Law360 (June 5, 2020, 9:39 PM EDT) — The U.S. Environmental Protection Agency will square off at trial Monday in California federal court against groups seeking to force the EPA to ban the addition of fluoride to drinking water, in a closely watched case that could affect nearly 200 million Americans who drink fluoridated water.
Using the Toxic Substances Control Act’s citizen suit provision, Food & Water Watch — along with other groups and individuals — has asked the court to overturn the EPA’s rejection of their 2016 petition to ban fluoride in drinking water and order the agency to act. The case will test citizens’ and nongovernmental organizations’ power to force the agency to regulate chemicals it has deemed to be safe based on how a judge assess the scientific studies and expert testimony that both sides will present at trial. If the plaintiffs are successful, it could embolden others to attempt similar litigation.
U.S. District Judge Edward Chen has overseen the litigation since it kicked off in 2017 and has denied both the EPA’s and the plaintiffs’ various dismissal and summary judgment motions, teeing up the trial set to begin Monday. In a last-minute decision, the judge late last month ordered the trial to be bifurcated, with phase one focusing on whether fluoride poses an unreasonable risk to people who drink water that contains it. If the judge finds that it does, the trial will move to a second phase in which he’ll determine a remedy, which could come in the form of a complete ban or something less.
Although the Northern District of California federal courts do see a fair amount of environmental litigation, this kind of deep dive into the TSCA is uncharted territory and will be a test for Judge Chen, said Michael Showalter, a partner at Schiff Hardin LLP…
–Additional reporting by Bonnie Eslinger. Editing by Kelly Duncan and Emily Kokoll.
*To read the full article, one can get a trial subscription at https://mail.google.com/mail/u/0/#inbox/FMfcgxwHNgjLGKQLtNZwjtBKxqLKSFdH
Print 
PDF