TSCA Plaintiffs Overcome Early Hurdles But Face Judge’s Skepticism

January 13, 2020

Plaintiffs challenging EPA’s denial of a Toxic Substances Control Act (TSCA) citizen petition seeking to ban drinking water fluoridation may have overcome an initial EPA motion to end the case but the judge’s recent ruling allowing the landmark suit to proceed highlights the court’s skepticism on key issues to address in the future, attorneys say.

For example, Erik Baptist, a former deputy assistant administrator in EPA’s toxics official who is now a lawyer at Wiley Rein, LLP, notes that the plaintiffs overcame an EPA challenge to their standing during the pre-trial phase but may have a harder time in the upcoming trial.

“The plaintiffs survived the standing challenge at the summary judgment stage because their alleged injuries ‘rise above the purely speculative, albeit perhaps barely, for standing purposes.’ The summary judgment stage is not the last time the plaintiffs will need to demonstrate standing,” he says.

But Baptist adds that the standing “bar is raised at trial, and the plaintiffs must provide adequate evidence to overcome another challenge to standing, presumably at the end of their presentation of their case and before the government puts on its defense. To date, it does not appear that the plaintiffs have set forth facts sufficient to convince Judge [Edward] Chen that they have standing under Article III of the Constitution.”

Similarly, Lynn Bergeson, managing partner with the firm Bergeson & Campbell, tells Inside EPA that even though EPA lost arguments seeking summary judgment because of plaintiffs’ failure to meet “procedural and methodological requirements,” the judge nevertheless conceded EPA’s concerns.

She notes that in portions of the ruling, Chen acknowledged EPA concerns that section 21 -- the citizen suit section of the law under which the plaintiffs are bringing suit -- may not require the judge to consider procedural and methodological steps that the agency must necessarily follow in section 6 if it is to regulate chemicals.

Chen acknowledges EPA’s concerns in the order, writing that he “heed[s] EPA’s contention that ‘even if the Court’s risk determination were not bound by those statutory requirements . . . they are instructive because they reflect the most up-to-date generally accepted scientific practices for assessing risk in the TSCA context.’ The EPA’s position is ‘supported by the logic of the TSCA’s structure and policy concerns.”

Bergeson adds, Chen also “discussed the weird results that could emerge is a different interpretation were given.”

The lawyers were commenting on the Dec. 30 ruling from Chen, of the U.S. District Court for the Northern District of California, who ruled against EPA’s and plaintiffs’ competing summary judgment motions, effectively stalling once again EPA’s effort to end the case, Food and Water Watch et al v. EPA.

Chen’s order likely means the case will proceed to a de novo bench trial slated to begin in April, the first such legal test under Congress’ 2016 revisions to the law.

In his decision, Chen concluded that the plaintiffs met the low legal bars on both standing and merits issues raised at the summary judgment stage -- language that Baptist is now highlighting.

Chen cites case law in the order to explain that “at the summary judgment stage, 'plaintiffs need not establish that they in fact have standing, but only that there is a genuine question of material fact as to the standing elements,'” before adding that purely speculative inferences about injury or causation cannot meet an Article III standing test.

“[H]ere it cannot be said that there is 'no plausible inference' that fluoride caused Plaintiffs’ headaches; their allegations -- supported by a doctor’s note, a related scientific study, and a temporal nexus -- rise above the purely speculative, albeit perhaps barely, for standing purposes,” Chen writes.

Landmark Trial

But supporters of the suit say the fact that the plaintiffs have overcome EPA’s challenges and are proceeding to a likely trial is significant because it will force the agency to consider future petitions more seriously.

“EPA has tried every trick in the book to stop the fluoride case from moving forward but, at every turn, Judge Chen has ruled against them. It’s looking likely that the case will go to trial and that the plaintiffs’ evidence will get a close look from the Court under the de novo standard, with no deference to EPA,” another attorney following the case tells Inside EPA.

“I think a plaintiff that can make a solid science case that a chemical presents an unreasonable risk has a real shot at prevailing under section 21 and forcing EPA to regulate the chemical,” the source adds. “EPA’s knee jerk reaction to section 21 petitions is to deny them but we’re seeing from the fluoride case that it needs to start taking them more seriously.”

And Michael Connett, an attorney with Waters Kraus & Paul in Los Angeles who represents the plaintiffs in the suit, echoed the attorney’s remarks, noting this will be the first such case to go to trial since the original TSCA was enacted in 1976 where plaintiffs will have an opportunity to present additional evidence to shore up their standing to sue.

Regarding Baptist’s comments on standing, Connett tells Inside EPA, “There’s additional evidence and case law that we intend to present at trial will that was not considered as part of the abbreviated [motion for summary judgment] analysis. We are confident that we will meet our burden.”

Connett also cites Chen’s earlier order on EPA’s motion to dismiss, as well as the 2014 D.C. Circuit ruling in Trumpeter Swan Society v. EPA to argue that the TSCA citizen’s petition option for a de novo court proceeding is “’an unusually powerful procedure for citizens to force EPA’s hand’ and a device that helps ‘ensure that bureaucratic lethargy does not prevent the appropriate administration of [TSCA’s] vital authority.’ It could be seen as surprising, therefore, that this will be apparently the first de novo proceeding in the 43 years of the Act.”

But Baptist also points to language in Chen’s order where he denies the plaintiffs’ motion for summary judgement, where he often used the phrase “afford only moderate support to Plaintiffs’ position” when characterizing the plaintiffs’ evidence of unreasonable risk, Baptist says.

“This language foreshadows how the court may weigh the plaintiffs’ evidence during the de novo proceeding, if the court were to reach the merits of this challenge after finding that the plaintiffs have standing,” he says. -- Maria Hegstad (mhegstad@iwpnews.com)

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