The EPA found itself in partnership with the National Rifle Association (NRA) in fending off a lawsuit by wildlife conservation groups seeking to force the Agency into banning lead ammunition under the Toxic Substances Control Act (TSCA).  The lawsuit was dismissed by a judge in the U.S. District Court for the District of Columbia. 

According to Judge Emmet G. Sullivan, the petition was fundamentally no different from a petition the groups submitted to the EPA in 2010, which the Agency denied.  The petitioning groups say Sullivan’s decision was technical and did not address the merits of the petition.  “Conservation groups are considering an appeal of today’s ruling,” said the Center for Biological Diversity (CBD), one of the plaintiff groups.

TSCA exclusion

Much of the substance of the case concerns the reach of TSCA over ammunition.  According to the plaintiffs, in 1976, the U.S. House of Representatives stated in a report about the history and intent of the act that it does not exclude from regulation components of ammunition that could be hazardous because of their chemical properties. 

“The EPA has already declared that lead is a toxic substance and taken steps to remove it from other products and uses,” say the groups.  They add that lead in hunting ammunition is the largest, mainly unregulated source of lead knowingly discharged into the environment in the United States.  The U.S. Fish and Wildlife Service has calculated that despite the ban on lead shot for waterfowl hunting, more than 14,000 tons of lead shot is discharged into the environment each year in the U.S. by upland bird hunting alone, the groups point out.

The NRA calls attention to the regulatory exclusion in TSCA for shells and cartridges.  “CBD contended, strangely, that bullets and shot are not within the exception for ‘shells and cartridges,’ notwithstanding the very obvious fact that shells and cartridges are where bullets and shot are found,” says the NRA. 

Nonlead alternatives

The plaintiffs claim they are not trying to ban hunting since “more than a dozen manufacturers market hundreds of varieties and calibers of nonlead bullets and shot made of steel, copper, and alloys of other metals, with satisfactory-to-superior ballistics.”  But the NRA contends that this ammo is too costly and, therefore, the lawsuit could serve as a platform to end hunting and recreational shooting.  Not true, respond the plaintiffs, who point to a “recent study” that “debunks claims that price and availability of nonlead ammunition could preclude switching to nontoxic rounds for hunting.  In fact, researchers found no major difference in the retail price of equivalent lead-free and lead-core ammunition for most popular calibers.”

Deference to EPA

In a reversal of the low opinion of the EPA generally held by industry, the NRA applauded Judge Sullivan’s decision to defer to EPA’s determination that the Agency was not congressionally authorized to regulate lead-based ammunition. 

But the conservation groups were not persuaded.  “Congress clearly gave the EPA authority to regulate the toxic lead in hunting ammunition, the same way we got lead out of gasoline, paint, and kids’ toys,” said Bill Snape, CBD’s senior counsel.  “It was really disturbing today to see the country’s most important environmental agency on the same side as the NRA, opposing commonsense measures to protect people and wildlife from lead poisoning.”