Trumpeter Swan Society v. Environmental Protection Agency
774 F.3d 1037
D.C. Cir.2014Background
- In 2010 five environmental groups petitioned EPA under TSCA §21 to ban lead shot, bullets, and fishing sinkers; EPA partially denied the petition, citing TSCA §3(2)(B)(v) (an exemption for articles taxed as "shells and cartridges") and published the denial. Petitioners later sued but their suit was dismissed for lack of jurisdiction and not appealed.
- In 2012 101 environmental groups (including two from 2010) filed a new TSCA §21 petition seeking regulation of spent lead bullets and shot. EPA refused to treat the 2012 filing as a "cognizable" new petition because it largely duplicated the 2010 petition, and reiterated its view that TSCA §3(2)(B)(v) bars regulation of cartridges and shells.
- Seven of the 101 groups sued seeking de novo judicial review under TSCA §21, arguing EPA had no authority to deem the petition non‑cognizable and that TSCA does not bar regulation of spent lead bullets and shot.
- The district court accepted EPA’s interpretation that it could deem the petition non‑cognizable and dismissed for lack of jurisdiction. The groups appealed.
- The D.C. Circuit held (1) TSCA §21 is unambiguous and does not authorize EPA to declare a qualifying petition "not cognizable," so EPA’s dismissal on that ground was unlawful; but (2) TSCA §3(2)(B)(v) unambiguously exempts "shells and cartridges" (and therefore spent bullets/shot that originate in them) from the definition of "chemical substance," so EPA lacks authority to regulate the spent ammunition targeted in the petition. The court affirmed the dismissal on that statutory‑authority ground.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA may deem a qualifying TSCA §21 petition "not cognizable" when it largely duplicates an earlier petition | EPA argues any person may petition and this petition is cognizable; agency may not evade de novo review | EPA: it can treat repetitive or duplicative submissions as non‑cognizable to avoid endless successive petitions and preserve the 60‑day limitations regime | Court: TSCA §21 does not authorize EPA to declare a qualifying petition "not cognizable"; EPA erred in that respect, but remedy unnecessary because of disposition on another ground |
| Whether TSCA §3(2)(B)(v) bars EPA from regulating spent lead bullets and shot | Petitioners: EPA can regulate the lead in bullets/shot (not the cartridges/shells) and legislative history supports regulating hazardous components | EPA: §3(2)(B)(v) exempts "articles" taxed as shells and cartridges from the definition of "chemical substance," and spent bullets/shot necessarily originate in cartridges/shells | Court: §3(2)(B)(v) and I.R.C. §4181 (and implementing regs) unambiguously exempt shells and cartridges; because bullets/shot become spent only after being in shells/cartridges, EPA lacks authority to regulate the spent ammunition described in the petition; affirmed dismissal |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (framework for judicial review of agency statutory interpretation)
- Chemical Manufacturers Ass'n v. EPA, 859 F.2d 977 (D.C. Cir. 1988) (applies Chevron to EPA's TSCA interpretations)
- El Paso Natural Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014) (standard for reviewing jurisdictional dismissals de novo)
- Taylor v. Sturgell, 553 U.S. 880 (preclusion prevents relitigation by parties who had full and fair opportunity)
- Montana v. United States, 440 U.S. 147 (res judicata policy considerations)
- Hibbs v. Winn, 542 U.S. 88 (statutory construction principle: give effect to all provisions)
- Highmark, Inc. v. Allcare Health Mgmt. Sys., 134 S. Ct. 1744 (de novo review of legal questions)