Jan 31, 2020
By Carol Goodwin Blick, Editor, CleanWaterSonomaMarin.org
FOR THE FIRST TIME in the 43-year history of the Toxic Substances Control Act (TSCA), citizens succeed in bringing a suit to trial under TSCA Section 21. The Court delivered its ruling on 12/30/2019. What a promising start to the New Year! “The case is being watched in part for what it could portend for future efforts to regulate chemicals under the Toxic Substances Control Act,” said Erik C. Baptist, a partner with Wiley Rein LLP.
“The case is being watched in part for what it could portend for future efforts to regulate chemicals under the Toxic Substances Control Act,” said Erik C. Baptist, a partner with Wiley Rein LLP (1/15 /2020).
FOR THE FIRST TIME in the 43-year history of the Toxic Substances Control Act (TSCA), citizens succeed in bringing a suit to trial under TSCA Section 21. The Court delivered its ruling on 12/30/2019
. What a promising start to the New Year!
ORIGIN OF THE TSCA FLUORIDE LAWSUIT
1/22/2016 - Spearheaded by attorney Michael Connett, a coalition of non-profits and individuals submitted a Citizens’ Petition, under Section 21 of TSCA (pronounced like the operaTosca), to the U.S. Environmental Protection Agency (EPA) , requesting a ban on the addition of fluoridation chemicals to water, in order “to protect the public and susceptible subpopulations from the neurotoxic risks of fluoride.”
11/22/2016 -The TSCA Citizen Petition urges EPA to end water fluoridation. The process begins as FAN co-founders Paul Connett PhD and William J. Hirzy PhD (a former Senior Scientist at EPA) explain the petition process, and deliver the petition, along with many boxes of documentation, to the U.S. Environmental Protection Agency, and. Running time: 2:09 minutes.
Video URL: https://www.youtube.com/watch?v=dI-1GxTfS9U
4/17/2017, in response to EPA rejection of the petition, the petitioners filed suit in Federal Court, seeking judicial review of EPA's determination (case # 4:2017cv02162). Michael Connett, who worked previously with the Fluoride Action Network (FAN), is lead attorney on the pro bono legal team for the TSCA fluoride lawsuit.
THE TIMELINE of Food and Water Watch et al v. EPA, the TSCA fluoride lawsuit, can be found at the end of this article. Also, the TIMELINE is linked here: http://fluoridealert.org/researchers/government-reports/timeline-the-tsca-law-suit-against-u-s-epa/
TSCA DESIGNED TO COUNTER “BUREAUCRATIC LETHARGY”
The Toxic Substances Control Act (TSCA), passed by Congress in 1976, is administered by EPA. https://www.epa.gov/chemicals-under-tsca
12/14/2017, EPA petitioned the court to limit Review to the Administrative Record.
This request would limit evidence to the studies included in the original 2016 Petition.
2/7/2018, The Court issued an Order Denying EPA's Motion to limit evidence in the case.
The Court ruled: “The EPA moves for a protective order limiting the scope of review in this litigation to the administrative record1, a request that would effectively foreclose Plaintiffs from introducing any evidence in this litigation that was not attached to their administrative petition. 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. The Court therefore DENIES the EPA’s motion.”
MANY NEW STUDIES have been introduced into the case because of this ruling, including 14 new IQ studies reporting an association of fluoride exposure and reduced IQ in children, including:
Aravind 2016 http://fluoridealert.org/studytracker/35876/
Valdez Jimenez 2017 http://fluoridealert.org/studytracker/27898/
Razdan 2017 http://fluoridealert.org/studytracker/34517/
Mustafa 2018 http://fluoridealert.org/studytracker/31730/
Induswe 2018 http://fluoridealert.org/studytracker/34511
El Sehmawy 2018 https://www.researchgate.net/publication/330369930_The_Auditory_Working_Memory_of_13-15-Year-Old_Adolescents_Using_Water_with_Varying_Fluoride_Concentrations_from_Selected_Public_Primary_Schools_in_North_Kajiado_Sub_County
THERE ARE NOW 64 FLUORIDE-IQ STUDIES reporting a lowering of IQ in humans
and 8 studies that found no effect.
12/17/2017 , The Court issued an Order denying EPA’s Motion to Dismiss. http://fluoridealert.org/wp-content/uploads/tsca.12-21-17.denies-epa-motion-to-dismiss.pdf
The Court noted re. TSCA: “The purpose of citizen petitions is to ensure the EPA does not overlook unreasonable risks to health or the environment. Citizen participation is broadly permitted to ensure that bureaucratic lethargy does not prevent the appropriate administration of this vital authority.”
The Court stated: “The EPA’s interpretation [to dismiss the case] would undermine the purpose of Section 21 by permitting it to deny even a petition that successfully identifies an unreasonable risk of harm to health or to the environment … That a known unreasonable risk could be ignored by the EPA is contrary to the TSCA’s very purpose as well as the statute’s express command that the EPA “shall” promulgate regulations when “an” unreasonable risk is found...The overall purpose of the Toxic Substances Control Act was to set in place a comprehensive, national scheme to protect humans and the environment from the dangers of toxic substances.”
