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THE PLAN TO GET THE LEAD OUT
With their most recent effort thwarted by a grassroots NRA victory, anti-hunting
groups are now targeting lead ammunition through the federal court system.
By Dave Kopel
Suppose you went to the gun store to pick up a box of rifle ammunition for
target practice on a friend’s farm. Or maybe you needed a box of handgun ammo
for use at your local outdoor range.
But when you got there, you were told that traditional ammunition, using lead
bullets, was now illegal. Instead, you could buy alternative ammunition that
cost much more. The store had a good supply of alternative ammunition for
shotguns, and some of it was reasonably priced. But the store had hardly
anything for rifles or handguns.
That’s what nearly happened in 2010. And it may happen yet.
Some Background
Last August, the Center for Biological Diversity, an environmental organization
based in California, filed a petition with the Environmental Protection Agency
asking for a ban on all lead ammunition and lead in fishing tackle.
Under the Toxic Substances Control Act (TSCA—pronounced “tosca”), the EPA has
the authority to outlaw almost anything. The petition requested the EPA “ban
the manufacture, processing and distribution in commerce of lead shot, bullets
and fishing sinkers.” This was not a
request to ban the use of lead ammunition for hunting. It was a request for a
total ban on the sale of lead
ammunition.
The federal TSCA statute (volume 15 of the United States Code, starting at §
2601) gives the EPA broad authority to ban or restrict whatever the EPA
determines to “present an unreasonable risk of injury to health or the
environment.”
When Congress was enacting TSCA in 1976, pro-gun lawmakers, such as Idaho Sen.
James McClure, and NRA were aware of the risk that bureaucrats might one day
attempt to use TSCA’s open-ended language to prohibit guns or ammunition. At
both the federal and state level, there is a long record of anti-gun
organizations trying to use bureaucratic agencies to enact gun bans that could
never pass in a legislature.
So the Congress, with NRA support, did with TSCA what it has done with other
general regulatory statutes: added specific language prohibiting TSCA from being
used to regulate firearms or ammunition (15 U.S.C. § 2602(B)).
The CBD, however, argued that the EPA could ban lead ammunition anyway.
Supposedly, the EPA would not be regulating ammunition, but merely the “toxic
components of ammunition.”
Notably, the requested ban would even forbid lead ammunition from being sold for
use at indoor shooting ranges, although nobody makes a serious claim that lead
from indoor ranges accumulates in the environment in such a way as to harm
wildlife.
Rather oddly, the CBD put out a fact sheet that claimed, “The
petitioners support exceptions to allow continued use of lead pistol ammunition
for home defense and non-hunting activities. This petition will not affect law
enforcement or the military. The petition does not address the use of lead at
either indoor or outdoor shooting ranges.”
Simply put, this was not true. Nothing in the CBD’s 100-page petition to the EPA
asked for any kind of exceptions to the ban. Despite what the CBD’s fact sheet
claimed, the CBD’s petition included a page arguing that lead accumulation at
outdoor shooting ranges is harmful to wildlife.
Shortly after the CBD’s petition was filed on Aug. 3, 2010, NRA and other
grassroots activists went into action. Concerned citizens flooded the EPA with
requests to deny the petition. On Aug. 20, 2010, NRA sent the EPA a letter
detailing the legal analysis of why the agency has no authority to ban lead in
ammunition.
As NRA-ILA Executive Director Chris W. Cox explained, the CBD’s argument that
the EPA could regulate lead in ammunition—even though the EPA could not regulate
ammunition—was implausible: “If Congress exempts a cow from regulation, one
could hardly argue that it would nevertheless allow for regulation of the hide
attached to the cow’s body.”
Moreover, “If EPA can regulate each individual component of ammunition, then EPA
can effectively regulate shells and cartridges themselves.” Such a result would
be contrary to the plain language of the statute.
The EPA agreed, and on Aug. 27
announced that it did not have legal authority over ammunition. For good
measure, the EPA added: “Nor is the agency seeking such authority.”
As for fishing tackle, there is no specific exemption from TSCA. Indeed, in 1994
the EPA, under President Clinton, announced a plan to outlaw lead or zinc
sinkers smaller than 25 mm.
Probably as a result of pressure from the public and Capitol Hill, the EPA never
went forward in writing the regulations for the proposed rule. On the other
hand, the EPA has never withdrawn the proposed rule either, despite announcing
plans to do so in 2005.
However, just because the EPA has the legal power to regulate something does not
mean it must do so. The EPA has considerable discretion and can take into
account the seriousness of a particular problem, and other factors.
In September 2010, 78 members of the Congressional Sportsmen’s Caucus sent a
joint letter to the EPA urging that the fishing sinker ban be rejected. A
similar letter came from the Executive Council of the National Assembly of
Sportsmen’s Caucuses. This is the umbrella group for sportsmen’s caucuses in the
state legislatures.
