Choosing Between Guns and the Environment

Guns and the environment are among today’s most controversial political issues. What happens when they are pitted against each another? In Florida, guns win out, at least according to a recent paper by Rachel Deming of the Dwayne O. Andreas School of Law at Barry University. Deming argues that a Florida law that protects firing ranges from certain environmental legal actions if the ranges agree to self-regulate prioritizes the right to use guns over environmental protection, threatening natural resources and human welfare. Firing ranges pose significant environmental risks due to contamination from the materials associated with gun use, argues Deming. These contaminants include lead, copper, zinc, antimony, and even mercury, all of which can sink into the soil and sometimes leach into groundwater and surface water. Exposure to these contaminants through the soil or water can lead to illness and possibly death for those who spend significant amounts of time in contaminated areas, such as workers and visitors. Regulators are well aware of these risks, Deming explains. The U.S. Environmental Protection Agency (EPA) notes that much of the 80,000 tons of lead involved in the production of bullets ends up in firing ranges. Meanwhile, EPA’s Florida counterpart, the Department of Environmental Protection, warns that “proper management” of shooting ranges is essential for avoiding lead contamination in water supplies. Deming asserts that, despite widespread acknowledgement of the dangers of improperly managed shooting ranges, the Florida legislature has preferred to protect the right to use guns over environmental protection. In 2004, Florida codified a proposal from the National Rifle Association (NRA) and the National Shooting Sports Foundation to preempt regulation of “the environmental effects of projectile deposition at sport shooting and training ranges.” This exemption protects gun range owners from lawsuits, provided that they “implement situation appropriate environmental management practices.” Deming notes that the statute omits any definition or examples of what constitutes “situation appropriate” practices, and that it instead requires the state’s environmental agency to circulate a guide to firing range owners in Florida. The protections for firing range owners do not stop there, Deming states. As long as firing range owners make a “good faith effort” to comply with the guidelines from the state environmental agency, they cannot be held liable for contamination stemming from the gun projectiles. In Deming’s view, this provision releases firing range owners from liability and has the effect of making the state of Florida responsible for their pollution, placing an unnecessary burden on taxpayers. In addition, the law provides that any government official who attempts to hold firing range owners responsible for pollution could face a misdemeanor charge and up to $1,000 in fines. Deming concludes that county and state governments are effectively powerless to protect the health, safety, and welfare of their citizens against firing range owners’ environmental impacts. She finds the law to be, in short, “simply not justifiable.” Nevertheless, supporters of Florida’s law argue that the law is, in fact, justified. They argue that it is important to protect firing ranges—many of which are small businesses—from facing crushing liability that would almost undoubtedly force them to close if they are required to pay for environmental cleanup costs. Industry groups and the NRA also point to constitutional law for support, in particular the oft-cited Second Amendment of the U.S. Constitution as well as an analogous provision in the Florida Constitution. The Florida legislature has recognized that the state constitution protects the right to bear arms for hunting, sporting, defense, and collectibles. The Florida legislature has also claimed that protecting firing ranges from burdensome regulation is necessary to promote the state’s interest in promoting training in the safe use of guns. Deming responds to these arguments by pointing to the increase in accidental gun-related deaths in recent years, particularly in Florida, which has a non-fatal gunshot wound average that is twice the national average. Moreover, she notes that the Florida Supreme Court has ruled that the right to bear arms is “not absolute.” The Florida senate has also concluded that the state may regulate firing ranges to protect people. Deming’s article was recently published in the Colorado Natural Resources, Energy, & Environmental Law Review