Trumpeter Swan Society v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2014 Decided December 23, 2014
No. 13-5228
TRUMPETER S WAN S OCIETY, ET AL.,
APPELLANTS
v.
ENVIRONMENTAL P ROTECTION AGENCY , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00929)
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.
Christopher L. Bell argued the cause for intervenor-
appellees. With him on the brief were Christopher A. Conte,
Robert N. Steinwurtzel, Michael Steven Snarr, Thomas
Edward Hogan, and Anna M. Seidman. Roger R. Martella Jr.
entered an appearance.

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Before: TATEL, M ILLETT and P ILLARD, 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 Toxic Substances Control
Act (TSCA), which allows “any person” to petition the
Environmental Protection Agency for a rulemaking
proceeding to regulate “chemical substances” that “present an
unreasonable risk of injury to health or the environment,”
filed a petition with EPA asking it to regulate spent lead
bullets and shot. EPA rejected the petition as “not . . .
cognizable” under section 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 another
provision of TSCA, section 3(2)(B)(v), exempts cartridges
and shells from the definition of “chemical substance.” The
district court held that EPA had authority to classify the
petition as non-cognizable under TSCA and dismissed the
complaint. Although we disagree with the district court—
nothing in section 21 allowed EPA to dismiss this petition as
non-cognizable—we nonetheless affirm because the
environmental groups have suggested no way in which EPA
could regulate spent lead bullets and shot without also
regulating cartridges and shells—precisely what section
3(2)(B)(v) prohibits.
I.
Concerned that “human beings and the environment are
being exposed each year to a large number of chemical
substances and mixtures,” 15 U.S.C. § 2601(a)(1), Congress
enacted TSCA, which authorizes EPA to regulate “chemical
substance[s]” that it has a “reasonable basis to

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conclude . . . present[] or will present an unreasonable risk of
injury to health or the environment,” id. § 2605(a). TSCA
includes unusually powerful procedures for citizens to force
EPA’s hand. Section 21 provides that “[a]ny person” may
petition the agency to initiate a rulemaking proceeding, id.
§ 2620(a), and requires that “[s]uch petition shall be filed in
the principal office of the Administrator and shall set forth the
facts which it is claimed establish that it is necessary to
issue . . . a rule,” id. § 2620(b)(1). The statute requires EPA to
grant or deny such a petition within 90 days, and if it denies
the petition “the Administrator shall publish in the Federal
Register the Administrator’s reasons for such denial.” Id.
§ 2620(b)(3). In such a case, or if EPA fails to act within 90
days, the petitioner may, within 60 days, “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). “The
petitioner,” moreover, is “provided an opportunity to have
such petition considered by the court in a de novo
proceeding.” Id. § 2620(b)(4)(B). If the petitioner
demonstrates by a preponderance of the evidence that “there
is a reasonable basis to conclude that the issuance of such a
rule or order is necessary to protect health or the environment
against an unreasonable risk of injury,” the court “shall order
the Administrator to initiate the action requested by the
petitioner.” Id. § 2620(b)(4)(B)(ii).
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

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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,” 15 U.S.C. § 2602(2)(B)(v), which in turn taxes
“[s]hells and cartridges,” 26 U.S.C. § 4181. As required by
section 21, EPA published this ruling in the Federal Register.
See Notices: Environmental Protection Agency, Lead in
Ammunition and Fishing Sinkers; Disposition of TSCA
Section 21 Petition, 75 Fed. Reg. 58,377 (Sep. 24, 2010).
Three of the environmental groups, seeking de novo review,
filed suit in the U.S. District Court for the District of
Columbia but not until after 60 days had passed from
publication in the Federal Register of EPA’s partial denial of
their petition. The district court dismissed the complaint for
lack of jurisdiction, Center for Biological Diversity v.
Jackson, 815 F. Supp. 2d 85, 94 (D.D.C. 2011), and the
environmental groups never appealed.
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

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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

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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 (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. 15 U.S.C. § 2620(a). Critically for our purposes,
section 21 requires that a petition satisfy only two
requirements: that it be filed in EPA’s principal office and
that it set forth facts establishing the need for the requested
rule. Id. § 2620(b)(1). Equally critically, section 21 gives EPA
only three options: grant the petition, deny the petition, or
take no action at all (which has the same effect as a denial).
Id. § 2620(b)(3)–(4). Nothing in section 21, however,
empowers EPA to declare that a petition, which satisfies the
two statutory requirements—both of which EPA
acknowledges were met here—is nonetheless “not
cognizable.” Indeed, allowing EPA to do so would permit it to
defeat TSCA’s unusually powerful citizen-petition
procedures. Take this case, for example. Even though TSCA