12/30/2018 – The Court rules that the TSCA fluoride case can move forward. "We are leaving no stone unturned. The court will hear the best evidence that’s available on this issue," says Michael Connett, JD, pro bono lead att:orney on the TSCA Fluoride Lawsuit, who provides a detailed update on the video. Running time: 12:48 minutes.
Video URL: https://youtu.be/M9zIiv_E2j0
5/21/2019 – Lead attorney Michael Connett explains the obstacles overcome to keep the TSCA fluoride lawsuit on track. Running time: 3:05 minutes.
Video URL : https://youtu.be/3mIla-67b9s
12/30/2019, the Court dismissed an US Environmental Protection Association (EPA) Motion for Summary Judgement (MSJ) in the Toxic Substances Control Act (TSCA) Fluoride lawsuit, clearing the way for the suit to proceed to trial Monday 4/20/2020. In his finding, “Chen [Judge Edward M. Chen]… suggests that some of the studies showing harm from fluoridation exposure are potentially compelling… He points to a trio of birth cohort epidemiology studies -- known as Bashash 2017, Bashash 2018, and Green 2019 -- as well as a recent study of pregnant women in California, which Chen writes 'raise genuine issues of material fact that make summary judgment for the EPA inappropriate even under the rigorous scientific modes embraced by [TSCA sections] 6(b) and 26.'” - Maria Hegstad, Inside EPA (1/2/2020). https://insideepa.com/share/222564
The MSJ was the latest in a series of unsuccessful EPA motions to derail this citizens' lawsuit on the neurotoxicity of EPA-endorsed fluoride in drinking water.
Running time: 3:33 minutes.
Video URL : https://youtu.be/XdjokYWsNdA
Our lawsuit is the first time in the 43-year history of TSCA, citizens have been successful in bringing a suit to trial under under Section 21 of the act. This is a huge moment for us, and for the environmental movement as a whole. Finally, with experts from both sides presenting under oath, the EPA will be held accountable for decades of failing to protect citizens from the deliberate addition of fluoride, a known neurotoxin, to the public drinking water.
COURT TSCA RULINGS A BOON TO ENVIRONMENTAL ADVOCACY GROUPS
The 12/21/2017 ruling means TSCA law will now be interpreted to allow EPA to be petitioned to regulate single uses of substances, rather than all uses, which was EPA's position. http://fluoridealert.org/wp-content/uploads/tsca.12-21-17.denies-epa-motion-to-dismiss.pdf
This case will set the precedent for how the courts handle future TSCA cases, and will inspire an increase in the filing of citizen petitions and lawsuits by environmental, animal welfare and public health watchdog groups to compel EPA to review the risks of specific commercial chemicals, and to require EPA to enact safer regulations. The weight will no longer be on watchdog groups to convince the EPA of unreasonable risk; now an objective judge will decide, based on an independent review of the evidence.
In response to our success, some industry attorneys have called on industry groups to help defend EPA's position (including lack of action) on regulating toxic chemicals. They understand the precedents being set and what that means for the future of industries dealing in harmful chemicals.
A Bloomberg Environment News article (11/15/2019), written before the Court's 12/30/2019 ruling, explains the significance of our TSCA lawsuit. “...[O]ther groups may see filing a petition with EPA to request a new rule as more direct way to get a chemical regulated or banned than the risk evaluation and risk management process laid out in the statute, said [Erik C. Baptist, a partner with Wiley Rein LLP.], former deputy assistant administrator for law and policy in the Office of Chemical Safety and Pollution Prevention.
“The case is being watched in part for what it could portend for future efforts to regulate chemicals under the Toxic Substances Control Act,” said Wiley Rein LLP's Erik C. Baptist (1/15 /2020).
The legal team working on this lawsuit has taken over a hundred hours of depositions from
experts, including EPA employees, and dealt with multiple motions by the Defendants, Plaintiffs, and the Court. There will be more basic court- and witness-associated expenses.
Donate online: https://donatenow.networkforgood.org/1415005 Or send tax deductible donation checks to Fluoride Action Network, 104 Walnut Street, Binghamton, NY, 13905.
IF THERE ARE ANY QUESTIONS, please call Fluoride Action Network (FAN) National Board Member Dawna Gallagher at 707-547-7006. Thank you.
The Toxic Substances Control Act (TSCA) authorizes EPA to prohibit the “particular use” of a chemical that presents an unreasonable risk to the general public or susceptible subpopulations. TSCA gives EPA the authority to prohibit drinking water additives.
11/22/2016: A Citizens Petition under Section 21 of TSCA was presented to the U.S. EPA requesting that they exercise its authority to prohibit the purposeful addition of fluoridation chemicals to U.S. water supplies. We made this request on the grounds that a large body of animal, cellular, and human research shows that fluoride is neurotoxic at doses within the range now seen in fluoridated communities.
