 guidance is neither necessary nor sufficient for

EPA approval.

This case involves EPA’s section 304 guidance for

cadmium, a toxic metal that naturally occurs at low

concentrations in surface waters but that can also be added

to waterways by mining or industrial wastewater and

agricultural runoff. EPA first published section 304

guidance for cadmium in 1980, with subsequent updates in

1985, 1995, and 2001. In 2016, EPA updated its section 304

guidance for cadmium, identifying new recommended

maximum acute and chronic values for both freshwater and

marine waters. Recommended Aquatic Life Ambient Water

Quality Criteria for Cadmium—2016, 81 Fed. Reg. 19,176

(Apr. 4, 2016). The new guidance suggested lowering the

maximum allowable level of cadmium for three of those

categories but relaxing the chronic freshwater criterion. Id.

In 2022, CBD sued EPA, alleging that the agency had

violated section 7 of the Endangered Species Act (ESA),

which requires federal agencies to ensure that “any action

authorized, funded, or carried out by [an] agency” is not

likely to jeopardize an endangered or threatened species. 16

U.S.C. § 1536(a)(2). If an agency determines that an action

“may affect” an endangered or threatened species or its

critical habitat, it must consult with either the Fish and

Wildlife Service or the National Marine Fisheries Service

(the Services). See 50 C.F.R. § 402.14(a); 16 U.S.C.

§ 1536(a)(4). EPA did not consult with the Services before

publishing its 2016 guidance. CBD claimed that EPA’s

failure to consult resulted in a higher recommended chronic

freshwater criterion for cadmium, thus causing harm to

ESA-listed aquatic species.

38 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

The district court granted summary judgment to CBD. It

determined that CBD had standing to challenge EPA’s 2016

guidance and that the promulgation of that guidance was an

agency action under section 7 of the ESA, which meant that

EPA was required to consult with the Services before

publishing it.

II

This appeal turns on whether CBD has standing to

challenge EPA’s section 304 guidance. To establish Article

III standing, “a plaintiff must show (1) it has suffered an

‘injury in fact’ that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical;

(2) the injury is fairly traceable to the challenged action of

the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Association of Irritated Residents v. EPA, 10

F.4th 937, 943 (9th Cir. 2021) (quoting Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–

81 (2000)). “[A]t the summary judgment stage, a plaintiff

must offer evidence and specific facts demonstrating each

element.” Center for Biological Diversity v. Export-Import

Bank of the U.S., 894 F.3d 1005, 1012 (9th Cir. 2018).

CBD has presented evidence that its members engage in

recreational activities involving aquatic species such as

salmon that may be harmed by elevated levels of cadmium

in water. Based on that evidence, CBD can show that it faces

an injury in fact. But to establish standing, it must also show

that the injury is traceable to an action by EPA. (Of course,

it must also show redressability, but because its failure to

show traceability is independently fatal to its claim, I focus

on that element of standing.)

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 39

CBD cannot establish traceability. Its theory of

traceability relies on the following chain of inferences: If

EPA had consulted with the Services, it would have

produced stricter section 304 guidance; if EPA had

published that stricter guidance, States would have decided

to update their WQSs and would have proposed adopting the

levels in the new, stricter guidance; if States had made such

proposals, EPA would have approved them; and if the new,

legally enforceable WQSs had become effective, there

would be less cadmium in water and less harm to CBD’s

members’ species of interest.

I agree that the first link in that chain of inferences is

sound. Alleged violations of the ESA’s consultation

requirement “constitute a procedural injury for standing

purposes.” Natural Res. Def. Council v. Jewell, 749 F.3d

776, 783 (9th Cir. 2014) (en banc). And we have held that

when a plaintiff alleges a procedural injury, “the causation

and redressability requirements are relaxed.” Whitewater

Draw Nat. Res. Conservation Dist. v. Mayorkas, 5 F.4th 997,

1013 (9th Cir. 2021) (quoting Western Watersheds Project

v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011)). “But

the causation and redressability requirements are ‘relaxed’

for procedural claims only in the sense that a plaintiff ‘need

not establish the likelihood that the agency would render a

different decision after going through the proper procedural

steps.’” WildEarth Guardians v. United States Forest Serv.,

70 F.4th 1212, 1216 (9th Cir. 2023) (emphasis added)

(quoting Export-Import Bank, 894 F.3d at 1012). In other

words, CBD need not prove that EPA would have published

more stringent cadmium criteria had it consulted with the

Services.

