TRUMPETER SWAN SOCIETY, et al., Appellants, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.
No. 13-5228.
United States Court of Appeals, District of Columbia Circuit.
Dec. 23, 2014.
774 F.3d 1037
Since the time of our Nation‘s founding, Congress has passed numerous informer statutes. As noted above, however, Dr. Bauer has not identified any decision issued by the Supreme Court or a federal appellate court in which a private informer was allowed to pursue forfeiture pursuant to a statute that did not explicitly grant or clearly imply a private cause of action. We can find no such case. Several courts and scholars have extensively surveyed the field and have found near-universal agreement that a statute must clearly indicate a private cause of action, and that language such as that in the Neutrality Act is insufficient. See, e.g., Conn. Action Now, Inc., 457 F.2d at 84 (“All of the past rulings (of which we are aware) upholding a private right to sue turned on language which stated expressly or clearly implied that the informer could begin the proceeding without waiting for governmental action.“); id. at 84 & n. 4 (collecting cases and statutes); Omaha & R.V.R. Co. v. Hale, 45 Neb. 418, 63 N.W. 849, 850-51 (1895) (surveying examples and finding no “serious conflict” on this point); Drew v. Hilliker, 56 Vt. 641, 645 (1884) (discussing typical linguistic formulations that trigger a private cause of action); William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. PA. L. REV. 761, 787-88 & nn. 171-74 (1971) (surveying authorities).
We have found only one, one-hundred-fifty year old, state court decision whose holding appears to support Dr. Bauer‘s position. Chi. & Alton R.R. Co. v. Howard, 38 Ill. 414 (1865). In that case, the Illinois Supreme Court interpreted a state statute with informer language similar to the language in the Neutrality Act, and held that it afforded an informer a right to pursue a qui tam action for the recovery of various statutory penalties. Courts and commentators have noted the aberrant nature of the decision, repudiated it, and occasionally even offered theories for how it is consistent with the general rule. Rodgers, Industrial Water Pollution, supra, at 788 & nn. 173-74 (singling Howard out as aberrant and repudiated); Hale, 63 N.W. at 850-51 (disagreeing with Howard); Conn. Action Now, Inc., 457 F.2d at 85 n. 6 (characterizing Howard‘s reasoning as consistent with the general rule). In any event, the decision is neither controlling nor convincing, so it offers no solace to Dr. Bauer here.
CONCLUSION
For the reasons discussed above, we affirm the judgment of the District Court dismissing the complaint. We do so, however, on the ground that Dr. Bauer lacks standing to pursue his action under the Neutrality Act.
So ordered.
William J. Snape, III argued the cause for appellants. With him on the briefs was Adam F. Keats.
Jennifer S. Neumann, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Robert G. Dreher, Acting Assistant Attorney General, and J. David Gunter II and Justin D. Heminger, Attorneys.
Before: TATEL, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge:
In this case, 101 environmental groups, invoking section 21 of the
Concerned that “human beings and the environment are being exposed each year to a large number of chemical substances and mixtures,”
In 2010, prior to the filing of the petition at issue in this case, five environmental groups petitioned EPA pursuant to TSCA section 21 for a rulemaking to prohibit, among other things, the “manufacture, processing and distribution in commerce of lead shot [and] bullets.” Petition to the Environmental Protection Agency to Ban Lead Shot, Bullets, and Fishing Sinkers Under the Toxic Substances Control Act 2 (August 3, 2010) (“2010 Petition“). According to those environmental groups, “spent lead ammunition,” id., poses an “ongoing threat of lead poisoning,” id. at 7. EPA denied that portion of the petition on the ground that “TSCA does not provide the Agency with authority to address lead shot and bullets as requested . . . due to the exclusion found in TSCA § 3(2)(B)(v).” Letter from Stephen A. Owens, Assistant Administrator, U.S. EPA, to Michael Fry, Director of Conservation Advocacy, American Bird Conservancy (August 27, 2010) (“2010 EPA Letter“). That section exempts from the definition of “chemical substance,” and therefore from TSCA‘s scope, “any article the sale of which is subject to the tax imposed by section 4181 of the Internal Revenue Code,”
Six months later, two of the environmental groups, now joined by 99 other organizations, submitted the instant petition concerning “spent lead ammunition,” this time seeking “regulations that adequately protect wildlife, human health and the environment against the unreasonable risk of injury from bullets and shot containing lead used in hunting and shooting sports.” Petition to the Environmental Protection Agency to Regulate Lead Bullets and Shot under the Toxic Substances Control Act (March 13, 2012) (“2012 Petition“) at 2, 4 (emphasis added). In response, EPA ruled that because two of the groups had been part of the earlier petition and the two petitions were largely redundant, the 2012 petition did not qualify as a “new petition cognizable under section 21.” Letter from James J. Jones, Acting Assistant Administrator, U.S. EPA, to Jeff Miller, Center for Biological Diversity 1 (Apr. 9, 2012) (“2012 EPA Letter“). Moreover, EPA explained, “even if the 2012 submission were considered to be a new or different petition cognizable under section 21 of TSCA,” EPA “would deny it for the same reasons it denied the [earlier] petition.” Id. at 2. EPA did not publish this rejection in the Federal Register. See id.
