On December 23, 2014, the U.S. Court of Appeals for the D.C. Circuit issued an opinion rejecting on the merits a petition filed by 101 environmental groups seeking to compel EPA to regulate spent lead bullets and shot under the Toxic Substances Control Act (TSCA). The case is Trumpeter Swan Society v. EPA, No. 1:12-cv-00929 (D.C. Cir. Dec. 23, 2014).
The environmental groups petitioned EPA for a rulemaking to prohibit or otherwise regulate the use of bullets and shot containing lead in hunting and shooting sports. EPA refused to consider the petition on the grounds that it had previously denied a nearly identical petition, but noted that if it were to consider the petition it would deny it on the grounds that TSCA does not authorize the regulation of lead in bullets and shot. Specifically, EPA explained that TSCA section 3(2)(B)(v) excludes bullets and shot from the definition of "chemical substance" for purposes of TSCA. The D.C. Circuit disagreed with EPA that it could disregard the petition as duplicative of a previously denied petition, but it agreed with EPA that TSCA does not authorize the regulations that the environmental groups were seeking.
In reaching its holding, the court rejected several arguments by the environmental groups that the exclusion under TSCA section 3(2)(B)(v) should not apply to spent lead bullets and shot. First, the environmental groups argued that TSCA section 3(2)(B)(v) excludes only "shells and cartridges" from the definition of "chemical substance," as opposed to spent bullets and shot. The court rejected this argument, observing that bullets and shot "can only become 'spent' if they are first contained in a cartridge or shell and then fired from a weapon," so "petitioners have identified no way in which EPA could regulate spent bullets and shot without also regulating cartridges and shells—precisely what section 3(2)(B)(v) prohibits."
Second, the environmental groups argued that section 3(2)(B)(v) does not prohibit regulation of "chemical components of ammunition," which in this case means lead. The court responded that "[n]o matter how one characterizes their claim—whether as an effort to regulate cartridges and shells (EPA's view) or as an attempt to regulate the lead in bullets and shot (the environmental groups' views)—their petition seeks the regulation of spent lead yet suggests no way in which EPA could regulate spent lead without also regulating cartridges and shells."
Finally, the environmental groups argued that section 3(2)(B)(v) does not apply to bullets and shot sold separately from cartridges and shells. The court deemed this argument to be waived on the grounds that the group's petition focused only on spent bullets and shot and they had not argued in the district court or their briefs on appeal that they were seeking regulation of bullets and shot sold separately from cartridges and shells.
At oral argument, the environmental groups asked the appellate panel not to reach the merits and instead to remand the case to the district court with instructions to order EPA to grant or deny their petition for rulemaking. The court noted, however, that the question before it was a purely legal one and that the parties agreed no additional facts were necessary to resolve the matter. It therefore dispensed with the petition on the merits in the interest of judicial efficiency.
[Note: BakerHostetler represented intervenor Association of Battery Recyclers before the district court and the D.C. Circuit in this case.]
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