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EPA’s Chemical Regulation Authority at Stake With Fluoride Case

June 5, 2020, 10:01 AM

A legal battle over fluoride in drinking water could forge a new path for advocacy groups to challenge the EPA’s conclusions about a range of chemicals’ health risks, attorneys say.

Health advocacy groups, including Food and Water Watch Inc., the Fluoride Action Network, and Moms Against Fluoridation, argue fluoride is a neurotoxin. They unsuccessfully petitioned the Environmental Protection Agency in 2016 to stop the decadeslong practice of adding it to drinking water.

The groups and EPA will virtually present their arguments in the resulting trial starting Monday in federal district court in San Francisco.

The U.S. District Court for the Northern District of California could decide “the future of chemical risk management, at the end of the day,” said Erik C. Baptist, partner at Wiley Rein in Washington and former deputy assistant administrator for the EPA’s chemical safety office.

Advocates could similarly challenge EPA’s stance on other chemicals, such as per- and polyfluoroalkyl substances, or PFAS, depending on the outcome of the case, said Eve Gartner, managing attorney in Earthjustice’s toxic exposure and health program.

The agency didn’t immediately respond to a request for comment. The EPA enforces a maximum allowable amount of fluoride in drinking water, but doesn’t require it to be added to water supplies.

As of 2016, about 200 million people in the U.S. have fluoridated drinking water, according to the Centers for Disease Control and Prevention.

Unreasonable Risk

Under the Toxic Substances Control Act, the EPA can determine whether a chemical, and a particular use of that chemical, presents a public health risk. If a chemical poses “unreasonable risk,” the agency must regulate it.

“What does unreasonable mean? I think that is a huge question that will be played out in this case,” said Gartner, whose group isn’t involved in the case.

If more nongovernmental organizations believe the EPA needs to address a chemical’s unreasonable risks, and the agency refuses, organizations “may use this as the preferred option to get the results they seek,” Baptist said.

The advocacy groups argue that the EPA’s drinking water contamination limits for fluoride don’t account for the chemical’s neurological risks, and that neurological disorders are widespread in the U.S. Their petition is enabled by a part of TSCA, enacted more than four decades ago, that allows citizens to request changes.

“The point of having a citizen petition section is to give citizens the opportunity to bring dangerous situations to the agency’s attention,” Gartner said.

First to Trial

Some cases have used the same provision of TSCA to challenge the agency’s chemical risk assessments, but none have risen to a federal trial proceeding, said Michael Connett, a Waters Kraus & Paul LLP attorney representing the plaintiffs.

“What we have learned in this case is that this is a very powerful provision of law,” Connett said.

Since the complaint isn’t being brought under the Administrative Procedure Act, as many challenges to agency decisions are, the court is unlikely to defer to the EPA’s authority, he said.

The plaintiffs’ attorneys deposed EPA and CDC scientists as part of the discovery process, he said.

The plaintiffs’ responsibility for showing fluoride poses unreasonable health risks is a “huge endeavor,” Gartner said.

“Citizens have to do the work that most people think is EPA’s job to do,” she said. “If this is what it takes, if this level of proof is actually needed to challenge a denial of a citizen petition, it’s going to be very hard for many citizens to utilize this opportunity.”

The case is Food & Water Watch Inc. v. EPA, N.D. Cal., No. 17-02162, Oral arguments 6/8/20.

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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