We are going to trial in April. This will be the first time that any citizen group will go to trial under Section 21 of the Toxic Substances Control Act (TSCA -pronounced like the opera Tosca!). TSCA was passed in 1976 by the U.S. Congress and is administered by the Environmental Protection agency (EPA).

The official name of the lawsuit is: Food and Water Watch et al v. EPA. As most of you know,  Michael Connett, JD, is the lead attorney who has directed this incredible effort from the beginning. He works with the law firm Waters Kraus & Paul in Los Angeles.

On December 30, the Court released an Order Denying Motions for Summary Judgment. This means that our case will go forward. Trial is scheduled to begin on April 20 and will run for two weeks. Read this good article for a broader perspective: Judge Again Rejects EPA’s Motion To End Landmark TSCA Citizen Suit by Maria Hegstad of Inside EPA.

The Background:

PLAINTIFFS: On November 22, 2016, a coalition of non-profit groups (Fluoride Action Network, Food & Water Watch, Moms Against Fluoridation, and others including individuals) submitted a Citizens’ Petition under Section 21 of TSCA to the 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.”

DEFENDANTS: On February 27, 2017, the Environmental Protection Agency denied the petition “primarily because EPA concluded that 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.”

THE LAWSUIT: After EPA denied the Petition, the plaintiffs filed this lawsuit seeking judicial review of EPA’s determination with the United States District Court for the Northern District of California in San Francisco. On December 17, 2017, the court issued an Order denying EPA’s Motion to Dismiss. The court noted,

“The purpose of citizen petitions is to ensure the EPA does not overlook unreasonable risks to health or the environment.” It cited a 1990 case, Env. Def. Fund v. Reilly, “Citizen participation is broadly permitted [under the TSCA] 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 Court cited Rollins Env. Servs. (FS), Inc. v. St. James Parish, 775 F.2d 627, 632 (5th Cir. 1985):

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.

There have been over one hundred hours of depositions from experts for both sides, and multiple motions by the Defendants, Plaintiffs, and the Court – see the timeline. Approximately $400,000 has been raised to fund this lawsuit from the supporters of the Fluoride Action Network. All in all, it has been an incredible effort on all fronts, with everyone helping as much as they could.

In December 2017, the EPA petitioned the court to Limit Review to the Administrative Record . This meant that no new studies would be allowed into the case. The studies would be limited to those contained in the Nov 22, 2016, Petition.

On January 15, 2018, the Court issued an Order Denying Defendant’s (EPA) motion to limit review. 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.

Because of this ruling, many new studies were introduced into the case, including 14 new IQ studies. These IQ studies reported an association of fluoride exposure and reduced IQ in children: Aravind 2016, Jin 2017, Valdez Jimenez 2017, Bashash 2017,  Razdan 2017,  Yu 2018, Pang 2018, Mustafa 2018, Induswe 2018, El Sehmawy 2018, Cui 2018, Wang 2019, Till 2019, and Green 2019. There are now 64 fluoride-IQ studies reporting a lowering of IQ, and 8 studies that found no effect.

During this same time period, three Mother-Offspring fluoride studies, funded by U.S. government agencies, were published. After 75 years of fluoridation in the U.S. and Canada, these studies represent the first time that either country investigated fluoride’s effect on the fetus. They did this by testing the urinary fluoride levels in pregnant women (Bashash  2017, Till 2019, Green 2019) and performing cognitive tests with the offspring. The Till and Green studies reported significant IQ loss at fluoride levels found in women in fluoridated communities in Canada, while the Bashash study, performed in Mexico City, reported similar urinary fluoride levels. There have been 7 Mother-Offspring studies.

Here’s a little on the run up to the trial

November 15: A pre-trial hearing. Read more about this hearing: Federal Judge Asked to Let Fluoride-in-Water Case Go to Trial (1) published by Bloomberg News.

December 19: We submitted 425 Proposed Findings of Fact.

December 19: EPA submitted 31 Undisputed Facts; 2 Disputed Facts; and 6 Legal Disputed Issues, in a Joint Pretrial Conference Statement.