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Trumpeter Swan Soc'y v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

December 23, 2014

TRUMPETER SWAN SOCIETY, ET AL., APPELLANTS
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL., APPELLEES

Argued October 24, 2014.

Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-00929).

William J. Snape, III argued the cause for appellants. With him on the briefs was Adam F. Keats.

Jennifer S. Neumann, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Robert G. Dreher, Acting Assistant Attorney General, and J. David Gunter II and Justin D. Heminger, Attorneys.

Christopher L. Bell argued the cause for intervenor-appellees. With him on the brief were Christopher A. Conte, Robert N. Steinwurtzel, Michael Steven Snarr, Thomas Edward Hogan, and Anna M. Seidman. Roger R. Martella Jr. entered an appearance.

Before: TATEL, MILLETT and PILLARD, Circuit Judges.

OPINION

Page 1038

Tatel, Circuit Judge:

In this case, 101 environmental groups, invoking section 21 of the Toxic Substances Control Act (TSCA), which allows " any person" to petition the Environmental Protection Agency for a rulemaking proceeding to regulate " chemical substances" that " present an unreasonable risk of injury to health or the environment," filed a petition with EPA asking it to regulate spent lead bullets and shot. EPA rejected the petition as " not . . . cognizable" under section 21 on the grounds that it largely duplicated an earlier petition that two of the 101 groups had filed. EPA went on to explain that, even were it to consider the petition, it would deny it on the merits because another provision of TSCA, section 3(2)(B)(v), exempts cartridges and shells from the definition of " chemical substance." The district court held that EPA had authority to classify the petition as non-cognizable under TSCA and dismissed the complaint. Although we disagree with the district court--nothing in section 21 allowed EPA to dismiss this petition as non-cognizable--we nonetheless affirm because the environmental groups have suggested no way in which EPA could regulate spent lead bullets and shot without also regulating cartridges and shells--precisely what section 3(2)(B)(v) prohibits.

Page 1039

I.

Concerned that " human beings and the environment are being exposed each year to a large number of chemical substances and mixtures," 15 U.S.C. § 2601(a)(1), Congress enacted TSCA, which authorizes EPA to regulate " chemical substance[s]" that it has a " reasonable basis to conclude . . . present[] or will present an unreasonable risk of injury to health or the environment," id. § 2605(a). TSCA includes unusually powerful procedures for citizens to force EPA's hand. Section 21 provides that " [a]ny person" may petition the agency to initiate a rulemaking proceeding, id. § 2620(a), and requires that " [s]uch petition shall be filed in the principal office of the Administrator and shall set forth the facts which it is claimed establish that it is necessary to issue . . . a rule," id. § 2620(b)(1). The statute requires EPA to grant or deny such a petition within 90 days, and if it denies the petition " the Administrator shall publish in the Federal Register the Administrator's reasons for such denial." Id. § 2620(b)(3). In such a case, or if EPA fails to act within 90 days, the petitioner may, within 60 days, " commence a civil action in a district court of the United States to compel the Administrator to initiate a rulemaking proceeding as requested in the petition." Id. § 2620(b)(4)(A). " The petitioner," moreover, is " provided an opportunity to have such petition considered by the court in a de novo proceeding." Id. § 2620(b)(4)(B). If the petitioner demonstrates by a preponderance of the evidence that " there is a reasonable basis to conclude that the issuance of such a rule or order is necessary to protect health or the environment against an unreasonable risk of injury," the court " shall order the Administrator to initiate the action requested by the petitioner." Id. § 2620(b)(4)(B)(ii).

In 2010, prior to the filing of the petition at issue in this case, five environmental groups petitioned EPA pursuant to TSCA section 21 for a rulemaking to prohibit, among other things, the " manufacture, processing and distribution in commerce of lead shot [and] bullets." Petition to the Environmental Protection Agency to Ban Lead Shot, Bullets, and Fishing Sinkers Under the Toxic Substances Control Act 2 (August 3, 2010) (" 2010 Petition" ). According to those environmental groups, " spent lead ammunition," id., poses an " ongoing threat of lead poisoning," id. at 7. EPA denied that portion of the petition on the ground that " TSCA does not provide the Agency with authority to address lead shot and bullets as requested . . . due to the exclusion found in TSCA § 3(2)(B)(v)." Letter from Stephen A. Owens, Assistant Administrator, U.S. EPA, to Michael Fry, Director of Conservation Advocacy, American Bird Conservancy (August 27, 2010) (" 2010 EPA Letter" ). That section exempts from the definition of " chemical substance," and therefore from TSCA's scope, " any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code," 15 U.S.C. § 2602(2)(B)(v), which in turn taxes " [s]hells and cartridges," 26 U.S.C. § 4181. As required by section 21, EPA published this ruling in the Federal Register. See Notices: Environmental Protection Agency, Lead in Ammunition and Fishing Sinkers; Disposition of TSCA Section 21 Petition, 75 Fed. Reg. 58,377 (Sep. 24, 2010). Three of the environmental groups, seeking de novo review, filed suit ...


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