CENTER FOR BIOLOGICAL DIVERSITY V. ENVIRONMENTAL PROTECTION AGENCY (TSCA I)

ON SEPTEMBER 30, 2011. POSTED IN LATEST NEWS, LITIGATION

The National Rifle Association (NRA) filed a motion to intervene to fight for hunter’s rights in a lawsuit brought by the Center for Biological Diversity (CBD) that sought to force the Environmental Protection Agency (EPA) to ban the use, manufacture, processing, and distribution of lead shot, bullets, and fishing sinkers throughout the country. The NRA, Safari Club International (SCI) and National Shooting Sports Foundation (NSSF) collectively intervened to defend the rights and interests of hunters and recreational shooters, and others in the firearm industry who would otherwise likely not be adequately represented in the case.  

The lawsuit follows the EPA’s recent denial of a Petition that was filed to force EPA to pass regulations banning certain lead-based sporting products, including ammunition and fishing tackle. The Petition and the subsequent lawsuit were both filed by the CBD and joined by Public Employees for Environmental Responsibility and “Project Gutpile.” Though the EPA correctly denied the Petition, CBD and the other plaintiffs refuse to accept that decision. They brought this lawsuit hoping to have the EPA’s decision overturned by a court.  

CBD’s legal argument is being used to try to force the EPA to ban lead ammunition and fishing tackle. It is based on a meritless interpretation of the Toxic Substances Control Act (TSCA), which includes a specific exclusion for ammunition. TSCA, section 3(2)(B)(v) precludes the EPA from regulating ammunition. But, CBD wants EPA or a court to hold that the TSCA ammunition exclusion does not apply to bullets and shot, because neither bullets nor shot are actually “ammunition” (i.e., a shell, primer, and projectile, etc., in one cartridge or unit). CBD’s argument is founded on an inapplicable interpretation of a tax ruling issued by the IRS in 1954 that distinguished the sale of “separate parts of ammunition” and complete ammunition for taxation purposes only. 

NSSF filed a motion to dismiss CBD’s claims regarding lead ammunition on procedural grounds, and NRA and SCI supported NSSF’s motion. The Court granted the motion and dismissed CBD’s claims against lead ammunition. Though the case continued regarding CBD’s claims against lead tackle, CBD is now in the process of dismissing the entire action.