Most importantly, the Association of Fish and Wildlife Agencies, which
represents all 50 state fish and wildlife agencies, sent the EPA a letter
explaining that there was no good scientific basis for a national ban, and that
such a ban would infringe on the state agencies’ jurisdiction.
So on Nov. 4, the EPA formally rejected CBD’s petition to ban lead sinkers.
According to the EPA, a ban on lead sinkers was not “necessary.” TSCA requires
that the EPA regulations be the “least restrictive alternative,” to the extent
that there are alternatives. The EPA determined that a uniform national ban was
not the least restrictive alternative. Instead, state regulators and federal
land managers can impose restrictions when needed, and educational campaigns
have convinced many fishermen to choose alternative sinkers, which are widely
available on the market.
Continuing The Crusade
Rejected by the EPA, the CBD and its allies recently filed suit in federal court
asking a judge to issue an order requiring that the EPA impose a ban. The suit
is in the federal district court for the District of Columbia, which is where
most lawsuits involving federal rulemaking must be brought.
Notably, two of the five groups that had supported the petition to the EPA (the
Association of Avian Veterinarians and the American Bird Conservancy) did not
join the CBD’s suit against the EPA.
Almost as soon as the lawsuit was filed, NRA and Safari Club International
announced that they would file a motion to intervene in the suit so that the
court will hear the strongest arguments in support of hunters and gun owners.
Likewise, the National Shooting Sports Foundation has filed a motion to
intervene.
The CBD claims that its effort to outlaw lead ammunition is not “anti-hunting.”
The hunting organizations, however, do not agree. Although CBD got some bird
watching groups, such as local chapters of the Audubon Society, to sign a letter
to the EPA, the CBD has no support from established hunting organizations.
Rather notably, it’s the hunting groups themselves, such as Ducks Unlimited,
Pheasants Forever and the Rocky Mountain Elk Foundation, who have the strongest
records in successful conservation of species and habitats.
Unlike organizations such as the misnamed Humane Society of the United States,
the CBD is not opposed to hunting under all circumstances. However, the CBD has
clashed with mainstream hunters in its opposition to the hunting of wolves in
the northern Rocky Mountain states, the greater sage grouse in Nevada and
mountain lions in Arizona.
The one “hunting organization” that works with the CBD, and which joined the CBD
lawsuit, calls itself Project Gutpile. The group appears to be the project of
just one California hunter. Besides lending its name to the CBD’s campaign and
speaking to the media and in California public hearings, Project Gutpile appears
to consist of nothing more than a blog that was fairly active from 2006 to 2008,
but since then has had only a single post. The organization apparently has four
members. No doubt the man who runs Project Gutpile is sincere, but his support
of the CBD is not exactly proof of the CBD’s claims that its lead ban agenda is
supported by “hunters”—or least not by more than a microscopically small number
of them.
The CBD’s other ally in the lawsuit is Public Employees for Environmental
Responsibility. This organization was at the forefront in opposing the federal
law reforms that now allow American citizens to carry firearms in national
parks.
A Long-Term Battle
The controversy over traditional ammunition has been going on for a long time.
In 1991, the U.S. Fish and Wildlife Service prohibited use or possession of lead
shot during the hunting of waterfowl. The ban was accomplished by an
administrative regulation, based on powers granted by the Endangered Species
Act. It still seems uncertain, however, that the protection of endangered avian
predators required an all-out ban in every waterfowl hunting area in every
state, and NRA was in the forefront of opposition to this overly broad rule at
the time.
Twenty-three states impose some type of additional, but limited, restrictions on
the use of lead shot in the hunting of some upland game bird species.
Perhaps one consequence of Barack Obama’s election as president was that in
March 2009, the National Park Service announced that it would prohibit all use
of lead ammunition in national parks. Such a ban would affect much more than
hunting; indeed, most national parks do not allow recreational hunting.
But thanks to a 2009 law backed by NRA, guns are legal in national parks under
the same rules as the host state applies to state parks. So, for example, if you
go camping or hiking in Rocky Mountain National Park in Colorado, you can carry
a handgun for protection since Colorado law allows defensive carry in state
parks.
But if a lead ban were implemented, then you wouldn’t be able to carry
traditional ammunition in your defensive gun. Instead, you would have to carry
much more expensive alternative ammunition, which might not perform as well for
self-defense—and only if you could even find such ammunition in your handgun’s
caliber.
Fortunately, after NRA and Second Amendment activists complained, the Park
Service refined its policy so that the lead ammunition ban now applies only to
Park Service employees.
According to the prohibitionists such as the CBD, the factual basis for the
necessity of a nationwide ban is the claim that environmental lead from hunting
and shooting ranges is killing wildlife. They cite figures claiming that 20
million animals die each year from lead poisoning.
