Friday, November 15, 2019

Fluoridated Drinking Water Litigation

            An interesting case is pending in federal district court in San Francisco that attempts to force EPA to prohibit fluoridated drinking water as an “unreasonable risk” to public health under Section 6(a) of the Toxic Substances Control Act, 15 U.S.C. § 2605(a).  At issue in this case is whether fluoridated drinking water actually reduces cavities and whether ingesting fluoride at the levels present in drinking water can cause adverse health consequences, including impaired brain development in fetuses and children.

            Most public drinking water systems in the United States add fluoride to their water to prevent cavities.  Fluoridation has been the official policy of the U.S. Public Health Service since 1951.  There has always been some opposition to fluoridation.  In the 1950s and 1960s, some people contended that fluoridation was a communist plot.  More recently, some scientists and advocates have questioned whether fluoridation does more harm than good.  Fluoride is dangerous at high levels of exposure, and many people get topical treatments of fluoride by using fluoridated toothpaste.  The question posed in this case is whether exposure to fluoride at the levels in drinking water poses an unreasonable risk.

            The plaintiffs, several groups of public health advocates and some individuals, contend that the scientific evidence is now clear that drinking water fluoridation can cause developmental neurotoxicity.  The plaintiffs petitioned EPA seeking a rule that prohibits fluoridation.  When EPA denied the petition, the plaintiffs sued. 

            EPA admits that exposure to fluoride can be harmful, but argues that the evidence does not show harmful effects at the low levels present in drinking water.  Some studies seem to show an effect, but some don’t.  Some studies that show adverse health effects do not have data about the level of exposure.  Some studies have methodological flaws, such as relying on small samples and self-reporting.  In short, the evidence here is muddled.

            Unusually, a TSCA citizen suit is a de novo proceeding in which the plaintiff must prove by a preponderance of the evidence that the substance in question “presents an unreasonable risk of injury to health or the environment.” 15 U.S.C. § 2620(b)(4)(B)(ii).  In most other citizen suit cases, the court reviews the agency’s administrative record under a deferential standard of review.  One of the issues earlier in the case was whether, even if reviewed de novo, the court would limit itself to the administrative record.  The district court decided that it would not, and even allowed the plaintiffs to introduce studies that were not in existence at the time EPA denied the plaintiffs’ petition to ban fluoridated drinking water.  Food & Water Watch, Inc. v. United States Envtl. Prot. Agency, 302 F. Supp. 3d 1058, 1062 (N.D. Cal. 2018).  This seems odd, and certainly contrary to most administrative law cases, but the statutory provision itself is unusual in providing for a “de novo proceeding,” 15 U.S.C. § 2620(b)(4)(B).

            So now the case presents the district court with a large number of scientific studies and a battle of the experts interpreting those studies.  In a typical administrative law case, the agency should win a battle of the experts.  Here, with de novo review, the outcome is much less clear. 

            On technical scientific matters like those presented in this case, I tend to trust expert administrative agencies such as EPA.  Moreover, here EPA has support from the American Academy of Pediatrics and the American Dental Association, both of which continue to recommend fluoridation of public water supplies even after reviewing the studies relied upon by the plaintiffs.  Faced with evidence about risk that is mixed and contested, it would seem that EPA should receive some deference to its judgment.  The unusual TSCA citizen suit process, however, leaves open the very real possibility that the district court will find for the plaintiffs.  If that were to happen, I would think this would be a good vehicle for EPA to appeal, including the district court’s decision to review more than just the administrative record.

            The district court held a hearing this week on the pending cross-motions for summary judgment.  If the court denies those motions, the case is scheduled for trial in February 2020.

--Todd Aagaard

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