We previously reported on the Center for Biological Diversity’s (CBD) co-authored petition to the Environmental Protection Agency (EPA) to ban all lead used in shooting and angling. The EPA denied the request for ammunition because of an express exclusion excepting bullets in the underlying statute. It later denied the petition for fishing uses on the basis that its use in fishing did not warrant a ban. The suit that was expected has now been filed.
The suit is entitled Center for Biological Diversity, Public Employees for Environmental Responsibility and Project Gutpile v. Lisa Jackson, Administrator, Environmental Protection Agency and Environmental Protection Agency, filed in US District Court for the District of Columbia (case number 1:10-cv-02007-EGS filed on November 13, 2010). The suit asks the court to “order the EPA to initiate the petitioned action, namely to develop and implement regulations to prevent poisoning of wildlife by spent lead shot, bullets and lead-containing fishing tackle.”
There are several interesting aspects of note in the suit. The CBD claims to have had a “Get the Lead Out” campaign since 2004. Project Gutpile claims to be an “educational organization comprised of hunters” since 2002. The CBD alleges that the exemption for ammunition is limited specifically to “shells and cartridges” that are subject to excise taxes by the IRS, which has ruled since 1968 that the excise tax “does not apply to sales of separate parts of ammunition such as cartridge cases, primers, bullets, and powder.” The suit quotes Congressional language that raises that issue:
Although the language of the bill is clear on its face as to the exemption for pistols, revolvers, firearms, shells, and cartridges, the Committee wishes to emphasize that it does not intend that the legislation be used as a vehicle for gun control. Consequently the Administration has no authority to regulate ammunition as an unreasonable risk because it injures people when fired from a gun. However, the Committee does not exclude from regulation under the bill chemical components of ammunition which could be hazardous because of their chemical properties.
This is the hook the CBD attorneys are relying upon for the ammunition part of the suit. The exemption may not cover any bullet component that is not excise taxed. Of course, the ban of that part not taxed will affect the sale of the related parts and thus excise tax revenue and the conservation it pays for. The excise tax produces approximately one-quarter of US conservation revenue, and license fees produce the balance. The suit is not for a ban as such, but for regulation. Contradictorily, the suit points out that the EPA has customarily ordered total bans for toxic substances, so the petition was a petition for a ban.
The petition and now the suit are broader than represented for fishing tackle. Although the initial petition that was denied and the suit captions suggest it is only a requested ban on fishing weights, it is in fact a petitioned request on all lead in all tackle or fishing items, not just weights.
Of course, lead has a better ballistic coefficient for bullets than other substances, and other substances present dangers of their own, such as the risk of going through and beyond the intended target as well as ricochets. Also, the market cost of alternatives, such as copper, has become almost prohibitive.
A copy of the 14-page suit can be found on Conservation Force’s website under News & Alerts as CBD Suit to Ban Lead.
