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Trumpeter Swan Society v. Environmental Protection Agency

ELR Citation: 44 ELR 20278
Nos. 13-5228, (D.C. Cir., 12/23/2014)

The D.C. Circuit upheld EPA's denial of a petition filed by 101 environmental groups asking the Agency to regulate spent lead bullets and shot under TSCA. EPA rejected the petition as “non-cognizable” under TSCA §21 on the grounds that it largely duplicated an earlier petition that two of the 101 groups had filed. EPA went on to explain that, even were it to consider the petition, it would deny it on the merits because TSCA §3(2)(B)(v) exempts cartridges and shells from the definition of "chemical substance." The groups then filed a complaint in district court, which dismissed, ruling that EPA had authority to classify the petition as non-cognizable. The groups then appealed. The appellate court affirmed, albeit on different grounds. Nothing in §21 allowed EPA to dismiss the petition as non-cognizable. Nevertheless, the court affirmed because the groups have suggested no way in which EPA could regulate spent lead bullets and shot without also regulating cartridges and shells—precisely what §3(2)(B)(v) prohibits. As such, EPA lacks statutory authority to regulate the type of spent bullets and shot identified in the petition.