That CBD has claimed a procedural injury, however,

does not relax its burden to establish the remainder of its

40 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

causal chain—in particular, that there is a causal link

between EPA’s publication of guidance and States’ proposal

of WQSs that incorporate that guidance. That is because

“[t]he relaxation of redressability standards for procedural

injuries . . . applies only to the Agency’s actions, not to third

parties not before the court.” WildEarth Guardians, 70 F.4th

at 1217 (omission in original) (quoting Food & Water Watch

v. USDA, 1 F.4th 1112, 1116 n.2 (D.C. Cir. 2021)).

The States—the key actors in CBD’s chain of

causation—are third parties not before the court. And a

plaintiff ordinarily cannot establish causation when its injury

“depends on the unfettered choices made by independent

actors not before the courts and whose exercise of broad and

legitimate discretion the courts cannot presume either to

control or to predict.” ASARCO Inc. v. Kadish, 490 U.S. 605,

615 (1989). Instead, when an “essential element of standing

depends on the reaction of a third party to the requested

government action or inaction, it becomes the burden of the

plaintiff to adduce facts showing that those choices have

been or will be made.” WildEarth Guardians, 70 F.4th at

1217 (internal quotation marks omitted) (quoting Export-

Import Bank, 894 F.3d at 1012).

“A plaintiff can do so by showing that the defendant’s

action exerts a ‘determinative or coercive effect’ on the

third-party conduct that directly causes the injury.”

WildEarth Guardians, 70 F.4th at 1217 (quoting Bennett v.

Spear, 520 U.S. 154, 169 (1997)). “More specifically, the

defendant’s action could have such an effect if the defendant

had ‘clear regulatory authority over the third party who more

directly caused the plaintiff’s injury’ or was ‘an integral

participant in a third-party’s allegedly harmful action.’” Id.

(quoting Export-Import Bank, 894 F.3d at 1013).

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 41

To establish traceability, then, CBD must show that EPA

exerts a “determinative or coerce effect” on a State’s

decision to adopt the section 304 guidance levels. Bennett,

520 U.S. at 169. CBD cannot make that showing.

After EPA publishes new section 304 recommendations,

States are not required to update their WQSs in their next

triennial review, let alone adopt EPA’s new section 304

recommendations. See 40 C.F.R. § 131.20. Although States

must consider EPA’s new section 304 guidance during their

next triennial review, they can decline to update their

existing WQSs and need only provide EPA with some

reason why they retained their existing criteria. See 40

C.F.R. § 131.20(a); 80 Fed. Reg. 51,020, 51,029 (Aug. 21,

2015). As EPA points out, “[a] state’s response to EPA’s

§ 304 recommendations can be the equivalent of ‘thanks for

sharing.’”

Notably, many States have not updated their cadmium

criteria in decades. Arkansas, Hawaii, and Louisiana, for

example, have not updated their cadmium criteria since

around 1985, even though EPA has published new cadmium

guidance three times since then, and Michigan, New York,

and Ohio have not updated their cadmium criteria since

1996, despite two new section 304 recommendations since

that time. States’ responses to EPA’s 2016 guidance further

prove the point. CBD brought this action roughly six years

after the 2016 guidance was published, at which time more

than 20 States had not fully adopted the guidance levels.

Even if a State chooses to update its WQSs, it need not

adopt EPA’s section 304 guidance, and EPA must approve

the State’s new WQSs so long as they are based on a “sound

scientific rationale” and will “protect the designated water

uses.” 40 C.F.R. § 131.5(a)(2). Before 1980, EPA applied a

42 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

presumption in favor of its section 304 recommendations,

but it has formally rescinded that policy. Water Quality

Criteria Documents, 45 Fed. Reg. 79,318, 79,319–20 (Nov.

