Environmental groups recently filed suit against EPA for failure to act on a March petition aimed at the elimination of lead from bullets and shot advocates charge are harming wildlife. (Trumpeter Swan Society v. EPA, D.D.C., docket number not available, 6/07/12). The seven groups filing suit on June 7th included: The Trumpeter Swan Society, Cascades Raptor Center, Center for Biological Diversity, Loon Lake Loon Association, Preserve Our Wildlife Organization, Tennessee Ornithological Society, and Western Nebraska Resources Council. Plaintiffs allege two causes of action against EPA:
- Violation of APA because EPA's decision that the petition was not cognizable under TSCA was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
- Violation of TSCA (15 U.S.C. §2620(4)(B)(ii) because EPA had a reasonable basis to conclude that the issuance of a rule or order is necessary to protect health or the environment against an unreasonable risk of injury from lead exposure.
Environmental groups originally petitioned EPA in August 2010 seeking to ban lead shots, bullets and fishing sinkers. In March of this year, a larger group of environmental organizations petitioned EPA to initiate rulemaking under TSCA to address the unreasonable risks posed by lead bullets and shot. In April 2012, EPA advised it would not initiate the requested rulemaking and confirmed its prior actions in connection with the August 2010 petition.
TSCA grants the EPA the broad authority to regulate chemical substances that "present an unreasonable risk of injury to health or the environment." 15 U.S.C. §2601. The EPA may regulate the manufacture, processing, distribution, use or disposal of such chemical substances. The EPA has already declared that lead is a toxic substance, and although it has implemented some regulations to reduce lead exposure, lead still remains widely distributed in the environment in the form of spent lead bullets and shot and regularly encountered by wildlife leading to harmful lead exposure.
EPA has removed nearly all products containing lead from the market. Most other uses of lead, such as lead-based paints, plumbing pipe and fixtures, and leaded gasoline, are already subject to strict regulation. Plaintiffs allege that EPA's failure to address lead in bullets and shot adversely impacts wildlife as well as poses unacceptable exposure risks to humans.