Environmental Law Prof Blog

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

Environmental Consultants and Environmental Law

If you’ve practiced environmental law, you’ve probably worked with environmental consultants.  Environmental controversies often involve engineering, science, and planning, and lawyers navigating these controversies routinely interact with technical specialists like engineers, scientists, and planners (sometimes those specialists also handle work lawyers might think of as legal, and do so at prices far below attorneys’ typical billing rates).  Many of these technical specialists work for private environmental consulting firms.  Their importance to environmental practice is hard to overstate; they really are everywhere in the field.

But academics never have written much about environmental consultants.  When we think about who matters to environmental regulation, we tend to focus on legislators, agency regulators, judges, regulated businesses, and non-profit advocacy organizations.  A few years ago, I went looking for articles exploring how consultants fit into this ecosystem.  I didn’t find anything.

Because of that failed search, I spent a long time researching the environmental consulting industry, and the results of that work are available in just-published articles here and here.  The first linked article, published in the peer-reviewed journal Regulation and Governance, addresses ways environmental consultants’ roles differ from traditional stereotypes of business.  The basic story is a cautiously optimistic one: I found that consultants were working as trusted intermediaries between regulators and the regulated, and also that consultants expressed belief in and actively (but also quietly and gently) worked to support the regulatory regimes they helped implement.  The second article, just published today in the Arizona Law Review, considers similar themes.  It also discusses implications of consultants’ work for debates about public choice theory, privatization, social movements, and the history of environmental law.

I hope the history part of the story will be particularly interesting to environmental lawyers.  There already are some wonderful accounts of environmental law’s history, but they tend to focus on legislative changes—as well as the broader societal changes that allowed environmental legislation to come about.  As a consequence of this legislative focus, most environmental law history treat recent decades largely as a time of non-events; the primary story from 1990 on is a tale of Congressional deadlock and inactivity.  But I think there’s much more to be said about how environmental law has continued to evolve, and some of the most interesting evolution involves agency staff, regulated businesses, and intermediate entities like consulting firms.  The emergence and importance of the environmental consulting industry is a largely-untold piece of that history.

I also hope the articles shed some light on another important and puzzling environmental law question: why does environmental regulation often succeed?  Success sometimes seems improbable; after all, the political challenges of enacting and implementing environmental law are painfully obvious, and the most committed advocates for environmental protection are often severely outgunned.  Sometimes these mismatches produce predictable consequences, and we wind up with non-existent or anemic regulatory programs.  But in a surprising number of realms, regulation has reduced environmental problems, often substantially, and even as our economy has grown.  How have we pulled this off?  My articles don’t purport to answer that question in anything more than a very preliminary and very partial way; I make no claim that the environmental consulting industry is the hidden key to environmental law’s successes.  Instead, the tentative but still hopefully-interesting argument is that we might understand regulatory successes better if we learn more about the incentives and cultures of private actors who help put regulation into effect.

- Dave Owen