Fluoride Action Network

TSCA Plaintiffs Overcome Early Hurdles But Face Judge’s Skepticism

Source: Inside EPA | January 13th, 2020 | By Maria Hegstad


Plaintiffs challenging EPA’s denial of a Toxic Substances Control Act (TSCA) citizen petition seeking to ban drinking water fluoridation may have overcome an initial EPA motion to end the case but the judge’s recent ruling allowing the landmark suit to proceed highlights the court’s skepticism on key issues to address in the future, attorneys say.

For example, Erik Baptist, a former deputy assistant administrator in EPA’s toxics official who is now a lawyer at Wiley Rein, LLP, notes that the plaintiffs overcame an EPA challenge to their standing during the pre-trial phase but may have a harder time in the upcoming trial.

“The plaintiffs survived the standing challenge at the summary judgment stage because their alleged injuries ‘rise above the purely speculative, albeit perhaps barely, for standing purposes.’ The summary judgment stage is not the last time the plaintiffs will need to demonstrate standing,” he says.

But Baptist adds that the standing “bar is raised at trial, and the plaintiffs must provide adequate evidence to overcome another challenge to standing, presumably at the end of their presentation of their case and before the government puts on its defense. To date, it does not appear that the plaintiffs have set forth facts sufficient to convince Judge [Edward] Chen that they have standing under Article III of the Constitution.”

… “EPA has tried every trick in the book to stop the fluoride case from moving forward but, at every turn, Judge Chen has ruled against them. It’s looking likely that the case will go to trial and that the plaintiffs’ evidence will get a close look from the Court under the de novo standard, with no deference to EPA,” another attorney following the case tells Inside EPA

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