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Center For Biological Diversity, et al v. Lisa P. Jackson

September 29, 2011

CENTER FOR BIOLOGICAL DIVERSITY, ET AL., PLAINTIFFS,
v.
LISA P. JACKSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

On August 3, 2010, plaintiffs Center for Biological Diversity, Public Employees for Environmental Responsibility, and Project Gutpile (collectively, "plaintiffs") submitted a petition ("Rulemaking Petition") to the United States Environmental Protection Agency ("EPA" or "Agency") seeking the regulation of lead shot, bullets, and fishing sinkers under the Toxic Substances Control Act, Pub. L. 94-469, 90 Stat. 2003 (1976) (codified at 15 U.S.C. §§ 2601-2692) ("TSCA" or the "Act"). The EPA determined that the Rulemaking Petition contained two discrete requests: one for the regulation of lead shot and bullets and a second for the regulation of lead fishing sinkers. The EPA denied each of those requests in separate letters, sent to plaintiffs on August 27, 2010 and November 4, 2010.

Plaintiffs filed this action on November 23, 2010 against Lisa P. Jackson, the Administrator of the EPA, acting in her official capacity, as well as the Agency itself (collectively, "federal defendants"), challenging the denial of the Rulemaking Petition. The National Shooting Sports Foundation, Inc. ("NSSF"), the Association of Battery Recyclers, Inc. ("ABR"), and the National Rifle Association of America and Safari Club International (collectively, "NRA/SCI") were permitted to intervene as defendants.

Pending before the Court are the federal defendants' and intervenor-defendant NSSF's partial motions to dismiss the portion of this case related to lead shot and bullets. Defendants argue that plaintiffs' claim seeking an order compelling the EPA to conduct a rulemaking regarding the regulation of lead shot and bullets should be dismissed (1) for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and (2) for failure to state a claim under Rule 12(b)(6). Upon consideration of the motions, the responses and the replies thereto, the applicable law, and for the reasons set forth below, the Court hereby GRANTS the partial motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). The Court therefore does not reach the analysis under Rule 12(b)(6) as to whether plaintiffs have failed to make out a claim that the EPA has the authority to regulate lead shot and bullets.

I.BACKGROUND

A.Statutory Background

Congress enacted TSCA in 1976 to prevent unreasonable risks of injury to human health or the environment associated with the manufacture, processing, distribution in commerce, use, or disposal of chemical substances and mixtures. See 15 U.S.C. § 2601(a). Specifically, under Section 2605 of TSCA, if the EPA finds that "the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that any combination of such activities, presents or will present an unreasonable risk of injury to health or the environment," the Agency "shall by rule apply one or more of [several listed regulatory requirements] to such substance or mixture to the extent necessary to protect adequately against such risk using the least burdensome requirements . . . ." Id. § 2605(a).

TSCA defines the term "chemical substance" as "any organic or inorganic substance of a particular molecular identity, including (i) any combination of such substances occurring in whole or in part as a result of a chemical reaction or occurring in nature, and (ii) any element or uncombined radical." Id. § 2602(2)(A). However, the statutory definition of "chemical substance" excludes from regulation, by reference to Section 4181 of the Internal Revenue Code, "pistols, revolvers . . . firearms (other than pistols and revolvers), shells, and cartridges." 26 U.S.C. § 4181; see 15 U.S.C. § 2602(2)(B)(v). The House Legislative Committee responsible for authoring TSCA explained:

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 Administrator 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.

H. Rep. No. 94-1341, at 10 (1976) (emphasis added).

Section 21 of TSCA, the Act's citizen petition provision, allows "[a]ny person [to] petition the Administrator to initiate a proceeding for the issuance . . . of a rule" under one of several different sections of TSCA. 15 U.S.C. § 2620(a). The petition must "set forth the facts which it is claimed establish that it is necessary to issue . . . a rule[.]" Id. § 2620(b)(1). The Administrator has 90 days after the filing of a rulemaking petition to "either grant or deny" the petition; if the Administrator denies the petition, the EPA must publish the reasons for its denial in the Federal Register. Id. § 2620(b)(3). If the Administrator "denies a petition . . . the petitioner may 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). If a petitioner chooses to file a civil action, "[a]ny such action shall be filed within 60 days after the Administrator's denial of the petition[.]" Id.

B.Factual and Procedural Background

On August 3, 2010, plaintiffs submitted the Rulemaking Petition, titled "Petition to the Environmental Protection Agency to Ban Lead Shot, Bullets and Fishing Sinkers Under the Toxic Substances Control Act." Federal Defs.' Mem. Ex. 1; see also Compl. ¶¶ 3, 45. According to plaintiffs, although the EPA has already declared that lead is a toxic substance and has implemented some regulations to reduce lead exposure, lead still remains widely encountered by wildlife and distributed in the environment from spent lead ammunition and lost lead fishing tackle. See Compl. ¶¶ 2, 24.

On August 27, 2010, the EPA sent a letter to plaintiffs indicating that it was "denying that portion of [plaintiffs'] petition" dealing with lead shot and bullets, explaining that "[a]fter careful review, EPA has determined that TSCA does not provide the Agency with authority to address lead shot and bullets . . . due to the exclusion found in TSCA § 3(2)(B)(v)." Federal Defs.' Mem. Ex. 2; see also Compl. ¶¶ 4, 50. On September 24, 2010, the EPA published in the Federal Register its reasons for denying plaintiffs' request to regulate lead shot and bullets. See Compl. ¶¶ 4, ...


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