Judge Punts In Landmark TSCA Suit But Gives Few Clues On Any Ruling

June 18, 2020

The federal judge overseeing the landmark trial on whether fluoride is eligible for regulation under the Toxic Substances Control Act (TSCA) may have punted any decision until after EPA reviews a new petition from the plaintiffs but Judge Edward Chen provided few clues on how he planned to eventually rule.

In June 17 comments from the bench, Chen, of the U.S. District Court for the Northern District of California, proposed that he withhold his judgement entirely until the plaintiffs can file a new petition with EPA that reflects the new scientific evidence that has been developed in the four years since the original petition was filed.

“I want you all to go back and do administrative process, but that doesn't mean this case goes away. I still have this case,” Chen told the litigants in Fluoride Action Network et al., v. EPA June 17.

“I can rule on this case. And I'm sure the EPA would be aware of that, as well as the plaintiff would be aware that if I rule on this case, I might not come out in your favor. I mean, you all don't know which way I'm going to come out at this point. And so, just as a matter of procedural context, we would still be in litigation.”

Chen went on to say that he had no plans to dismiss the case, and that he would probably take it under submission, or put a stay on it as the matter returned to EPA.

His decision -- and his failure to signal how he might eventually rule -- continues the legal and regulatory uncertainty that the litigation may have driven.

The case is a unique one as it is the first-ever legal challenge to EPA’s dismissal of a citizen’s petition under the TSCA section 21.

It put Chen in the position of acting as EPA’s administrator usually would in deciding whether fluoride poses an “unreasonable risk” and should be regulated under TSCA.

“I’m sitting there as if I were doing the task the [EPA] administrator would normally do,” he said shortly before the trial began.

The petition, which asked EPA to regulate community water fluoridation due to an alleged risk for neurotoxic effects, was submitted in 2016.

Since then, multiple studies have been published on the neurological effects of fluoride exposure, several of which were introduced as evidence in the trial.

Already the plaintiffs have won a series of legal victories that could set a precedent for similar suits in the future. For example, they overcame a pre-trial motion to dismiss from EPA that argued that the law does not allow the agency to regulate single uses of a substance.

They also won the right to hold a de novo trial, allowing them to present evidence outside of EPA’s administrative record.

Volume Of Evidence

However, it was the sheer volume of that evidence that made Chen suggest the plaintiffs go back to the drawing board with EPA, saying they had gone “well beyond” the administrative record.

Chen asked for the plaintiff and defense to work together on the issue of a new petition for EPA, and set a status conference for August 6, with both legal teams sending him a joint statement to update the court on this matter five days before that. In addition, they would each be responsible for submitting post-trial briefs to the court.

When asked by plaintiff attorney Michael Connett about the necessity for a post-trial briefing, Chen said, “I would like to have one. I'm hesitant to impose on counsel to do two things at once, but since it is fresh in your minds, and there is a likelihood I'm going to have to rule one way or the other."

He clarified that the attorneys did not have to decide on the spot if they wanted to pursue a new petition but asked them to consider it.

Chen also told the defense that although he was aware of the pressure EPA has been under with its emerging TSCA program, and that this would cause hesitancy for the agency about taking on a new petition, the considerable amount of evidence that had been presented in the case and the amount of scientific evidence that EPA already has on the subject should lighten their load.

“It’s not like we’re starting fresh,” he said. “It’s not coming out of the blue.”

Chen’s decision in the closely watched case came as something of a surprise from the jurist, an Obama appointee who has ruled in several other high-profile cases, including a landmark 2015 ruling allowing Uber drivers to pursue a class-action suit against the company over their employment classification.

Chen, who was confirmed by the Senate in 2012, has also won accolades for being among the most-influential district court judges.

But Herb Estreicher, an attorney at Keller & Heckman, says it is not optimal for a federal judge with little scientific background to be overseeing such a technical case, which may explain Chen’s decision to recommend the plaintiffs file a new petition.

“Judge Chen is a fairly serious guy, he's trying to do a good job,” Estreicher said. “Personally, I don't feel that these are the kinds of issues that should be resolved by judges, I think they should be resolved by expert agencies like EPA. However, that's not what Congress has decided, so, there you go. It would make a lot more sense if we had a scientific tribunal, or at least a court that was used to dealing with scientific issues, like the US Court of Appeals for the Federal Circuit.”

He added that having a generalist judge weigh the issue is “probably just a recipe for disaster.” -- Diana DiGangi (ddigangi@iwpnews.com)

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