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section 21 gives “any person” the right to “petition” the
agency to initiate a toxic-substance rulemaking, EPA has
denied that right to the dozens of environmental organizations
that were not party to the earlier petition. To be sure, EPA
went on to reiterate its 2010 ruling that it lacked statutory
authority to regulate bullets and shot, but under its view, as
well as that of the district court, the environmental groups
would be denied the de novo judicial review guaranteed by
TSCA. In other words, according to EPA, its determination in
this case that it lacks authority to regulate bullets and shot is
immune from the de novo judicial review that TSCA
guarantees. This is hardly what Congress intended.
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 (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

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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 (2008) (“By
‘preclud[ing] parties from contesting matters that they have
had a full and fair opportunity to litigate,’ th[is] . . . doctrine[]
protect[s] against ‘the expense and vexation attending
multiple lawsuits, conserv[es] judicial resources, and foste[rs]
reliance on judicial action by minimizing the possibility of
inconsistent decisions.’” (quoting Montana v. United States,
440 U.S. 147, 153–54 (1979))). In other words, both EPA
and the courts have ample authority to protect their resources
without undermining the force of TSCA’s citizen-petition
provisions.

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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 . . . .” 15
U.S.C. § 2620(b)(4)(B)(ii). Here, however, we face an
antecedent issue. According to EPA, TSCA section 3(2)(B)(v)
excludes bullets and shot from the definition of “chemical
substance.” If this is correct, then we would have no reason to
consider whether the environmental groups have satisfied
section 21’s health or environment standard.
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., 134 S. Ct. 1744, 1748 (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

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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
cartridges.” TSCA section 3(2)(B)(v) thus exempts “shells
and cartridges” from the definition of “chemical substance.”
Given that bullets and shot can become “spent” only if they
are first contained in a cartridge or shell and then fired from a
weapon, petitioners have identified no way in which EPA
could regulate spent bullets and shot without also regulating
cartridges and shells—precisely what section 3(2)(B)(v)
prohibits. This understanding is reinforced by regulations
issued pursuant to I.R.C. section 4181, which define “[s]hells
and cartridges” as “[i]nclud[ing] any article consisting of a
projectile, explosive, and container that is designed,
assembled, and ready for use without further manufacture in
firearms, pistols or revolvers.” 27 C.F.R. § 53.11. Because

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bullets and shot are “projectiles,” and because spent bullets
and shot must have been included in an “article”—along with
an “explosive” and “container”—“designed, assembled, and
ready for use without further manufacture,” this regulation
makes clear that TSCA section 3(2)(B)(v) exempts spent
bullets and shot from the definition of “chemical substance.”
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 . . . .” 27 C.F.R. § 53.61(b)(1)
(emphasis added). But this would help the environmental
groups only if their petition had asked EPA for a rulemaking
concerning bullets and shot sold separately. True, at oral

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argument, counsel for the environmental groups insisted that
“[a]ll we’re trying to regulate are bullets sold separately,
whether to a hunter or to a manufacturer of cartridges.” Oral
Argument Rec. at 54:30–:36. But as explained above, see
supra at pp. 9–10, in their petition the environmental groups
focused only on spent bullets and shot and, except for one
stray and ambiguous reference (on page 54 of a 69-page
petition) to “[s]portsmen who reload rifle and pistol
ammunition,” 2012 Petition at 54, made no reference at all to
bullets and shot sold separately. Nor did the environmental
groups give any hint in the district court or in their briefs filed
here that they were seeking the regulation of separately sold
bullets and shot. The argument is thus triply forfeit. See
Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1290
(D.C. Cir. 2004) (“As a general rule, claims not presented to
the agency may not be made for the first time to a reviewing
court.”) (internal quotation marks omitted); Figueroa v.
District of Columbia Metropolitan Police Department, 633
F.3d 1129, 1133 n.3 (D.C. Cir. 2011) (“Ordinarily, we do not
consider arguments raised for the first time on appeal . . . .”);
Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108
n.4 (D.C. Cir. 2003) (argument cannot be raised for the first
time at oral argument).
IV.
We therefore affirm the district court’s dismissal of the
complaint.
So ordered.

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