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Last year, the Center for Biological Diversity’s (CBD) filed a lawsuit against the Environmental Protection Agency (EPA). The CBD wanted to force the EPA to ban lead ammunition. To quote Sgt. Carter, diss-missed! As you’ll no doubt recall from our August 2010 post on the proposed ban, the CBD’s petition included lead ammo and fishing tackle lead on their hit list. Sportsmen responded in [symbolic] force; hunters, target shooters, fishermen and their proxies overwhelmed the EPA with comments and feedback. None of it particularly supportive. Shortly after the petition was filed, the EPA rejected the portion relating to lead ammunition . . .

The planet’s protectors correctly noted that the Toxic Substances Control Act (TOSCA)—under which the CBD asked for the ban—does not provide the EPA with the authority to regulate ammunition.

In fact, the TOSCA specifically exempts ammunition from regulation. It’s one of the “chemical substances” exempted from regulation (“any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code.” (15 U.S.C. 2601 Section 3(2)(v)) Since ammunition is regulated by that section of the Internal Revenue Code, it can’t be regulated by the EPA.

Needless to say, the CBD didn’t take “no” for an answer and filed a lawsuit against the EPA. This is not uncommon for the CBD, they’re quick to sue over environmental issues. (They are also known for giving away free condoms with pictures of endangered animals to help curb human population growth with phrases like “Hump smarter, save the snail darter,” “Wrap with care, save a polar bear,” and “Cover your tweedle, save the burying beetle”.)

They filed the lawsuit in November of 2010. Within a week the National Shooting Sports Foundation (NSSF) filed a successful “motion to intervene” (asking the court permission to join one of the parties in the lawsuit). In February of 2011, the National Rifle Association (NRA) and Safari Club International (SCI) also filed motions to intervene.  These groups were interested in joining the EPA to defend against the CBD since they were concerned that the EPA may not adequately defend their interests. (Click here to see the timeline and motions and briefs filed in the case).

The CBD admitted that the EPA was not allowed to regulate “ammunition.” The CBD claimed that they didn’t care about the rest of the ammunition, they just cared about the lead in the bullet. So, the CBD brought the lawsuit hoping to get the court to say that while EPA may not regulate ammunition as a whole, they may regulate its components.

The court dismissed the CBD’s lawsuit on technical grounds alone; not because the court agreed that lead ammunition was outside of the EPA’s authority. The court failed to determine whether the CBD’s argument had any merit—which leaves room for the CBD (or anyone else) to bring the same lawsuit again.  As long as they don’t have the same technical errors in their lawsuit, they may be successful next time.

Because of this potential for attack, tin April of this year, the NSSF championed federal legislation to clarify the TOSCA to include specific protection for components as well. If the court would have prevented the EPA from regulating components, there would have been no need for the bill. But now that the question is still left unanswered, it’s more important than ever that the Hunting, Fishing and Recreational Shooting Sports Protection Act (H.R. 1558) passes to prevent future attacks.

You might want to mention that to your Congresscritter.

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  1. I’m not a TSCA expert, but the courts, in deciding this issue, may look at how EPA handles similar situations. SARA 313 requires the reporting of certain chemicals that are “manufactured, processed, or otherwise used” in amounts exceeding set thresholds. SARA 313 has an article exemption, meaning if what you are using meets the definition of “article,” then it doesn’t matter how much of the article you use, or what its concentration of the listed chemcal is, it is exempt from reporting.

    I think the court should find that the TSCA exemption works the same way: since bullets are exempt, the lead inside them is exempt. But I also think that EPA has no authority to regulate carbon dioxide, so what do I know?

    • TSCA and SARA (aka Superfund or CERCLA) are different and have different purposes. TSCA is designed to limit toxins of “considerable harm” into the environment, where SARA is more of a “who’s going to clean it up” type of legislation. However, I agree – exemptions should (“should”) translate over.

      This is an interesting topic and I think it’s going to be the center of my Master’s research project…

  2. Invest in the three precious metals – gold, silver, and lead (mixed with tin in a 20:1 ratio). And buy some bullet molds for your favorite calibers. Oh yeah, and some gas checks for anything going faster than 2000 fps.


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