Seeking de novo judicial review pursuant to section 21, seven of the 101 environmental groups, only one of which had participated in the 2010 petition, filed suit, arguing that EPA lacked authority to classify their petition as “not . . . a new petition cognizable under section 21.” Amended Complaint 1-3. The district court agreed with EPA and dismissed the complaint for lack of jurisdiction. Motion to Dismiss Hearing Tr. 48 (May 23, 2013). According to the district court, the term “petition“—undefined in TSCA—is ambiguous and “EPA‘s interpretation is persuasive.” Id. at 63-66. Given this, the district court found it unnecessary to consider whether EPA has statutory authority to regulate bullets and shot. Id. at 48.
The environmental groups now appeal, arguing (1) that EPA lacked authority to treat their petition as “not . . . cognizable under section 21” and (2) that TSCA section 3(2)(B)(v) does not prohibit EPA from regulating spent lead bullets and shot. Addressing these issues in turn, “[w]e review de novo the District Court‘s dismissal of claims for want of subject matter jurisdiction. . . .” El Paso Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C.Cir. 2014).
II.
As in so many of our cases, the Supreme Court‘s decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), guides our review of EPA‘s interpretation of TSCA. “If this court ascertains that Congress has directly spoken to the precise question at issue, then both the court and EPA ‘must give effect to the unambiguously expressed intent of Congress.‘” Chemical Manufacturers Association v. EPA, 859 F.2d 977, 984 (1988) (quoting Chevron, 467 U.S. at 842-43) (applying Chevron framework to EPA‘s interpretation of TSCA). Only if the statute is ambiguous do we defer to the agency‘s reasonable construction. Id.
Here, unlike the district court, we see nothing ambiguous about TSCA section 21. That provision allows “[a]ny person” to petition the agency for a rulemaking to regulate a toxic substance.
Notwithstanding TSCA‘s clarity, EPA insists that it must be able to declare certain petitions non-cognizable because any other reading of TSCA would “render the 60-day limitations period in Section 21 meaningless.” Appellees’ Br. 23. Specifically, EPA worries that a contrary reading “would particularly burden EPA and the courts because it would encourage petitioners—whether or not they had sought judicial review of an earlier petition—to file successive petitions in the hopes of obtaining favorable de novo review.” Id. Citing the principle that “[a] statute should be construed so that effect is given to all its provisions,” id. at 21 (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)), EPA argues that it must have authority to define “petition” as excluding repetitive petitions in order to give effect to the 60-day limit. At oral argument, EPA counsel candidly acknowledged that this is the crux of the agency‘s position in this case.
We have two reactions to this argument. For one thing, it has no applicability to the 99 organizations that were not parties to the 2010 petition. No one can argue they are “successive petition[ers].” Appellees’ Br. 23. To be sure, as EPA counsel implied at oral argument, the two 2010 petitioners may well have recruited the 99 additional organizations to file a new petition. But TSCA gives “any person” the right to file a petition, and we see no statutory basis for allowing EPA to declare a petition “not cognizable” simply because the agency suspects it was filed at the suggestion of an earlier petitioner.
