7 August, 2020 by
The judge in the ongoing fluoride trial has decided to post-pone a ruling and ordered the plaintiffs to file a new petition with the EPA.
On Thursday, U.S. District Court Judge Edward Chen once again delayed a ruling in the case between the Fluoride Action Network (FAN) and the U.S Environmental Protection Agency (EPA). Judge Chen told the FAN to file a new petition with the EPA while the court waits on the release of a review of the research on fluoride.
After mildly heated discussion between the parties, Judge Chen decided to hold the case in abeyance, essentially a state of legal limbo. Chen said he would keep the record open and will allow the reviewing of evidence already on the record but not submission of new evidence. The FAN is now tasked with submitting a brand new petition and the EPA is ordered to complete the legally required review of the petition within 90 days of receipt. Judge Chen set the next status conference for November 5, 2020.
The Fluoride Action Network released the following statement after Judge Chen made his ruling:
“While we had hoped for a quicker resolution to the TSCA fluoride trial, FAN sees many positives from the court’s ruling yesterday. The judge reiterated that there is substantial evidence of neurotoxicity from fluoride exposure. We think the judge in this case is highly intelligent and discerning. We’re hopeful the court will rule in our favor and acknowledge that water fluoridation presents an unreasonable neurotoxic risk to the public.”
The Fluoride Action Network is aiming to prove the harms caused by community water fluoridation. The government is defending water fluoridation and seeking a dismissal of the petition by the plaintiffs. Beginning in June, Judge Chen heard arguments from witnesses with the FAN and EPA. Attorneys with FAN argue that water fluoridation violates the 1970 Toxic Substances Control Act provisions which prohibit the “particular use” of a chemical which has been found to present an unreasonable risk to the general public. Under section 21 of the TSCA citizens are allowed to petition the EPA to regulate or ban individual chemicals.
After two weeks of testimony in June, Judge Chen ordered the parties to attempt to reach an agreement and decide whether FAN should file a new petition. Neither the EPA or the FAN were interested in amending their position.
On Thursday, Judge Chen recapped the previous hearings and his reasons for giving EPA and FAN a chance to come to an agreement. The judge expressed disappointment with the failure to reach an agreement.
Before announcing his decision to put the case on hold, Judge Chen repeatedly told plaintiffs attorney Michael Connett that there were serious questions regarding the “standing” of the petition. “I will not be convinced otherwise,” Judge Chen said forcefully. “FAN must submit a new petition.”
During the discussions Connett told Judge Chen that following the last hearing in June, the EPA promised to make staff available to the plaintiffs so they could fulfill the judge’s order to collaborate on a potential conclusion. However, shortly afterwards the EPA’s attorney Debra Carfora emailed Connett to tell him they didn’t see a point in making staff available. Carfora later told the judge the EPA simply does not have the resources to work with plaintiffs as previously claimed.
Judge Chen’s decision to delay a ruling and order a new petition was guided in part by the upcoming release of the National Academy of Sciences’ draft review of the National Toxicology Program’s (NTP) review of the literature on fluoride. The original NTP monograph on the fluoride research received criticism from the NAS. The NTP subsequently released a second draft of the monograph and now the NAS is completing a review of the second draft.
Connett told Judge Chen it was uncertain when the final report from the NTP will be released and the court should not wait until the final version to reach a conclusion. Judge Chen said he believes the upcoming NTP monograph would “substantially” contribute to the pool of knowledge.
Connett reminded the judge that although the EPA and the NTP are technically separate entities the court learned that the EPA has previously had substantial input on rulings from the NTP. Connett asked the judge if he chooses to wait for the NTP review, could the plaintiffs file for discovery of relevant communications between EPA and NTP. Connett appeared concerned that the EPA might influence the NTP’s decision in the coming months.
Judge Chen said he would not allow the introduction of new evidence. He did say that if the NAS review of the NTP study is relevant to the case, he would allow each side to call 1 expert witness to testify.
Much of the discussion throughout the afternoon centered around the petition itself. The plaintiffs originally filed the petition with the EPA in 2016. It was the EPA’s initial denial of the petition which led to the lawsuit and the ongoing trial. Connett expressed concern over how the plaintiffs would file a petition and spend years trying to make it back to the courtroom.
“If we were to go out and file a new petition and the EPA denies that, is there a mechanism to get back to this court?,” Connett asked Judge Chen. “Because starting over is just not going to be feasible for the clients.”
Connett also worried that the EPA would not give the new petition an adequate review. Judge Chen said it would be “irresponsible” for the EPA not to look at the new petition and assume they already know the plaintiffs arguments. Chen noted that the research on fluoride is “developing.”
Both Carfora and Connett told the judge that their clients did not want to leave the decision in abeyance and did not want to start the petition process over again. However, Judge Chen opted to delay the ruling and order a new petition and review.
Stay tuned to The Last American Vagabond for ongoing updates on the fluoride trial. Find out more details at the Fluoride Action Network.