28, 1980). Instead, the agency has made clear that “[w]hile

States are free to draw on EPA’s 304(a) criteria as support

for State criteria, they are equally free to use any other

criteria for which they have sound scientific support.” Water

Quality Standards Regulation, 48 Fed. Reg. 51,400, 51,411

(Nov. 8, 1983).

True to its word, EPA has approved water quality criteria

that are less stringent than its section 304 guidance levels. In

the 1990s, for example, Maryland and Virginia adopted

dioxin criteria that were less stringent than EPA’s

recommended criteria. Natural Res. Def. Council v. EPA, 16

F.3d 1395, 1399 (4th Cir. 1993). EPA approved those States’

criteria because it agreed that they were “scientifically

defensible, protective of human health, and in full

compliance with the [Clean Water Act].” Id. More recently,

in 2022, North Carolina adopted, and EPA approved, criteria

for cadmium (in non-trout-bearing waters) that diverged

from EPA’s 2016 section 304 recommendations.

Conversely, the section 304 guidance is not a safe

harbor, and EPA has disapproved state WQSs that

incorporated its section 304 guidance. For example, in 2022,

EPA disapproved North Dakota’s criteria for chronic

mercury even though North Dakota had adopted EPA’s

section 304 guidance for mercury. See U.S. Env’t Prot.

Agency, EPA’s Action on North Dakota’s Revised Chronic

Aquatic Life Criterion for Mercury 5–6 (July 15, 2022),

https://www.epa.gov/system/files/documents/2024-

05/actltr-16138-nd07152022.pdf. And in 2013, EPA

disapproved Oregon’s criteria for acute freshwater

cadmium, even though Oregon had adopted EPA’s then-

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 43

current section 304 guidance. See Aquatic Life Criteria for

Copper and Cadmium in Oregon, 81 Fed. Reg. 22,555,

22,556–57 (Apr. 18, 2016).

Putting all this together, EPA does not have a

“determinative or coercive effect” on a State’s decision to

propose criteria that incorporate EPA’s section 304

recommendations. Bennett, 520 U.S. at 169. Though EPA

has “clear regulatory authority” over a State’s WQSs when

it decides to approve or disapprove a State’s proposed

criteria, it does not wield that authority to force its section

304 guidance levels on States, nor does it rubber-stamp a

State’s WQSs that adopt its section 304 guidance. Export-

Import Bank, 894 F.3d at 1013. In the same vein, though

EPA may be an “integral participant” when it decides

whether to approve a State’s WQSs, it does not use its role

in that process to require States to adopt its section 304

guidance. Id. It follows that CBD’s injury, which occurs only

to the extent that States adopt the section 304

recommendation levels, is not fairly traceable to EPA.

III

In reaching a contrary conclusion, the court today

emphasizes that States’ actions in setting WQSs are “a

predictable consequence of EPA’s § 304(a)

recommendations.” Because many States have historically

opted to adopt EPA’s section 304 guidance—and some

States have laws encouraging or requiring the adoption of

that guidance—the court reasons that any harm that arises

from the States’ WQSs must be traceable to that guidance.

But we have never held that downstream injuries are

traceable to government recommendations just because the

third-party actors responsible for those injuries find the

government’s nonbinding guidance persuasive. It is not

44 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

surprising that many States have historically adopted EPA’s

section 304 recommendations: The EPA office responsible

for creating the guidance is staffed by expert biologists,

toxicologists, and statisticians, and the reports it produces

are required to “accurately reflect[] the latest scientific

knowledge” about the effects of certain pollutants on aquatic

life. 33 U.S.C. § 1314(a)(1). EPA’s nonbinding

recommendations do not become “determinative or

coercive,” Bennett, 520 U.S. at 169, just because a State

“decides that [EPA] sometimes has a point,” Children’s

Health Def. v. Meta Platforms, Inc., 112 F.4th 742, 757 (9th

Cir. 2024).

