Court upholds denial of petition to ban lead ammo
The DC Circuit ruled today in Trumpeter Swan Society v. EPA. The plaintiffs, 101 self-described enviro groups, had petitioned the EPA to promulgate rules relating to spent lead ammo, arguing that the Toxic Substances Control Act required them. The EPA declined, the groups sued, lost in the trial court, and now lose on appeal.
The groups had earlier petitioned ESA to ban lead ammo, and EPA replied that TSCA has an exemption for things taxed under Pittman-Robertson, which imposes an excise tax on ammunition. So this time they came back and sought a regulation of fired projectiles, arguing that they were not subject to Pittman-Robertson.
DC Circuit holds that, no, the Pittman-Robertson exemption applies here: logically, if the EPA lacks TSCA jurisdiction to regulate ammunition, it lacks jurisdiction to regulate spent ammo. It cannot regulate the latter without indirectly regulating the former, which Congress has forbidden. It does say that EPA should not have treated the second petition as redundant, but should have considered it and denied it on the same basis as the first petition (which would require EPA to publish the denial in the Federal Record).
The groups also complained that components sold to handloaders are not P-R taxed, but the court points out that they should have raised this argument earlier and in more detail, and denies it as well. (An interesting question: how would EPA regulate spent ammo from handloads as opposed to all other spent ammo? Sounds to me as if the plaintiffs were clutching at straws by this point.).