Lead Ban
A challenge to EPA’s denial of the petition to ban lead ammo.
Remember, I do this to entertain me, not you.
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September 18th, 2010 at 4:30 pm
Dear lord, do these fools EVER give up?
September 18th, 2010 at 6:43 pm
Told you these guys will never quit.
September 18th, 2010 at 8:11 pm
That’s why they win. They never stop pushing.
Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. ~ C. S. Lewis
September 18th, 2010 at 11:21 pm
The FOIA request the noisome enviro-whackos have filed should be returned quickly, and include a copy of the relevant statute, with yellow hi-liter all over the part where the law says “this isn’t for regulating bullets and sinkers”
September 20th, 2010 at 12:06 pm
CBD will sue once their 60 day notice runs. Period.
The suit will be filed in the U.S. District Court for the Northern District of California, in San Francisco. If they lose (unlikely), they will appeal it to the Ninth Circuit Court of Appeals, also in San Francisco. Both courts are packed with anti-gun liberals, but it’s hard to say which will give CBD everything they want, first.
Of course, I’m no unique, legal genius, EPA knows all this, as well. That’s why they rejected the petition without creating any administrative record, meaning CBD can now challenge the EPA denial on procedural grounds. Smart money will watch for EPA quietly entering into a consent decree promising to propose a lead ammunition ban, once the inevitable CBD suit has been filed.
September 20th, 2010 at 4:45 pm
What procedural grounds can they challenge on, exactly? What do you mean about “no administrative record”, precisely?
I’ve seen no reason at all to believe that the EPA doesn’t have considerable “administrative records” internally about the research chain leading to “we can’t legally do that”.
And why would the EPA enter such a decree, knowing they’d lose once it was challenged, since it’s explicitly outside their authority under statute?
(Imagine what the Supreme Court would do with a Heller challenge here, what with the statute explicitly saying EPA cannot do that?
The Supreme Court, given actual recent decisions, would throw the “ban” out on its ear, and possibly award damages against the EPA for blatant disregard for the law, if there’s any way to do that – and I bet every ammunition maker in the country would be in on the lawsuit in spades.)
September 20th, 2010 at 5:13 pm
CBD will likely file a straight APA challenge, alleging EPA was arbitrary and capricious in rejecting their petition. The administrative record at EPA, for political reasons on both sides, is probably very “light.” They may have research, but I didn’t see anything in a docket demonstrating the agency had addressed all of CBD’s legal concerns. I have a cynical view of this EPA–don’t ask why–and would not doubt for a second that they would engage in collusive settlement with CBD if the issue was something near and dear to EPA leadership.
Heller is immaterial to whether any regulation by EPA on lead ammunition passed strict scrutiny review. Heller just found that a fundamental individual right to keep and bear arms existed, not that any agency regulating such at any time for any reason wouldn’t pass muster. While I agree that EPA does not have the authority here to promulgate a rule regulating lead ammunition under RCRA or CERCLA, I don’t think any of us would like the outcome of a Ninth Circuit Court of Appeals or Supreme Court case where enviros challenge an EPA decision not to do so, and intervenors raised the Second Amendment as an absolute defense to a statutory interpretation/APA procedure challenge. When confronted with a defense which could remove agency deference in environmental or other safety regulations, you could probably find a solid majority stating that the 2nd is not absolute, and that environmental statutes and regulation can pass even strict scrutiny if they are not on their face intended to infringe on the right to keep and bear arms. Heck, even if the challenge was ultimately determined on statutory interpretation grounds against CBD, the Supreme Court could put out some weird dicta (or even some sort of precedent) that would give agencies free reign to implement regulations that infringe on other fundamental rights guaranteed in the Bill of Rights by hiding behind other compelling state interests and the narrowness of their regulation.
That’s a lot of ranting, don’t mean to be a slippery slope type, but the short version is, expect litigation by CBD, and keep an eye on what EPA does in response.