Birds of prey, because they are high on the food chain, are said to be
especially imperiled. Yet the data suggest otherwise. For example, from
1981 to 2006, according to the United States Fish and Wildlife Service, there
was a 724 percent increase in the number of bald eagle breeding pairs. Other
raptor species are also thriving—thanks in significant part to the habitat
conservation that is made possible by the dedicated 11 percent federal excise
tax on firearms, bows and ammunition.
Some say the California condor is particularly threatened by environmental lead
as well. As a result, lead ammunition has been sharply restricted for most
hunting in the 14 California counties where the condor lives. The
restrictions—although many, including the NRA, disagree with them—show that
state wildlife agencies are capable of addressing lead when they consider it to
be a problem.
Besides claiming that lead endangers wildlife, the lead-ban advocates attempt to
frighten hunters into believing they are poisoning themselves. Yet in 2008, the
U.S. Centers for Disease Control and Prevention studied lead levels in the blood
of North Dakota hunters who used traditional lead ammunition and found no human
health risk. Indeed, the average North Dakota hunter has a lower level of blood
lead than the average American. Likewise, North Dakota children had less than
half the average for American children, far below any scientific level of
concern.
Similarly, the Iowa Department of Public Health (IDPH) has been testing the
blood lead levels of Iowans for nearly two decades. In response to a panic about
lead in venison, the department explained, “IDPH maintains that if lead in
venison were a serious health risk, it would likely have surfaced within
extensive blood lead testing since 1992 with 500,000 youth under 6 and 25,000
adults having been screened.”
In fact, despite all the misconceptions pushed by anti-hunting groups, no one
has ever found a single case in the United States of someone who had a
dangerously elevated level of lead in their blood due to consuming game.
No End In Sight
The battle is not going to go away. The CBD is pressing its court case by
pointing to a congressional committee report on the TSCA bill that said the EPA
could regulate “chemical components of ammunition.” Judges differ in how much
weight they give to such reports. Justice Scalia argues that the reports, which
are not adopted by Congress, merely express the feelings of the staffers who
wrote them and not the will of Congress as a whole.
To clear up any possible ambiguity, U.S. Rep. Paul Broun, R-Ga., has introduced
H.R. 6284 to plainly put lead ammunition out of EPA’s regulatory reach. The bill
has already garnered 36 co-sponsors, and it is only one sentence long: “The
administrator of the Environmental Protection Agency may not prohibit, limit or
control, based on material composition, any type of firearm ammunition or
fishing tackle.”
Rep. Broun, who co-chairs the Second Amendment Task Force in Congress, has also
introduced a separate bill, H.R. 5672, to prevent any new and unscientific bans
on lead on federal lands. The bill would only allow bans “if the best scientific
evidence available demonstrates that the material composition of the ammunition
or fishing tackle to be prohibited, limited or controlled is having, or is
likely to have, a substantially detrimental effect on the health of a local fish
or wildlife population.”
The current attempts to outlaw lead ammunition, according to professor Nicholas
Johnson, are just one of many ways in which environmental laws can be misused to
threaten Second Amendment rights. Johnson teaches environmental law and Second
Amendment law at Fordham Law School in Manhattan.
As Johnson explains, three federal environmental laws have been used against
outdoor shooting ranges: the Clean Water Act (which is so broadly written that
it applies to land which is dry year-round); the Resource Conservation and
Recovery Act (which regulates the disposal of hazardous waste); and the
Comprehensive Environmental Cleanup and Recovery Act (“Superfund,” for the
cleanup of “hazardous substances,” which includes anything made from copper or
lead).
So far, the EPA has taken the sensible approach of educating ranges in a
publication entitled “Best Management Practices for Lead at Outdoor Shooting
Ranges,” rather than trying to shut down ranges wholesale. But the EPA’s
forbearance doesn’t stop the private lawsuits that the laws authorize.
Unlike TSCA, the other federal environmental laws do not have specific
protections for firearms and ammunition.
Johnson details the problems in his 2005 article in the
Indiana Law Review, “Testing the
States’ Rights Second Amendment for Content: A Showdown Between Federal
Environmental Closure of Firing Ranges and Protective State Legislation.”
The EPA did the right thing by rejecting the petition to outlaw lead ammunition.
But there’s no guarantee that a future EPA will always have such good judgment
concerning lead bans or shooting range closures. The federal environmental laws
are very broadly written, and courts tend to be highly deferential to agency
decisions.
Because administrative agencies usually try not to raise the ire of Congress,
continuing to elect solid pro-rights, pro-sportsman majorities in Congress
provides some protection against misuse of environmental laws to restrict Second
Amendment rights. In the long term, the agenda for securing Second Amendment
rights will have to include statutory changes in federal environmental laws and
their many state counterparts.
Frequent America’s 1st Freedom contributor Dave Kopel was formerly a Colorado assistant attorney general responsible for enforcing hazardous waste laws. He is co-author of the book “RCRA Demystified: The Professional’s Guide to Hazardous Waste Law.” |
