By Dave Kopel
America's 1st Freedom. Feb. 2011
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.
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 sect. 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. sect. 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. 27announced 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.
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.
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.
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."