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

Background

Food & Water Watch, Inc. (FWW) sued the Environmental Protection Agency (EPA) after EPA denied FWW’s administrative petition requesting rulemaking under the Toxic Substances Control Act. The requested rule would prohibit adding fluoridation chemicals to public drinking-water supplies based on claimed neurotoxic risks.

After fact and expert discovery, the court held a seven-day bench trial involving extensive expert testimony about scientific research on fluoride neurotoxicity. On August 10, 2020, the court stayed the case because it had serious concerns about whether FWW’s plaintiffs had standing—the constitutional requirement that a plaintiff show a concrete, imminent injury connected to the challenged conduct and likely to be addressed by the requested relief. The court also wanted EPA to consider newer scientific studies and expected the publication of a National Toxicology Program review.

The court directed FWW to file a new petition addressing the standing concerns and later scientific developments. FWW filed a supplemental petition, which EPA denied. FWW then moved to lift the stay and take the case out of abeyance. It asked the court to consider updated standing allegations and scientific developments, including the ELEMENT/MIREC analysis, a Spanish study, and a 2022 draft National Toxicology Program review. EPA argued that the case should be decided only on the existing June 2020 trial record.

Reasons for Lifting the Stay

The court found that FWW appeared to have cured the standing problem. It relied in part on allegations that plaintiff Jessica Trader became pregnant in December 2020 and planned to have more children. The court stated that the alleged risk of neurodevelopmental harm to her child and future children was concrete and imminent, that there was a credible connection to EPA’s regulation of fluoride exposure, and that the requested harm would likely be addressed if EPA adopted the requested rule. The court also noted that EPA had not moved again to dismiss for lack of standing and had previously acknowledged that an expectant parent exposed to fluoridated water could satisfy standing requirements.

The court also concluded that the reasons for continuing the stay had weakened. Publication of the final National Toxicology Program review was no longer imminent and was not guaranteed. The court further concluded that scientific developments before any final publication no longer justified waiting, particularly because the relevant studies had undergone additional peer review and a revised May 2022 draft was available.

Ruling

The court GRANTED FWW’s motion to lift the stay and take the case out of abeyance with limited post-trial discovery. It allowed production of the May 2022 draft review under a protective order and permitted expert review of the new scientific evidence. The court did not decide whether the draft would be admissible or what weight it should receive. It stated that the timing of additional expert disclosures and depositions would be addressed later, set a January 10, 2023 status conference, and ordered the parties to file a joint status report beforehand.

The order did not decide whether fluoridation chemicals should ultimately be prohibited or resolve the merits of FWW’s challenge to EPA’s denial.