In Another TSCA Defeat, EPA Loses Bid To Limit Scope Of Fluoride Suit

February 7, 2018

A federal judge has denied EPA's request to limit the scope of environmentalists' lawsuit over the agency's denial of their petition seeking to ban the practice of treating drinking water with fluoride, opening the door to the plaintiffs offering a broad range of evidence to bolster their case rather than relying on information in EPA's record.

Judge Edward Chen, of the U.S. District Court for the Northern District of California, ruled Feb. 7 in Food & Water Watch Inc., et al, v. EPA, that the citizen petition provisions of the Toxic Substances Control Act (TSCA) allows a petitioner whose request is not addressed by EPA to seek de novo consideration of their case before a federal district court -- overruling EPA's arguments that such reviews are limited to data in the administrative record.

“The EPA moves for a protective order limiting the scope of review in this litigation to the administrative record, a request that would effectively foreclose Plaintiffs from introducing any evidence in this litigation that was not attached to their administrative petition,” Chen writes.

“The text of the TSCA, its structure, its purpose, and the legislative history make clear that Congress did not intend to impose such a limitation in judicial review of Section 21 citizen petitions.”

Chen ordered the parties to “meet and confer and agree” on a discovery plan consistent with the order.

The ruling marks the second time that Chen has rejected EPA arguments in the precedent-setting case and could impact future legal challenges to agency TSCA petition responses because it provides plaintiffs the opportunity to present a broader range of scientific evidence on chemicals' risks.

Late last year, Chen ruled that TSCA, as reformed by Congress in 2016, allows citizens to petition EPA to regulate single uses of substances, a stance at odds with the agency's position in this case, where it rejected the petition because it sought to regulate one use of fluoride, the fluoridation of drinking water for its dental benefits.

After his earlier ruling, environmentalists and industry attorneys said they expected an increase in the number of section 21 petitions to be filed because environmentalists and other groups are likely to see the petitions as a new way to force EPA to address their concerns.

“The fluoridation case may signal to environmental groups that the courts may be receptive to granting section 21 petitions or at a minimum that EPA’s reasons for a denial will be closely scrutinized,” Herb Estreicher, an attorney and chemist with the law firm of Keller and Heckman, told Inside EPA.

But the possibility of de novo review of fluoride risks appealed to petitioners in this case, who have long sought to end drinking water fluoridation but believe their case has received short shrift from EPA and other agencies. They argue the practice can result in people ingesting too much fluoride, and they point to recent studies showing neurotoxic health risks from fluoride exposure at lower levels than previously considered of concern.

"One of the reasons I was interested in the TSCA petition was to obtain a different forum" for consideration of fluoride and its risks, Michael Connett, a lawyer for the plaintiffs, told Inside EPA in 2016.

"It will be good to get the issue considered by people not entrenched in the issue," he added. "EPA never really applied its own risk assessment procedures to fluoride. We believe if EPA does, then it will see the . . . that fluoridation would be incompatible with the dose that would be appropriate."

De Novo Review

Chen's Feb. 7 order responds to litigants' arguments over the standard of judicial review, which TSCA section 21(b)(4)(B) states provides petitioners filing section 21 petitions “an opportunity to have such a petition considered by the court in a de novo proceeding.”

EPA, having failed to end the suit, then sought to limit the scope of the court's review by arguing that it should be based on the administrative record rather than the broader de novo review the plaintiffs sought.

But environmentalists and their supporters pushed back. “EPA asks this Court for a sweeping order that would exempt this 'civil action' from Federal Rule of Civil Procedure 26(b) and deny Plaintiffs their right to discovery,” the plaintiffs said in a Jan. 5 reply brief. “This request is not only incompatible with the plain meaning of [TSCA], but runs directly counter to Congress’s clearly expressed intent in the legislative history.”

In his order, Chen largely agrees with environmentalists. He notes that TSCA section 21(b)(4)(B) “does not explicitly provide for a scope of review. Rather, it states that the plaintiff shall be entitled to 'an opportunity to have such petition considered by the court in a de novo proceeding.' Defendant seizes upon the term 'such petition' to support a limited scope of review, and Plaintiff seizes upon the term 'de novo proceeding' to support an unrestricted scope of review.” But after reviewing the text, Chen concludes that EPA's “reliance on the term 'such petition' to imply a limited scope of review is unpersuasive.”

Further, Chen concludes that the 2014 D.C. Circuit case that EPA principally relied upon in its arguments, Trumpeter Swan Soc. v. EPA, “did not specifically address the significance of the term 'such petition.' . . . The dicta from Trumpeter, therefore, does not carry persuasive weight here.”

Chen adds that the Trumpeter decision also does not address what he considers a more salient 2010 D.C. Circuit holding, in Environmental Defense Fund v. Reilly.

“The D.C. Circuit reasoned in Reilly not only that the standard of review (i.e., the degree of deference owed to the agency's position) differed under the TSCA and [the Administrative Procedures Act (APA)], but also that the scope of review was distinct, as the court reiterated several times the APA's presumptive limitation to the administrative record as a factor distinguishing TSCA from APA review. The clear implication of Reilly is that Section 21 petitions are not limited to the administrative record.”

Chen writes that as a result, he does not consider “EPA's interpretation of the term 'such petition' with respect to the scope of review . . . persuasive because it contradicts the EPA's own position and is not supported by case law.”

After further review of TSCA's statute and the historical record, Chen concludes that EPA “ultimately falls back on policy arguments, some of which have significant force. For example, Defendant argues that Plaintiffs already had an 'opportunity' to make a case to the EPA with all the evidence they need ... If petitioners are permitted to simply file suit, then they will be able to file barebones administrative petitions and then sandbag the EPA with new evidence in litigation, effectively depriving the agency of an opportunity to avoid litigation by reviewing an adequate petition on the merits first. Moreover, the EPA contends that an open record would render meaningless the requirement that the administrative petition 'set forth the facts' making a rule necessary.”

But Chen concludes that “EPA's concerns are forceful but ultimately do not bear the weight of the statutory text, structure, purpose, and legislative history to the contrary. Defendant's argument also overlooks policy reasons why an open record would be permitted. For example, as Plaintiffs pointed out at the hearing, new studies relevant to the merits have been issued after their petition was denied, and therefore they were unable to present such evidence in their petition. Defendant also overlooks the fact that even though a petitioner has unlimited time to prepare their initial petition, they do not have a chance to respond to the EPA‟s denial or evidence prior to this civil proceeding.”-- Maria Hegstad

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