Our precedent also makes clear that “predictable

consequences” are not enough to make third-party actions

traceable to the government for standing purposes. In

WildEarth Guardians, for example, the Washington State

Department of Fish and Wildlife had a policy that permitted

it to kill gray wolves that attacked livestock. 70 F.4th at

1214. The plaintiffs alleged that the Forest Service’s

decision to allow more grazing would lead to more wolf

attacks on livestock and thus lead the Department to kill

more gray wolves. Id. at 1214–15. It was undisputed that the

Forest Service’s decision would predicably lead to the

killing of more wolves, but we nevertheless held that the

plaintiffs lacked standing to challenge that decision because

the Forest Service did not regulate or participate in the

killing, so its determinations about grazing did not have a

“‘determinative or coercive effect’ on the harmful conduct

of the Department of Fish and Wildlife.” Id. at 1218 (quoting

Bennett, 520 U.S. at 169). WildEarth Guardians makes clear

that when harm is caused by a third party, the government

must have taken a more active role—akin to authorizing,

commanding, or cajoling that third party, see id. at 1217—

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 45

for the harm to be traceable to the government. As already

explained, EPA’s publication of nonbinding section 304

guidance does not rise to that level.

None of the cases the court cites suggests a different

conclusion. Diamond Alternative Energy, LLC v. EPA

involved a challenge to “determinative or coercive”

government action: EPA’s approval of California’s

regulations requiring car makers to produce more electric

vehicles and fewer gas-powered vehicles. 606 U.S. 100,

106–07 (2025). Unlike the action challenged here, the EPA

approval in that case directly authorized California to require

car makers to change their behavior in a way that predictably

inflicted an injury on fuel producers, who would sell less fuel

because of the EPA-approved mandatory shift toward

electric cars. Id. at 113–14. It is entirely consistent with

WildEarth Guardians, then, that the Supreme Court

determined that the fuel producers had standing.

Our decision in Prutehi Litekyan: Save Ritidian v. United

States Department of the Air Force is similarly inapposite.

128 F.4th 1089 (9th Cir. 2025). There, we held that a

nonprofit dedicated to protecting natural and cultural

resources had standing to challenge the Air Force’s failure

to conduct an environmental review before submitting an

application to the Guam EPA for permission to detonate

munitions on a beach. Id. at 1099, 1104–07. Crucially, the

injury-causing action (detonating munitions) was to be taken

directly by the government, not by a third party.

Finally, the court misreads Department of Commerce v.

New York in relying on it for the categorical proposition that

a plaintiff can establish traceability whenever “third parties

will likely react in predictable ways” to the challenged

government action. 588 U.S. 752, 768 (2019). In that case,

46 CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA

the plaintiff States alleged that adding a citizenship question

to the census would cause their noncitizen residents to

respond at lower rates, leading to an undercount of their

population and potentially causing each State to “los[e] a

seat in Congress or qualify[] for less federal funding.” Id. at

767. Even though the government’s decision to add a

citizenship question did not directly command or coerce

noncitizens into not responding to the census, the Supreme

Court held that the States had standing because it was

“satisfied that, in these circumstances, [the States] have met

their burden of showing that third parties will likely react in

predictable ways to the citizenship question.” Id. at 768.

But the Court did not announce, as a general rule, that

predictability alone is enough for traceability. Such a rule

would be a significant—and entirely unexplained—

departure from the “determinative or coercive” standard

articulated in Bennett, a case that Department of Commerce

cited with approval. 588 U.S. at 768. Instead, Department of

Commerce suggests that there may be unusual situations in

which actions taken by a third party acting out fear of

coercive government action (there, possible deportation),

may be considered effectively determined by the challenged

government action. “[I]n these circumstances,” the Court

held, traceability may be established. Id.

That principle does not support finding traceability here.

Although some noncitizens in Department of Commerce

understandably feared deportation, CBD has not attempted

to show that any State similarly fears that EPA will misuse

its authority and disapprove scientifically sound criteria—or

take any other punitive action—merely because a State

chooses not to adopt EPA’s section 304 recommendations.

Rather, the record shows only that States, while exercising

their sovereign prerogative to set their own environmental

CTR. FOR BIOLOGICAL DIVERSITY V. U.S. EPA 47

policies, tend to find EPA’s recommendations persuasive

and choose to adopt them. That is insufficient to establish

traceability.

* * *

Because CBD’s injury is not traceable to any action of

EPA, I would reverse the judgment of the district court and

remand with instructions to dismiss this case for lack of

standing.