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July 13, 2020

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Federal Court Issues Key Decision on NGO Challenge to Use of Fluoride in Water

The Toxic Substances Control Act (TSCA) often seems like the forgotten federal environmental statute in that it gets less attention in the press and judicial decisions than statutes like the Clean Air Act, Clean Water Act, or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  That said, a judge on the Northern District of California issued a high-profile TSCA decision worthy of some discussion.

The TSCA authorizes the Environmental Protection Agency (EPA) to prohibit a particular use of a chemical if it determines that chemical poses an unreasonable risk to human health or the environment. The lawsuit, Food & Water Watch Inc., et al. v. United States Environmental Protection Agency, was brought under Section 21 of the TSCA, which allows citizens to petition to regulate individual chemicals. The citizen petition in Food & Water Watch challenged the EPA’s rejection of a citizen petition demanding that it ban the addition of fluoride to drinking water.

In its decision, the court denied the EPA’s motion for a protective order by rejecting the argument that courts should be limited to reviewing information originally presented in the administrative proceeding giving rise to the suit.

The court’s decision hinged on a provision of the TSCA stating that, in any challenge, “the petitioner shall be provided an opportunity to have such petition considered by the court in a de novo proceeding.” 15 U.S.C. § 2620(b)(4)(B). The EPA argued in support of its motion that “such petition” should be interpreted as limiting the scope of review to evidence in the underlying administrative record, while plaintiffs argued that the phrase “de novo proceeding” requires a less restrictive interpretation.

In denying the EPA’s motion, the court specifically held that the phrase “de novo proceeding” indicates that Congress intended a broad scope of review because the word “proceeding” encompasses all regular activities of a lawsuit, including discovery beyond the administrative record. Because the purpose of the TSCA is to protect the public from chemicals that pose unreasonable risks to health and the environment, the court held that “[a] de novo proceeding in district court modeled after traditional trial-like proceedings would not conflict with the purpose of the TSCA, but would instead effectuate it.”

The court’s ruling guarantees that any trial of this matter will be far broader than what the EPA preferred. Given that the fluoridation of water in the U.S. is commonplace, we will keep an eye on how this case unfolds.

© 2020 Schiff Hardin LLPNational Law Review, Volume VIII, Number 58


About this Author

J. Michael Showalter, Litigator, Schiff Hardin LLP

Mike Showalter is a litigator whose practice is focused on resolving complex disputes. Mr. Showalter's past clients span diverse industries including manufacturing, mining, power generation and transmission, oil and gas, the financial and insurance sectors, and process outsourcing.

Mr. Showalter's practice has focused on distilling complicated technical information into a format where it can be understood by decision makers. He has worked with experts in fields including medicine, economics, history, physical sciences, industrial hygiene, toxicology, environmental engineering and...

Caitlin M Ajax, Schiff Hardin, Chicago, Illinois, environmental law, energy law, human rights, Washington DC, regulatory developments

Caitlin practices in multiple areas, but has a particular interest in environmental and energy law matters. She has experience drafting briefs, memoranda, and case pleadings, as well as managing discovery and other aspects of trial preparation. She makes it a priority to learn clients’ business goals and then track regulatory developments and industry trends to better serve their needs.

Prior to law school, Caitlin managed communications at a human rights organization in Washington, D.C.