EPA Allowed Extra Month to Craft Path Forward on Fluoride Appeal

A federal appeals court has given the EPA until mid May to file its opening brief appealing a district court’s ruling that fluoride in drinking water is so risky the agency must address health concerns in some way.

The US Court of Appeals for the Ninth Circuit granted on Tuesday the Environmental Protection Agency’s streamlined request to delay the deadline to file its opening brief from April 11 to May 12, according to the docket.

The extension request, also filed on Tuesday, came a day after EPA Administrator Lee Zeldin announced the agency would review science concerning fluoride in drinking water before deciding how to proceed regarding the mineral’s potential to lower children’s IQ. Health professionals have urged communities to add fluoride to drinking water since 1945 to fight cavities.

The EPA is appealing the US District Court for the Northern District of California’s September 2024 decision in a case advocacy groups filed in 2017. The groups brought the suit after the agency, during the first Trump administration, rejected their petition to conclude fluoride’s unreasonable risks justified banning its addition to drinking water.

Many of the intermediate rulings District Judge Edward M. Chen made in the seven years before that final opinion were precedential because the lawsuit involved the first of its kind challenge to a denial of a citizen’s petition under the section of Toxic Substances Control Act allowing such petitions.

Novel Orders

Chen issued orders to resolve disputes between the agency and petitioners including rejecting the EPA’s argument that petitions must evaluate all of a chemical’s conditions of use; allowing new scientific evidence for the court to consider; and deciding TSCA precludes the agency from recognizing a chemical’s benefits while it examines the substance’s risks.

And Chen—prior to the Supreme Court ruling in Loper Bright Enterprises v. Raimondo last year that courts are not required to give deference to agency interpretations of statutes—also said TSCA’s Section 21, the provision that authorizes citizen petitions, directed courts to give lawsuits challenging the EPA’s petition denials a new, or “de novo,” hearing.

The case is Food & Water Watch v. EPA, 9th Cir., No. 25-00384, Order Issued, 4/8/25.