EPA, moreover, has all the authority it needs to protect its resources in the face of repeat petitioners. If a party files a second petition similar to an earlier one, EPA can summarily deny it, citing the reasons given in its response to the first petition. Indeed, this approach would have consumed considerably fewer agency resources than the one it chose here: it took EPA two pages to explain its creative rejection of the 2012 petition, but only four sentences to deny the 2010 petition on the merits. Nor, contrary to EPA‘s argument, would denying it the power to dismiss qualifying petitions as non-cognizable impose any unmanageable burden on the courts. If a court, acting pursuant to section 21‘s de novo judicial review provisions, affirms EPA‘s denial of a petition on its merits, that decision would be res judicata in any case brought by the same petitioner raising the same issue. See Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161,
III.
This, then, brings us to the merits. In the normal TSCA section 21 case, we would review the administrative record to determine whether the environmental groups had, as they claim, demonstrated by a preponderance of the evidence that “there is a reasonable basis to conclude that the issuance of [the requested rule] is necessary to protect health or the environment against an unreasonable risk of injury. . . .”
The environmental groups urge us not to resolve this antecedent issue, but rather to “remand[] back to the District Court with instructions, to order the agency to comply with TSCA‘s petition provisions and either grant or deny appellants’ petition.” Appellants’ Br. 26. But the question before us is a legal one, our review is de novo, and both the environmental groups and EPA made clear at oral argument that no additional facts are necessary to resolve the matter. See Highmark, Inc. v. Allcare Health Management System, Inc., — U.S. —, 134 S.Ct. 1744, 1748, 188 L.Ed.2d 829 (2014) (“[D]ecisions on questions of law are reviewable de novo.“) (internal quotation marks omitted). For reasons of judicial efficiency, therefore, we shall proceed to the merits.
Significantly for the issue before us, the environmental groups seek regulation of spent bullets and shot. In their petition, they recount numerous harms resulting from the fact that “spent lead ammunition is uncontrolled and lead remains widely encountered and distributed in the environment from hunting and sport shooting sources.” 2012 Petition at 2 (emphasis added). They repeat this point throughout the petition. See, e.g., id. at 20 (“Spent lead shotgun pellets on the ground in fields where upland game birds are hunted are also ingested by birds as grit making herbivorous birds as well as carnivorous birds victims of lead poisoning.“) (emphasis added); id. at 50 (“The most serious exposure is from accidental ingestion of lead shot pellets or lead bullet fragments in [] meat.“). In conclusion, they claim to have “set forth the facts establishing the indisputable toxicity of spent lead bullets and shotgun pellets,” id. at 68 (emphasis added), and argue that these facts “support[] the conclusion that the risk is such that lead shot and bullets should be regulated under the Act,” id. at 69.
We agree with EPA that it lacks statutory authority to regulate the type of spent bullets and shot identified in the environmental groups’ petition. TSCA section 3(2)(B)(v) unambiguously exempts “article[s] the sale of which [are] subject to the tax imposed by section 4181 of the Internal Revenue Code” from the definition of “chemical substance.” Section 4181 is equally unambiguous: it taxes “shells and
The environmental groups agree that were they seeking to regulate “shells and cartridges, EPA would be justified in claiming that it lacks the authority to regulate such products.” Appellants’ Br. 23. According to the environmental groups, however, they seek not regulation of shells and cartridges, but rather the “lead in bullets and shot.” Id. Insisting that “[t]his is not mere semantics to skirt the intention of the law,” id. at 24, they point to legislative history of TSCA stating that section 3(2)(B)(v) “does not exclude from regulation under the bill chemical components of ammunition which could be hazardous because of their chemical properties,” id. (quoting H.R. Rep. No 94-1341 at 10). But even if TSCA‘s legislative history were relevant, this argument does not help the environmental groups. No matter how one characterizes their claim—whether as an effort to regulate cartridges and shells (EPA‘s view) or as an attempt to regulate the lead in bullets and shot (the environmental groups’ view)—their petition seeks the regulation of spent lead yet suggests no way in which EPA could regulate spent lead without also regulating cartridges and shells.
Finally, the environmental groups point out that under the section 4181 regulations “[n]o tax is imposed by section 4181 . . . on the sale of parts or accessories of . . . shells and cartridges when sold separately. . . .”
IV.
We therefore affirm the district court‘s dismissal of the complaint.
So ordered.