On the week of June 15, 2020, the U.S. District Court for the Northern District of California heard from the last three witnesses from the U.S. Environmental Protection Agency (EPA): Dr. Joyce Tsuji, Dr. Ellen Chang and Dr. Tala Henry. Food & Water Watch, Inc. v EPA, Case No. 3: 17-cv-02162-EMC. Dr. Tsuji did not deny that fluoride can be a neurotoxin that is “high enough”. Dr. Tsuji claimed that the scientific literature was too limited to relate fluoride to adverse health effects. Dr. Chang testified of the application of a systematic review of chemical use, a process the EPA had with their first witness, Dr. Kris Thayer, as reported in our June 12, 2020 blog article.
Dr. Henry defended the EPA’s Office of Pollution Prevention and Toxics (OPPT) decision to reject the petition under Section 21 of Plaintiffs. As director of the EPA’s Risk Assessment Division, Dr. Henry believes that “robust science” justifies rejecting the petition. On June 17, 2020, the plaintiffs called Dr. Kathleen Thiessen returned as a refuting witness who testified briefly in response to EPA witnesses ‘criticism of plaintiffs’ methodology in the studies mentioned earlier in the study. According to Dr. Thiessen’s statement, the process moved on to final arguments.
The plaintiffs’ final argument asserted that the EPA could not quantify what levels of fluoride are dangerous to humans. District Judge Edward M. Chen intervened to inquire because tests showing neurotoxicity were well above levels of fluoridation chemicals placed in water. Plaintiffs argued that species differences should be taken into account in animal experiments, as well as differences between humans. Plaintiffs alleged that this lack of data seriously hinders the determination of the level at which the vulnerability can be determined.
The EPA responded in its conclusion that the studies cited by plaintiffs were limited by confusing variables, lack of comparison groups, and double-blind methods. In addition, the EPA found inconsistencies between the plaintiffs’ cited reports. Judge Chen then asked questions about the counterintuitive results of the effects of fluoride exposure in adult rats, but not infants, and wanted to confirm whether this was a by-product of research quality. The EPA replied that there wasn’t enough evidence to defend an IQ-urine connection. Judge Chen also asked if the court could find an unreasonable risk for the chemical used by the EPA without causing neurological effects. The EPA responded that the only standard provided in the Toxic Substances Control Act (TSCA) regarding unreasonable risk is that resulting from an assessment of that risk, not the cause.
After hearing the final arguments, Judge Chen noted that the evidence presented by both parties was not limited to the administrative log and that he allowed both parties to use evidence that was available after plaintiffs filed their petition in 2016. Judge Chen asked the plaintiffs and the EPA to consider how to reach an agreement, including the plaintiffs filing a new petition or the EPA reviewing their rejection of the petition. Pending Judge Chen’s request for additional disclosure, there was no decision on what could possibly be the first half of a forked trial. A status conference is provisionally planned Aug 6, 2020, 10:30 a.m. (PDT).
Co-authored by and Holly M. Williams
© 2020 Bergeson & Campbell, PCNational Law Review, Volume X, Number 174
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