EPA

Judge about-faces, defers to agency on curbing lead ammo

A federal district judge yesterday dismissed an effort by conservation groups to force U.S. EPA to regulate lead bullets as an environmental toxin, showing broad deference to the agency in light of a recent Supreme Court ruling.

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ruled that EPA acted within its authority in denying a petition from the Center for Biological Diversity and other groups to limit the use of lead bullets under the 1976 Toxic Substances Control Act, or TSCA.

The petition was the second from the center and other wildlife groups. EPA denied the groups' 2010 petition, saying TSCA didn't grant it authority over lead ammunition. When that decision was challenged in court, Sullivan ruled the conservationists had waited too long to file their lawsuit.

In 2012, the center led a coalition of about 100 groups -- most different from the original petitioners -- in filing another EPA petition. The agency swiftly characterized it as a petition for "reconsideration" and denied it. The groups filed another lawsuit, but Sullivan again sided with the agency yesterday.

The ruling caught the center's attorney, Adam Keats, off guard because Sullivan had appeared sympathetic to the groups' case during arguments yesterday.

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Sullivan had suggested the 2012 petition was different because the vast majority of the petitioners were different from the first. Only two, he noted, were the same, suggesting that perhaps EPA jumped to its conclusion that it was a petition for reconsideration.

"Suppose it was entirely new parties," Sullivan asked federal lawyers, "would they be properly before the agency?"

Sullivan went on: "How do these folks get their day before the agency?"

The judge also seemed concerned that by foreclosing this challenge, he was denying the center's legal avenues to challenge EPA's decisions. "All they want is their day in court," he said.

Keats speculated that Sullivan may have been hinting at a way conservationists could find a way around EPA's recent decision -- filing a new petition from entirely new parties.

The Center for Biological Diversity and other groups have long pushed for tighter restrictions on lead ammunition, arguing that the bullets containing the potent neurotoxin pose a threat to wildlife.

Bullet makers and hunting groups, including the National Rifle Association and Safari Club, have steadfastly opposed the effort, contending that there is no evidence the ammunition does, in fact, harm wildlife. They also note how much more expensive nonlead bullets are.

Ultimately, Sullivan may have been swayed by Monday's Supreme Court decision in City of Arlington v. Federal Communications Commission, which said courts must give agencies broad deference to determine their own jurisdictional authority (Greenwire, May 23).

Justin Heminger of the Justice Department, representing EPA, said as much during the arguments. "The agency gets deference," he said referring to the Supreme Court case. "We think that is relevant."

Keats, the center's lawyer, called that rationale for the ruling "disturbing."

"The judge is accepting that there is virtually no judicial review of a very suspect decision by the agency that they don't have the authority to regulate lead shot," Keats said.

Roger Martella, a former EPA general counsel at Sidley Austin who represented the National Shooting Sports Foundation in opposing the center, said Sullivan's reversal isn't unusual.

"It's not uncommon in oral argument for a judge to be sympathetic to the side that's not going to prevail," Martella said. "As lawyers, we always have to remind ourselves not to read too much into the questions and the tone during oral argument."

But Martella agreed that the Arlington decision likely factored into Sullivan's decision.

"I do think that the Supreme Court's decision from last Monday made it significantly harder for the plaintiffs to present their argument," he said.

The lawsuit garnered significant attention last year when Sen. Jon Tester (D-Mont.) included a ban on regulating lead bullets in a package of hunting, fishing and conservation measures. The legislation led to a lobbying push from activists on both sides of the issue, but the measure eventually stalled because of an unrelated budget matter and opposition from Senate Environment and Public Works Committee Chairwoman Barbara Boxer (D-Calif.) (Greenwire, Dec. 21, 2012).

A few lead ammunition bans already exist. California has prohibited its use in central and southern California where the endangered California condor lives. The Golden State is currently considering expanding that ban to the entire state. Arizona has a voluntary ban in place.

Condors, one of the world's most endangered birds, feast in groups -- so one carcass contaminated with lead bullets can poison several birds. Government officials continue to struggle with condor exposure to lead, however, and some have raised questions about the effectiveness of mandatory bans (Greenwire, April 30.)

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