Food & Water Watch, Inc. v. Environmental Protection Agency

Background

The plaintiffs challenged the Environmental Protection Agency’s handling of a petition concerning fluoride under Section 6 of the Toxic Substances Control Act. The case had proceeded to trial. The court stated that the trial evidence focused overwhelmingly on whether fluoride creates a risk of neurodevelopmental harm during critical developmental periods, including pregnancy and infancy. The court identified studies from the MIREC and ELEMENT birth cohorts as important evidence on that issue.

The named plaintiffs did not claim to face the fetal or infant risks addressed by most of the trial evidence. The opinion states that they alleged adult harms including headaches, increased pain sensitivity, and an increased risk of Alzheimer’s disease or dementia. The court found that the plaintiffs had not demonstrated a link between the trial evidence concerning fetal and infant neurodevelopment and the injuries they personally alleged.

Standing concerns

Standing is the constitutional requirement that a plaintiff show a concrete injury, a connection between that injury and the challenged conduct, and a likelihood that the requested relief would address the injury. The court explained that the plaintiffs bore the burden of proving standing at trial by the required evidentiary standard; surviving earlier motions did not eliminate that burden.

The court expressed serious doubt that the plaintiffs had met that burden. It reasoned that even if the court found an unreasonable risk to fetuses or infants, a possible result of the agency rulemaking could be warnings directed to expectant mothers and parents of bottle-fed infants. Such relief, the court stated, would not address the harms alleged by the named plaintiffs. The court also described the evidence supporting headaches as limited and questioned whether it was enough to establish that alleged injury.

Scientific developments and order

The court noted that the plaintiffs’ original 2016 petition to the Environmental Protection Agency relied on evidence different from the evidence presented at trial. The MIREC and ELEMENT studies had been published after the agency denied the petition and after the lawsuit was filed. The court also stated that the National Toxicology Program’s systematic review, or proposed findings for further review, was expected soon, and that other developments could further inform the disputed scientific issues.

For those reasons, the court held the proceedings in abeyance to address the standing issues and to give the agency an opportunity to consider a new petition in light of the newer scientific evidence. The court ordered the parties to report back on November 5, 2020, kept the trial record open, and encouraged the plaintiffs to include supporting data and calculations in the new petition. It also encouraged the agency to consider the petition on its merits. If the agency denied the new petition, the court stated that it would permit amendment of the complaint and consider allowing supplementation of the record. The order did not decide the underlying fluoride-related merits.