- The Washington Times - Tuesday, February 1, 2011

ANALYSIS/OPINION:

On the rare occasion when federal bureaucrats waver in their commitment to expanding their own regulatory power, environmental extremists can always be counted on to look for a sympathetic judge to expand it for them. The latest clever scheme would undermine the right of Americans to hunt and fish, using the judicial branch to implement policies too hot for regulators or lawmakers to touch. Congress needs to step in and disarm this assault on traditional sporting activities.

The California-based Center for Biological Diversity (CBD) fired the first shot in August when it asked the Environmental Protection Agency (EPA) to ban lead in ammunition and fishing tackle. The EPA quickly rejected the petition, saying it lacked legal authority to impose a ban on ammo. The agency followed up in November with an announcement that a prohibition on lead in fishing tackle was unnecessary. Like clockwork, the CBD and a group of federal, state and local bureaucrats marched into federal district court hoping that a favorable ruling would force the EPA to ban inexpensive, reliable bullets and angling gear.

The case turns on an interpretation of the Toxic Substance Control Act of 1976, through which Congress empowered the EPA with broad regulatory authority - with an important exception. Thinking ahead, the legislators specifically prohibited the agency from applying its power to the restriction of firearms and ammunition. In its lawsuit, the CBD attempts to draw a distinction between ammunition and its chemical components, arguing that while restrictions on ammunition might be off-limits, its lead make-up is not. That’s a distinction without a difference, says National Rifle Association executive director Chris Cox in America’s First Freedom magazine: “If Congress exempts a cow from regulation, one could hardly argue that it would nevertheless allow for regulation of the hide attached to the cow’s body.”

The groups behind the lawsuit insist they aren’t anti-hunting or anti-fishing. Rather, their claim is that lead pellets from ammunition are scattered in the wilderness and ingested by foraging fauna, resulting in 10-20 million annual animal and bird deaths from lead poisoning. Hunters contend the extreme density of lead makes it the ideal component for ammo and substitutes would compromise accuracy and stopping power. Hunters tend to be conservationists and aren’t inclined to needlessly despoil their favorite environs. It’s not hard to imagine that leftists see this issue as an ideal Trojan Horse to undermine the fundamental right of Americans to keep and bear arms.

Neither the courts nor regulatory agencies have any business resolving disputes that ought to be decided by elected officials accountable for their decisions. In the last Congress, Rep. Paul Broun, Georgia Republican, introduced legislation barring the EPA from regulating any type of firearm ammunition or fishing tackle based on material composition. Congressional defenders of the Second Amendment should enact legislation of this sort to ensure attempts to draw a bead on lead ammo miss the mark.

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