The federal judge overseeing the novel suit over a requested TSCA ban on drinking water fluoridation says he intends to keep the case in abeyance at least until the conclusion of a National Toxicology Program (NTP) analysis of fluoride and could prolong it further pending peer-reviews of three international “cohort” studies.
Judge Edward Chen, of the U.S. District Court for the Northern District of California, writes in a May 12 order that he “intends to continue to hold the case in abeyance at least until the final NTP monograph is released and possibly until” pending epidemiological studies of fluoride-exposed populations in Canada, Mexico and Spain “are peer-reviewed.”
NTP has indicated that it intends to release findings from its review of fluoride toxicity as a “state-of-the-science” paper, rather than a monograph, later in 2021. But peer review of the other studies may take far longer.
The document expands on Chen’s verbal orders from an April 22 hearing where he said he would reject the government’s motion to dismiss Food & Water Watch, Inc. (FWW), et al., v. EPA, but also the plaintiffs’ request to immediately resume proceedings in the case. Instead, he told attorneys that “my intent in this case is to not adjudicate, frankly, until I see the final NTP report as a minimum” and potentially the three international “cohort” studies as well.
It also adds new justification for his decision at the hearing to allow FWW and its allies to supplement their claims that they have standing to sue over potential harms from fluoride exposure, which EPA said in briefs would be improper and lead to a waste of resources by prolonging the case.
But more broadly it reinforces the difficulty Chen has faced adjudicating a suit whose outcome could rest on answers to complex scientific questions and deciding how much information is needed to reach a conclusion on those questions — a challenge regulators have faced for decades. Fluoridation in particular also has a political dimension, as state and federal governments have backed the practice for decades as a way to improve oral health.
After holding a trial in 2020 on the anti-fluoridation groups’ claims that EPA improperly denied their 2016 Toxic Substances Control Act (TSCA) petition seeking a ban on the practice, Chen declined to issue a decisive ruling. Instead, he put the case in abeyance and directed FWW and its allies to file an updated TSCA petition that incorporated new science on fluoride toxicity discussed at trial, which the Trump EPA rejected in January.
When the plaintiffs sought to resume the case as a challenge to that denial, Chen said he was inclined to not only hold a new trial that could grapple with the additional research at play in the 2020 petition, but to hold even that process until more data is available — leading to the new order formally keeping the suit stayed pending the outcome of NTP’s process.
“[T]he evolving science warrants reopening of expert discovery and trial evidence,” it reads…
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