Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
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.
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.”
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.
“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).
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)