The EPA on Tuesday asked a federal appeals court to overturn a groundbreaking 2024 decision requiring it to regulate fluoride in drinking water, not by challenging the court’s finding that fluoridation poses an “unreasonable risk” to children’s health, but by arguing the judge overstepped procedural bounds.

Guest Post By Brenda Baletti at Children’s Health Defense

The U.S. Environmental Protection Agency (EPA) in a hearing on Tuesday urged a federal appeals court to reverse a landmark 2024 decision ordering the agency to regulate fluoride added to drinking water.

The EPA did not dispute the substance of the 2024 ruling — that fluoride added to drinking water poses an “unreasonable risk” to children’s health and the agency must regulate it.

Instead, the agency argued to a three-judge panel that U.S. District Judge Edward Chen overstepped standard judicial process when he put the original trial on hold in 2020 to wait for new scientific evidence. That evidence was later considered during the second phase of the trial.

During the hearing, Robert Stander, an attorney for the EPA, accused Chen of making “a very dramatic departure” from the party-presentation principle when he decided to wait for new evidence before issuing his decision. Under the party-presentation principle, judges must decide cases based exclusively on arguments made by the parties.

However, attorneys for the groups that sued the EPA pointed out that they filed the lawsuit under a unique legal provision previously untested in the courts: Section 21 of the Toxic Substances Control Act of 1976 (TSCA).

Congress specifically designed Section 21 to allow a judge to preside over “de novo” proceedings if the EPA rejects a citizen petition to regulate a chemical. A “de novo” review means that the court reviews available evidence without deferring to the agency’s position on an issue, and that a judge can consider a wide range of evidence.

Michael Connett, an attorney for the plaintiffs and a partner at Siri & Glimstad, called the EPA’s argument “a policy critique … disguised as statutory interpretation.” He suggested the EPA tried to narrowly interpret the statute to say the evidence considered during the second phase of the trial shouldn’t have been allowed.

Under the statute, “de novo” proceedings are intentionally broad in both the standard and scope of review, Connett told the judges. Because of the unique nature of the proceedings, the court was “navigating some complex terrain,” he said.

“The trial judge, who was the one with the responsibility to actually make the decision, was careful in how he approached this novel litigation and took his job as trier of fact very seriously,” Connett said. “This was a case where the trial judge heard argument and testimony at trial about important, new studies on the horizon which could shed important light on the very issue the judge was tasked with deciding.”

‘If the law disallows this, something is wrong with the law’

Several consumer advocacy organizations, including the Fluoride Action Network (FAN), Moms Against Fluoridation and Food & Water Watch, along with individual parents and children, sued the EPA in 2017 after the agency denied their 2016 citizen petition to regulate fluoride.

The fluoride trial was the first time a citizen petition filed under TSCA led to a lawsuit that won — or even made it to trial — in a federal court.

A seven-day trial took place in federal court in San Francisco in June 2020. But instead of ruling, Chen put the proceedings on hold pending the release of the National Toxicology Program’s (NTP) systematic review of research available on the neurotoxic effects of fluoride.

Both parties referenced the ongoing review and other relevant ongoing cohort studies during the first phase of the trial.

The trial reconvened in 2024, with both parties presenting new evidence, including the NTP report. Chen issued his ruling in September 2024.

Stander asked the judges to send the case back to the court to be decided based on the evidence available at the time of the first trial. He argued that evidence presented in that trial alone, which included studies published after the 2016 petition, exhausted the requirements of Section 21.

He said that allowing new evidence in the second phase of the trial “renders the petition a meaningless formality,” he said, because it allowed the plaintiffs to present different evidence to the EPA than they presented to the court.

Chief U.S. District Judge Brian Morris asked Connett why, after the first phase of the trial, the evidence shouldn’t have first gone to the EPA “to give them a chance to analyze it and make a decision on appropriate regulation?”

Connett said the court gave the EPA that opportunity, but the agency declined to reconsider the petition based on new evidence.

“The district court did give the EPA that opportunity following the first trial. The judge allowed EPA the opportunity to consider all of the post-petition science using the correct standard of review. EPA declined in its discretion to do that.”

Rick North, FAN board member, told The Defender that it was significant that EPA never challenged Chen’s finding that fluoridation “poses an unreasonable risk of reduced IQ in children.”

He said:

“In a nutshell, this is what happened in this lawsuit:

“The judge had to decide whether fluoridation is an unreasonable risk to human health.

“The premier scientific authority on the subject, the National Toxicology Program, was about to release a review of the highest-quality studies in the world.

“The judge wanted to wait for the review so he could make a more informed decision, based on the best science.

“If the law disallows this, something is wrong with the law.”

The judges, who also included Ronald M. Gould, will consider arguments presented in the appeal and likely issue a decision in the coming months.

EPA says it’s doing its own fluoride review

Since the 2024 fluoride ruling, more than 60 communities and two states have stopped adding fluoride to drinking water based on the growing body of evidence made public in the trial that fluoride poses a serious risk to children’s health.

In the meantime, the EPA announced in January that it had taken the first steps toward implementing a “gold standard” review of the health effects of fluoride in drinking water — even though the NTP already completed a similar comprehensive review, focused on fluoride’s neurotoxic effects on children.

The EPA said it plans to release a preliminary scientific assessment plan and literature survey to inform future protective recommendations. The agency announced the news on the same day it filed the appeal brief in the fluoride lawsuit.

The EPA is implementing its new review under the Clean Water Act rather than under TSCA.

In a January meeting during which the EPA gave an overview of the plan, the agency declined to answer a question from The Defender about why the agency launched a new process under different legislation, rather than complying with the judge’s order under TSCA.

Lawmakers propose ‘sweeping overhaul’ of TSCA that would eliminate citizen petitions

Meanwhile, a group of federal lawmakers, backed by Big Chemical, is proposing to weaken TSCA, a law that environmental advocates said is “the nation’s most important law protecting the public from toxic chemicals.”

As part of the proposed “sweeping overhaul” of TSCA, experts said legislators want to eliminate the public’s right to file citizen petitions — the provision of the act under which the plaintiffs filed the fluoride lawsuit and that led to the landmark 2024 decision.

Robert Sussman, former EPA deputy administrator, told The Defender that the proposed changes to TSCA are “basically intended to prevent courts from doing exactly what the court did” in the fluoride case.

The proposed changes to TSCA — debated in a contentious hearing of the U.S. House of Representatives Subcommittee on Energy and Commerce in January — go beyond eliminating the citizen petition.

Sussman said the proposed overhaul would make it “very, very difficult for EPA to prohibit or restrict unsafe chemicals” by setting an extremely high standard of proof.

On Tuesday, the same day the appeals court heard arguments in EPA’s appeal of the fluoride decision, a Senate environment committee met to debate the Senate version of proposed changes to TSCA.

Original article online at: https://childrenshealthdefense.org/defender/epa-hearing-overturn-landmark-fluoride-ruling-process-not-public-health/