Water Fluoride Ban Backers Ask Court to Use More Data in EPA Case (Corrected)

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By Pat Rizzuto

A federal district court will consider arguments Jan. 26 to decide how much evidence to review as it decides whether the EPA should ban fluoride in drinking water.

Health advocates—who argue that adding fluoride to drinking water can harm the brain—say the nation’s primary chemicals law allows them to provide the court new information that the Environmental Protection Agency didn’t have or consider when it rejected their request to ban the use of the mineral in water.

The EPA interprets that same law as limiting the judge’s review to the “administrative record,” meaning the information the agency had when it decided on Feb. 17, 2017, to deny the petitioners’ request to remove fluoride, which is added to water to prevent tooth decay.

The judge’s decision is important to companies that make and use chemicals even if they don’t have a stake in how fluoride is regulated, Eric Gotting, a partner at Keller & Heckman LLP, told Bloomberg Environment Jan. 23.

Basis of Citizen Petitions

The district court decision might influence the amount of information other courts would review as they take up challenges to decisions the EPA would make on citizen petitions asking the agency to collect data for, or regulate, a chemical, he said.

That’s important because environmental and health advocates are expected to file more citizen petitions now that the Toxic Substances Control Act amendments of 2016 increased the options available to the EPA to obtain information about or regulate chemicals, he said.

The TSCA provision that allows citizen petitions to challenge the agency’s failure to act or its denial of a petition in court gives groups “a second bite” at the rulemaking apple, Gotting said during a recent webinar Keller and Heckman hosted. The Jan. 26 hearing may set out how much information the court will review in that “second bite.”

Courts Decide Unreasonable Risk

Michael Connett—an attorney representing Food and Water Watch, which led a coalition of health organizations and individuals concerned about fluoride—described the legal clash the judge will consider Jan. 26.

“The disagreement is whether, in reaching its own decision, the court can consider information that the EPA did not have access to e.g. expert testimony, new studies, documents obtained in discovery, etc.,” Connett told Bloomberg Environment. “We believe it can.”

Congress intended that parties have the ability to provide the court additional information if the EPA rejected or failed to act on a citizen petition, Connett argued, citing a provision of the Senate report that accompanied TSCA in 1976. Otherwise, “there would be no record upon which the [court’s] review could be based,” the report said.

The agency has contested Food and Water Watch’s interpretation of TSCA and its reliance on the Senate report language in three documents it’s filed in court.

Report Versus Statute

“Legislative history cannot prevail over the statutory language,” the EPA said in a Jan. 15 filing. “The plain reading of the statute,” the agency said, is that “Congress intended [the court’s] review to be limited to the administrative record,” it said.

The judicial standard TSCA sets for citizen petitions—unlike many cases challenging agencies’ final rules—allows the district court to make its own independent finding on whether a chemical poses an unreasonable health risk warranting EPA action.

The court could—but doesn’t have to—give deference to the EPA’s expertise. Nor, as in many other cases, does the court decide whether the EPA’s action violated the Administrative Procedure Act by being arbitrary, capricious, unsupported by substantial evidence, or otherwise in violation of that statute.

The judge is expected to rule on the merits of Food and Water Watch’s case after the Jan. 26 hearing on the scope of information the judge’s review will consider.

The case is Food and Water Watch v. EPA, N.D. Cal., No. 17-cv-02162-EMC, 4/18/17.

(Corrects date of hearing which is Jan. 26).

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