The Petition was submitted by the Fluoride Action Network together with the Food & Water Watch, American Academy of Environmental Medicine, International Academy of Oral Medicine and Toxicology, Moms Against Fluoridation, Organic Consumers Association, and others (see * The Petitioners below).11/ 22/2016: Fluoride Action Network (FAN), together with a coalition of environmental, medical and health groups, collectively known as the “Petitioners” (see * below), served the EPA with a Petition calling on the Agency to ban the addition of fluoridation chemicals to public water supplies due to the risks these chemicals pose to the brain.
The Petition was submitted under Section 21 of the Toxic Substances Control Act (TSCA) because it authorizes EPA to prohibit the “particular use” of a chemical that presents an unreasonable risk to the general public or susceptible subpopulations.
TSCA also gives EPA the authority to prohibit drinking water additives.
2/27/2017: EPA denied the TSCA Section 21 Petition. Read their reasons here. In their decision the EPA claimed, “The petition has not set forth a scientifically defensible basis to conclude that any persons have suffered neurotoxic harm as a result of exposure to fluoride in the U.S. through the purposeful addition of fluoridation chemicals to drinking water or otherwise from fluoride exposure in the U.S.”
FAN et al.’s response to EPA’s rejection of Petition.
9/25/2017: Motion to Dismiss FAN et al. Petition by the Department of Justice, on behalf of the EPA.
10/25/2017: FAN et al. response to EPA’s rejection of Petition.
10/25/2017: Amicus Curiae Brief of the Natural Resources Defense Council and Safer Chemicals, Healthy Families in Support of Neither Party. Their brief against EPA’s basis to dismiss our section 21 Petition focused on EPA’s unacceptable demand: “must evaluate all of a chemical’s conditions of use”
11/30/2017: Hearing with arguments from both parties. Michael Connett, JD, put forward the arguments of why EPA’s Motion to Dismiss should be denied.
12/14/2017: The EPA requests court for “a protective order limiting review to the administrative record and an order striking Plaintiffs’ Jury Demand.”
12/21/2017: Court rules in our favor and denies EPA’s Motion to Dismiss.
1/5/2018: FAN et al. submitted a brief in opposition to EPA’s motion to the 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.
1/5/2018: The National Resource Defense Council (NRDC) submitted an Amicus Curiae Brief in opposition to EPA’s motion to limit petitioner’s right to discovery. They state, “To the contrary, the language, structure, and history of section 21 all support the district court’s consideration of new evidence.” The NRDC involvement supports neither party on the merits of the case.
1/15/2018: The U.S. EPA’s Reply “in Further Support of Motion to Limit Review to Administrative Record.”
1/18/2018: The Defendant, EPA, “Answer” to FAN et al’s “Complaint of Fluoride’s harm submitted April 18, 2017. EPA’s response to each (107) paragraph in FAN et al’s “Complaint” of April 18, 2017, concluding: “Except as expressly admitted or otherwise stated herein, EPA denies each and every allegation in Plaintiff’s Complaint.”
2/7/2018: The Court ruled in our favor: Order Denying Defendant’s (EPA) Motion to Limit Review to the Administrative Record
10/24/2018: The Court orders more discovery in TSCA fluoride suit
9/9/2019: The Defendants’ Motion to enlarge time for limited expert discovery
9/23/2019: The Plaintiffs’ oppose the Defendants’ Motion to extend time for discovery
9/25/2019: The Court denies Defendants’ motion for extension of time
10/9/2019: Plaintiffs’ Notice of Motion & Motion for Summary Judgment and Partial Summary Judgment
10/9/2019: Defendants’ Notice of Motion for Summary Judgment
10/18/2019: Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment
10/18/2019: Defendant’s Opposition to Plaintiffs’ Motion for Summary Judgment and Partial Summary Judgment
10/24/2019: Defendant’s Reply in Support of their Motion for Summary Judgment
12/24/2019: Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment
12/19/2019: Plaintiffs’ Proposed Findings of Fact
12/19/2019: Defendant’s Joint Pretrial Conference Statement
12/20/2019: Plaintiffs’ Trial Brief
12/30/2019: The Court released its Order denying Plaintiffs’ and Defendant’s Motions for Summary Judgment. This means that our case will go forward. Trial is scheduled to run for two weeks beginning April 20, 2020.
4/20/2020: TSCA fluoride lawsuit trial date, U.S. District Court, Northern District of California, San Francisc
- Fluoride Action Network
- Food & Water Watch
- Moms Against Fluoridation
- Organic Consumers Association
- Audrey Adams, a resident of Renton, WA (individually and on behalf of her son),
- Jacqueline Denton, a resident of Asheville, NC (individually and on behalf of her children),
- Valerie Green , a resident of Silver Spring, MD (individually and on behalf of her children),
- Kristin Lavelle, a resident of Berkeley, CA (individually and on behalf of her son),
- Brenda Staudenmaier from Green Bay, WI (individually and on behalf of her children)
Carol Goodwin Blick,
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